THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JANUARY 6, 1994 GSBCA 12670-P DISMISSED WITH PREJUDICE: December 1, 1993 GSBCA 12667-P, 12670-P PINDAR DONNELLEY PARTNERSHIP, Protester, and GRAPHICDATA, INC., Protester/Intervenor,[foot #] 1 v. DEPARTMENT OF COMMERCE, Respondent, and INTERNATIONAL COMPUTAPRINT CORPORATION, Intervenor. Michael A. Nemeroff, Francis J. O'Toole, Gary P. Quigley, Joseph C. Port, Jr., and Denise W. DeFranco of Sidley & Austin, Washington, DC, counsel for Protester Pindar Donnelley Partnership. ----------- FOOTNOTE BEGINS --------- [foot #] 1 In this decision, the Board grants respondent's and intervenor International ComputaPrint Corporation's objections to GraphicData, Inc.'s (GDI's) request to intervene as an intervenor of right and dismisses its protest, but allows GDI to participate in Pindar Donnelley Partnership's protest as a permissive intervenor. ----------- FOOTNOTE ENDS ----------- Richard D. Lieberman, J. Randolph MacPherson, and Jane B. Maxwell of Sullivan & Worcester, Washington, DC, counsel for Protester/Intervenor GraphicData, Inc. Jerry A. Walz, Mark Langstein, Lisa J. Obayashi, and Fred Kopatich, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Joseph J. Petrillo, Michael A. Hordell, Laurel A. Heneghan, and Jessica C. Abrahams of Petrillo & Hordell, Washington, DC; and Burton Schwalb of Schwalb, Donnenfeld, Bray & Silbert, Washington, DC, counsel for Intervenor International ComputaPrint Corporation. Before Board Judges PARKER, WILLIAMS, and GOODMAN. WILLIAMS, Board Judge. In this protest, Pindar Donnelley Partnership (PDP or Pindar) has challenged the proposed award of a contract by the Patent and Trademark Office (PTO) a bureau of the Department of Commerce (DOC) to International ComputaPrint Corporation (ICC). PDP has claimed that the agency improperly failed to secure a delegation of procurement authority (DPA) for the present solicitation as well as for an extension of ICC's existing incumbent contract. PDP further claims that the agency failed to apply the evaluation criteria and imposed additional unstated and inconsistent criteria, that the agency failed to conduct meaningful discussions with PDP, and that the agency accorded an unfair competitive advantage to ICC by virtue of its evaluation of PDP's "start-up plan." Finally, PDP claims that the PTO conducted an irrational cost/technical tradeoff and that any rational cost/technical tradeoff decision would have resulted in award to PDP. This matter comes before the Board on respondent's and intervenor ICC's motions to dismiss the additional protest of intervenor GraphicData, Inc. (GDI) and to deny GDI status as an intervenor in Pindar's protest. As grounds for the motion, the DOC and ICC state that (1) GDI has already filed two protests concerning the same procurement with the United States General Accounting Office (GAO), (2) GDI is not an interested party to bring a protest or to intervene in Pindar's protest, and (3) GDI's additional protest is untimely. For the reasons stated below, we grant the motions to dismiss GDI's protest and deny GDI status as an intervenor of right. However, we permit GDI to participate in this proceeding on a limited basis as a permissive intervenor. Findings of Fact The agency issued the solicitation at issue on January 25, 1991. GDI submitted a timely proposal. Prior to the closing date for receipt for proposals, GDI protested two amendments to the solicitation, Amendments A006 and A007, to the GAO. The protest was docketed as B-244677, and GAO issued a decision dismissing the protest in part and denying the protest in part on October 30, 1991. GraphicData, Inc., B-244677, 91-2 CPD 406 (Oct. 30, 1991). On January 14, 1993, the contracting officer notified GDI that its proposal had been excluded from the competitive range. The contracting officer identified eight specific deficiencies in GDI's proposal and concluded that correction of the items would require either significant revisions to the proposal or presentation of material for the first time. Protest File, Exhibit 8. On January 15, 1993, GDI protested its exclusion from the competitive range to the contracting officer, but the agency denied the protest. On February 9, 1993, GDI protested its exclusion from the competitive range to GAO. Intervenor's Opposition to GDI's Notice of Intervention of Right and Additional Protest and Intervenor's Motion to Dismiss (Intervenor's Opposition), Exhibit A. In that protest, docketed as B-244677.5, GDI alleged that the PTO had improperly excluded GDI from the competitive range, evaluated its proposal in a manner that was inconsistent with the request for proposals (RFP), unfairly favored the incumbent contractor, and ignored price.[foot #] 2 On May 25, 1993, GDI voluntarily withdrew its GAO protest before obtaining a decision. GDI claims that it withdrew this protest because GAO denied its request for copies of the proposals submitted by Pindar and ICC and the "limited information available to it at that time was insufficient to continue to assert the protest." GDI's Notice of Intervention of Right and Additional Protest at 3. On October 20, 1993, the agency notified GDI that ICC had been selected as the intended awardee. Pindar filed the instant protest before this Board on November 5, 1993, and GDI filed its notice of intervention of right and additional protest on November 12, 1993. In its additional protest, GDI alleged that PTO unreasonably failed to conduct discussions with GDI, improperly requested a best and final offer (BAFO) from only two of the three offerors, refused to permit GDI to amend its ----------- FOOTNOTE BEGINS --------- [foot #] 2 This GAO protest was dismissed on February 11, 1993, because of the pendency of a bid protest in the Court of Federal Claims, International ComputaPrint Corp. v. United _______________________________________________ States, No. 92-678C, (Fed. Cl. Feb. 11, 1993). GDI was permitted ______ to intervene in that lawsuit and the court requested that GAO render a decision on GDI's protest. GAO, therefore, resumed consideration of the protest, renumbering it as B-244677.6. ----------- FOOTNOTE ENDS ----------- technical proposal prior to its exclusion from the competitive range, and treated offerors in a disparate fashion. GDI requested that PTO not award the contract to ICC; GDI also asked that we direct PTO to request a BAFO from GDI, permit GDI to submit a revised technical proposal, or recompete the requirement by issuing a new RFP. Id. at 12. In its notice of intervention of right, GDI claims that its direct economic interest would be affected by the relief likely to be granted in several counts of Pindar's complaint, i.e., the allegations that PTO failed to secure a delegation of procurement authority (DPA) for this procurement and extensions of ICC's existing incumbent contract, failed to abide by the evaluation criteria in the RFP, and accorded an unfair competitive advantage to ICC. Finally, GDI claims that Pindar's allegation of an irrational cost/technical tradeoff is essentially the same as GDI's earlier allegation that PTO ignored cost. Id. at 6-7. Discussion Because GDI Filed Two Protests at the GAO on This Procurement, It May Not Pursue a Protest Here The Brooks Act, 40 U.S.C. 759(f)(1) (1988), expressly prohibits parties from filing protests at both GAO and this Board regarding the same procurement. The Act provides: An interested party who has filed a protest under subchapter V of chapter 35 of title 31 [at the GAO] with respect to a procurement or proposed procurement may not file a protest with respect to that procurement or proposed procurement under this subsection [at this Board]. GDI is thus barred by statute from filing a protest here. GeoMet Data Services, Inc. v. Department of Commerce, GSBCA 12007-P, 93-1 BCA 25,536, 1992 BPD 263; Southern CAD/CAM, GSBCA 11034-P, 91-2 BCA 23,735, 1991 BPD 24. In GeoMet the Board expressly recognized that even though the prior GAO protest involved agency actions different from those challenged at the Board, the Board lacked jurisdiction over the protest because the two protests involved the same procurement. GeoMet, 93-1 BCA at 127,202, 1992 BPD 263, at 3. GDI is Not an Intervenor of Right but May Participate as a Permissive Intervenor Rule 1(b)(6) of the Board's Rules of Procedure[foot #] 3 defines intervenor of right as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 3 48 CFR 6101 (1992). ----------- FOOTNOTE