_________________________________________ DISMISSED WITH PREJUDICE: August 12, 1994 _________________________________________ GSBCA 12891-P DIGITAL EQUIPMENT CORPORATION, Protester, and GDE SYSTEMS, INC., and DATA GENERAL CORPORATION, Intervenors, v. GENERAL SERVICES ADMINISTRATION, Respondent, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Intervenor. Jeffrey H. Schneider, Daniel B. Abrahams, Raymond Fioravanti, and Jose Otero of Epstein Becker & Green, Washington, DC, counsel for Protester. Stuart B. Nibley, William H. Butterfield, and Daniel A. McNulty of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Intervenor GDE Systems, Inc. Richard J. Webber, Matthew S. Perlman, Craig S. King, and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Intervenor Data General Corporation. George N. Barclay, Michael J. Ettner, Seth Binstock, John Sawyer, and Roger Waldron, Office of the General Counsel, General Services Administration, Washington, DC, counsel for Respondent. L. Graeme Bell, III, Thomas P. Humphrey, Cameron S. Hamrick, Todd L. Hutchen, Elizabeth W. Newsom, and Devon S. Engel of Crowell & Moring, Washington, DC, counsel for Intervenor International Business Machines Corporation (IBM). Before Board Judges PARKER, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On June 29, 1994, Digital Equipment Corporation filed a post-award protest challenging various actions of the respondent, the General Services Administration, in conducting a procurement. Three intervenors of right joined the protest--two unsuccessful offerors (Data General Corporation and GDE Systems, Inc.) and the awardee, International Business Machines Corporation (IBM). During the course of the protest, the protester amended its protest, adding some grounds and withdrawing with prejudice one ground (alleging that the agency improperly permitted the awardee to substitute equipment during its live test demonstration (LTD)). The issues remaining raised by Digital are that the agency violated statute and regulation in that it: failed to conduct meaningful discussions with Digital; conducted an arbitrary evaluation because the agency failed to account for the potential skewing of results in the test control procedures employed during LTDs[foot #] 1; arbitrarily determined Digital's evaluated price; conducted post-BAFO (best and final offer) discussions with the awardee; failed reasonably to evaluate the LTDs; failed to perform an adequate best value analysis; and failed to establish evaluation criteria prior to the release of the solicitation. GDE, having intervened with various of its own grounds of protest, withdrew with prejudice all but a single ground: it maintains that the agency failed to conduct an adequate price- technical trade-off analysis. Having intervened in support of some existing grounds of protest and having raised its own grounds of protest, Data General has moved to withdraw from the protest. Accordingly, the Board DISMISSES WITH PREJUDICE the Data General intervention. On August 5, the agency moved that the protest be dismissed with prejudice. The agency represented that on August 5 it would terminate the contract awarded to IBM. As part of its settlement proposal, the agency stipulates that the contract was awarded in violation of Federal Acquisition Regulation 15.612(d), and that Digital and GDE have succeeded as to a significant issue and should each be deemed a prevailing party and awarded reasonable ----------- FOOTNOTE BEGINS --------- [foot #] 1 The agency and IBM have moved to dismiss this basis of protest as untimely filed. The matter has awaited the development of the record. ----------- FOOTNOTE ENDS ----------- and documented attorney fees and costs of filing and pursuing the protest. As stated in a letter dated August 8, GDE does not object to the dismissal with prejudice provided that the Board accepts the stipulation that the contract was awarded in violation of the cited regulation and that GDE has succeeded as to a significant issue, is a prevailing party, and is entitled to reasonable and documented costs of filing and pursuing the protest. In a submission dated August 8, Digital notes that it has no objection to the termination of the IBM contract or to the agency's stipulation that Digital and GDE have succeeded and should be deemed prevailing parties and awarded reasonable and documented attorney fees and costs of pursuing the protest. However, Digital requests that the Board dismiss the protest without prejudice, pursuant to Rule 28(b), until the passage of ten working days after the parties have had an opportunity to review the agency's restructured procurement. Until the agency determines its future course of conduct and engages in some action, the effect, if any, of the alleged misconduct is not known. Accordingly, Digital does not wish to be precluded from timely raising an issue of the present protest in the future. In a subsequent letter of the same date, submitted after a conference involving the parties and the Board, Digital withdrew its request that the protest be dismissed without prejudice; it no longer objected to a dismissal with prejudice. It expressly based this newly-adopted position upon the representations made during the conference call . . . that a timely-filed protest regarding GSA's restructuring of the [applicable] solicitation will not be restricted by the instant dismissal. Digital further understands that, based on representations made during the conference call, Digital will not be required to apportion protest fees and costs among protest counts and that the only remaining issue will be the reasonableness of the amounts. Indeed, the agency did represent that it would not object to the protester timely filing a protest in the future based upon yet- to-be-taken agency actions. Further, the agency did represent that it would not object to Digital being reimbursed for the entirety of its reasonably incurred costs, and would not require Digital to apportion its costs among the various grounds of protest. In light of the agency's stipulations, all of the parties agreed that a hearing on the merits in this protest was not necessary. No party has asked to submit the matter on the record. No party has introduced an admission which would enable the Board to grant the protest. Before the Board is the agency's motion to dismiss. Neither Digital nor GDE agree to the dismissal unless the Board makes determinations which the Board presently is not in a position to make. However, no party has suggested an alternate resolution given the state of proceedings and of the procurement. No party has offered a basis to deny the motion to dismiss with prejudice. The Board GRANTS the motion of the agency and DISMISSES WITH PREJUDICE the protest. Rule 28(a). The suspension of the agency's procurement authority previously entered by the Board lapses by its terms. 40 U.S.C. 759(f)(3) (1988); Order (July 11, 1994). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge