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Blog 76 USMC 20150815 GAO PROTEST AGAINST US ARMYs RFQ W912D1-15-R-0014 FOR VIOLATING FAR 15 206

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Solicitation No. W912D1-15-R-0014, issued by the Department of the Army to provide and install sunshade canopies at various sites in Kuwait whose bidding closed on April 20, 2015 at 3:00 PM. Latvian Connection LLC submitted a bid prior to bidding closing. The Contracting Officer, LTC Jeffery Harris has re-opened bidding 8 days after bidding closed and is inviting other than original bidders despite FAR 15.206 restricting bidding to the original bidders only. LTC Harris did not notify Latvian that they had changed the specifications after bidding closed and did not restrict bidding to just the original bidders. This is a Post Award protest.
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  • 1. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES Latvian Connection LLC Shareefa Complex 5th Floor Kuwait City, Kuwait Tel: 011 385 9344 May 3, 2015 BY REGISTERED EMAIL General Counsel Government Accounting Office 441 G Street, NW Washington DC 20548 Email: Protests@gao.gov Attn: Procurement Law Control Group, Room 1139 RE: POST AWARD PROTEST AGAINST DEPT OF THE ARMY, 926TH / 408TH FOR VIOLATING FAR 15.206 AND NOT RESTRICTING BIDDING TO THE ORIGINAL BIDDERS ON RFQ W912D1-15-R-0014 Dear Procurement Law Group: Latvian Connection General Trading and Construction LLC, (“ LC LLC”), Shareefa Complex, 5th Floor, Kuwait City, Kuwait, tel: [011 707 385 9344]. Email: [keven.barnes@LatvianConnectionLLC.com]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 Camp Arifjan’s Contracting Office of ( 926th & 408th )’s solicitation W912D1-15-R-0014 for SUNSHADES. Bidding closed on April 20, 2015 at 3:00 PM. Latvian Connection LLC submitted a bid prior to bidding closing. The Contracting Officer, LTC Jeffery Harris has re-opened bidding 8 days after bidding closed and is inviting other than original bidders despite FAR 15.206 restricting bidding to the original bidders only. LTC Harris did not notify Latvian that they had changed the specifications after bidding closed and did not restrict bidding to just the original bidders. This is a Post Award protest. 15.206 Amending the solicitation. (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. (b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation. (c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition. (d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207(b) and 15.306(e)). (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one _________________________________________________________________________________________________________ In accordance with 4 C.F.R. § 21.1 (c ) (1), the relevant electronic mail address for this protest is , regardless of the stage of the acquisition. keven.barnes@LatvianConnectionLLC.com ( Representative for the Protester Latvian Connection General Trading and Construction LLC) ² The Dept of the Army Contracting Office is 926th / 408th and the contracting officer is MAJ Brian William and his email address is brian.m.williams14.mil@mail.mil and LTC Jeffery Harris and the address is US ARMY CONTRACTING COMMAND SWA – KUWAIT, BLDG T-346, RED BALL EXPRESS RD, Kuwait
  • 2. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES Per FAR 33.103 Protests to the agency (2) Latvian Connection LLC Shareefa Complex Kuwait City, Kuwait Representative of Protester: Keven Barnes, CEO Email – keven.barnes@LatvianConnectionLLC.com The U.S. Government Accountability Office (“GAO”) should sustain this protest, stay the performance of the Contract and rule that the Army has failed to comply with Federal Laws, Statutes and Regulations regarding an Amendment issued after bidding closed. The Army cannot invite additional bidders after bidding closed as this prejudices Latvian Connection LLC that submitted a timely bid. The Army has demonstrated a lack of planning and changed the solicitation specifications 4 different times – once it appears after bidding closed. The Army did not make a mistake and must restrict bidding to the original bidders. EXHIBIT 3 (2) After amending the RFP, the agency must give prospective offerors a reasonable time to modify their proposals, considering the complexity of the acquisition, the agency’s needs, etc. See (3) Timing: FAR 15.206(g). (a) Before established time and date for receipt of proposals, amendment goes to all parties receiving the solicitation. FAR 15.206(b). (b) After established time and date for receipt of proposals, amendment goes to all offerors that have not been eliminated from the competition. FAR 15.206(c). 2. Early “Proposals.” a. FAR 2.101 defines “offer” as a “response to a solicitation,that, if accepted, would bind the offeror to perform the resultant contract.” b. Agencies must evaluate offers that respond to the solicitation, even if the offer pre-dates the solicitation. STG Inc., B-285910, Sept. 20, 2000, 2000 CPD ¶ 155. This competition must be restricted to the original bidders that met the bid due in dead-line of 20 APRIL 2015. INTERESTED PARTY STATUS As discussed below LC LLC seeks to compete for the RFQ. Latvian Connection LLC incorporates all the below facts and (Exhibits) into this “Interested Party Status” section. Latvian Connection LLC is registered in SAM.gov, the ONLY Federal database that is required or recognized by the Federal Acquisition Regulations. Latvian Connection LLC is LOCAL to Kuwait with a DUNS code of 534749622 and CAGE CODE of SGM59. Any diligent and responsible contracting officer would have found Latvian Connection LLC, a Veteran Owned Small Business in Kuwait and also know that there are other U.S. Small Businesses in the world that will compete for this contract. Further, if this protest is sustained and the Department of the Army evaluates Latvian Connection’s timely proposal, then LC LLC, a VOSB, responsible offeror and a U.S. Small Business concern – will have a reasonable chance of winning the Contract. Therefore, Latvian Connection LLC is an actual offeror whose direct economic interest is affected
