Latvian Connection LLC--Reconsideration

Decision

Matter of:  Latvian Connection LLC--Reconsideration

File:  B‑415043.3

Date:  November 29, 2017

DIGEST

1.  Request for reconsideration of prior decision is dismissed where the protester’s repetition of the arguments it made during our consideration of its protest and disagreement with our decision dismissing the protest as untimely do not meet our standard for reversing or modifying the decision.

2.  Request for reconsideration of prior decision is dismissed for abuse of process and the protester is suspended from protesting for a period of two years where the protester demonstrates a continuing pattern of abusive litigation practices and failure to engage constructively on the substantive and threshold issues raised by its protests.

Latvian Connection LLC, of Healdsburg, California, requests reconsideration of our decision Latvian Connection LLC, B‑415043.2, Sept. 19, 2017 (unpublished decision), in which we dismissed the firm’s protest of the award of a contract under request for quotations (RFQ) No. FA5819-17-T-0001, issued by the Department of the Air Force for construction of relocatable building facilities at Al Jaber Air Base, Kuwait.

We dismiss the request for reconsideration.

BACKGROUND

Latvian Connection filed protest B‑415043.2 on August 28, 2017, arguing that the Air Force improperly awarded the contract to a foreign entity that is not a U.S. small business and failed to post the RFQ on FedBizOpps (FBO).  See Protest at 1‑6.  The solicitation was issued on May 5, 2017, award was made on July 21, and, of significance here, Latvian Connection stated in its protest that it “found out about this solicitation by another vendor on July 24, 2017.”  Id. at 10.

On September 7, the Air Force filed a request for dismissal asserting, among other things, that the protest was untimely because it was filed more than a month after Latvian Connection learned of its bases of protest on July 24 (rather than within the 10‑day period required by GAO’s Bid Protest Regulations).  Req. for Dismissal at 2.[1]  On September 8, the GAO attorney assigned to the protest afforded Latvian Connection an opportunity to file a response to the request for dismissal and suspended the requirement for submission of an agency report while our Office considered the dismissal request.  GAO Email to Parties, Sept. 8, 2017.

Latvian Connection filed a response to the request for dismissal on September 11.  Citing our decision in WorldWide Language Resources, Inc.; SOS Int’l, Ltd., B‑296984 et al., Nov. 14, 2005, 2005 CPD ¶ 206 (discussed below at n.3), Latvian Connection argued that its protest was timely because the Air Force did not post the contracting actions on FBO and therefore the protester did not have constructive notice of the actions that formed its bases of protest.  See Response at 4, 18‑20.  The protester did not address or explain why it did not file within 10 days of learning about the procurement (on July 24).

On that same date (September 11), Latvian Connection separately filed an objection to our decision to suspend the requirement for submission of the agency report.  Latvian Connection maintained that the “[a]gency report is due on the date . . . assigned by the GAO docket and there is nothing in the bid protest rules that [permits GAO to] waive the [report’s due] date.”  See Protester’s Email to Parties, Sept. 11, 2017, at 1.  Latvian Connection asserted that our attorney’s attempt “to waive the GAO Protest rules [w]as prejudicial,” and threatened that if the attorney did not recuse himself from the protest, Latvian Connection would file a complaint against him with GAO’s Office of Inspector General (OIG).  See id. at 3‑4.

The GAO attorney did not recuse himself, and our Office did not reassign the protest or lift the suspension of the agency report.  On September 12, Latvian Connection filed an OIG complaint requesting an investigation of the attorney “for waiving the Agency Report prematurely against the Bid Protest Rules.”  Latvian Connection Email to GAO & OIG, Sept. 12, 2017.[2]

On September 19, our Office dismissed the protest as untimely because under our timeliness rules, Latvian Connection was required to file the protest no later than August 3, that is, 10 days after it learned its bases of protest on July 24.  Latvian Connection, LLC, B‑415043.2, supra, citing 4 C.F.R. § 21.2(a)(2).  Latvian Connection filed on August 28, more than 4 weeks after it learned of the solicitation.  Our decision explained that neither Worldwide Language nor the doctrine of constructive notice was applicable, because Latvian Connection, by its own account, had actual knowledge of its basis of protest on July 24.[3]  Id.

Latvian Connection filed the instant request for reconsideration on September 21.

DISCUSSION

As discussed below, we dismiss the request for reconsideration because it fails to meet our standard for reversing or modifying a prior decision.  We also dismiss the request due to Latvian Connection’s frequent and ongoing abuse of GAO’s bid protest process.  In addition, for reasons set forth below, we conclude that Latvian Connection and its principal again should be suspended from filing bid protests at GAO.

Request for Reconsideration

Latvian Connection requests that we reconsider our decision dismissing protest B‑415043.2 because, according to Latvian Connection, the decision does not comply with prior GAO decisions regarding constructive notice.  See Req. for Recon. at 1.  The request for reconsideration is largely comprised of lengthy excerpts from our decision in WorldWide Language, interspersed with derogatory and abusive remarks towards procuring agency officials, the GAO attorney assigned to the protest, and GAO generally.[4]  See id. at 1‑6.

The request for reconsideration otherwise includes no new information, evidence, or legal argument addressing the timeliness of the protest with respect to Latvian Connection’s actual knowledge of its bases of protest.  In fact, Latvian Connection fails, entirely, to address our explanation that neither Worldwide Language nor the doctrine of constructive notice was applicable here.  Rather, the request only repeats the arguments that Latvian Connection made during the protest, and expresses disagreement with our decision to dismiss the protest as untimely.[5]

To obtain reconsideration under our Bid Protest Regulations, the requesting party must set out the factual and legal grounds upon which reversal or modification of the decision is deemed warranted, specifying any errors of law made or information not previously considered.[6]  Simply repeating arguments made during our consideration of the original protest and disagreeing with our prior decision does not meet our standard for reversing or modifying that decision.  See id.  Accordingly, we dismiss the request.  4 C.F.R. § 21.14(c).

Furthermore, while we dismissed the underlying protest as untimely, the protest also failed to set forth a detailed statement of the legal and factual grounds of protest, as required by our regulations.  Specifically, in its response to the dismissal request, Latvian Connection did not dispute (or even answer) the Air Force’s assertion that section 5.202(a)(12) of the FAR provided an exception from posting the contracting action on FBO.  Compare Req. for Dismissal at 2 with Response at 17.  Moreover, the protest did not address the FAR exception.  Protest at 1‑6.  We have previously explained to Latvian Connection that FAR section 5.202(a)(12) provides a specific exception to the general requirement to post procurements on FBO, for a contract action by a defense agency to be made and performed outside the United States and its outlying areas, and where only local sources will be solicited.[7]  Latvian Connection Gen. Trading & Constr., LLC, B‑409442, Apr. 25, 2014, 2014 CPD ¶ 135 at 2.  Our Office has also reminded Latvian Connection frequently--most recently less than 2 weeks before it filed the underlying protest here--that a protest must include a detailed statement of its legal and factual grounds, and that protest grounds must be legally sufficient.  GAO Letter to Latvian Connection, Aug. 18, 2017 (Aug. 2017 Letter), citing 4 C.F.R. §§ 21.1(c)(4), (f).

Abuse of Process

We also dismiss the request for reconsideration for continuing abuse of GAO’s bid protest process.  On August 18, 2016, our Office dismissed a protest filed by Latvian Connection for abuse of process and suspended the firm and its principal from filing protests for a 1‑year period.  Latvian Connection, LLC, B‑413442, Aug. 18, 2016, 2016 CPD ¶ 194.  We took these actions because, despite filing hundreds of protests in recent years, Latvian Connection had repeatedly failed to demonstrate that it was capable of, or interested in, performing the solicited requirements, and repeatedly failed to engage constructively on the substantive and threshold issues raised by its protests.  Id. at 2‑4, 6‑8.  As described in that decision, in the overwhelming majority of Latvian Connection’s protests, the record demonstrated that the firm either was not an interested party to challenge the procuring agency’s actions, or raised challenges that were procedurally infirm or lacked merit.  Id. at 6.

At the end of the prior suspension period, on August 18, 2017, our Office wrote Latvian Connection to remind the firm of a number of important legal requirements for filing and pursuing protests under the Competition in Contracting Act of 1984 (CICA) and GAO regulations.  Specifically, we reminded Latvian Connection that a protester must demonstrate that it is an interested party to pursue a protest and that our regulations contain strict rules for the timely submission of protests.  Aug. 2017 Letter, citing 31 U.S.C. § 3551(1), 4 C.F.R. §§ 21.0(a)(1), 21.2.  We also again reminded Latvian Connection that:  a protest must include a detailed statement of the legal and factual grounds for the protest; protest submissions must be concise and logically arranged; and protest grounds must be legally sufficient.  Id., citing 4 C.F.R. §§ 21.1(c)(4), (f).  In addition, we directed Latvian Connection to resources that are available to protesters on our website, http://www.gao.gov/legal/bid-protests, including our publication, Bid Protests at GAO: A Descriptive Guide.  Our letter recommended that if Latvian Connection considered filing a protest, that the firm consider the legal requirements and available resources and engage substantively on the protest issues raised.

Despite the prior suspension, and despite our August 18 letter, Latvian Connection’s request for reconsideration, as well as its underlying protest and other recent filings, exhibit the same pattern of the abusive litigation practices that previously led our Office to suspend Latvian Connection.  These practices include filing protests that are either untimely or fail to demonstrate that Latvian Connection is an interested party to pursue the protests (or both), and submitting pleadings that fail to engage or address the responses prepared by procuring agencies to explain their actions or dismissal requests.  Latvian Connection’s pleadings are incoherent, irrelevant, derogatory, and abusive.

Filing Untimely Protests

The underlying protest here was filed over 1 month after Latvian Connection learned its bases of protest.  Our Office has dismissed numerous untimely protests where Latvian Connection claimed that it lacked constructive notice of the challenged contracting actions, even though the record demonstrated that the protester had actual knowledge of those actions.  We have also previously explained to Latvian Connection the distinction between constructive notice and actual notice (or actual knowledge).  In countless decisions, our Office has also explained to Latvian Connection that our regulations contain strict rules for the timely submission of a protest, and require that a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew or should have known the basis for protest, whichever is earlier.[8]

For example, on May 4, 2016, we dismissed an untimely protest filed by Latvian Connection where the record showed that not only was notice of the solicitation published on FBO, contrary to the protester’s claim that it lacked constructive notice, but Latvian Connection had actual notice of the solicitation’s contents, as evidenced by the fact that Latvian Connection had protested the terms of the solicitation 7 months earlier and even included with that protest a copy of the FBO notice.  Latvian Connection, LLC, B‑412364.4, May 4, 2016, citing Latvian Connection, LLC, B‑412364, B‑412364.2, Dec. 21, 2015 (unpublished decisions).  Similarly, on April 12, 2016, our Office dismissed a protest as untimely because--contrary to Latvian Connection’s claim that it lacked constructive notice of a contract awarded more than 2 years earlier--the record showed that Latvian Connection in fact had actual notice of the award as evidenced by a protest that it filed nearly 8 months earlier (on July 31, 2015) challenging a delivery order issued under the contract.[9]

Furthermore, contrary to Latvian Connection’s assertion that our Office has not complied with prior GAO decisions regarding constructive notice, in 2015 we found that Latvian Connection filed a timely pre‑award protest where the firm lacked constructive notice of an amendment to a request for proposals (RFP), and only received actual notice of the amendment after GAO office hours.  See Latvian Connection, LLC, B‑411489, Aug. 11, 2015, 2015 CPD ¶ 251, at 4‑5 (protester’s contention that it did not have a reasonable amount of time to respond to RFP amendment is sustained where the record shows that the protester did not have constructive notice of the issuance of the amendment, and did not learn of the amendment until less than 2 business days prior to the revised closing date).  In that case, like Worldwide Language discussed above, we disagreed with the agency’s argument that posting the RFP amendment on the Army Single Face to Industry website gave Latvian Connection constructive knowledge of the amendment, because that website is not the designated GPE.[10]  See id. at 5.

In short, Latvian Connection’s continued assertion that lack of constructive notice provides a blanket exception to our timeliness rules, and permits the filing of protests months or even years later, has no legal merit.

Failure to Demonstrate that Latvian Connection is an Interested Party

As discussed in our prior suspension decision, in the overwhelming majority of protests that Latvian Connection had filed up to that point, the record demonstrated that the firm was not an interested party to challenge the procuring agency’s actions.  Latvian Connection, LLC, B‑413442, supra, at 6.  We explained that, despite the wide‑ranging list of acquisitions protested by Latvian Connection, publically available data showed that the firm has been awarded only one government contract--in 2011 the Army awarded Latvian Connection a $113,000 contract for miscellaneous medical supplies and subsequently terminated the contract.  Id. at 3.

Despite filing 10 protests since August 18, 2017, Latvian Connection’s interested party status to pursue any of these protests remains in question.[11]  As of the date of this decision, the Federal Procurement Data System and USAspending.gov continue to show that Latvian Connection has not received any government contracts or orders since the 2011 contract that was terminated.  https://www.fpds.gov/ezsearch/ fpdsportal?IndexName=awardfull&templateName=1.4.4&s=FPDSNG.COM&q=Latvian+Connection; https://www.usaspending.gov/Pages/AdvancedSearch.aspx?k=Latvian %20Connection (last visited Nov. 29, 2017).

In the underlying protest, for example, the Air Force also requested that we dismiss the protest on the basis that Latvian Connection was not an interested party.[12]  Req. for Dismissal at 3‑4.  The extent of the protester’s response to the Air Force’s assertion was to state that Latvian Connection “is an interested bidder and had we had the opportunity to respond to a sources sought [notice] we would have submitted a bid, as allowed under FAR [section] 9.601 teaming agreements.”  Response at 22; see Protest at 7 (“Latvian Connection LLC is allowed under FAR 9.601 to TEAM . . . .”).  Latvian Connection did not otherwise address the Air Force’s assertions that the protester:  (1) provided no evidence to substantiate its interested party status; (2) failed to demonstrate any intent to submit a quotation; and (3) failed to establish that Latvian Connection has the ability, capacity, or experience to construct RLBs.  Compare Req. for Dismissal at 3‑4 with Response at 1‑28.  Latvian Connection also failed to address the Air Force’s assertions that the System for Award Management website, the Small Business Administration’s Dynamic Small Business Search Database, and Latvian Connection’s own website provided no indication that the firm was engaged in the business of constructing RLBs.  See id.

Similarly, in B‑415144 (filed August 23), the Army requested that our Office dismiss the protest on the basis that Latvian Connection failed to demonstrate that it was an interested party to challenge the solicitation.  See Latvian Connection, B‑415144, Sept. 29, 2017 (unpublished decision).  While Latvian Connection submitted a response to the dismissal request, it failed to address the protester’s intention to compete under the solicitation, or demonstrate Latvian Connection’s experience competing for or performing similar requirements.  We dismissed protest B‑415144 on September 29 because Latvian Connection failed to show that it was an interested party.  Id.

Our Office has advised Latvian Connection, in dozens of decisions and again at the end of its prior suspension period, that where a protester’s interested party status is in question, the protester may not simply assert that it is an interested party.[13]  Rather, the protester generally must show that it intends to compete under the solicitation and, where appropriate, that it has the necessary capacity and experience to compete; that it has competed in the past on similar projects; or that it has performed similar projects in the past.  See id.  Repeatedly, Latvian Connection files a protest but fails to establish that it can meet the definition of an interested party.  Absent status as an interested party, our Office should not, and will not, permit Latvian Connection to interrupt federal procurements.

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.[14]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.[15]  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.[16]  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.

The request for reconsideration is dismissed.

Susan A. Poling
General Counsel

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