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GAO PRE-AWARD PROTEST AGAINST USAF’s SOUTH CAROLINA SHAW AFB’S 386 ECONS FA5703-13-T-0027 FLIGHTLINE FENCE

Latvian Connection LLC Shareefa Complex 5th Floor Kuwait City, Kuwait Tel: 001 965 5012 2072 August 28, 2013

BY REGISTERED EMAIL General Counsel Government Accounting Office 441 G Street, NW Washington DC 20548 Email: [email protected] Attn: Procurement Law Control Group, Room 1139 RE: Pre-Award Protest against the Department of the Air Force, 386 ECONS RFQ FA5703-13-R-0027 for not being a Small Business Set-Aside EXCLUSIVELY for U.S. Registered Small Business. FLIGHT LINE FENCE ($500,000 - $ 1 Mil ) Dear Procurement Law Group: Latvian Connection General Trading and Construction LLC, (“ LC LLC”), Shareefa Complex, 5th Floor, Kuwait City, Kuwait, tel: [001 965 5012 2072]. Email: [[email protected]]¹ , a SAMS Registered company ( DUNS 830587791 and CAGE 5GLB3, with a LOCAL office in the Middle East in Kuwait, DUNS 534749622 and CAGE SGM59 submits this Pre- Award Protest against Shaw AFB’s 386 ECONS’ purchase that is in excess of $ 3,000 in value ( Exhibit 1 ). 386 ECONS is a unit of Shaw AFB’s Air Combat Command, S.C. ( ACC ) (Exhibit 11) and the main contracting office is located at 524 Shaw Dr. Suite 235, Shaw AFB, South Carolina, 29152. First let me start by saying that Latvian Connection LLC is owned and operated by a retired USAF MSgt, who served in Iraq and during September 2001, and has served in the USAF in England, Turkey, Iraq and has been part of the USAF Active Duty, Reserves, and California Air National Guard and served in Iraq with the Defense Contract Management Agency – in total over 28 years. I was in Iraq in 2004, 2005, 2006, and 2007 either working with DCMA or with DoD companies supporting Operation Enduring Freedom and I also served as an Advisor to the Iraqi Ministry of Defense in contracting. So, when I say that the USAF are violating Federal Acquisition Regulations, Laws, and Small Business Statutes and Presidential Memo and their own Memos, I can say that with authority. I have been writing GAO Level Protests to the GAO since 2010 to bring to light the fact that the Army, Air Force, Navy, U.S. State Department are violating the laws of the United States and steering contracts to foreign companies and are not excluding all foreign competition for solicitations as required by law for purchases, construction, and services that are in Contingency Operations Areas (Exhibit 3B and Exhibit 3) The contracting office is conducting this solicitation for 386 ECONs that has a value far in excess of $ 3,000.00, but less than $ 1,000,000 and has a performance at 386 ECONS, Ali Al Salem AB, Kuwait. 386 ECONS is assigned to Shaw AFB. ( Exhibit 11 ) and although in a contingency area, under FAR 2.101 and Exhibit 3B, will not set-aside the solicitation exclusively for Small Business even when directed by the President of the United States Office in a Memo (Exhibit 10); the Air Forces own Policies, Procedures, Training materials, and leadership Memos and their Director even testified to Congress in 2011 (Exhibit 13) that the Air Force were following Small Business Set-Aside statutes including those originating from the ACC, specifically Shaw AFB. That was a bold-faced lie to Congress that should be an embarrassment to the General Officer Corp of the Air Force. MG Masiello is sited in a Memo directing contracting officers to follow set-aside guidelines ( Exhibit 10), but the actions of these contracting officers involved in this protest indicates that this General Officer is not following the Laws, Regulations and directives of the President of the United States Office and in fact the white collar crime being committed is defrauding U.S. Small Businesses of hundreds of millions of dollars. Since 386 ECONS ( Exhibit 11) is located overseas, and the contracting officers claim they are in contingency operations, then FAR 2.101 applies for Small Businesses. (Exhibit 3 and 3B, 3C, and Exhibit 12)

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b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101 Exhibit 16) This GAO Pre-Award protest will address the recently approved and enacted 112th Congress’ SMALL BUSINESS CONTRACTING ACT of 2012 and the fact that there are no exclusions or restrictions to the Act. FAR 19.601 (e) specifically states: (e) Contracting officers, including those located overseas, are required to comply with this subpart for U.S. small business concerns. This Pre-Award protest will show the legal opinions already given by Small Business Administration lawyer, Mrs. Laura Mann Eyester B-407391(Exhibit 20) where the SBA Senior Attorney Mrs. Mann Eyester and SBA Associate General Counsel John W. Klein have stated: 48 C.F.R. § 2.101 The Small Business Act states that small business set-asides are mandatory for the acquisition of supplies and services valued from $ 2,500 to $ 100,000. 15 U.S.C. § 644 (j)(1). However 41 U.S.C. § 431a(a) (1) states that the “Federal Acquisition Regulatory[FAR] Council shall adjust each acquisition-related dollar threshold provided by law, as described in subsection (c) of this section to the baseline constant dollar value of that threshold.” The FAR Council published a final rule on August 30, 2012, which implemented these inflationary adjustments. 75 Fed. Reg. 53129. As a result of 41 U.S.C. § 431a and the final rule, the FAR now states:

(a) Before setting aside an acquisition under this paragraph, refer to 19.203(b). Each acquisition of supplies or services that has an anticipated dollar value exceeding $ 3,000 ($15,000 for acquisitions as described in 13.201(g)(1), but not over $ 150,000 ( $ 300,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. If the contracting officer does not proceed with a small business set-aside and purchases on an unrestricted basis, the contracting officer shall include in the contract file the reason for this unrestricted purchase. If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should exclusively for the small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and are competitive with regard to quality and delivery of the goods and services being purchased. (Exhibit 20 pg 2-3)

The Air Force use AFFARS 9952.900-H904 ( Enhanced Small Business Participation ) ( Exhibit 5 ) is consistently found in Air Force Prime Contracts and stipulates that there is a goal of 20% of all subcontracts be with Small Business – inside or outside the United States. The Air Force Compliance Checklist ( Exhibit 7 at pg 2 )

Public Law 95-907, Federal Acquisition Regulations, AFFARS; Air Force Checklists, Air Force Training Guides; Memos from the President; the Office of the Under Secretary of Defense; the Office of the Department of the Air Force’s MG Wendy Masiello and Joseph M. Dades; 112th Congress; and the legal opinion of the Small Business Administration’s lawyer all support that there is a mandatory set-aside for all solicitations with a value between $ 3,000 and $ 150,000 that does apply to U.S. Air Forces Central (AFCENT), Shaw AFB, and their 386 ECONS contracting office. MG Masiello (USAF) in her position as Deputy Assistant Secretary (Contracting)/ Assistant Secretary (Acquisition) along with Joseph M. Dades (SES) in his position as Director of Small Business Programs for the Air Force state in their memo (Exhibit 10) dated December 13, 2012: On July 11, 2012, the Director of Defense Procurement and Acquisition Policy, USD(AT&L), and the Office of Small Business Programs issued a memo to remind the Department ( AF) of the statutory requirement to automatically set aside contracts for small business when the anticipated contract value is at or below the simplified acquisition threshold

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(SAT) but exceeds the micro-purchase threshold unless the “rule” of 2 is not met, and also requested efforts be taken to ensure this requirement is consistently followed ( Attachment 1 of the Memo Exhibit 10) An internal analysis of the Air Force FY12 contracts awarded to small businesses within the dollar thresholds specified above, indicates a need for improvement in this area (Attachment 2). The findings show the Air Force awarded 67.54% of these contracts to small business. These findings are cause for concern, and you are requested to ascertain whether your organization is falling short of its requirement to exclusively reserve these contracts for small businesses when the rule of two is met in accordance with FAR 19.502, unless an exception applies and is documented by the contracting officer. Automatic small business set-asides for acquisitions between the thresholds identified above are part of our long-term strategy to promote competition in the Air Force marketplace. (Exhibit 10) and (Exhibit 13) MG Masiello’s memo states “The purpose of this memorandum is to remind you of longstanding statutory requirements to set aside contracts for small businesses where the contract value is equal to or less than the simplified acquisition threshold (SAT) unless the "rule of two" is not met. ( Exhibit 10) SAT is $ 1 Million and the USAF know that there are U.S. Small Businesses that can deliver this item easily. Latvian Connection LLC believes also that an Agency overseas does not have the option to not set-aside solicitations when there is set-aside competition in the area of the Middle East. ___________________________________________________________________________________________________________ ¹ In accordance with 4 C.F.R. § 21.1 (c ) (1), the relevant electronic mail address for this protest is [email protected] ( Representative for the Protester Latvian Connection General Trading and Construction LLC) ² The Contracting Officer for this procurement is Brett P. Wray, Department of the Air Force, Shaw AFB, with 386 ECONS email address for the Ali Al Salem Air Base is [email protected], Ali Al Salem Air Base, APO 09855, . Mr. Wray’s telephone number is 011 965 97223896, the contracting the Air Combat Command address is US Central Command Air Force/A4-LGCP, Shaw AFB, S.C. 29152

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Per FAR 33.103 Protests to the agency (2) Latvian Connection LLC Shareefa Complex Kuwait City, Kuwait Representative of Protester: Keven Barnes, CEO Email – [email protected] The U.S. Government Accountability Office (“GAO”) should sustain this protest, stay the performance of the Contract, and direct the Department of the AIR FORCE and 386 ECONS(US Central Command Air Force/A4-LGCP)of Shaw AFB, S.C.’s contingency operation in Abu Dhabi, Ali Al Salem AB to set-aside this solicitation and all requests that have a value between $ 3,000 and $ 1,000,000,000 for U.S. Small Business according to Federal Acquisition Regulations 2.101, 19.601, 19.502-1, 19.502-2, 19.502-4, 19.502-5, PUBLIC LAW 95-907, and the Small Business Contracting Act of 2012, and for overseas, purchases less than $ 1,000,000 set-aside exclusively for Small Business and excluding all non-Small Business entities that do not qualify under as a U.S. Small Business.

INTERESTED PARTY STATUS

As discussed below LC LLC seeks to compete for the contract that the proposed RFQ (Exhibit 1). Latvian Connection LLC incorporates all the below facts and (Exhibits) into this “Interested Party Status” section. Further, if this protest is sustained and Department of the Air Force and 386 ECONS(US Central Command Air Force/A4-LGCP) of Shaw AFB, S.C.’s contingency operation evaluates Latvian Connection’s proposal, then LC LLC, a VOSB, responsible offeror – will have a reasonable chance of winning the Contract. Therefore, Latvian Connection LLC is an actual offeror whose direct economic interest is affected by the award of the Contract and hence, an interested party. 31 U.S.C. § 3551 (2000); FAR 33.101; 4 C.F.R. § 21.0(a)(2006); Designer Assoc. , Inc.,B-293226, FEB 12, 2004 C.P.D. ¶ 114 at 2. This is a Pre-Award Protest.

TIMELINESS OF THIS PROTEST

The Pre-Award protest against the Department of the Air Force and Department of the Air Force and 386 ECONS(US Central Command Air Force/A4-LGCP)of Shaw AFB, S.C.’s contingency operation RFQ, 386 ECONS FA5703-13-R-0027 dated Aug 17, 2013, and being conducted according to www.fbo.gov from Kuwait and is timely if: § 21.2 Time for filing.(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. This is a pre-award protest and the bid due in for this solicitation Sept 5, 2013 at 9:00 AM Eastern Standard Time and the value of this RFQ is valued between $ 500,000 and $ 1,000,000.

Improprieties is an understatement. The United States Air Force has become on par with the United States Army in terms of contracting irregularities and what can only be described as a white-collar crime organization with systemic failures in its leadership from Gen. Mark A. Welsh III, Chief of Staff of the U.S. Air Force, and all the way down to the contracting officer level. U.S. Small Businesses make up 90% of American business and these American businesses are not isolated within the shores of the United States. The United States made it clear in its WTO Government Procurement Agreement that the United States has a set-aside program for U.S. Small Businesses and it is the white collar crimes of the United States Army, Navy, and Air Force with the assistance of the GAO that circumvents the laws of the United States.

What American Small Business did not however measure is to what lengths the Government Audit Agency will go to cover-up the crimes of the United States Army, Navy and Air Force and how, with its rulings against small business, the criminal enterprise of white-collar crime against American Small Businesses continues at the hands of 60 lawyers sitting

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in the GAO offices. The GAO do not even call for investigations on a solicitation posted for just 15 hours that was worth over $ 3 Million ( Exhibits 18 & 18A ) .

The solicitation is defective in that is fails to cite DFARS 252.7013 Requirement for competition opportunity for American Steel Manufacturers, and DFARS 252.236-7001, 7011, 7013 ( Exhibit 3 ) The most egregious defect is that all foreign competition has not been excluded from competition because this is a set-aside that is less than $ 1 Million in value and under FAR 2.101 and Kuwait is a contingency location. (Exhibit 12, Exhibit 3C), DCMA’s list of countries that are contingency operations and the FY14 Contingency budget. The contracting officer has no choice but to insert the clauses that benefit U.S. Business and that is they have neglected to add the following DFARS to their solicitation and to implement the guidance that these DFARS give: DFARS 236.274 ( Exhibit 3, pg 15) Restriction on Acquisition of Steel from Section 108 of the Military Construction and Veterans Affairs Appropriations Act 2009 ( Public Law 110-329, Division E). DFARS 236-7013 ( Exhibit 3, pg 14) Requirement for competition opportunity and manufacturers for American steel producers, fabricators, and manufacturers. PGI 236.273 ( Exhibit 3, pg 18) Construction in Foreign Countries Further, the Air Force’s AFCENT has referred to 386 ECONS as a contingency operation ( Exhibit 11) As a contingency operation, which 386 ECONS is, then the threshold for a set aside according to FAR 2.101, and Exhibit 3B, is $ 1 Million and less purchases of supplies or services.

FACTUAL GROUNDS OF THE PROTEST

1. The RFQ

The Department of the Air Force and 386 ECONS of Shaw AFB, S.C.’s AFCENT ( ACC ) issued the

FA5703-13-R-0027, Flight Line Fence on Aug 17, 2013. (Exhibit 1) and was posted on the GPE, www.fedbizopps.gov .

What is clear is that this is a solicitation that falls in the Small Business Set-Aside range of $ 500,000 to $ 1,000,000 and was not set-aside exclusively for U.S. Small Business concerns. II. Latvian Connection LLC’s Proposal Latvian Connection LLC, a Small Business Administration registered company that is a Veteran-Owned Business (VOSB), should only be competing against other Small Businesses and the solicitation should be marked that the solicitation is exclusively set-aside for U.S. Small Business excluding all businesses that do not qualify under the definitions of a U.S. Registered Small Business. Request of a ruling by the Comptroller General of the United States Latvian Connection LLC (VOSB) specifically requests that the GAO level Pre-Award protest be referred to the Small Business Administration for their review. Latvian Connection LLC also requests that the Comptroller General of the United States ruling be made about the Pre-Award protest of unnumbered Solicitation for Custodial Cleaning and ask the Department of the Air Forces’s Shaw AFB (ARCENT) 386 ECONS to take corrective action and set-aside all purchases for U.S. Registered Small Businesses of which Latvian Connection LLC is one of and has an office located in Kuwait and serving both the Middle East and its home state of California. President Obama’s Executive Office of the President, Office of Management and Budget issued a Memorandum on the subject of a April 25, 2012 meeting of the Small Business Procurement Group (Exhibit 10) and this memo from Joseph G. Jordan, Administrator for Federal Procurement Policy, and Karen G. Mills, Administrator of the Small Business Administration state that there were “immediate steps to ensure small businesses are utilized to the maximum extent possible.” Maximizing Opportunities for Small Businesses under the Simplified Acquisition Threshold “ Pursuant to

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longstanding statutory requirements in the Small Business Administration Act, agencies are required to automatically set aside work for small businesses that is equal to or less that the value of the Simplified Acquisition Threshold (SAT) (generally $ 150,000) unless the contracting officer determines the “rule of two” cannot be met – ie. There is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. There are more than 5 U.S. Small Businesses in the Middle East Region, SMI-USA LLC, Trade Links USA LLC, American General Trading, and Latvian Connection LLC. Mr. Jordan and Ms Mills go on to say that a third-party analysis of the Federal Procurement Data System suggest that a significant amount of work under the SAT is not going to small businesses, including for products and services in industries where small businesses are typically well represented. This suggests that opportunities for small businesses are being lost, and that agencies must take additional steps to consistently apply set-asides in the manner prescribed by law and regulation.

REQUEST FOR HEARING OR CONFERENCE AND PROTECTIVE ORDER

If the issues in this case cannot be resolved on the basis of the documents requested, then Latvian Connection LLC requests a hearing on all of the matters set forth above. 4 C.F.R. § 21.1 (d)(2008). LC LLC does not request a protective order.

LEGAL GROUNDS OF PROTEST

I. There is Overwhelming Evidence of Latvian Connection LLC that Shaw AFB’s 386 ECONS are not automatically setting aside solicitations under SAT for small business and have not done for years. The legal grounds that support this Pre-Award Protest are:

FAR 2.101 (Exhibit 3 and 3C) b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101.) Public Law 95-507, The Small Business Act (Exhibit 3) On October 24, 1978, President Carter signed Public Law 95-507 amending the Small Business Act and the Small Business Investment Act of 1958, making federal procurement contracting more readily accessible to all small businesses. PL 95-507 stipulates that it is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small businesses, small disadvantaged businesses and women-owned businesses. This stipulation also extends to having the The head of each agency is responsible for effectively implementing the small business programs within his agency, including setting and achieving yearly procurement opportunity program (POP) goals for small and small disadvantaged business contracting. FAR 6.203-206 & 19.5/219.5 (Exhibit 2) From the Defense Procurement Acquisition and Policy Defense Pricing DOMESTIC PREFERENCE RESTRICTIONS AFFECTING PURCHASES BY, OR ON BEHALF OF, DoD table,

Competitive procedures, but excluding other than small business, small disadvantaged business concerns, historically Black colleges, and universities, and minority institutions, HUBZone small business concerns, and/or service disabled veteran owned small business concerns. Mr. Wray did not exclude local foreign business from this solicitation for the RFQ FA5703-13-R-0027( Exhibit 1) FAR 19.601 (Exhibit 3)

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(e) Contracting officers, including those located overseas, are required to comply with this subpart for U.S. small business concerns. Air Force Contracting Compliance Inspection Checklist (Exhibit 7 slide 2) The Air Force have a checklist that is used in their procurements

Latvian Connection LLC is one U.S. Small Business in Kuwait and there other others. Trade Links USA, SMI, American General Trading, to name but a few Small Businesses in Kuwait, and as the Senior Attorney from the Small Business Administration stated in her review comments to the GAO for B-407391, Protest of Latvian Connection LLC, Request for Reconsideration, Dec 12, 2012, § 15(j) of the Small Business Act, § 19.502-2 of the Federal Acquisition Regulations. (FAR), and GAO rulings on small business set-asides, all of which state that small business set-asides below the Simplified Acquisition Threshold (SAT) are automatic; in other words, a contracting officer must set-aside the acquisition for small business unless he/she can demonstrate that the agency will not receive at least two competitive offers from small businesses. First, the Small Business Act provides for an automatic set-aside, or reservation, for small businesses for acquisitions valued below SAT as follows: (j)Small business reservation (1) Each contract for the purchase of goods and services that has an anticipated value of greater than $ 2,500 but not greater than $ 100,000 shall be reserved exclusively for small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with the market prices and are competitive with regard to the quality and delivery of the goods or services being purchased. 15 U.S.C. § 644 ( emphasis added). In other words, every acquisition under the SAT is reserved for small businesses unless the contracting officer will be unable to obtain offers from two or more small businesses. Moreover, the statute states that it is up to the contracting officer – not a specific small business advocating for a small business set-aside, not SBA, and not any other entity – to perform adequate market research to be able to make a determination that there are not at least two small businesses capable of performing the requirement. (Exhibit 21) 19.502-1 Requirements for setting aside acquisitions. (Exhibit 8) (a) The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when— (1) It is determined to be in the interest of maintaining or mobilizing the Nation’s full productive capacity, war or national defense programs; or (2) Assuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; and the circumstances described in 19.502-2 or 19.502-3(a) exist. 19.502-2 Total small business set-asides. (Exhibit 3) (a) Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)), but not over $100,000 ($250,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. If the contracting officer does not proceed with the small business set-aside and purchases on an unrestricted basis, the contracting officer shall include in the contract file the reason for this unrestricted purchase. If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside,

