!R! CALL BCA; EXIT; _________________________________________________ DISMISSED WITHOUT PREJUDICE: July 29, 1992 _________________________________________________ GSBCA 11879-P, 11892-P PACIFICORP CAPITAL, INC., Protester, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Protester/Intervenor, v. DEFENSE LOGISTICS AGENCY, Respondent, and VION CORPORATION, Intervenor. David S. Cohen, Lisa R. Hovelson, Donn R. Milton, and Victor G. Klingelhofer of Cohen & White, Washington, DC, counsel for Protester/Intervenor PacifiCorp Capital, Inc. James J. Regan, Robert M. Halperin, Kathryn D. Kirmayer, and Peter J. Lipperman of Crowell & Moring, Washington, DC, counsel for Protester/intervenor International Business Machines Corporation. Walter Thomas and Leonard Schoen, Office of the General Counsel, Defense Logistics Agency, Alexandria, VA, counsel for Respondent. David R. Hazelton, Martin F. Petraitis, and Thomas D. Waldman of Latham & Watkins, Washington, DC, counsel for Intervenor ViON Corporation. PARKER, Board Judge. PacifiCorp Capital, Inc. (PacifiCorp) and International Business Machines Corporation (IBM), on June 11, 1992, and June 18, 1992, respectively, protested as restrictive of competition the terms of a solicitation for central processing units. On July 22, 1992, the Board received a joint motion to dismiss PacifiCorp's protest without prejudice, as follows: Respondent Defense Logistics Agency (DLA) and Protester/Intervenor PacifiCorp Capital, Inc. have reached a Settlement Agreement (copy attached) in connection with PacifiCorp's protest (GSBCA No. 11879- P). Pursuant to the terms of the Settlement Agreement, DLA and PacifiCorp jointly move that: (1) The Board dismiss PacifiCorp's protest without prejudice, which shall become a dismissal with prejudice 60 days after the issuance of the amendment to RFP No. DLAH00-92-R-0032 described in Paragraph 1 of the Settlement Agreement. Such dismissal shall apply only to the issues specifically raised in PacifiCorp's protest. (2) The Board shall publish the unprotected terms of the Settlement Agreement in its order of Dismissal. STIPULATION OF SETTLEMENT Respondent Defense Logistics Agency (DLA) and Protester/Intervenor PacifiCorp Capital, Inc. enter this agreement on this 22nd day of July 1992 in settlement of PacifiCorp's protest (GSBCA No. 11879-P). 1. DLA shall amend RFP DLAH00-92-R-0032 to delete the first paragraph of Section C.2.1b and replace it with the following paragraph: "In Current Production" means an item is in current production when, on the date of award, the item is no longer in the design phase but has started on assembly production with the expectation that such production will continue. In the case of a proposed central processing complex, a complex has started on assembly production if the manufacturer has produced one or more production versions of the proposed complex, and is in the process of assembly production of the processors that make up the proposed complex. Where a manufacturer will build an item to order, but no longer builds the item on a regular assembly basis, the item meets the "In Current Production" definition if the item is being actively marketed, is eligible for upgrades within series and to a higher series, is actively being supported with ongoing enhancements, and is being maintained without any significant reduction in maintenance related resources, and the manufacturer has not announced discontinuance of such marketing, upgrades, support, and maintenance levels. Contractors are required to provide documentation which either gives the production announcement date, the first production date, and the most recent production date for all equipment models proposed, or describes the manufacturer's activities to market, upgrade, support, and maintain all equipment models proposed. 2. In the event IBM prevails in its protest (GSBCA No. 11892-P) before the Board, DLA agrees to modify the above referenced clause as reflected in the attached Exhibit 1 which shall be filed with the Board under the protective order. 3. DLA shall make all such other changes to the RFP as necessary to effectuate the changes set forth in Paragraphs 1 or 2 above. 4. No other changes to the RFP will be made as a result of this Settlement Agreement except those stated in Paragraphs 1 and 2 above. 5. PacifiCorp shall agree to the dismissal without prejudice of GSBCA Case No. 11879-P. This dismissal shall become with prejudice 60 days after the issuance of the amendment(s) described in Paragraphs 1 above. Such dismissal shall apply only to the issues specifically raised in PacifiCorp's protest. 6. Each party shall bear its own attorneys fees and costs incurred in connection with GSBCA Case No. 11879-P, except as provided in this paragraph. In the event that DLA settles the protest of IBM (GSBCA No. 11892-P) and agrees to pay IBM's protest costs, then DLA shall pay PacifiCorp's protest costs, not to exceed $60,000, under the same terms and conditions as agreed with IBM. 7. DLA agrees to allow three weeks for the submission of proposals following the issuance of the amendment described in paragraph 1. 8. DLA and PacifiCorp shall request that the GSBCA publish the unprotected terms of this Settlement Agreement in its Order of Dismissal. On July 24, the Board received a joint motion to dismiss IBM's protest without prejudice, that provided as follows: Respondent Defense Logistics Agency (DLA) and Protester/Intervenor International Business Machines Corporation (IBM) have reached a Settlement Agreement (copy attached) in connection with IBM's protest (GSBCA No. 11892-P). Pursuant to the terms of the Settlement Agreement, DLA and IBM jointly move that: 1. The Board dismiss IBM's protest without prejudice, which shall become a dismissal with prejudice 60 days after the issuance of the amendments to RFP NO. DLAH00-92-R-0032 described in Paragraphs 1, 2 and 3 of the Settlement Agreement. Such dismissal shall apply only to the issues specifically raised in IBM's protest. 2. The Board shall publish the unprotected terms of the Settlement Agreement in its Order of Dismissal. STIPULATION OF SETTLEMENT Respondent Defense Logistics Agency (DLA) and Protester/Intervenor International Business Machines Corporation (IBM) enter this agreement on this 23rd day of July, 1992 in settlement of IBM's protest (GSBCA No. 11892-P). 1. DLA shall amend RFP DLAH00-92-R-0032 to delete the first paragraph of Section C.2.1b and replace it with the following paragraph: "In Current Production" means an item is in current production when, on the date of award, the item is no longer in the design phase but has started on assembly production with the expectation that such production will continue. In the case of a proposed central processing complex, a complex has started on assembly production if the manufacturer has produced one or more production versions of the proposed complex, and is in the process of assembly production of the processors that make up the proposed complex. Where a manufacturer will build an item to order, but no longer builds the item on an assembly production basis, the item meets the "In Current Production" definition if the item is being actively marketed, can be upgraded within series and to a higher series, is actively being supported with ongoing enhancements, and is being maintained without any significant reduction in maintenance related resources, and the manufacturer has not announced discontinuance of such marketing, support, and maintenance levels. Contractors are required to provide documentation which either gives the production announcement date, the first production date, and the most recent production date for all equipment models proposed, or describes the manufacturer's activities to market, upgrade, support, and maintain all equipment models proposed. 2. DLA shall amend RFP DLAH00-92-R-0032 to include the following paragraph: During the life of the contract, Contractor must make available, at the Government's request, upgrades both within series or to a higher series for all equipment models and upgrades procured under this contract. 3. DLA shall make all such other changes to the RFP as necessary to effectuate the changes set forth in Paragraphs 1 or 2 above. 4. The effect of these amendments is that [redacted] can be proposed in response to the RFP. DLA stipulates that, as of this date, [redacted] satisfies the In Current Production clause as amended. 5. No changes to the RFP will be made to negate the effect of these amendments. 6. IBM shall agree to the dismissal without prejudice of GSBCA No. 11892-P. This dismissal shall become with prejudice 60 days after the issuance of the amendment(s) described in Paragraphs 1 and 2 above. Such dismissal shall apply only to the issues specifically raised in IBM's protest. 7. Each party shall bear its own costs and attorneys fees incurred in connection with GSBCA No. 11892-P. 8. DLA agrees to allow three weeks for the submission of proposals following the issuance of the amendment described in Paragraphs 1 and 2. 9. DLA and IBM shall request that the GSBCA publish the unprotected terms of this Settlement Agreement in its Order of Dismissal. All of the parties have agreed to the dismissal of the protests under the terms set forth above. Decision The protests are DISMISSED WITHOUT PREJUDICE in accordance with the parties' agreement. Rule 28(a). The suspension of respondent's delegation of procurement authority lapses by its terms. ______________________________ ROBERT W. PARKER Board Judge