GAO Suspends Protester–Again–For “Abusive Litigation Practices”

The GAO has suspended a protester for “abusive litigation practices,” for the second time.

Last year, the GAO suspended Latvian Connection LLC from participating in the GAO bid protest process for one year, after the firm filed 150 protests in the course of a single fiscal year.  Now, citing “derogatory and abusive allegations,” among many other concerns, the GAO has re-imposed its suspension–this time, for two years.

The GAO’s decision in Latvian Connection LLC–Reconsideration, B-415043.3 (Nov. 29, 2017) arose from an Air Force solicitation for the construction of relocatable building facilities in Kuwait.  Latvian Connection LLC filed a GAO bid protest, arguing that the Air Force improperly awarded the contract to a foreign entity that is not a U.S. small business and improperly failed to post the solicitation on FedBizOpps.

Latvian Connection filed its protest on August 28, 2017.  As SmallGovCon readers will recall, on August 18, 2016, the GAO took the unusual step of suspending Latvian Connection from filing bid protests for a period of one year, citing the company’s “abusive” protest practices.  Latvian Connection’s protest of the Air Force award was filed just days after the one-year ban expired.

The Air Force filed a request for dismissal, arguing, among other things, that the protest was untimely because it was filed more than a month after Latvian Connection learned of the basis of protest.  The GAO suspended the requirement for the agency to file a formal response to the protest, pending GAO’s decision on the motion to dismiss.  (GAO often suspends the requirement for a formal agency report when it intends to dismiss a protest, to prevent the agency from unnecessarily investing time and resources preparing a formal response.)

The suspension of the agency report didn’t sit well with Latvian Connection.  The company asserted that the suspension of the agency report was “prejudicial,” and threatened that if the GAO attorney did not recuse himself, Latvian Connection would file a complaint with the GAO’s Office of Inspector General.  The GAO attorney did not recuse himself, and Latvian Connection followed through with its threat, filing an OIG complaint requesting that the GAO attorney be investigated.

Shortly thereafter, the GAO dismissed Latvian Connection’s protest as untimely.  Latvian Connection then filed a request for reconsideration of the dismissal decision.

GAO wrote that Latvian Connection’s request for reconsideration, “includes no new information, evidence, or legal argument addressing the timeliness of the protest.”  Instead, “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.”  Under the GAO’s bid protest rules, “[s]imply 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.”  The GAO dismissed the request for reconsideration for these reasons.

But the GAO didn’t stop there.  It wrote, “[w]e also dismiss the request for reconsideration for continuing abuse of GAO’s bid protest process.”  GAO explained that it had previously banned Latvian Connection from filing bid protests for a period of one year, and revealed that when the one-year suspension period was nearing its end “our Office wrote Latvian Connection to remind the firm of a number of important legal requirements for filing and pursuing protests.”

But “[d]espite 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 abusive litigation practices that previously led our Office to suspend Latvian Connection.”  Not mincing words, the GAO said: “Latvian Connection’s pleadings are incoherent, irrelevant, derogatory, and abusive.”

By way of example, GAO wrote that “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 of agency veteran-owned small businesses.” Similarly, “in the instant request for reconsideration, Latvian Connection alleged, without any substantiation, that GAO is covering up white collar criminal activity by DOD and the Air Force.”

GAO wrote that in another protest filed on November 3, “there were several links to internet videos published by Latvian Connection’s CEO.”  The GAO continued:

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.

GAO said that Latvian Connection’s 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.”  The GAO concluded that “Latvian Connection’s protests and litigation practices undermine the effectiveness and integrity of GAO’s bid protest process and constitute an abuse of process.”

For these reasons, the GAO suspended Latvian Connection and its CEO “from filing bid protests at GAO for a period of 2 years from the date of this decision.”  Additionally, GAO wrote, “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.”

As I wrote last year, it’s fair to note that the GAO previously sustained at least three of Latvian Connection’s many protests, including two protests establishing (at least in my eyes) important precedent involving agencies’ responsibilities when using FedBid.  Not all of Latvian Connection’s protests have been frivolous.

That said, there should be no place in the protest process for the sort of tactics the GAO describes in its recent decision.  Like any adversarial process, the protest process demands that litigants treat each other with basic courtesy and decency.  Unwarranted threats, unsupported allegations of malfeasance, and abusive and profane language should have no place in the protest system, even where a protester (like Latvian Connection) isn’t represented by counsel.

Beyond that, GAO is exactly right when it points to the burden on GAO, agency attorneys, and ultimately the taxpayers in responding to frivolous protests.  The American taxpayer, and the public servants who represent them, shouldn’t have to expend resources and time responding to hundreds of protests that never should have been filed in the first place.  Allowing such protests to continue undermines the integrity of the protest system–a system which itself is under attack by those who (incorrectly) assume that most protests are frivolous.

The GAO’s suspension of Latvian Connection demonstrates that statutory changes aren’t required to prevent abuse of the bid protest system. The GAO can, and will, take matters into its own hands in a rare, but appropriate, circumstance.