_______________________________________________________ GSBCA 12300-P DISMISSED WITH PREJUDICE: April 28, 1993 _______________________________________________________ GSBCA 12300-P, 12301-P, 12333-P ELECTRONIC DATA SYSTEMS CORPORATION, and COMPUADD CORPORATION, and APPLE COMPUTER, INC., Protesters/Intervenors, and INTERNATIONAL DATA PRODUCTS CORPORATION, Intervenor, v. DEPARTMENT OF THE AIR FORCE, Respondent, and ZENITH DATA SYSTEMS CORPORATION, and GOVERNMENT TECHNOLOGY SERVICES, INC., Intervenors. David S. Cohen and Lisa R. Hovelson of Cohen & White, Washington, DC; and Fred Geldon, Daniel Parker, and William Lieth of EDS Corporation, Herndon, VA, counsel for Protester/Intervenor Electronic Data Systems Corporation. Marie N. Doland and James J. Tierney of Hazel & Thomas, FallsChurch,VA,counselforProtester/IntervenorCompuAddCorporation. John A. McCullough and Ron R. Hutchinson of Doyle & Bachman, Washington, DC; and Susan Norman of Apple Computer, Inc., Reston, VA, counsel for Protester/Intervenor Apple Computer, Inc. D. Oscar Fuster, Vice President of International Data Products Corporation, Gaithersburg, MD, appearing for Intervenor. Clarence D. Long, III, Joseph M. Goldstein, and Lt. Col. Dwight D. Creasy, Office of the General Counsel, Department of the Air Force, Washington, DC; and Captain Eric J. Marcotte, Gunter Air Force Base, AL, counsel for Respondent. Laura K. Kennedy, Kevin P. Connelly, Grace Bateman, Trisa J. Thompson, Daniel Marino, and William A. Breskin of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Intervenor Zenith Data Systems Corporation. Richard J. Conway, William M. Rosen, and Joel Fried of Dickstein, Shapiro & Morin, Vienna, VA, counsel for Intervenor Government Technology Services, Inc. Before Board Judges HENDLEY, HYATT, and VERGILIO. HYATT, Board Judge. These consolidated protests concern awards made by the Air Force pursuant to the procurement commonly known as Desktop IV. This acquisition is intended to fulfill general purpose desktop computer needs throughout the Department of Defense (DOD). Dual awards to Zenith Data Systems Corporation and Government Technology Services, Inc. (GTSI) were announced by the Air Force on February 2, 1993. On February 8, 1993, Electronic Data Systems Corporation (EDS), challenging the propriety of the awards, filed a motion to enforce the Board's order under CompuAdd Corp. v. Department of the Air Force, GSBCA 12021-P, et al., 1993 BPD 48 (Dec. 23, 1992). Thereafter, on February 12, 1993, EDS and CompuAdd Corporation filed protests, initiating the third round of protests challenging Air Force award decisions under the Desktop IV procurement. The protests challenged various aspects of the award decisions, including, inter alia, the compliance of the Zenith monitors with the Trade Agreements Act of 1979 (TAA) and the adequacy of the best value analysis conducted by the Air Force. On Monday, April 19, 1993, well after completion of the merits hearing and post-hearing briefing process, on the date on which the Board's decision on the merits was scheduled to be issued, EDS filed two motions, one withdrawing its motion to enforce the Board's decision in CompuAdd Corp. and another seeking dismissal with prejudice of its protest, GSBCA 12300-P, and its interventions in the protests of CompuAdd Corporation and Apple Computer, Inc. This request was prompted by a settlement entered into between EDS and intervenor/awardee Zenith, with no participation by the Air Force. Although settlement discussions were also held with CompuAdd and Apple, these efforts were unsuccessful and these protesters remain in the litigation. Since EDS was the "lead" protester in this round of protests, its desire to withdraw from the case at the eleventh hour has given rise to several procedural issues. The most significant of these is resolution of what grounds of protest survive for decision in the remaining protests of Apple and CompuAdd. Both Apple and CompuAdd timely intervened in the protest filed by EDS on February 12, fully supporting the protest issues raised by EDS. These parties filed protests of their own, as well: CompuAdd filed a protest on the same day as EDS, and Apple filed a protest on March 15. The Air Force, Zenith, and GTSI argue, however, that the withdrawal of EDS's protest serves to remove any ground alleged by EDS, either in its protest or motion to enforce,[foot #] 1 that was not explicitly included in the separate protests filed by CompuAdd or Apple. Thus, they contend that the issues pertaining to Trade Agreements Act compliance of the Zenith monitors are mooted by EDS's withdrawal because neither CompuAdd nor Apple, in their separate protests, alleged this issue independently.[foot #] 2 The Air Force further contends that since CompuAdd and Apple did not "seriously" pursue the TAA and best value analysis issues the Board should dismiss these issues along with EDS's protest. In support of their positions, the Air Force, Zenith, and GTSI cite the Board's decision in Vanguard Technologies Corp., GSBCA 10217-P, 89-3 BCA 22,111, 1989 BPD 209, reconsideration denied, 89-3 BCA 22,116, 1989 BPD 220. In that case, Vanguard had protested its exclusion from the competitive range of a procurement and the award to another company. EDS intervened and supported Vanguard's protest. The awardee, OAO, intervened in support of the Government's position. When Vanguard and the agency settled their differences, by agreeing to terminate the award to OAO and to restore Vanguard to the competitive range, both EDS and OAO objected to dismissal of the case. The Board overruled these objections, reasoning that EDS, which had not timely objected to its own elimination from the competitive range such that it could timely pursue that issue as a protester itself, had not filed any separate ground of protest that would survive resolution of the protest filed by Vanguard. The Board also held that OAO had no independent basis to participate beyond supporting the Government's position. As ----------- FOOTNOTE BEGINS --------- [foot #] 1 The arguments raised in EDS's motion to enforce were essentially subsumed within the subsequently filed protests. [foot #] 2 Apple intervened in this ground of EDS's protest. CompuAdd expressly alleged this ground in its protest but abandoned it in a letter to the Board dated March 19, 1993, and again in its post-hearing brief. ----------- FOOTNOTE ENDS ----------- such, neither party could block the settlement or ultimate dismissal of the protest. In contrast to Vanguard, the intervention of Apple in EDS's challenge to the TAA compliance of Zenith's monitors can and does survive EDS's abandonment of this issue. Similarly, both Apple and CompuAdd challenged the best value analysis conducted by the Air Force. Both protesters were timely intervenors of right supporting the EDS issues of protest. Rule 5(b)(4).[foot #] 3 It is clear from Apple's introductory statement in its post-hearing brief that it continued to press these grounds: As a result of the amended protests and hearing, there remain essentially four issues in this protest. They are: (1) the compliance of the monitors on Zenith's winning proposal [ ] with the Trade Agreements Act; (2) the validity of the Air Force's best value analysis; (3) the issue of whether "discussions" as defined by the FAR [Federal Acquisition Regulation] occurred; and (4) the issue of whether there were "changed requirements" as contemplated by the FAR. Apple Computer, Inc.'s Post-Hearing Brief at 2. The mere fact that the protesters agreed that EDS would take the lead in litigating the first two issues does not mean that Apple and CompuAdd, neither of which could, presumably, have foreseen EDS's withdrawal, have forfeited their right to pursue a decision on the issues they have intervened in. The decision of EDS to withdraw from the protests does not resolve any of the outstanding, and fully litigated, issues conclusively. As intervenors, CompuAdd and Apple may pursue the issues raised in the EDS protest. The United States Supreme Court has observed that "parties who choose to resolve litigation through settlement may not dispose of the claims of a third party . . . without that party's agreement." Local Number 93 v. City of Cleveland 478 U.S. 501, 529 (1986); see also American Telephone & Telegraph Co., GSBCA 8986-P, 87-2 BCA 19,890, 1987 BPD 86 (recognizing that it would not be appropriate to "disable the intervenors from pursuing any concerns they may have regarding this procurement"). CompuAdd and Apple point out that the Board's Rule 12(e) permits liberal amendment to conform the pleadings to the evidence: When issues within the proper scope of a case, but not raised in the pleadings, have been raised without objection or with the permission of the Board at a ----------- FOOTNOTE BEGINS --------- [foot #] 3 48 CFR 6101 (1991). ----------- FOOTNOTE ENDS ----------- hearing . . . or in record submissions, they shall be treated in all respects as if they had been raised in the pleadings. The Board may formally amend the pleadings to conform to the proof or may order that the record be deemed to contain pleadings so amended. To accommodate the competing interests of the protesting parties, we deem the Apple and CompuAdd pleadings to be so amended. This enables us to permit EDS, which states that it no longer wishes to litigate this matter, to withdraw from the proceedings without adversely affecting the rights of the remaining protesters.[foot #] 4 Decision EDS's motion to withdraw its protest is granted. GSBCA 12300-P is DISMISSED WITH PREJUDICE to reinstatement, although the Board has not reached the merits of the underlying issues. The protests docketed as GSBCA 12301-P and 12333-P are deemed amended in accordance with this opinion. _____________________________ CATHERINE B. HYATT Board Judge We concur: _______________________________ ______________________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 4 Since the matter had been fully litigated and briefed, and the Board's decision virtually completed by the time EDS manifested its desire to withdraw from these protests, this course will also foster the goals of judicial economy by permitting the issuance of that decision without extensive revision.