_________________________________________________________ GSBCA 13018-P, 13043-P, 13048-P: DISMISSED WITH PREJUDICE GSBCA 13029-P: DISMISSED WITHOUT PREJUDICE November 10, 1994 _________________________________________________________ GSBCA 13018-P, 13029-P, 13043-P, 13048-P GDE SYSTEMS, INC., and DATA GENERAL CORPORATION, and DIGITAL EQUIPMENT CORPORATION, and HEWLETT-PACKARD COMPANY, Protesters/Intervenors, v. GENERAL SERVICES ADMINISTRATION, Respondent, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Intervenor. Stuart B. Nibley, Kevin J. Edmundson, Trisa J. Thompson, George Matthew Koehl, and Rachel Sens of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Protester/ Intervenor GDE Systems, Inc. Richard J. Webber and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Protester/Intervenor Data General Corporation. Jeffrey H. Schneider, Raymond R. Fioravanti, and Jose Otero of Epstein Becker & Green, P.C., Washington, DC, counsel for Protester/Intervenor Digital Equipment Corporation. William M. Weisberg, John R. Tolle, and William T. Welch of Barton, Mountain & Tolle, McLean, VA, counsel for Protester/Intervenor Hewlett-Packard Company. George Barclay, Michael J. Ettner, Seth Binstock, John Sawyer, and Roger Waldron, Office of the General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Thomas P. Humphrey, L. Graeme Bell, III, Devon S. Engel, Todd Hutchen, and Alicia E. Wiltz of Crowell & Moring, Washington, DC, counsel for Intervenor International Business Machines Corporation. VERGILIO, Board Judge. On October 11, 1994, GDE Systems, Inc. filed its protest with the Board, GSBCA 13018-P. The protests of Data General Corporation, GSBCA 13029-P; Digital Equipment Corporation, GSBCA 13043-P; and Hewlett-Packard Company, GSBCA 13048-P, followed. International Business Machines Corporation (IBM) intervened of right in opposition to each protest. Each protester intervened of right in at least one of the other protests, some in opposition to the ground(s) of protest. These protests challenge the actions of the respondent, the General Services Administration, reflected in amendment 23 to the underlying procurement. The amendment was issued subsequent to the Board's dismissal of a protest challenging the agency's selection determination; the agency terminated that award. Digital Equipment Corp. v. General Services Administration, GSBCA 12891-P, 1994 BPD 171 (Aug. 12, 1994). On October 17, lacking agency opposition, the Board suspended the agency's applicable procurement authority: The Board suspended effective immediately, and to remain in effect until the Board dismisses or resolves each protest, the agency's applicable procurement authority to the extent that the agency shall not proceed with the underlying procurement or satisfy the requirements encompassed by the protested procurement. 40 U.S.C. 759(f)(2) (1988). GDE Systems, Inc. v. General Services Administration, GSBCA 13018-P, et al. (Oct. 18, 1994). On November 2, the agency filed a motion to dismiss with prejudice all four protests. In its motion, the agency represents and concludes: "Concurrent with the filing of this motion to dismiss, GSA is withdrawing Amendment 23. . . . GSA's decision to withdraw Amendment 23 eliminates the basis for these protests and therefore a dismissal is appropriate." Given that the agency's procurement authority is suspended, the contracting officer lacks the authority to proceed with the underlying procurement. Withdrawing amendment 23 alters the terms of the procurement and constitutes an agency action under the procurement; as such, the "withdrawal" is an action proceeding with the procurement. The "withdrawal" can have no effect while the suspension is in place. Accordingly, as stated during a telephone conference with the parties on November 3, the Board deems the agency motion to dismiss the protests to be premised upon a proposed withdrawal of amendment 23; that is, with the suspension in place, the contracting officer has not withdrawn the amendment. On November 4, Hewlett-Packard filed a statement withdrawing its protest--that is, moving to dismiss its protest with prejudice. Rule 28(a). On November 4, Digital moved to dismiss with prejudice its protest. On November 7, Data General filed a motion to dismiss. It notes that the agency has agreed to pay Data General its reasonable attorney fees and costs through agency funds without invoking the statutory provisions for award of costs by the Board. It also requests that the dismissal shall be without prejudice to reinstatement of Data General's protest should the agency again take an action that provides the same grounds for protest as those which Data General was pursuing in its protest. Data General was pursuing two counts in its protest. First, it alleges that amendment 23 alters the evaluation factors and their relative importance without giving offerors the opportunity to submit proposals in response to the revised criteria. Second, it maintains that by deleting an evaluation criterion the agency has acted arbitrarily and unfairly improved the competitive position of some offerors while harming the competitive position of others, and hence, failed to pursue full and open competition. On November 8, GDE filed a statement withdrawing its protest--that is, moving to dismiss its protest with prejudice. No party has objected to the requested dismissals. Accordingly, the Board DISMISSES WITH PREJUDICE the protests of GDE, Digital, and Hewlett-Packard, and DISMISSES WITHOUT PREJUDICE the protest of Data General. The dismissal without prejudice becomes one with prejudice on April 16, 1995, unless earlier Data General timely raises the same ground(s) of protest. In so dismissing the four protests, the Board has not resolved the merits of any protest issue and need not resolve the pending motions for summary relief, dismissal, and the like. The order suspending the agency's applicable procurement authority lapses with these dismissals. 40 U.S.C. 759(f)(2) (1988); Order (Oct. 18, 1994). _________________________ JOSEPH A. VERGILIO Board Judge