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the contracting officer should make an award to that firm. If the contracting officer receives no acceptable offers from responsible small business concerns, the set-aside shall be withdrawn and the requirement, if still valid, shall be resolicited on an unrestricted basis. The small business reservation does not preclude the award of a contract with a value not greater than $100,000 under Subpart 19.8, Contracting with the Small Business Administration, under 19.1007(c), Solicitations equal to or less than the ESB reserve amount, or under 19.1305, HUBZone set-aside procedures. (b) The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns (but see paragraph (c) of this subsection); and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists The Contracting Officer did not follow this Federal Acquisition Regulation, and instead solicited companies that were not qualified as small businesses. The contracting officer did not set-aside the original RFQ for small business. 19.502-5 Insufficient causes for not setting aside an acquisition. (Exhibit 11) None of the following is, in itself, sufficient cause for not setting aside an acquisition: (a) A large percentage of previous contracts for the required item(s) has been placed with small business concerns. (b) The item is on an established planning list under the Industrial Readiness Planning Program. However, a total small business set-aside shall not be made when the list contains a large business Planned Emergency Producer of the item(s) who has conveyed a desire to supply some or all of the required items. (c) The item is on a Qualified Products List. However, a total small business set-aside shall not be made if the list contains the products of large businesses unless none of the large businesses desire to participate in the acquisition. (d) A period of less than 30 days is available for receipt of offers. (e) The acquisition is classified. (f) Small business concerns are already receiving a fair proportion of the agency’s contracts for supplies and services. (g) A class small business set-aside of the item or service has been made by another contracting activity. (h) A “brand name or equal” product description will be used in the solicitation. To date, there has not been a legal reason given by the Air Force’s Deputy Assistant Secretary, MG Wendy Masiello, (USAF), or the Contracting Officer, SSgt Corden as to why Shaw AFB’s 386 ECONS ( ACC ) contracting office refuses to set-aside solicitations under SAT as directed by: President Obama’s Executive Office – Office of Management and Budget Office of the Under Secretary of Defense Air Force Senior Procurement Executives Air Force Small Business Directors Federal Acquisition Regulations Defense Federal Acquisition Regulations Air Force Instructions The Small Business Act and Small Business Act of 2012 AQCMemo_FAR19_11Jul13t ( MG Masiello ) Exhibit 10A dated 11 JUL 2013 19.502-4 Methods of conducting set-asides. (Exhibit 3) (a) Total small business set-asides may be conducted by using simplified acquisition procedures (see Part 13), sealed bids (see Part 14), or competitive proposals (see Part 15). Partial small business set-asides may be conducted using sealed bids (see Part 14), or competitive proposals (see Part 15). Mr. Wray did not exclude local foreign business from this solicitation for the construction of the Flight Line Fence ( Exhibit 1) 15 U.S.C. §644(j): “Each contract for the purchase of goods and services that has an anticipated value greater than $2,500 but not greater than $100,000 (recently raised to $3,000 and $150,000) shall be reserved exclusively for small business concerns.” The interim rule issued by DoD, GSA and NASA provides for the use of small business set-asides on GSA Schedule contracts but only at the discretion of the federal agency. This is unacceptable in particular because when federal

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regulators originally passed a rule at section 8.4 of the FAR exempting GSA Schedule contracts from FAR 19, they exceeded the scope of their authority and went against the original congressional intent of the Small Business Act. The interim rule is nothing more than an egregious attempt on the part of federal regulators to grant federal agencies the authority to decide whether or not to recognize the constitutional rights of small business concerns. Moreover, in 2007 the Small Business Administration offered a legal opinion to the GAO, which stated that, “according to statute and regulations, small business set asides are mandatory for acquisitions valued from $3,000 to $100,000 (upgraded to $150,000 in 2011) and take priority over GSA Schedule contracts. This interpretation is consistent with the declared and unambiguous intent of Congress as it relates to Federal procurement and small Businesses.” In other words, agencies do not have any latitude on the matter. FAR Part 19 also recognizes VOSBs, see FAR § 19.201(a) (“It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.”) (emphasis added), although no separate VOSB program like the set-aside program for SDVOSBs is found in FAR Part 19. Latvian Connection LLC is a VOSB Veteran Owned Small Business as applicable to FAR Part 19 and the Small Business Act. FAR 2.101 (Exhibit 3, and 3C) b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101.) This Command of the U.S. Air Force recognizes that $ 3,000 to $ 150,000 is reserved for Small Businesses – even overseas. FAR 2.101 and Exhibit 3C however raise the SAT to $ 1 Mil. Memo from Office of Under Secretary of Defense, July 12, 2012 (Exhibit 10) From Richard Ginman, Director of Defense Acquisition and Procurement Policy Andre’ J. Grudger, Director of Small Business Programs Subject: Increasing Opportunities for Small Business through Small Business Set-Asides under the Simplified Acquisition Threshold.