  • 3. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES 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. The Army have in the original solicitation that there is a preference for U.S. Firms. Exhibit 1 000, pg 16 252.236-7010 Overseas Military Construction-- Preference for United States Firms TIMELINESS OF THIS PROTEST The Post-Award § 21.2 Time for filing. protest against the Department of the Army is timely because it is filed after the bid due in date of 20 APRIL 2015, at 3:00 PM, and in protest to the Army’s attempt to invite offerors that did not submit a timely bid before that bid due in date and time. (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. I. FACTUAL GROUNDS OF THE PROTEST The RFQ The Department of the Army’s Kuwait contracting officer under the direction of the 408th and 926th has issued a solicitation W912D1-15-R-0014 for SUNSHADES. SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS Basis for Award under FAR PART 52.212-2 (a) The Government anticipates awarding a contract resulting from this Request for Quote (RFQ)/Solicitation under FAR Part 12 and 13.5 to the responsible offeror whose quote conforms to the RFQ/Solicitation and whose quote represents the best value to the Government using a lowest price technically acceptable source selection II. LATVIAN CONNECTION LLC’s PROPOSAL Latvian Connection LLC is a Veteran-Owned Business (VOSB), and a U.S. Firm that will receive a 20% preference according to the solicitations FAR clauses inserted. 252.236-7010 Overseas Military Construction-- Preference for United States Firms Latvian Connection LLC submitted a timely bid and was not notified by the contracting officer that he had issued an amendment that reopened bidding, or that he had not restricted bidding to the original bidders. This is patently unfair and prejudices fair competition. Request of a ruling by the Comptroller General of the United States Latvian Connection LLC (VOSB) specifically requests that the GAO level Post-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. We do not request that this protest be expedited.
  • 4. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES 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. III. LEGAL GROUNDS OF PROTEST There is Overwhelming Evidence of Latvian Connection LLC that the Department of the Army issued this amendment after bidding closed; that Latvian had not been eliminated from the competition; and that this amendment should be restricted to the original bidders. EXHIBIT 5, pg 17 RFP can be amended BEFORE or AFTER receipt of proposals if -- Govt changes its requirements or terms and conditions If amended before receipt of proposals Issue to all parties receiving proposals (In FedBizOps) If amended after receipt of proposals Issue to all offerors that have not been eliminated from the competition This seems to be Dept of Defense training, yet the Army does not comply and restrict competition to the original bidders. Under CICA, 41 U.S.C. sect. 253(a)(1)(A), contracting officers have a duty to promote and provide for competition and to provide the most advantageous contract for the government. In their role of promoting and providing for competition, contracting officials must act affirmatively to obtain and safeguard competition; they cannot take a passive approach and remain in a noncompetitive position where they could reasonably take steps to enhance competition. VSE Corp., Johnson Controls World Servs., Inc., B-290452.3 et al., May 23, 2005, 2005 CPD para. 103 at 8; HEROS, Inc., B- 292043, June 9, 2003, 2003 CPD para. 111 at 7; National Aerospace Group, Inc., B-282843, Aug. 30, 1999, 99-2 CPD para. 43 at 8. See also S. Rep. No. 98-50, at 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2174, 2191 (stating that CICA requires agencies to “make an affirmative effort to obtain effective competition”). CICA further provides that under no circumstance may noncompetitive procedures be used due to a lack of advance planning by contracting officials. 41 U.S.C. sect. 253(f)(5)(A); Signals & Sys., Inc., B-288107, Sept. 21, 2001, 2001 CPD para. 168 at 9. Although the requirement for advance planning is not a requirement that such planning be successful or error-free, see Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para. 119, at 8, the advance planning must be reasonable. Signals & Sys., Inc., supra, at 13. Here, we conclude that the agency has failed to comply with the CICA mandate for reasonable advance planning. The Army changed the specifications 4 times before the bids were due in 20 APRIL 2015, it is simply a charade and demonstrates the Army’s lack of Advance planning that they would again change the specifications 8 days after bidding closed, not inform a U.S. Veteran Owned Small Business that the Army had issued an Amendment that once again changed the simple dimensions of the Sunshades.