ENDS ----------- The term 'intervenor of right' means an interested party who files with the Board a notice of intervention in accordance with Rule 5(a)(3)(i) and who has not filed a protest concerning the same procurement with the United States General Accounting Office (GAO). Because GDI filed two protests on this same procurement with GAO, it is not an intervenor of right. The question remains whether GDI may participate in this proceeding as a permissive intervenor. Rule 1(b)(7) defines permissive intervenor as follows: The term 'permissive intervenor' means any entity that is an interested party and has proceeded with a protest of the same procurement at the GAO. Rule 1(b)(4) defines interested party as follows: The term 'interested party' means an actual or prospective bidder or offeror whose direct economic interest would be affected by award of the contract or by failure to award the contract. GDI submits that it should be granted status as a permissive intervenor because it is an interested party with respect to the two counts of Pindar's protest which challenge the agency's failure to obtain a DPA for the instant procurement and for an extension of ICC's incumbent contract. Consolidated Reply of GraphicData, Inc. to Respondent's Objections and Intervenor's Opposition to Notice of Intervention of Right and Additional Protest and Application for Access to Protected Materials at 6-7. We have previously held that once an offeror has been excluded from the competitive range in a procurement and the time for protesting that exclusion has expired, it may be an interested party if it intervenes in the protest of another firm if the granting of such protest would negate the reasons for excluding the proposed intervenor from the competition. Berkshire Computer Products, GSBCA 11539-P, 92-1 BCA 24,587, at 122,685, 1991 BPD 302, at 3; Irvin Technologies, Inc., GSBCA 11581-P, 92-1 BCA 24,586, at 122,683, 1991 BPD 317, at 2-3; Vanguard Technologies, Corp., GSBCA 10127-P, 89-3 BCA 22,042, at 110,879, 1989 BPD 40, at 3; Federal Technology Corp., GSBCA 10188-P, 89-3 BCA 22,182, at 111,618-19, 1989 BPD 246, at 3; Perception Technology, GSBCA 9883-P, 89-1 BCA 21,514, at 108,359, 1988 BPD 40, at 3; ATS, Inc., GSBCA 9338-P, 88-1 BCA 20,467, at 103,498, 1988 BPD 7, at 4. In APEC Technology Limited, GSBCA 9921-P, 89-2 BCA 21,619, 1989 BPD 56, an offeror which had been previously excluded from the competitive range and filed a protest which was dismissed by the Board sought to intervene in a protest on the same procurement. In that protest, APEC alleged that one of the participants in the procurement was so involved in the formulation of requirements as to give rise to an organizational conflict of interest which fundamentally tainted the entire evaluation and selection process. The Board granted the request to intervene and reasoned: Given the nature of the allegations made by APEC, there is a distinct possibility that, if APEC can prove its case, the violations alleged will be found to have affected the evaluation of all proposals. Consequently, if APEC prevails in this protest, the reason for [the potential intervenor's] elimination from the competitive range may well be negated. Id. at 108,812, 1989 BPD 56, at 3. We find the reasoning of the Board's decision in APEC compelling here, because if the Board should find that the agency improperly failed to secure a delegation of procurement authority, the proposed award and entire procurement would be void, including GDI's exclusion from the competitive range. CACI, Inc. v. Stone, 990 F.2d 1233, 1236 (Fed. Cir. 1993). As such, the reasons for GDI's exclusion from the competitive range would be negated. Decision Respondent's and intervenor ICC's motions to dismiss GDI's protest are GRANTED. GDI's protest is DISMISSED WITH PREJUDICE. The order consolidating GSBCA 12667-P and GSBCA 12670-P is vacated. GDI's request to intervene as an intervenor of right is DENIED. GDI's request to intervene as a permissive intervenor is GRANTED. GDI's participation in this proceeding will be limited to the agency's failure to obtain a DPA alleged in Counts I and II of Pindar's complaint. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge