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4 CFR 21.5 (f): Lack of detailed statement of the legal and factual grounds of protest

Comptroller General - Key Excerpts

New Filing Incoherent Pleadings and Irrelevant Documents

In our prior suspension decision, we described Latvian Connection’s practice of submitting lengthy filings comprised of excerpts cut and pasted from a wide range of documents that are largely irrelevant or fail to address the substantive and threshold issues raised by its protests. See Latvian Connection, LLC, B‑413442, supra, at 4. Latvian Connection continues this practice, even though our Office reminded Latvian Connection on August 18 that protest submissions must be concise and logically arranged. See Aug. 2017 Letter, citing 4 C.F.R. § 21.1(f).

For instance, in response to the Air Force’s request for dismissal of the protest underlying this reconsideration request, Latvian Connection filed a 28‑page statement containing dozens of excerpts, tables, computer screenshots, and pictures, interspersed with commentary (often derogatory) from the protester. See Response at 1‑28. The statement is presented in a confusing array of text sizes, fonts, highlighting, and varying margins, rendering it unintelligible. Id. The response comprised 5 emails with nearly 30 attachments and included: (1) a 2010 notice of intent by the Air Force to award a sole‑source contract for mail porter services; (2) Latvian Connection’s 2010 GAO protest of the same; (3) a 2010 complaint filed by Latvian Connection with the Air Force’s OIG against the contracting officer for proposing the sole‑source award; (4) a May 2017 Department of Justice press release announcing a defense contractor’s agreement to resolve allegations that the contractor overcharged the United States; (5) a 2014 memorandum prepared by the Commander of the U.S. Air Force’s 386th Expeditionary Contracting Squadron at Ali Al Salem Air Base, Kuwait, documenting the unannounced and unescorted access by the chief executive officer (CEO) of Latvian Connection and his subsequent removal from the installation; (6) a June 2017 RFQ for desktop computers and a quotation for same; and (7) several pictures of current and former Supreme Court justices, scattered throughout excerpts from the pleadings, transcript of oral arguments, the Court’s opinion in Kingdomware Technologies v. United States, 136 S. Ct. 1969, 195 L. Ed. 2d 334 (2016), and Latvian Connection’s commentary on the case. See id., Emails & Attachs.

None of these items was relevant to addressing the timeliness of the protest or otherwise showed that Latvian Connection was an interested party. See also Latvian Connection, LLC, B‑413442, supra, at 2 (“In response to the dismissal request, Latvian Connection submitted 25 pages of excerpts cut and pasted from a variety of documents, none of which addresses the agency’s contentions.”). In fact, nothing in the hundreds of pages of documents that Latvian Connection filed in response to the dismissal request in the underlying protest addressed or disputed the fact that Latvian Connection had actual knowledge of its bases of protest over 1 month before it filed the protest. See generally Response, Emails & Attachs.

Submitting Derogatory and Abusive Material

Finally, Latvian Connection’s filings continue to levy derogatory and abusive accusations towards agency and GAO officials, including baseless accusations of criminal activity. For example, in its response to the request for dismissal of the underlying protest, Latvian Connection alleged that by suspending the requirement for the agency report pending resolution of the dismissal request, the GAO attorney assigned to the case was covering up for agency and GAO wrongdoings, and aiding and abetting DOD discrimination against veteran‑owned small businesses. Response at 11. Similarly, in the instant request for reconsideration, Latvian Connection alleges, without any substantiation, that GAO is covering up white collar criminal activity by DOD and the Air Force. See Req. for Recon. at 1. In addition, in protest B‑425353.4 (filed on November 3), there were several links to internet videos published by Latvian Connection’s CEO. See Protest B‑415353.4 at 4. These videos are profane, inappropriate, and threatening. In fact, Latvian Connection routinely threatens to publish videos disparaging agency and GAO officials, or threatens to file complaints against them to state bar officials or agency inspectors general, whenever the protester disagrees with a potential procedural or final decision. Despite Latvian Connection’s apparent belief, such threats will not result in a different answer from our Office. Our forum is not required to tolerate threats, profanity, and such baseless and abusive accusations. Latvian Connection, LLC, B‑413442, supra, at 8.

Suspension

Latvian Connection has continued to routinely and repeatedly file protests that are not legally sound and both GAO and the agencies must divert our collective time and resources to responding. See id. at 7. Latvian Connection’s recent protests continue to place a burden on GAO, the agencies whose procurements were challenged, and the taxpayers, who ultimately bear the costs of the government’s protest-related activities. See id. at 6‑8. In the protests described throughout this and our prior suspension decision, attorneys for the procuring agencies have prepared responses to the protests on the bases that Latvian Connection is not an interested party to challenge these procurements; that its protests are procedurally infirm in one way or another; or that they simply are without merit. Id. at 7. Correspondingly, our Office has expended resources processing Latvian Connection’s filings, reviewing the facts and law, and responding meaningfully and equitably to Latvian Connection’s contentions. Id.; see also supra nn.6, 8, 9, 11, 13 (unpublished decisions cited). Yet, Latvian Connection continues to fail to show it has an actual interest in, or capability to perform, the government contracting opportunities to which it objects. Unfortunately, we also see no evidence that Latvian Connection is prepared to engage constructively on the issues.

We conclude, therefore, that Latvian Connection’s recent protests and litigation practices undermine the effectiveness and integrity of GAO’s bid protest process and constitute an abuse of process. Latvian Connection, LLC, B‑413442, supra, at 7, citing PWC Logistics Servs. Co. KSC(c), B‑310559, Jan 11, 2008, 2008 CPD ¶ 25 at 12. To protect the integrity of our forum, provide for the orderly and expedited resolution of protests, and conserve limited government resources, Latvian Connection and its principal (the firm’s CEO) are hereby suspended from filing bid protests at GAO for a period of 2 years from the date of this decision. Our prior suspension of Latvian Connection was for a 1-year period. Given that we have seen no improvement in the quality and tone of Latvian Connection filings, and that it continues not to engage constructively on the legal and procedural issues raised by its protests (despite our letter of August 18 reminding Latvian Connection of the requirements for invoking GAO’s bid protest forum), we conclude that a 2-year suspension is warranted.

In addition, we are dismissing all protests and requests for reconsideration filed by Latvian Connection that are pending as of the date of this decision. We also give notice that if Latvian Connection continues its abusive litigation practices after the end of this new suspension period, our Office may impose additional sanctions, including permanently barring the firm and its principal from filing protests at GAO.  (Latvian Connection LLC--Reconsideration B-415043.3: Nov 29, 2017)

The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3556. Our role in resolving bid protests is to ensure, in an efficient and expeditious manner, that the statutory requirements for full and open competition are met. Cybermedia Techs., Inc., B-405511.3, Sept. 22, 2011, 2011 CPD ¶ 180 at 2. To achieve this end, our Bid Protest Regulations provide that a protest must include sufficiently supported grounds for protest. 4 C.F.R. § 21.1(c)(4) and (f). In this regard, an unsuccessful offeror's speculation, without more, regarding competing offerors' proposals is generally inadequate. CALIBRE Systems, Inc., B-414301.3, Sept. 20, 2017, 2017 CPD ¶ __ at 6 n.3; Siebe Envtl. Controls, B-275999.2, Feb. 12, 1997, 97-1 CPD ¶ 70 at 2. Similarly, protests challenging an agency's evaluation assessments that are based only on the terms of the solicitation and the protester's comparison of a competitor's presumed approach to the protester's own approach are generally insufficient to satisfy our Bid Protest Regulations. SBG Technology Solutions, Inc., B-410898.9, B-410898.12, July 21, 2016, 2016 CPD ¶ 199 at 4 n.4.

Here, Akima's assertions regarding the alleged unacceptability of CDS's and [redacted]'s proposals are based completely on the terms of the solicitation and Akima's assertion that "any non-incumbent contractor's proposal . . . could not be reasonably found to be technically acceptable." Protester's Opposition to Agency MTD/Supplemental Protest, Oct. 16, 2017, at 2. That is, Akima's protest effectively reflects its view that this procurement should have been conducted as a de facto sole-source acquisition that could only result in an award to Akima. On this record, we conclude that Akima's allegations reflecting its dissatisfaction with the agency's decision to conduct a competitive procurement, without more, are inadequate to support further consideration of its protest.  (Akima Support Operations, LLC B-415401, B-415401.2: Oct 30, 2017)


Next, Applied asserts that the agency improperly "failed to perform a proper price reasonableness analysis." Protest at 8. In this regard, Applied alleges that TK proposed lower labor rates than did Applied, and, therefore, TK will be unable to retain qualified personnel to perform the contract. Id. at 8-9. According to Applied, the agency's alleged failure to analyze the reasonableness of TK's comparatively lower pricing threatens the successful performance of the contract. Protest at 9; Comments at 4.

Applied's argument reflects a lack of understanding as to the distinction between price reasonableness and price realism. The purpose of a price reasonableness review in a competition for the award of a fixed-price contract is to determine whether the prices offered are too high, as opposed to too low. Sterling Servs., Inc., B-291625, B-291626, Jan. 14, 2003, 2003 CPD ¶ 26 at 3; WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 4 n.2. Arguments, such as the one raised by Applied here, that an agency did not perform an appropriate analysis to determine whether prices are too low such that there may be a risk of poor performance concern price realism. C.L. Price & Assocs., Inc., B-403476.2, Jan. 7, 2011, 2011 CPD ¶ 16 at 3; SDV Solutions, Inc., B-402309, Feb. 1, 2010, 2010 CPD ¶ 48 at 4. A price realism evaluation is not required where, as here, a solicitation provides for the award of a fixed-price contract and does not include a requirement for a price realism evaluation. C.L. Price & Assocs., Inc., supra; WorldTravelService, supra, at 3. Accordingly, we dismiss Applied's allegation because it does not constitute a valid basis of protest. See 4 C.F.R. § 21.5(f) (2011); New Orleans Support Servs. LLC, B-404914, June 21, 2011, 2011 CPD ¶ 146 at 3; JSW Maint., Inc., B-400581.5, Sept. 8, 2009, 2009 CPD ¶ 182 at 6-7 n.3; WorldTravelService, supra, at 4 n.2.  (Applied Business Management Solutions Incorporated, LLC, B-405724, December 15, 2011)  (pdf)


The threshold issue presented here is whether CSI timely requested a post-award debriefing, pursuant to FAR sect. 15.506(a)(1), which provides that “[a]n offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with [FAR] [sect.] 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award.” Contrary to CSI’s position, we conclude that CSI’s September 22 e-mail, in which the firm simply asked the agency “if [it] could get all the bid results from the above[‑]subject project,” did not constitute a request for a post-award debriefing pursuant to FAR sect. 15.506(a)(1).

More specifically, in its September 22 e-mail, CSI made no reference to a request for a post-award debriefing--all CSI requested was to “get all the bid results.” While CSI is correct that no specific language is prescribed in the FAR in terms of how to request such a debriefing, we believe that a protester must reasonably communicate to an agency that it is, in fact, seeking a formal debriefing, rather than simply making a general informational request. In our view, CSI’s September 22 e-mail fails to convey anything more than that the firm was seeking unspecified “bid results,” not a formal debriefing to be conducted in accordance with FAR sect. 15.506, which specifies the procedures for the conduct of the post-award debriefing and the information to be provided to offerors during such a debriefing. Moreover, we point out that, in contrast to CSI’s September 22 e-mail, CSI’s letter dated October 8 constituted a clear request for a debriefing where the firm referenced the post-award debriefing provisions in FAR sect. 15.506 and specifically “request[ed] [a] debriefing within 5 days of this letter, to the extent practicable”; however, because CSI’s October 8 debriefing request was not timely made within 3 days after the firm received notice of award, the agency was not obligated to accommodate this untimely request. FAR sect. 15.506(a)(4)(i).

Thus, as a direct result of not timely requesting a post-award debriefing, CSI has failed to state sufficient legal and factual grounds for our Office to consider its protest. In this regard, the jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. sections 3551-3556 (2000 & Supp. IV 2004). Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met. Pacific Photocopy and Research Servs., B‑278698, B-278698.3, Mar. 4, 1998, 98-1 CPD para. 69 at 4. To achieve this end, our Bid Protest Regulations, 4 C.F.R. sect. 21.1(c)(4) and (f) (2008), require that a protest include a detailed statement of the legal and factual grounds for protest. This requirement contemplates that protesters will provide, at a minimum, either allegations or evidence sufficient for this Office to reasonably conclude that a violation of statute or regulation has occurred. See, e.g., View One, Inc., B-400346, July 30, 2008, 2008 CPD para. 142 at 3. Bare assertions that an award was improper, with neither evidence nor explanation of the protester’s theory regarding the alleged violation, are insufficient to satisfy this Office’s requirements. Id.

Here, by CSI’s own admission, as set forth above, in filing its protest “prematurely,” it made “certain assumptions . . . on the basis of belief,” acknowledging that it “still does not have knowledge that the bases it makes [in its] protest are true and accurate,” and that it “makes the allegations based on its good faith belief.” For example, in challenging the evaluation of its own proposal, CSI states that it “was denied information from the [a]gency and cannot determine if it was deemed an acceptable bidder.” Protest at 6. CSI speculates that while its price, including options, was lower than Baldi’s price, “it is possible that the [a]gency determined CSI to be nonacceptable . . . and/or the [a]gency applied a preference to Baldi’s bid price.” Id. CSI concludes that “[w]ithout further information, CSI has no information and cannot provide any detail concerning this basis for protest.” Id.

This example illustrates that CSI’s protest is based on speculation as a direct result of the firm’s failure to timely request a post-award debriefing. On this record, we conclude that CSI’s protest, based on bare allegations, without any supporting evidence for its positions, fails to comply with the requirement that a protest provide a sufficiently detailed statement of the legal and factual grounds for protest. 4 C.F.R. sect. 21.1(c)(4) and (f). Accordingly, CSI’s protest does not warrant further consideration by our Office.

Finally, CSI contends that even if its protest is untimely, we should consider it pursuant to the “good cause” and “significant issue” exceptions to our timeliness rules. 4 C.F.R. sect. 21.2(c). The short answer to CSI’s contention is that these exceptions to our timeliness rules are not applicable in this situation where CSI’s protest is dismissed because it fails to state legally and factually sufficient grounds for protest. In other words, the exceptions to our timeliness rules address those limited circumstances under which we will consider an otherwise untimely protest; these exceptions do not remedy, and ultimately do not provide a basis for our consideration of, a protest that is legally and factually insufficient in the first instance.  (Coffman Specialties, Inc., B-400706.2, November 12, 2008) (pdf)


This request does not constitute a valid basis for protest because it contains no allegation of improper conduct by the agency. Swager Communications, Inc., B-220000.2, Nov. 21, 1985, 85-2 CPD para. 585 at 2, aff'd, B-220000.4, Dec. 23, 1985, 85-2 CPD para. 702. In this regard, our Bid Protest Regulations require that a protest include a detailed statement of the legal and factual grounds for protest, and that the grounds be legally sufficient. 4 C.F.R. sect.sect. 21.1(c)(4), (f) (1999). In other words, the protester must allege that the agency took particular actions and that these actions were contrary to law or regulation. Here, the protester has alleged neither. To the extent that the protester is under the impression that our Office will conduct investigations for the purpose of establishing whether a protester may have a valid basis for protest, it is mistaken. Our Office does not conduct investigations as part of our bid protest function. [5] Stabro Labs., Inc., B-256921, Aug. 8, 1994, 94-2 CPD para. 66 at 5; TSI Microelectronics Corp.--Recon., B-243889.2, Nov. 4, 1991, 91-2 CPD para. 423 at 2.  (Charleston Marine Containers, Inc., B-283393, November 8, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Latvian Connection LLC--Reconsideration B-415043.3: Nov 29, 2017  
Akima Support Operations, LLC B-415401, B-415401.2: Oct 30, 2017  
Applied Business Management Solutions Incorporated, LLC, B-405724, December 15, 2011  (pdf)  
Coffman Specialties, Inc., B-400706.2, November 12, 2008 (pdf)  
Charleston Marine Containers, Inc., B-283393, November 8, 1999  (PDF Version)  
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