_________________________________________________________________ DISMISSED FOR LACK OF JURISDICTION: March 23, 1994 _________________________________________________________________ GSBCA 12785-P TOTAL PROCUREMENT SERVICES, INC., Protester, v. DEFENSE INFORMATION SYSTEMS AGENCY, Respondent. Richard Snyder of Total Procurement Services, Inc., Novato, CA, appearing for Protester. Virginia G. Farrier, Clifton M. Hasegawa, and H. Jack Shearer, Office of Defense Information Systems Agency (DISA), Defense Commercial Communications Office (DECCO), Scott AFB, IL, counsel for Respondent. Before Board Judges PARKER, DEVINE, and BORWICK. BORWICK, Board Judge. Respondent moves to dismiss a protest filed by Total Procurement Services, Inc. (TPS) because TPS has previously filed a protest with respect to the same procurement at the General Accounting Office (GAO). We grant the motion. Background The Defense Information Systems Agency seeks network services through use of licensing agreements to enable respondent to issue procurement information and receive responses from vendors by electronic means. On March 11, 1994, TPS filed a protest at this Board raising two issues concerning the terms of the agreements: (1) The network providers are obliged to provide "one-to-one" Request for Quotation (RFQ) transactions which might violate 10 U.S.C. 2304(g)(4) and Federal Acquisition Regulation (FAR) part 13. Protester is interested in this because it wants as many vendors as possible to use the network; one-to-one transactions may limit the numbers of users. (2) The agreements do not address when a solicitation is delivered using the network, as respondent allegedly does not acknowledge receipt of the proposals for three days. On or about December 7, 1993, TPS filed a protest concerning this same procurement at the GAO alleging that use of one-to-one RFQ transactions involve potential violations of 10 U.S.C. 2304(g)(4) and FAR part 13. The protest was docketed as B- 255934.1. Respondent's Motion to Dismiss, Exhibit 1. TPS filed two briefs at the GAO, an opening and a reply brief. Respondent's Motion to Dismiss, Exhibits 2, 3. GAO dismissed the protest, Total Procurement Services Inc., B-244934 (Feb. 8, 1994), and TPS has filed a motion for reconsideration. Respondent's Motion to Dismiss, Exhibits 4, 5. The issue concerning receipt of proposals that TPS raises in its protest to this Board was not raised in TPS's protest to GAO. Discussion The Brooks Act provides in pertinent part: An interested party who has filed a protest under subchapter V of chapter 35 of title 31, United States Code, with respect to a procurement or proposed procurement may not file a protest with respect to that procurement or proposed procurement under this subsection. 40 U.S.C. 759(f)(1)(1988). Respondent maintains that TPS may not file its protest here, because it filed and participated in a protest at GAO. Respondent is correct that we must dismiss this protest. The provision quoted above prevents forum shopping. As the two protests involve the same procurement, the statutory bar applies. GeoMet Data Services Inc. v. Department of Commerce, GSBCA 12007- P, 93-1 BCA 25,536, at 127,202, 1992 BPD 263, at 3. TPS argues that it raises an additional issue before the Board that it did not raise at GAO. The statute cannot be circumvented by adding issues to the second protest; the statute bars forum shopping by prohibiting the filing of any protest at this Board on any procurement with respect to which a protest was earlier filed at the GAO. Integrated Systems Group, Inc. v. National Aeronautics & Space Administration, GSBCA 11631-P, 92-1 BCA 24,734, 1992 BPD 25. TPS argues that the GAO should have dismissed the protest as "premature," as the protest TPS filed at GAO involved a draft licensing agreement and the protest at this Board involves respondent's "official" licensing agreement. TPS's Response to Respondent's Motion to Dismiss. Presumably the acquisition has progressed from a comment phase to the implementation phase. However, the statutory bar against forum shopping applies to protests regarding the same procurement in different forums, regardless of what stage the procurement happens to be in when each of the protests is filed. The statute applies to a "procurement or proposed procurement." Finally, TPS seeks to "intervene" as a permissive intervenor in its own protest. Rules 1(b)(9), 5(a)(4)(iii).[foot #] 1 TPS's argument is, to put it charitably, creative. A party cannot circumvent the statutory bar against forum shopping by "intervening" in its own protest. Decision Respondent's Motion to Dismiss for Lack of Jurisdiction is GRANTED. TPS's protest is DISMISSED WITH PREJUDICE. _________________________ ANTHONY S. BORWICK Board Judge We concur: __________________________ DONALD W. DEVINE Board Judge __________________________ ROBERT W. PARKER Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69246 (Dec. 30, 1993) (to be codified at 48 CFR 6101).