_________________________________________ DISMISSED WITH PREJUDICE: July 31, 1995 _________________________________________ GSBCA 13306-P, 13307-P, 13334-P ZENITH DATA SYSTEMS CORPORATION, WIN LABORATORIES, LTD., and GOVERNMENT TECHNOLOGY SERVICES, INC., Protesters/Intervenors, v. DEPARTMENT OF THE TREASURY, Respondent, and ELECTRONIC DATA SYSTEMS, Intervenor. Laura K. Kennedy, Grace Bateman, G. Matthew Koehl, and Kevin P. Connelly of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Protester/Intervenor Zenith Data Systems Corporation. Joseph J. Petrillo, William E. Conner, and Karen D. Powell of Petrillo & Associates, Washington, DC, counsel for Protester/Intervenor WIN Laboratories, Ltd. Richard J. Conway and Merle M. DeLancey, Jr., of Dickstein, Shapiro & Morin, L.L.P., Washington, DC, counsel for Protester/Intervenor Government Technology Services, Inc. Donald M. Suica, Corlyss M. Drinkard, Francis C. Inserra, Eileen G. Strong, Lori R. Larson, Robert H. Humphries, and Mark A. Allen, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. David S. Cohen, William F. Savarino, and G. Brent Connor of Cohen & White, Washington, DC; and Daniel Parker, Jr., Electronic Data Systems Corporation, Herndon, VA, counsel for Intervenor. WILLIAMS, Board Judge. ORDER On June 15, June 19, and July 11, 1995, Zenith Data Systems Corporation (ZDS), WIN Laboratories, Ltd. (WIN), and Government Technology Services, Inc. (GTSI), respectively, protested the Department of the Treasury, Internal Revenue Service's (Treasury) award of a contract for computer equipment, software, and peripherals to Electronic Data Systems (EDS) under solicitation number IRS-93-007. On July 17, 1995, the parties filed a joint motion to dismiss these protests with prejudice pursuant to their settlement agreement. The settlement agreement stated, in pertinent part: THIS SETTLEMENT AGREEMENT, made this ___ day of July, 1995, by and between the Internal Revenue Service, Department of the Treasury (the Government), Zenith Data Systems ("Zenith"), Win Laboratories Ltd. ("Win"), Government Technologies Services, Inc. ("GTSI"), and Electronic Data Systems ("EDS"), together the parties, expresses the parties' intention to settle further legal, equitable, and administrative claims against one another in connection with Zenith Data Systems Corporation, Win Laboratories, Ltd. and Government Technology Services, Inc. v. Department of the Treasury and Electronic Data Systems, GSBCA Nos. 13306-P, 13307-P, 13334-P. Whereas, on June 15, 1995, Zenith filed a protest with the General Services Administration Board of Contract Appeals (GSBCA) No. 13306-P, alleging that, among other things, the procurement conducted under solicitation no. IRS-93-0007 (the procurement) leading to the award of contract no. Tir-95-0016 (the contract) to EDS violated 41 U.S.C. 253b(a) because the Government had improperly and prejudicially considered in the evaluation of offers EDS' offer of a second-year warranty on all hardware items; WHEREAS, EDS, WIN, and GTSI intervened in the Zenith protest; WHEREAS, WIN later protested, among other things, that the monitor proposed by EDS under the solicitation does not meet the mandatory requirements of the solicitation; WHEREAS, GTSI later protested, among other things, that the Government had engaged in improper negotiations and auctioning in connection with discussions that culminated in the third round of BAFOs requested in connection with the solicitation; WHEREAS, the GSBCA, ruling on the Government's, protesters', and intervenors' cross-motions for summary relief on Count I of the Zenith protest, granted the protesters' and intervenors' motions and determined that the Government had considered an undisclosed evaluation factor in its evaluation of offerors under M.6.1.4 and under M.4.1 and M.4.2 under the solicitation, to wit, EDS's second-year warranty and the value thereof; WHEREAS, the parties have agreed to resolve amicably the appropriate remedy for the violation of law that has occurred and the appropriate action to take with regard to remaining allegations against the Government, the parties agree as follows: A. The Government: 1. Shall terminate for convenience its award of the contract to EDS; 2. Shall appoint a new Source Selection Authority, who will be an individual with no prior involvement with this procurement, to issue a new SSA Decision Document; 3. Shall appoint a new Source Selection Advisory Council, comprised of different individuals who have had no prior involvement with this procurement, to issue a new SSAC Report and Award Recommendation; 4. Shall rescore the EDS offer under M.6.1.4 of the solicitation so as to remove any consideration of the second-year warranty in accordance with the GSBCA's ruling granting Count I, and make any further adjustments also required by the GSBCA's rulings, and make no other adjustments; 5. Shall, consistent with the Board's order granting Count I, not consider, in any part of the evaluation or source selection, the length of an offered warranty beyond the one year required by the solicitation; 6. Shall not permit any offeror to revise its proposal in making the new source selection decision; and 7. Agrees that Zenith Data Systems Corporation, WIN Laboratories, Ltd., and Government Technology Services, Inc. are all prevailing parties and have obtained a substantial benefit in the form of relief sought. The Government further agrees that the aforementioned three parties can submit an application for protest costs under GSBCA Rule 35 and that the Government will not oppose those motions, except on the ground of unreasonable costs, if any. The Government further represents that it will prepare and file any documentation required by 1436 of the Federal Acquisition Streamlining Act. Any such documentation will take the position that the contract award was unlawful for the reasons expressed in Count I of the protest and granted by the Board. B. Zenith, Win and GTSI shall withdraw their several protests with prejudice; and a. GTSI agrees that it will not allege impropriety in any future award on the grounds that the request for third BAFOs was improper due to the use of auction techniques or improper negotiations; and b. WIN agrees that it will not allege impropriety in any future award to EDS on the ground that the monitor does not comply with the terms of the solicitation. PROVIDED THAT no party shall be deemed to waive any protest ground or defense, except a. and b., which might be alleged with respect to a new source selection rationale. C. EDS shall not protest the termination of its contract. D. This Settlement Agreement constitutes the entire agreement among the parties in relation to the subject matter and shall supersede and extinguish any and all prior agreements or discussions among the parties. No term or provision of this Settlement Agreement may be varied, changed, or waived except in writing signed by all parties. The parties expressly agree that there is no oral understanding, agreement, or arrangement other than those which are expressly set forth herein. The parties further agree that this agreement may be made public. The undersigned warrant that they are authorized to execute this agreement on behalf of the firms identified below or on behalf of the Government. E. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. Facsimile signatures will be regarded as authentic by all parties. On July 27, 1995, respondent filed a memorandum signed by the contracting officer explaining the protest, the settlement, and the Government's position as required by the Federal Acquisition Streamlining Act of 1994. 40 U.S.C. 759(f)(5)(D) (as amended by Pub. L. No. 103-355, 1436, 108 Stat. 3243, 3293 (1994)); 60 Fed. Reg. 17023 (Apr. 4, 1995). Accordingly, these protests are DISMISSED WITH PREJUDICE. Rule 28(a). ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge