Latvian Connection LLC Shareefa Complex 5th Floor Kuwait City, Kuwait Tel: 001 965 950 50 775

May 24, 2013, 2013 BY REGISTERED EMAIL

General Counsel Government Accounting Office 441 G Street, NW Washington DC 20548 Email: [email protected] Attn: Procurement Law Control Group, Room 1139

RE:

Pre-Award Protest against the Joint Command Regional Contracting Center South RCC-Ss W91B4L-13-T-0127 Base Operation Services FOB Mescall

Dear Procurement Law Group: Latvian Connection General Trading and Construction LLC, ( LC LLC) A Veteran Owned Business, Shareefa Complex, 5th Floor, Kuwait City, Kuwait, tel: [001 965 5012 2074]. Email: [[email protected]] , ( DUNS 534749622 and CAGE SGM59, submits this Pre- Award Protest against the Joint Command Regional Contracting Center South RCC-S which is located at Kandahar Airfield, Afghanistan against Solicitation W91B4L-13-T-0127 that was posted on May 24, 2013 ( Exhibit 1 jcc-I), while the SF1449 solicitation states that the solicitation was effective on May 24, 2013 ( Exhibit 1 ) by a Larry Metcalf, and Matthew McLean.. This solicitation was not linked to www.fbo.gov as required under FAR Part 5.201 which is to enhance participation by Small Business. This site further requires registration to bid which is not required under the Federal Acquisition Regulations. If that were the case, then there should be a Justification and Approval posted describing why there is a restriction on fair and open competition of this solicitation. Latvian Connection LLC pre-award protest is due to this solicitation NOT being posted on the ONLY approved GPE under the FAR and is not linked to www.fbo.gov as required by FAR 5.201. Further, this solicitation has not been posted with a reasonable length of time to respond and has no contact information for the contracting officers and the abbreviated length of time for a response suggests that this solicitation is a single sole source and that the contracting officers are limiting competition and should post a Justification and Approval as to what company they are planning awarding the solicitation to. The solicitation has not appeared until May 24, 2013 and the bid is due in at 4:00 PM Local Time in Afghanistan on May 25 at 12:00 PM local. Latvian Connection LLC is an interested bidder and is able to bid with teaming partners under FAR 9.601.

_____________________________ In accordance with 4 C.F.R. 21.1 (c ) (1), the relevant electronic mail address for this protest is [email protected] ( Representative for the Protester Latvian Connection General Trading and Construction LLC) The Contracting Officers for this procurement are Larry Metcalf, and Matthew McLean Regional Contracting Center South RCC-S, Kandahar, Afghanistan, Building 232, Kandahar Airfield, Afghanistan, APO AE 09355. [email protected]

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The General Counsel U.S. Government Accountability Office May 24, 2013 Per FAR 33.103 Protests to the agency (2) Latvian Connection LLC Shareefa Complex Kuwait City, Kuwait Representative of Protester: Keven Barnes, CEO Email [email protected]

The U.S. Government Accountability Office (GAO) should sustain this protest, stay the performance of the Contract, and direct the Regional Contracting Center South RCC-S to repair the defects in Solicitation W91B4L-13T-0127 and post the solicitation to www.fbo.gov for a reasonable length of time of which less than 24 hours is not reasonable. Reasonable would be 10 or more days according to the JCC-I instruction for Afghanistan. That instruction wrongly claims that solicitations can solicit ONLY local competition. Latvian Connection LLC is a Small Business and can team with any LOCAL competitor, but should not be restricted from unfairly view the solicitation and knowing its true posting date which www.fbo.gov does an excellent job of providing generally. Further, the JCC-I instruction directs that the solicitation will be posted on ASFI (Exhibit 5, Pg 35 ) 5.202 Exceptions (a) Under certain conditions, FAR 5.202(a)(12) authorizes Contracting Officers to synopsize only local sources instead of synopsizing on FBO via ASFI if the proposed contract will be awarded and performed outside the U.S., if there is adequate competition in the geographic area and only local sources will be solicited. Contracting Officers shall utilize the JCCS database to help determine whether adequate local competition can be anticipated. Contracting Officers shall continue to utilize JCCS, bid boards or other local posting sites to solicit competition. (b) The authority to utilize local synopsis methods, other than the GPE, does not preclude the requirement to obtain full and open competition, in accordance with FAR Part 6. Contracting Officers, with certain limited exception, shall promote and provide for full and open competition in soliciting offers and awarding Government contracts. Clearly, the contracting officers are not following the Federal Acquisition Regulations or their own internal instructions. The Federal Acquisition Regulations are what governs Federal Acquisitions and the deviation that these contracting officers are attempting is deceptive, misleading, and is steering this solicitation in a manner that is NOT FULL and OPEN competition and doesnt give Latvian Connection LLC or other Small Business a fair opportunity. These contracting officers have done the without posting any kind of a Justification and Approval. (Exhibit 5, pg 36) 5.207 Preparation and Transmittal of Synopses (a) Review of Public Postings and Congressional Notifications. All public notices to be posted on ASFI, FBO, JCCS, or any Congressional notification, regarding any service, construction or supply procurements in excess of $1M and all required Congressional notifications, shall be approved by the responsible PARC/SCO prior to issuance. In addition, procurements of any value for all services, construction and supplies that could be considered controversial shall be approved in advance of posting. The JCC- I instruction and the Federal Acquisition Regulations state the solicitation should be posted on FBO if greater than $ 1 Mil. If the value of the solicitation is under $ 1 Mil, then under FAR 19 and the Small Business Act, this solicitation should be exclusively reserved for U.S. Small Business. ( Exhibit 20 ) The contracting officers fail to given an order of magnitude for this solicitation further not assisting U.S. Small businesses and restricting competition.

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The General Counsel U.S. Government Accountability Office May 24, 2013 (Exhibit 6, pg 15) http://www.dodig.mil/audit/reports/fy10/10-051.pdf
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In June 2009, the Commission on Wartime Contracting in Iraq and Afghanistan issued an interim report to Congress, At What Cost? Contingency Contracting in Iraq and Afghanistan. The report noted that DCMA was responsible for applying a uniform set of oversight procedures to ensure that DOD contractors are held accountable for failure to comply with laws, regulations, and contract terms and conditions. The Commission noted that inadequate oversight, combined with poorly written statements of work, lack of competition, and contractor inefficiencies have contributed to billions of dollars in wasteful spending.

5.201 General. (a) As required by the Small Business Act (15 U.S.C. 637(e)) and the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies must make notices of proposed contract actions available as specified in paragraph (b) of this section. (b)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202 and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each proposed (i) Contract action meeting the threshold in 5.101(a)(1); (ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or (iii) Contract action in any amount when advantageous to the Government. (2) When transmitting notices using electronic commerce, contracting officers must ensure the notice is forwarded to the GPE. (c) The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities. (d) The GPE may be accessed via the Internet at http://www.fedbizopps.gov. (Exhibit 7, pg 5 ) http://www.dodig.mil/audit/reports/fy09/09-085.pdf

We estimate that 68 percent of NTV contract files did not contain adequate justification for the NTVs and 85 percent did not contain documentation to show that contracting officers appointed contracting officers representatives to oversee contracts. RCC Kabul stated that it will emphasize the requirement to maintain complete contract files during training, even though it is in place at all RCCs. We acknowledge RCC Kabuls effort to appoint contracting officers representatives for lease contracts with a large number of vehicles, but emphasize the importance of performing and documenting acceptance for all vehicles.
Latvian Connection LLC believes that if this solicitation is under SAT and has a value of less than $ 1 Mil, then there should be a Form 2579, Small Business Coordination Record accomplished by these 2 contracting officers. Exhibit 7, which is an IG report on the acquisitions of Non-Tactical vehicles states that DCMA would oversee the requirement that Justifications and Approvals are in the contract folders that only trained contracting officers would be on duty. Such a short-response appears that neither of the controls are in place. The Air Force has a training PowerPoint (Exhibit 8) that clearly shows that reasonable is minimum posting of a solicitation for 10 days. This training aid also shows clearly that the GPE is to be utilized and that if there is any exception to full and open competition, then a Justification and Approval under FAR Part 6 should be posted and certainly be in the contract file. The RCC of Kandahar, Afghanistan appear have gone against all recommendations of past DoDIG Audits in Exhibit 6 and 7, and do not have DCMA giving them any oversight which has left these contracting officers not giving U.S.Small Businesses like Latvian Connection LLC enough time to respond to the solicitation and not able to see this solicitation posted on the GPE ( Exhibit 4)

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The General Counsel U.S. Government Accountability Office May 24, 2013

INTERESTED PARTY STATUS As discussed below LC LLC seeks to compete for the contract that the proposed RFP W91B4L-13-T-0127 (Exhibit 1). Latvian Connection LLC incorporates all the below facts and (Exhibits) into this Interested Party Status section. Further, if this protest is sustained and South RCC-S, Kandahar, Afghanistan, Building 232, Kandahar Airfield, Afghanistan, APO AE 09355 evaluates Latvian Connections timely proposal, LC LLC, a responsible offeror will have a reasonable chance of winning the Contract. Therefore, Latvian Connection LLC is an actual offeror whose direct economic interest is affected 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. TIMELINESS OF THIS PROTEST The Pre-Award protest against the South RCC-S, Kandahar, Afghanistan, Building 232, Kandahar Airfield, Afghanistan, APO AE 09355 is timely if: 21.2 Time for filing.(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. This is a pre-award protest and is filed before the bid due in time of 12:00 PM Local Afghanistan time on May 25, 2013.

FACTUAL GROUNDS OF THE PROTEST 1. The RFP The C3, South RCC-S, Kandahar, Afghanistan issued the RFP on or about May 24. (Exhibit 1) electronically by posting it on the website, https://www.jccs.gov/ The site is not the GPE that is approved by the Federal Acquisition Regulations. The site purports that vendors need to have special registration in order to be a bidder which is not a requirement of the Federal Acquisition Regulations except that a bidder be registered in SAM.gov. The RFP W91B4L-13-T-0127 Base Operation Services FOB Mescall Rental and Service of 50 Port-a-Latrines for 6 months Delivery of Non-Potable water ( 20,000 gallons ) per day for 6 months Removal of 20,000 gallons of gray water per day for 6 months II. Latvian Connection LLCs Proposal

Latvian Connection LLC, a Small Business Administration registered company that is a Veteran-Owned Business and is a company that would like the opportunity to bid in a fair and open competition on this RFP and to be evaluated based on a solicitation that is posted for a reasonable length of time 10 days. The solicitation has now been posted for only 2 days and has not given Latvian Connection LLC a reasonable length of time to make an informed bid. Request of a ruling by the Comptroller General of the United States Latvian Connection LLC specifically requests that a ruling be made about the Pre-Award protest of Solicitation W91B4L13-T-0127 and ask the Joint Command Regional Contracting Center South RCC-S contracting officer to take

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The General Counsel U.S. Government Accountability Office May 24, 2013 corrective action and start posting their solicitations for a reasonable length of time and link their JCCI posting to www.fbo.gov and extend this solicitation to at least 30 calendar days. Failing that, then cancel the solicitation and recompete the solicitation on the GPE that is the only Government Point of Entry recognized by the Federal Acquisition Regulations. 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. LEGAL GROUNDS OF PROTEST I. There is Overwhelming Evidence that the contracting officers are not following the Federal Acquisition Regulations, their own Instruction, the Small Business Act or numerous memos that state that solicitations under the Simplified Acquisition Threshhold - (SAT ) (Exhibit 3) are to be set aside exclusively for Small Business and exclude foreign competition because they do not qualify under the Small Business Act as Small Business. The following Memos ( Exhibit 11 and Exhibit 12) state that the DoD are to follow set-aside statutes and regulations and document the contract file on a FORM 2579. The Federal Acquisition Regulations and training aids make clear that solicitations should be posted for a reasonable length of time on the GPE, www.fbo.gov and these contracting officers have failed to do that. The FAR also states that if other than fair and open competition is going to be conducted, then under FAR Part 6 a Justification and Approval should be posted as to the reasons and who gave such an authorization.

5.203 Publicizing and response time. Whenever agencies are required to publicize notice of proposed contract actions under 5.201, they must proceed as follows: (a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation, or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may (1) Establish a shorter period for issuance of the solicitation; or (2) Use the combined synopsis and solicitation procedure (see 12.603). (b) The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action, (including actions where the notice of proposed contract action and solicitation information is accessible through the GPE), in an amount estimated to be greater than $25,000, but not greater than the simplified acquisition threshold; or each contract action for the acquisition of commercial items in an amount estimated to be greater than $25,000. The contracting officer should consider the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency, when establishing the solicitation response time.

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The General Counsel U.S. Government Accountability Office May 24, 2013 (c) Except for the acquisition of commercial items (see 5.203(b)), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold. (This solicitation was expected to exceed the Simplified Acquisition Threshold) This solicitation is for commercial items, but running a solicitation for under 3 days and to end on a weekend is patently unfair to U.S. Small Business and to Latvian Connection LLC. II. The Small Business Act does apply overseas. ( From a SBA legal opinion November 8, 2012 Exhibit 20) Discount Machinery & Equipment Inc. 70 Comp. Gen 108, B-240525, 90-2 CPD 420 (1990) (emphasis added ). Interestingly, the GAO further states that it believes the Small Business Act applies to agencies located outside of the United States. As evidenced by the language of the Small Business Act, Congress intended the SBA to have broad review authority where an American small business concern is involved. In this regard, the Small Business Act, 15 U.S.C. 637(d)(1), expresses its intended coverage in broad terms, as follows: It is the Policy of the United States that small business concerns . Shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency. ( Emphasis added). The Small Business Act also adopts the Administrative Procedure Acts definition of federal agency; accordingly, the Act applies to each authority of the Government of the United States excluding the Congress. See 5 U.S.C. 551(1)(1988); 15 U.S.C. 632(b). The Act and the COC program it authorizes apply generally to agencies within the executive branch of government. Fry Communications, Inc., 62 Comp.Gen. 164 (1983), 83-1 CPD 109. The Commission is an executive branch agency. See 22 U.S.C. 3611 (1988). With regard specifically to the COC procedures, the Small Business Act again defines its application broadly, stating that SBA determinations of a small business concerns responsibility are binding upon Government procurement officers. See 15 U.S.C. 637(b)(7)(A). Since the Small Business Act evidences an intent to implement a government wide policy American small business interests, and since the Panama Canal Commission is an executive agency within the meaning of the Act, we see no basis to conclude that the Commissions procurements are exempted from the Acts coverage merely because the agency is physically located in the Panama Canal Zone.

III.

SET ASIDES valued under SAT (Exhibit 21 ) Citing from the Fax Memo to the GAO: With respect to acquisition valued above the SAT, both the SBAs regulations and the FAR provide that the contracting officer shall set aside any acquisition over $ 150,000 for small business participation when there is a reasonable expectation that ( 1) (o)ffers will be obtained from at least two responsible small business concerns offering the products of different small business concerns; and (2) (a)ward will be made at fair market prices. 48 C.F.R. 19.502-2(b); 13 C.F.R. 125.2(f). Again, the burden is placed in the contracting officer not the small businss- to determine whether the procuring agency will obtain offers from competitive small businesses. This would at the very least indicate that the Small Business Administration can review the requirement that the Army post all of its solicitations greater than $ 25,000 on FARs only recognized GPE, www.fbo.gov And Latvian Connection LLC would like this GAO level protest to be referred to the Small Business Administration for their review of FAR 5.201 and posting of solicitations..

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The General Counsel U.S. Government Accountability Office May 24, 2013
5.201 General. (a) As required by the Small Business Act (15 U.S.C. 637(e)) and the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies must make notices of proposed contract actions available as specified in paragraph (b) of this section. the contracting officer must transmit a notice to the GPE, for each proposed (i) Contract action meeting the threshold in 5.101(a)(1); (ii) Modification to an existing contract for additional supplies or services that meets the threshold in 5.101(a)(1); or (iii) Contract action in any amount when advantageous to the Government. (2) When transmitting notices using electronic commerce, contracting officers must ensure the notice is forwarded to the GPE. (c) The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities. (d) The GPE may be accessed via the Internet at http://www.fedbizopps.gov.