Nowhere in the memo is there a mention that there is exclusion overseas. (Exhibit 16 and Exhibit 17) In the legal opinion and analysis of B-407391, SBA’s Senior Attorney stated that the GAO gave deference to the SBA’s interpretation of its statute, citing Chevron, U.S.A., Inc. v Natural Resources Defense Council Inc., 467 U.S. 837(1984)

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and the GAO state that when a statute under consideration creates a program to be administered by the SBA” it is the views of the SBA, rather than [another agency], to which our Office will afford deference.” General Service Administration – Reconsideration, B-406040.2, Oct 4, 2012. In this case, we are interpreting 15 U.S.C. §§ 644(a) & 644(j), which are set forth in § 15 of the Small Business Act. The Small Business Act specifically provides that: “ Small Business Administration’ ( herein referred to as the Administration)…” 15 U.S.C. § 633. Congress granted SBA the authority to administer the Act. As a result, GAO must afford SBA deference over the FAR in creating policy and interpreting the Small Business Act, especially when the two conflict. SBA’s regulations on this issue state the following: (f) Contracting Among Small Business Programs (1) Acquisitions Valued At or Below the Simplified Acquisition Threshold. The contracting officer shall set aside acquisition with an anticipated dollar value exceeding the Micro-Purchase Threshold but not exceeding the Simplified Acquisition Threshold (defined in the FAR at 48 CFR 2.101) for small business concerns when there is reasonable expectation that offers will be obtained from at least two small business concerns that are competitive terms of quality, and delivery and award will be made at fair market prices. The SBA Senior attorney went on to state that 13 C.F.R. § 125.2 (f); 13 C.F.R. §§ 124.503(j), 125.19(b), 126.607(b), 127.503(d), SBA’s regulations require a contracting officer to set-aside all acquisitions valued above or below the simplified acquisition threshold for small businesses, including those awarded and/or performed overseas, if market research indicates that the “rule of two” may be met. As a result, we believe that the FAR is inconsistent with SBA’s regulations and the SBA’s regulations should control. See C & G Excavating, Inc., v U.S, 32 Fed.C1. 231, 239 (1994) (Where there is a conflict between SBA’s regulations on the COC program and the FAR “the SBA’s procedures generally should control, especially considering that the SBA is the agency charged with issuing COC’s, not DoD, GAO, or NASA.”) Hawpe Const., Inc., v U.S. 46 Fed.C1. 571, 582 (2000) (Conflicts between FAR and SBA regulations should be resolved by looking to the SBA’s latest intent on the issue and by relying on the SBA to determine which provision best implements the policies of the agency itself.”) Finally, we note that GAO has addressed this issue already, with respect to the SBA’s COC Program. In Discount Machinery & Equipment. Inc., the Panama Canal Commission believed that FAR § 19.000(b) precluded the SBA’s review of any Federal procurement if the procuring agency is located outside the United States. The GAO stated that: Based on our review of the Small Business Act and the applicable regulations, we find that the location of the Contracting agency has no bearing on the applicability of SBA’s COC program. Nothing in the Small Business Act imposes any geographic limitation regarding a contracting agency’s location which would exempt procurements from the Act’s coverage. Rather the factor which determines whether a small business concern qualifies for SBA’s COC proceedings is the nationality of the business. The SBA Senior attorney went on to cite one more case to show that the Small Business Act does apply overseas. Discount Machinery & Equipment, Inc., 70 Comp. Gen. 108, B-240525, 90-2 CPD ¶ 420 (1990) (Emphasis added ) Interestingly, the GAO further states that it believes the Small Business Administration Act applies to agencies located outside the United States. This legal analysis was given by SBA Senior Attorney Laura Mann Eyester and John Klien, Associate General Counsel for Procurement Law for the SBA. (Exhibit 16 and Exhibit 17) 386 ECON’s Shaw Air Force Base’s contracting office conducted a Total Small Business Set-Aside solicitation for Fire Control Panel Benchstock with a delivery to their Kuwait location and utilized www.fbo.gov and gave the applicable and appropriate FAR clauses. (Exhibit 4 and Exhibit 6) Yet when the contracting officer from 386 ECONS conducts a solicitation from Kuwait, it is not set-aside for U.S. Small Business. The Air Force was conducting a solicitation that is a Section 8a Set-Aside with performance in Kuwait and ONLY overseas locations.( Exhibit 6) Air Force Combat Command Postal Operations Service - FA4889-13-R-0005 – FBO and this too is being conducted on www.fbo.gov . “The locations will be Transit Center Manas, Kyrgyzstan, Ali Al Salem Air Base, Kuwait, and Ali Al Salem Air Base, UAE, Non-U.S.” Section 8a solicitations are set-asides and monthly they

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appear from various agencies in Kuwait and the Middle East, yet, Shaw Air Force Base’s 386 ECONS will not set-aside solicitations according to another part of the same Small Business Act that Section 8a is derived from. Another example of a Set-Aside being conducted was the Thermal Shelters, W15QKN12R0070 ( Exhibit 22A), also known as KEEP, and the construction site is less than 8 miles away from Ali Al Salem Air Base. Oddly enough, the Army keep professing they do not do set-asides and yet this $ 29 Mil project was a Total Small Business set-aside. The Army contracting officer was asked if foreign businesses could participate and the answer was No, but they could team with a U.S. company. ( Exhibit 22) If the Air Force needs some market research into just how many U.S. Firms were interested in that solicitations – the interested bidders list is Exhibits 22B – 22D. In the Agency report, the Army declared they had 16 bids on that solicitation. There are U.S. Firms that are competition aside from local – but it will take a contracting officer and leadership without any Organizational Conflicts of Interest to be on the job and a leadership that isn’t pandering to foreign contractors. While the Army had a slew of convictions 20 miles away – the Air Force were still giving the same contractors contracts sole source and not advertizing any solicitations. ( Exhibit 7B & 7C)

II. Contracting officers are required to set aside for small business all procurements exceeding $150,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns. Federal Acquisition Regulation (FAR) § 19.502-2(b). A partial set-aside must be made if a total set-aside is not appropriate, the requirement is severable into two or more economic production runs or reasonable lots, and one or more small business concerns are expected to have the technical competence and productive capacity to satisfy the set-aside portion at a reasonable price. FAR § 19.502-3(a). FAR § 19.202-2 generally requires contracting officers, before issuing solicitations, to make “every reasonable effort to find additional small business concerns” and to maximize small business participation. The Air Forces Shaw AFB’s 386 ECONS made no effort at all to locate small business concerns in Kuwait. This solicitation exceeds $ 150,000 in value and in fact is $ 500,000 - $ 1 Mil in estimated value.

III. The Air Forces 386 ECONS (US Central Command Air Force/A4-LGCP)of Shaw AFB, S.C. is

Unreasonable

By Contracting Officer, SSgt Corden not conducting a set-aside solicitation as required by the FAR and the Small Business Act, the contracting officer acted unreasonably. This Pre-Award protest clearly demonstrates that this solicitation should first be conducted exclusively for small business set-asides and apply the “rule of two.”

IV. Latvian Connection LLC Has Been Prejudiced

Prejudice requires a reasonable likelihood that Latvian Connection LLC would have been awarded the

Contract if we had been allowed the opportunity had been conducted as a Small Business Set-Aside that fell into the U.S. Dollar value range of $ 500,000 to $ 1,000,000. Such a determination is not susceptible to a precise mathematical calculation; rather, prejudice requires only that “but for the agency’s actions, the protestors would have had a reasonable chance of receiving the award. Anthem Alliance for Health, Inc., TRICARE Management Activity – Reconsideration, B-278189.5, July 13, 1998, 98-2 CPD 66. A reasonable possibility of prejudice therefore is sufficient to sustain the protest. United Int’l. Eng’g., Inc., B-245448.3, Jan 29, 1992, 92-1 C.P.D. ¶ 122. Europe Displays, Inc., B-297099. The fact that another Department of Defense Agency conducted a similar solicitation that, yet conducted that solicitation using the Federal Government’s required GPE for electronic solicitations – www.fbo.gov. ( Exhibit 4 ) to send a message that that solicitation was a total small business set-aside. Latvian Connection LLC has been prejudiced for years by Shaw AFB’s 386 ECONS and the contracting office not setting-aside exclusively for Small Business for purchases under the Simplified Acquisition Threshold has been prejudicing Latvian Connection LLC since it started its Kuwait office in June 2009.

The Small Business Act (Exhibit 23 )

§ 1. This Act may be cited as the “Small Business Act.” § 2. (a) The essence of the American economic system of private enterprise is free competition. Only through full and free competition can free markets, free entry into business, and opportunities for the expression and

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growth of personal initiative and individual judgment be assured. The preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation. Such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed. It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for maintenance, repair, and construction) be placed with small business enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the overall economy of the Nation. (b) (1) It is the declared policy of the Congress that the Federal Government, through the Small Business Administration, acting in cooperation with the Department of Commerce and other relevant State and Federal agencies, should aid and assist small businesses, as defined under this Act, to increase their ability to compete in international markets by— (A) enhancing their ability to export; (B) facilitating technology transfers; (C) enhancing their ability to compete effectively and efficiently against imports; (D) increasing the access of small businesses to long-term capital for the purchase of new plant and equipment used in the production of goods and services involved in international trade; (E) disseminating information concerning State, Federal, and private programs and initiatives to enhance the ability of small businesses to compete in international markets;

Exhibit 12 established that DCMA is performing LOGCAP Operations in Qatar and their determination is that Qatar is a

Contingency area.

1. Small Business Set-Aside. All acquisitions exceeding the micro-purchase threshold but under the simplified

acquisition threshold are reserved exclusively for small business concerns and shall be set aside. FAR 13.003. ( ATTCH 2, Pg 14)

C. Authority to Combine Methods of Contracting.

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1. For acquisitions under the simplified acquisition threshold for other than commercial items, authorized individuals may use any appropriate combination of the procedures in FAR part 13 (simplified acquisitions), Part 14 (sealed bidding), Part 15 (competitive negotiations), Part 35 (research and development contracting), or Part 36 (construction and architect-engineer contracts). FAR 13.003(g)(1).

