B-407391.2 Army Motion to Dismiss Following Pretext Cancellation

1 Keven Barnes From: Schiavetti, Anthony F CPT USARMY HQDA OTJAG (US) [[email protected]] Sent: Wednesday, January 09, 2013 5:48 PM To: '[email protected]' Cc: [email protected]; Mann Eyester, Laura; '[email protected]'; Schiavetti, Anthony F CPT USARMY HQDA OTJAG (US) Subject: B-407391.2 - Protest of the Small Business Administration - Request to Dismiss (UNCLASSIFIED) Attachments: Request to Dismiss Protest - Solicitation Cancelled - B-407391.2.pdf; Attachment A - Cancellation Memo - B-407391.2.pdf Signed By: [email protected] Classification: UNCLASSIFIED Caveats: NONE Mr. Jordan: Attached please find a request to dismiss the protest of the Small Business Administration, B‐407391.2, as the solicitation in question has been cancelled. The Army believes the cancellation of the solicitation renders the protest academic. Attached to this email are two documents: the Army's request, and a statement of facts from the contracting office (Attachment A). Neither this e‐mail nor the attachment contains protected material. Please let me know if you have any questions. Very Respectfully, Anthony F. Schiavetti Captain, U.S. Army Trial Attorney Trial Team III Contract & Fiscal Law Division U.S. Army Legal Services Agency 9275 Gunston Road Fort Belvoir, VA 22060‐5546 E‐mail: [email protected] Tele: (703) 693‐1223 DSN 312‐223‐1223 Fax : (703) 806‐0655 This e‐mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e‐mail, you are notified that any dissemination, distribution or copying of this e‐mail, and any attachments thereto, is strictly prohibited. If you have received this e‐mail in error, please notify me by telephone and permanently delete any printout of the message, the original and any copy of the e‐mail. Attorney‐Client Privilege, Attorney Work Product, Do Not Copy, Do Not Forward, Do Not Release Under FOIA.

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Latvian Connection LLC asserts that the cancellation decision lacked credibility and was a "pretext" to avoid having to make award to Latvian Connection and to "avoid resolution of the protest." Cycad Corp., B-255870, Apr. 12, 1994, 94-1 CPD para. 253 at 5. When a procuring agency takes corrective action in response to a protest, the GAO may recommend reimbursement of protest costs if, based on the circumstances of the case, and it is clear that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. 4 C.F.R. sect. 21.8(e) (2009); AAR Aircraft Servs.--Costs, B-291670.6, May 12, 2003, 2003 CPD para. 100 at 6. A protest is clearly meritorious where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position. Core Tech Int'l Corp.--Costs, B 400047.2, Mar. 11, 2009, 2009 CPD para. 59 at 6. The Agency could not defend the conduct of the contracting officer or her commander on solicitation W912D1-13-R-0003. Camp Arifjan Contracting Officer and it's contracting Commander, LTC Michael Scuteri, cancelled the solicitation as a pretext to avoid resolution of a protest.(197) 197/ Gonzales-McCaulley Inv. Group, Inc.,Comp. Gen. Dec. B-299936.2, 2007 CPD ¶ 192, 49 GC ¶ 451. That cancellation was made within 28 hours of the GAO's request for a Report from the Agency. LTC Colonel Scuteri acted in bad faith against Veteran Owned Business, Latvian Connection LLC for filing a protest about a solicitation, so poorly written, administered, and posted, that the only way the solicitation was going to be corrected after unresponsiveness of his contracting officers and Legal Team, was by the filing of a GAO Level Protest to illicit some professional contracting actions that resembled what is expected under the Federal Acquisition Regulations. This solicitation is an example of the level of Procurement Professionalism originating in 2013 from the 408th Contracting under the leadership of LTC Scuteri and BG Theodore C. Harrison’s that, unlike what BG Harrison states in http://www.army.mil/ecc/, The 408th located at Camp Arifjan, Kuwait are continuing to deliver substandard solicitations and this is just another in a series of unprofessional solicitations that are more designed to mislead, that to comply with FAR Part 5. However, with the continued biased assistance of the GAO, and attorneys like Mr. Crosby, Veteran Owned businesses like Latvian Connection LLC will be prejudiced and mislead by the ongoing contracting irregularities that was identified in both the Gansler report and a report on Camp Arifjan called the Fraud Triangle, by Army MAJ Amanda Flint in what is described as a case study into Procurement Integrity in Contingency Operations. This solicitation demonstrates that the fundamentals of conducting a simple solicitation still have not been achieved 4 years after the creation of the Army Contracting Command, even with that paid assistance of Contractor CACI working in the Camp Arifjan’s contracting office. On Pg 4 of the Congressional Hearing in 2011, Dr. Gansler stated: “ Writing requirements and issuing contracts, clearly these are inherently governmental functions; to acquire services is more difficult and requires high-quality, experienced government contracting and program-management personnel. “ Dr. Gansler also said “Investigation and conviction rates indicate that Army CCOs are involved in the commission of fraud by a significantly higher percentage in comparison to contracting officers in the other Services, despite being the minority of contracting personnel in theater (Gansler et al., 2007). Yet, GAO Protest of W912D1-13-R-0003; a disorganized solicitation where, the wrong solicitation was posted, SF30 Forms were not utilized for amendments and a charade of a site visit was staged only to cancel the solicitation in bad faith, shows that the A

Transcript of B-407391.2 Army Motion to Dismiss Following Pretext Cancellation

Page 1: B-407391.2 Army Motion to Dismiss Following Pretext Cancellation

Keven Barnes

From: Schiavetti, Anthony F CPT USARMY HQDA OTJAG (US) [[email protected]]Sent: Wednesday, January 09, 2013 5:48 PMTo: '[email protected]'Cc: [email protected]; Mann Eyester, Laura; '[email protected]';

Schiavetti, Anthony F CPT USARMY HQDA OTJAG (US)Subject: B-407391.2 - Protest of the Small Business Administration - Request to Dismiss

(UNCLASSIFIED)Attachments: Request to Dismiss Protest - Solicitation Cancelled - B-407391.2.pdf; Attachment A -

Cancellation Memo - B-407391.2.pdfSigned By: [email protected]

Classification: UNCLASSIFIED Caveats: NONE Mr. Jordan: Attached please find a request to dismiss the protest of the Small Business Administration, B‐407391.2, as the solicitation in question has been cancelled. The Army believes the cancellation of the solicitation renders the protest academic. Attached to this email are two documents: the Army's request, and a statement of facts from the contracting office (Attachment A). Neither this e‐mail nor the attachment contains protected material. Please let me know if you have any questions. Very Respectfully, Anthony F. Schiavetti Captain, U.S. Army Trial Attorney Trial Team III Contract & Fiscal Law Division U.S. Army Legal Services Agency 9275 Gunston Road Fort Belvoir, VA 22060‐5546 E‐mail: [email protected] Tele: (703) 693‐1223 DSN 312‐223‐1223 Fax : (703) 806‐0655 This e‐mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e‐mail, you are notified that any dissemination, distribution or copying of this e‐mail, and any attachments thereto, is strictly prohibited. If you have received this e‐mail in error, please notify me by telephone and permanently delete any printout of the message, the original and any copy of the e‐mail. Attorney‐Client Privilege, Attorney Work Product, Do Not Copy, Do Not Forward, Do Not Release Under FOIA.