This solicitation demonstrates that the RCC South, Kandahar Airfield should not be posting solicitations to https://www.jccs.gov/ because they can too easily manipulate their postings as demonstrated by posting unreasonably short ( hours !!! ) and the postings are not date and time stamped. By not having visibility into the GPE, U.S. Small Business es and Latvian Connection LLC are margainalized by these contracting officers and cannot possibly bid in fair and open competition. This one is other than Fair and Open and there should be a justification and approval. However, the Armys lack of planning doesnt constitute URGENT and COMPELLING. 10 U.S.C. 2304(c). The agency may not justify a sole-source award by reason of its own lack of advance planning. 10 U.S.C.A. 2304(f)(4)(A) (West 2010) (formerly codified at 10 U.S.C. 2304(f)(5)(A)). CICA also requires that [t]he head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of subsection (c)(2) or (c)(6) shall request offers from as many potential sources as is practicable under the circumstances. 10 U.S.C. 2304(e). Small Businesses such as Latvian Connection LLC depend upon teaming agreements under FAR 9.601 and www.fbo.gov has an Interested Bidders tab that would help Latvian Connection LLC locate other interested bidders to partner with. The JCC Instruction states that they will post award notices of U.S. businesses, and if they would utilize the GPE, www.fbo.gov as required by the FAR, then Latvian Connection LLC would be able to more easily locate other businesses to team with that were not frightened to list themselves on the Interested Bidders tab. SAM.gov doesnt conceal Afghanistan company information and neither should these contracting officers if the contractor wishes to make themselves available for subcontracting or teaming. The FAR states that the solicitation is published when it appears on the GPE and exhibit 2 shows that the solicitation never appeared on the GPE and it cannot be determined when it appeared. 5.203 Publicizing and response time.

Whenever agencies are required to publicize notice of proposed contract actions under 5.201, they must proceed as follows:

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The General Counsel U.S. Government Accountability Office May 24, 2013

(a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. ( GPE is www.fbo.gov ) of which this solicitation doesnt appear ( Exhibit 2)
www.fbo.gov , FedBizOpps site includes an e-mail notification service that allows vendors to fill out a subscription form in order to receive notices associated with particular procurements. When amendments are issued to posted solicitations, the websites automatically notify registered users of the change by email. The e-mail also contains a link to the location that the user can access to locate and download the amendment. See Lyons Sec. Servs., Inc., B-289974, May 13, 2002, 2002 CPD 84 at 1-2, n.1. USAInfo did not avail itself of the registration opportunity presented by the FedBizOpps Internet site[2]. By these contracting officer not utilizing FBO, Latvian Connection LLC is denied to opportunity to be notified when solicitations appear or are modified.

10 DAYS World Trade Organization Governmment Procurement Agreement

(h) In addition to other requirements set forth in this section, for acquisitions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see Subpart 25.4), the period of time between publication of the synopsis notice and receipt of offers must be no less than 40 days. However, if the acquisition falls within a general category identified in an annual forecast, the availability of which is published, the contracting officer may reduce this time period to as few as 10 days.
Un-Reasonable Length of Time to Apply for and Receive DBA Insurance Quotation It is patently unfair that Latvian Connection LLC to apply for and obtain an insurance quotation in 3 days with the bid due-in on a weekend. The solicitation has left out information needed for the insurance carrier to quote and an example of a DBA Application is Exhibit 10. The solicitation states: (j) Failure to obtain DBA insurance in accordance with FAR Clause 52.228-3 Workers Compensation Insurance (Defense Base Act) and the above requirements, for the prime and all subcontractors at every tier, shall be considered a material breach and could cause this contract to be terminated for default/cause.
Contract award will be dependent upon ability of vendor to purchase DBA insurance (complete 952.228-0002 in your price proposal). (Exhibit 1, pg 77)

IV.

Latvian Connection LLC Has Been Prejudiced

Prejudice requires a reasonable likeliehood that Latvian Connection LLC would have been awarded the Contract if we had been allowed the opportunity of a reasonable amount of time. Such a determination is not susceptible to a precise mathematical calculation; rather, prejudice requires only that but for the agencys 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 Intl. Engg., Inc., B-245448.3, Jan 29, 1992, 92-1 C.P.D. 122. Europe Displays, Inc., B-297099.

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The General Counsel U.S. Government Accountability Office May 24, 2013 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 Question posted by all bidders that refer this RFP. The Answers give to those bidders. The Contract as proposed The Small Business Coordination Record Form 2579

REQUEST FOR RELIEF AND CONCLUSION Latvian Connection LLC respectfully asks the GAO to forward this Protest to the Small Business Administration for their review. Latvian Connection LLC requests that the agency extend the solicitation and run the solicitation on www.fbo.gov for at least 10 days or transfer the solicitation to www.fbo.gov and extend the solicitation 30 days. We also request that Latvian Connection 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).

Respectfully submitted,

KEVEN L BARNES

__________________________ Keven L. Barnes CEO Latvian Connection LLC

Digitally signed by KEVEN L BARNES DN: cn=KEVEN L BARNES, o, ou, email=keven.barnes@lat vianconnectionllc.com, c=US Date: 2013.05.24 22:05:03 +03'00'