The proposed budget for FY 13 includes both Contingency Operations and nuclear together (ATTCH 6) and it is

irrelevant that the Air Force claims that the construction for this project is from O & M funds. The Small Business Act

makes it clear that each Agency is to carry out the Act.

I do not find it odd at all that the Army Corp of Engineers puts Simplified Acquisition Threshold and FAR

2.101 in the same table. There is a “marriage” between FAR 2.101 and SAT.

USACE_Acquisition_Instruction_HCA_18MAR13, pg 103

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FAR 2.101 clearly states contingency areas are included and the Air Force trying to list WWII era locations is

again irrelevant to their duties and obligations to fulfill the Small Business Act. Exhibit 12 already

acknowledges that Qatar is a contingency location and so does Shaw Air Force bases explanation that 379

ECONS ( Qatar ) is a contingency location.

REQUEST FOR DOCUMENTS

Latvian Connection LLC requests that the following materials be included in the agency report, pursuant to 4 C.F.R. § 21.1(d)(2008):

• All Market Research regarding Set-Aside Businesses in Oman, Kuwait, Bahrain, UAE, Qatar • Signed DD Form 2579, Small Business Coordination Record • Bid Abstract and Evaluations • All emails, memo for record, regarding this solicitation • All documents that refer or relate to the efforts to obtain competition from U.S. Registered Small

Businesses in Kuwait. • All documents that refer or relate to the efforts to increase competition • All documents that refer or relate to the Contracting Officer’s Market Research • All memos from Mr. Eric Fanning, the Acting Secretary of the Air Force regarding U.S. Small

Business set-asides • All memos from Gen. Mark A. Welsh III, Chief of Staff of the U.S. Air Force regarding U.S. Small

Business Set-Asides • All memos from Gen. Larry O. Spencer, Vice Chief of Staff of the U.S. Air Force regarding U.S.

Small Business Set-Asides • All memos from Lt. Gen. Frank Gorenc, Commander, U.S. Air Forces in Europe, regarding U.S.

Small Business Set-Asides • All memos from Chief Master Sergeant of the Air Force James A. Cody regarding U.S. Small

Business Set-Asides

REQUEST FOR RELIEF AND CONCLUSION

Latvian Connection LLC requests that the agency conduct the RFQ in accordance with the Small Business Act and the Federal Acquisition Regulations and set-aside this, and all future solicitations under SAT for exclusively Small Business. Solicitations with a value exceeding $ 25,000 to be placed on www.fbo.gov and set-aside for the authorized Small Businesses. Should Latvian Connection LLC be the low bidder among the qualified U.S. Small Businesses, then awarded this contract. Latvian Connection LLC requests that the USAF remove the contracting officers involved in not setting aside this solicitation and that the Air Force follow the Rules, Regulations, and guidelines of its own Agency and that of the Small Business Administration regarding set-asides and respect the legal opinion of the SBA Senior Attorney. It would seem that the directives flowing out of the President of the United States office are orders and those orders are not being followed by General Officers, Regular grade officers, and Airman in defiance to set-asides that are to be exclusively reserved for United States Small Business of which Latvian Connection LLC is a Veteran Owned Small Business. Latvian Connection LLC requests the removal of any contracting officer in the Middle East who cannot follow the Federal Acquisition Regulations and is steering contracts by either posting under false contracting offices, failing to post on www.fbo.gov , and by not supporting American Small Businesses like Latvian Connection LLC and by excluding fair and open competition in open disobedience of an Act designed to help American Small Businesses and the American Economy. For the GAO to continue to support the violations of NOT SETTING ASIDE EXCLUSIVELY for SMALL

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BUSINESSES and EXCLUDING ALL FOREIGN COMPETITION FOR PURCHASES with a VALUE under Military Contracting Officers who violation the FAR, and Acts passed by Congress that benefits small businesses should be administratively disciplined until the Federal Acquisition Regulations, Laws, Rules, and the Competition in Contracting Act and Small Business Act are implemented. If this means that contracting activities are given to another non-DoD Agency because the contracting officers of the Department of Defense are failing to follow the Presidential Orders and the will of Congressionally enacted Acts to benefit U.S. Small Businesses and the American economy, then that should be the recommendation of the GAO. The Air Force has acknowledged that is has not met its Small Business Goals for the last 2 years (Exhibit 10) and according to Jodie Lee of Federal News Radio.com in her article on USAID, an agency that operates nearly exclusively overseas, has not met their Small Business Goal for the last 6 years, and one of the reasons is “Agencies are not complying with the law.” The SBA Senior Lawyer has stated that set-aside is mandatory exclusively for Small Business and the FAR and SBA rules do apply overseas. We also request that Latvian Connection LLC be reimbursed the costs of filing and pursuing its protest, including reasonable protest preparation fees. Bid Protest Regulations 4 C.F.R. § 21.8(d)(1) (2010).

Respectfully submitted,

__________________________ Keven L. Barnes

CEO Latvian Connection LLC