  • 5. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES It is a systemic problem of the U.S. Army even after the creation of the Army Contracting Command due to massive corruption within the Army contracting officer corp that persists to this very day and is on display weekly on WifCon in Department of Justice briefings about the Army’s ongoing corruption problems, lack of ethics and integrity that are disturbing to a Veteran Owned Business that experience’s Camp Arifjan’s lack of professional contracting officers on a weekly basis. In enacting CICA, Congress explained: “Effective competition is predicated on advance procurement planning and an understanding of the marketplace.” S. Rep. No. 50, 98th Cong., 2d Sess. 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2191. The Senate Report also quoted with approval the following testimony regarding the need for advance planning: Opportunities for obtaining or improving competition have often been lost because of untimely, faulty, or the total lack of advance procurement planning. Noncompetitive procurement or inadequate competition also has resulted many times from the failure to develop specifications . . . . By requiring effective competition, Congress will serve notice on the agencies that they will need to do more than the minimum to comply with the statute. S. Rep. No. 50, 98th Cong., 2d Sess. 19 (1984), reprinted in 1984 U.S.C.C.A.N. 2192. Finally, in interpreting this statutory requirement, our Office has noted that contracting officials have a duty to promote and provide for competition and to obtain the most advantageous contract for the government. Precision Logistics, Inc., B-271429, July 18, 1996, 96-2 CPD ¶ 24 at 5; National Aerospace Group, Inc., B-282843, Aug. 30, 1999, 99-2 CPD ¶ 43. In other words, contracting officials must act affirmatively to obtain and safeguard competition; they cannot take a passive approach and remain in a sole-source situation when they could reasonably take steps to enhance competition. Here, the Army's actions over the past several years fail to comply with CICA's statutory mandate for reasonable advance planning. (HEROS, Inc., B-292043, June 9, 2003) (pdf) 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 to bid. 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. Latvian Connection LLC has been prejudiced by Army from Camp Arifjan since June 2009. Latvian has not been eliminated from the competition. Latvian Connection LLC once again requests that the SBA be invited to comment on the Army’s lack of planning, ever-changing specifications, and inviting bidders that did not meet the original bid due in deadline of April 20, 2015. V. ARMY IS BEING UNREASONABLE By the Army not informing Latvian Connection LLC that the contracting office had issued an amendment, the Army has attempted to remove Latvian Connection LLC from competition by arbitrarily changing the specifications once again in a pretense to issue an amendment. These changing specifications are not a mistake, they are planned
  • 6. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES and calculated and it is a pattern of contracting irregularities of LTC Jeffery Harris and the contracting office that he commands in order to prejudice Latvian Connection LLC. EXHIBIT 5, pg 17 RFP can be amended BEFORE or AFTER receipt of proposals if -- Govt changes its requirements or terms and conditions If amended before receipt of proposals Issue to all parties receiving proposals (In FedBizOps) If amended after receipt of proposals Issue to all offerors that have not been eliminated from the competition 15.206 Amending the solicitation. (a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. (b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation. (c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition. (d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207(b) and 15.306(e)). (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition. 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 Veteran Owned Small Businesses in Kuwait. • Signed DD Form 2579, Small Business Coordination Record for solicitation • Source Selection, Bid Abstract and Evaluations for solicitation • A list of the original offerors that placed a bid before April 20, 2015 at 3:00 PM • A list of all bidders that were eliminated from the competition W912D1-15-R-0014 REQUEST FOR RELIEF AND CONCLUSION The remedy is simple and it is that only the original bidders that placed bids prior to the bid due in time and date of April 20, 2015, may bid on the amended solicitation. No additional bidders should be allowed to have bids evaluated. The Army have violated the Procurement Integrity Act. We also request that LATVIAN CONNECTION LLC 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). Under the Competition in Contracting Act of 1984, the GAO may recommend that protest costs be reimbursed where they find that an agency’s action violated a procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2010). The
  • 7. GAO POST-AWARD PROTEST AGAINST U.S. ARMY’S W912D1-15-R-0014 CAMP ARIFIJAN’S 926TH & 408TH SUNSHADES GAO’s Bid Protest Regulations provide that, where the contracting agency decides to take corrective action in response to a protest, the GAO may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(e) (2010). The GAO has stated that it “does not mean that costs should be reimbursed in every case in which an agen
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