B-225485 DEC 3, 1986, 66 COMP.GEN. 113

B-225485: Dec 3, 1986

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THAT IT BELIEVES TIMELY FILING HERE IS NECESSARY TO PRESERVE ITS RIGHTS IF THE GSBCA DETERMINES THAT IT LACKS JURISDICTION. WAS THE FILED WITH US WHEN. GSBCA WAS HELD TO BE WITHOUT JURISDICTION IN THE MATTER. DOES NOT PROVIDE ANY BASIS FOR OUR ALLOWING A PROTESTER TO FILE WITH BOTH THE GSBCA AND OUR OFFICE AND HAVE CONSIDERATION OF THE LATTER PROTEST TEMPORARILY SUSPENDED WHILE THE GSBCA DECIDES WHETHER TO EXERCISE JURISDICTION. CICA CONTEMPLATES THE PROTESTER'S MAKING A FINAL ELECTION BETWEEN THIS OFFICE AND THE GSBCA WHEN BOTH FORUMS ARE AVAILABLE. 85-2 CPD 580 (THE CLEAR INTENT OF THE BROOKS ACT IS TO PROVIDE FOR AN ELECTION OF MUTUALLY EXCLUSIVE FORUMS). IT IS SIMPLY NOT PERMISSIBLE UNDER CICA FOR A PARTY TO FILE A PROTEST WITH BOTH FORUMS.

B-225485 DEC 3, 1986, 66 COMP.GEN. 113

PROCUREMENT - BID PROTEST - FORUM ELECTION - FINALITY PROTESTER THAT HAS FILED WITH THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS (GSBCA) MAY NOT ELECT TO FILE THE SAME PROTEST WITH THE GENERAL ACCOUNTING OFFICE SOLELY TO PRESERVE THE TIMELINESS OF THE LATTER PROTEST IN THE EVENT THAT THE GSBCA DETERMINED THAT IT LACKS JURISDICTION. THE COMPETITION IN CONTRACTING ACT ENVISIONS MUTUALLY EXCLUSIVE FORUMS.

TAB, INCORPORATED:

TAB, INCORPORATED PROTESTS THE AWARD OF A CONTRACT FOR MANAGEMENT OF A COMPUTER FACILITY IN WASHINGTON, D.C. UNDER SOLICITATION NO. S0278005, ISSUED BY THE BUREAU OF MINES, DEPARTMENT OF THE INTERIOR. THE PROTESTER, WHICH HAS FILED A PROTEST ON THE SAME MATTER WITH THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS (GSBCA), STATES THAT IT DOES NOT INTEND TO ELECT OUR OFFICE AS A FORUM, BUT THAT IT BELIEVES TIMELY FILING HERE IS NECESSARY TO PRESERVE ITS RIGHTS IF THE GSBCA DETERMINES THAT IT LACKS JURISDICTION.

WE DISMISS THE PROTEST.

THE BUREAU OF MINES AWARDED THE CONTRACT IN QUESTION ON NOVEMBER 3, 1986 TO EVALUATION TECHNOLOGIES, INC. FOLLOWING THE CONTRACTING OFFICER'S DENIAL OF AN AGENCY-LEVEL PROTEST IN WHICH TAB ALLEGED THAT ITS COST PROPOSAL HAD NOT BEEN PROPERLY EVALUATED. ALTHOUGH TAB DOES NOT SPECIFY THE DATE AND TIME OF ITS PROTEST TO GSBCA, IT DOES INDICATE THAT IT OCCURRED BEFORE THE FILING HERE ON NOVEMBER 13.

TAB ARGUES THAT OUR DECISION IN SYSTEM AUTOMATION CORP., B-224166, OCT. 29, 1986, 86-2 CPD 493, COMPELS IT TO FILE HERE. IN THAT CASE, WE DISMISSED AS UNTIMELY A PROTEST THAT INITIALLY HAD BEEN FILED WITH AND SUSTAINED BY THE GSBCA, BUT WAS THE FILED WITH US WHEN, ON APPEAL, GSBCA WAS HELD TO BE WITHOUT JURISDICTION IN THE MATTER. THAT HOLDING, HOWEVER, DOES NOT PROVIDE ANY BASIS FOR OUR ALLOWING A PROTESTER TO FILE WITH BOTH THE GSBCA AND OUR OFFICE AND HAVE CONSIDERATION OF THE LATTER PROTEST TEMPORARILY SUSPENDED WHILE THE GSBCA DECIDES WHETHER TO EXERCISE JURISDICTION. THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. 3552 (SUPP. III 1985), CLEARLY PROVIDES THAT AN INTERESTED PARTY WHO HAS FILED A PROTEST WITH THE GSBCA UNDER SECTION 111(H) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (THE BROOKS ACT), 40 U.S.C. 759(H) (SUPP. III 1985), MAY NOT PROTEST TO OUR OFFICE WITH RESPECT TO THAT PROCUREMENT. AS WE STATED IN SYSTEM AUTOMATION, CICA CONTEMPLATES THE PROTESTER'S MAKING A FINAL ELECTION BETWEEN THIS OFFICE AND THE GSBCA WHEN BOTH FORUMS ARE AVAILABLE. SEE ALSO RESOURCE CONSULTANTS, INC., 65 COMP.GEN. 72 (1985), 85-2 CPD 580 (THE CLEAR INTENT OF THE BROOKS ACT IS TO PROVIDE FOR AN ELECTION OF MUTUALLY EXCLUSIVE FORUMS); ANALYTICS COMMUNICATION SYSTEM, B-222402, APR. 10, 1986, 86-1 CPD 356 (IT WOULD BE INAPPROPRIATE FOR THE GENERAL ACCOUNTING OFFICE TO CONSIDER A MATTER ACTIVELY BEING LITIGATED BEFORE THE GSBCA); 4 C.F.R. 21.1(A), 21.3(F) (1986). THEREFORE, IT IS SIMPLY NOT PERMISSIBLE UNDER CICA FOR A PARTY TO FILE A PROTEST WITH BOTH FORUMS.

WE NOTE THAT TBA'S CONCERN ABOUT GSBCA JURISDICTION MAY BE UNWARRANTED. THE CONGRESS, IN THE CONTINUING APPROPRIATIONS RESOLUTION FOR FISCAL YEAR 1987, AMENDED THE BROOKS ACT TO PROVIDE THAT GSBCA'S JURISDICTION ENCOMPASSES ANY PROCUREMENT THAT IS "SUBJECT TO" THE ACT, RATHER THAN BEING LIMITED TO THOSE "CONDUCTED UNDER AUTHORITY OF" THE ACT, AND THAT THE GSBCA HAS "THE AUTHORITY TO DETERMINE WHETHER ANY PROCUREMENT IS SUBJECT TO" THE BROOKS ACT. PUB.L. NO. 99-591 (OCT. 30, 1986) (TO BE CODIFIED AT 40 U.S.C. 759(F)). THE EFFECT OF THIS LEGISLATION IS TO OVERRULE THE DECISION OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT IN ELECTRONIC DATA SYSTEMS FEDERAL CORP. V. GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS, 792 F.2D 1569 (FED. CIR. 1986), HOLDING THAT UNDER THE PRIOR STATUTORY PROVISIONS, THE GSBCA LACKED JURISDICTION OVER PROTESTS CONCERNING AUTOMATIC DATA PROCESSING PROCUREMENTS THAT SHOULD HAVE BEEN, BUT WERE NOT CONDUCTED UNDER THE BROOKS ACT.

IN ANY EVENT, SINCE TAB MAY NOT MAINTAIN A PROTEST BEFORE BOTH THE GSBCA AND THIS OFFICE, THE PROTEST IS DISMISSED.