THIS OPINION WAS INITIALLY ISSUED UNDER
                 PROTECTIVE ORDER AND IS BEING RELEASED
            TO THE PUBLIC IN REDACTED FORM ON MARCH 23, 1995
           _________________________________________________
        
            MOTION TO VACATE DENIED; MOTION FOR RELIEF FROM
              DECISION GRANTED IN PART: February 23, 1995
           _________________________________________________
 
 
                           GSBCA 12824-P-REM
 
 
                      COMPUTER DATA SYSTEMS, INC.,
 
                                                Protester,
 
                                   v.
 
                         DEPARTMENT OF ENERGY,
 
                                                Respondent,
 
                                  and
 
                                DYNCORP,
 
                                                Intervenor.
 
        Marcia G.  Madsen,  Andrew D.  Ness,  Brian W.  Craver,  and
   David F.  Dowd of  Morgan, Lewis &  Bockius, Washington,  DC; and
   Charles B.  Machion and Peter  A. Fish of Computer  Data Systems,
   Inc., Rockville, MD, counsel for Protester.
 
        Mary Egger, Patricia  D. Graham, and Patricia  A. Wentworth,
   Office  of General Counsel, Department of Energy, Washington, DC,
   counsel for Respondent.
 
        David S.  Cohen,  C. Patteson  Cardwell,  IV, and  G.  Brent
   Connor  of Cohen  & White,  Washington, DC;  and Stuart  Young of
   DynCorp, Reston, VA, counsel for Intervenor.
 
   Before      Board     Judges      DANIELS     (Chairman)      and
   WILLIAMS.[foot #] 1
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     Judge  Goodman,   who  participated   in  the
   original  decision, did  not participate  in  the proceedings  on
   remand and had no part in this decision.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   WILLIAMS, Board Judge.
 
 
        This matter  comes before  the Board on  a mandate  from the
   United States  Court of  Appeals for  the  Federal Circuit  which
   instructs the Board to consider whether to vacate the decision on
   the  merits  of  the  above-captioned protest  in  light  of  the
   parties' settlement  of  this matter.   DynCorp  v. O'Leary,  No.
   94-1493 (Fed. Cir. Jan. 4, 1995).  In a joint motion, the parties
   have requested  that the Board vacate its July 15, 1994, decision
   or,  in  the  alternative,  grant relief  from  the  decision  by
   deleting the remedy  or removing  all conditions  imposed by  the
   decision  on the  Department of  Energy's  (DOE's) delegation  of
   procurement authority (DPA)  to enable them to effect  a proposed
   settlement.  For  the reasons stated below, we  deny the parties'
   request  for vacatur.   We grant in part  the parties' motion for
   relief  from  decision,  by adding  an  alternative  remedy which
   enables the agency to proceed  with the procurement in any manner
   consistent with statute and regulation.
 
                               Background
 
        On May 2, 1994, Computer Data Systems, Inc. (CDSI) protested
   the  award  of a  contract  by  DOE  to DynCorp  for  information
   resources management (IRM) support services.  DynCorp intervened.
   In  its original fifteen-count  complaint, CDSI alleged  that DOE
   relaxed  the  mandatory  experience   requirements  for  DynCorp,
   conducted an  improper technical  evaluation of  both CDSI's  and
   DynCorp's  proposals, failed  to conduct  meaningful discussions,
   performed an improper  responsibility determination for  DynCorp,
   and  conducted  an  arbitrary  and  capricious  cost  evaluation.
   Further,   CDSI  alleged   that   there   was  an   impermissible
   organizational  conflict of interest between DynCorp and DOE, and
   that  the award  decision was  tainted  by bias.   CDSI  filed an
   amended complaint adding  an allegation of  technical transfusion
   and leveling.
 
        After  an eight-day hearing, the Board, in a ninety-two-page
   decision, granted the protest  in part, agreeing that  the agency
   conducted   an  improper   technical   evaluation  and   improper
   discussions  and  that the  cost  evaluation  was  flawed in  two
   respects.  As a remedy, the  Board revised DOE's DPA by directing
   the  agency  to empanel  a  new  Source Evaluation  Board  (SEB),
   establish  objective  standards  for  reevaluation,  clarify  its
   minimum  needs and  cost evaluation  mechanisms,  and proceed  in
   accordance  with statute and regulation.  Specifically, the Board
   ruled:
 
             The Board  is  unable  to  ascertain  whether  the
        awardee's proposal was properly determined  to have the
        best value or  not.  Since additional  discussions must
        be held, another round of BAFOs [best and final offers]
        must  be   submitted  and  evaluated.     Because  this
        evaluation should begin on a clean slate, unaffected by
        this  particularly  intense  and  difficult  litigation
 
        process,  we direct the  establishment of a  new source
        evaluation board.   See Communications Network  System,
        Inc. v. Department of Commerce, GSBCA 12705-P, 1994 BPD
          63,  at 27 (Feb. 24, 1994); Denro, Inc. v. Department
        of  Transportation,  GSBCA 11736-P-R,  1992  BPD    381
        (Aug. 31, 1992).   The SSO [source  selection official]
        need not be replaced.
 
             The new  SEB shall  establish objective  standards
        for ascertaining strengths,  weaknesses, and the import
        of  a  designation  of  a  "significant"  strength   or
        weakness.  Similarly, the SEB shall establish objective
        baseline-type standards  for determining  similarity in
        size and scope for the reference contracts.
 
             We  strongly recommend, but do not order, that the
        DOE  rethink   its  policy   of  permitting   wholesale
        destruction of individual evaluators' notes during  the
        evaluation.  This  prevents a reviewer such  as the SSO
        from ascertaining  whether the  consensus ratings  bear
        any    relationship    to    independent,    individual
        evaluations.    Preserving the  individual  evaluators'
        worksheets  would  enhance  the  accountability of  the
        process.
 
             Next,  the  SEB  must begin  anew  to  perform its
        reference  checks  for  CDSI's  GSA  [General  Services
        Administration] contracts  and DynCorp's  Kwajalein and
        FLTAC [the  U.S. Navy Fleet Analysis Center Engineering
        and  Technical  Services]  contracts  and  to   rescore
        criteria 1  and  2.    The  SEB  shall  also  reanalyze
        proposals  with  regard  to  the  use  of uncompensated
        overtime  and  treat  all   offerors  equally.    After
        reevaluating proposals in  that fashion, the  SEB shall
        engage in discussions as necessary, and disclose to all
        offerors the  standard it will use in the evaluation of
        cost BAFOs.  The SEB  shall then call for another round
        of BAFOs  and proceed  in accordance  with statute  and
        regulation.
 
             We recognize that  the empaneling of a new SEB may
        cause  the agency  inconvenience.   Nonetheless,  after
        careful  consideration, we  conclude that  this  is the
        only manner in which to ensure that further competition
        is on an equitable basis.
 
   Computer   Data   Systems,   Inc.  v.   Department   of   Energy,
   GSBCA 12824-P, slip op. at 91-92 (July 15, 1994).
 
        To maintain  services during  pendency of  the protest,  DOE
   extended  CDSI's incumbent contract  through August 31, 1994, and
   again  through the  end of  February  1995.   On August 5,  1994,
   DynCorp filed  a protest, GSBCA 12826-P,  challenging any further
   extension of CDSI's  incumbent contract.  The  Board subsequently
   issued an  order of partial  suspension of services  under CDSI's
   contract.
 
 
        On September 2, 1994, DynCorp filed an appeal of the Board's
   July 15, 1994, decision  with the United States Court  of Appeals
   for the Federal Circuit.
 
        The parties have represented that:
 
        On September 28,  1994, the  parties to  CDSI's Protest
        agreed on a resolution of their dispute concerning this
        procurement   and  executed   a  settlement   agreement
        providing  for the  award  of  two  contracts,  one  to
        DynCorp and the second to CDSI, with the work described
        under  the Solicitation  approximately equally  divided
        between the two.
 
   Joint Memorandum  in Support  of Computer  Data Systems,  Inc.'s,
   DynCorp's and the United States Department of Energy's Motion for
   Vacatur and/or Relief from Decision (Joint Memorandum) at 6.
 
        On  September 29, 1994, the  parties filed with  the Board a
   joint motion  for relief  from decision  in GSBCA 12824-P and  to
   dismiss GSBCA 12926-P.  This motion, like the instant one, sought
   relief from our decision of July 15, 1994, and requested that the
   Board  alter   its  remedy   to   amend  DOE's   DPA  to   permit
   implementation of a settlement agreement which included the award
   of two contracts.
 
        On  October 4, 1994, the parties withdrew their joint motion
   and  commenced  discussions  which  resulted  in  an  alternative
   settlement  arrangement involving  the award  of  a single  prime
   contract to DynCorp.   In addition, the  parties have represented
   that  DynCorp  reached   an  agreement  with   Computer  Sciences
   Corporation (CSC), a third offeror in the competitive range which
   did not  join in the  protest.  Under  that agreement, CSC  is to
   receive  a  subcontract  and  will not  object  to  the  proposed
   settlement.  Joint Memorandum at 7 and Exhibit 1.[foot #] 2
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     Specifically, in  a letter  dated January 18,
   1995, to  the president  of DynCorp's  Federal Sector  Group, CSC
   stated that 
 
        Pursuant to this MOU  [memorandum of understanding], at
        such time as a prime  contract is awarded to DynCorp as
        a  result of  the  settlement,  DynCorp  will  award  a
        subcontract to CSC.  The subcontract award will reflect
        the estimated Direct  Productive Labor Hours and  costs
        as  contained in  CSC's  MOU  with  DynCorp  and  CSC's
        proposal  as submitted to  DOE on January 17,  1995 and
        summarized to DynCorp on January 13, 1995.
 
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The parties have represented that on November 30, 1994, they
   executed  a  settlement   agreement  superseding  their   earlier
   agreement which provided for the award of one contract to DynCorp
   with  award by  DynCorp of  subcontracts  to both  CDSI and  CSC.
   Joint Memorandum at 7.
 
        The parties represented  that on December 30, 1994,  DynCorp
   and  DOE, with  the supporting declaration  from CDSI,  moved the
   United States  Court of  Appeals  for  the  Federal  Circuit  "to
   dismiss  DynCorp's appeal without prejudice on grounds of pending
   settlement, and  to remand it  to the GSBCA with  instructions to
   consider    vacating    its     decision."[foot #] 3        Joint
   Memorandum at 7.
 
                               Discussion
 
        The parties ask  this Board to vacate its  decision or grant
   the agency  relief from the  decision claiming that they  will be
   unable to implement their settlement  unless the Board takes such
   action.  The parties point out that, under the Brooks Act, DOE is
   prohibited  from awarding a  new contract under  the solicitation
   except in  accordance  with the  specific  terms of  the  Board's
   decision,  i.e.,  by  empaneling  a  new  SEB  and  conducting  a
   reevaluation in the manner specified in that decision.
 
        The parties claim  that a decision to vacate  is required by
   the Federal Circuit's decision in  Federal Data Corp. v. SMS Data
   Products, 819 F.2d 277 (Fed.  Cir. 1987), and would be consistent
   with  the United States  Supreme Court's  recent  ruling in  U.S.
   Bancorp Mortgage Co.  v. Bonner Mall Partnership, 115  S. Ct. 386
   (1994).  In the alternative,  the parties urge the Board to grant
   relief from decision pursuant to Board Rule 33(a)(4) and (6).  In
   support of this request, the parties argue that because they have
   settled and  the  Federal Circuit  has  instructed the  Board  to
   consider vacatur,  it is  no  longer necessary  to implement  the
   Board's decision and it is  no longer equitable that the decision
   should have prospective application.  Joint Memorandum at 29.
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2 (...continued)
        Based on  the above, and  as discussed in the  MOU, CSC
        has agreed not to  bring any protest against the  award
        of [this] contract.
 
   Joint Memorandum, Exhibit 1.
 
 
        [foot #] 3     The   parties   have  not   submitted   their
   appellate submissions  or their proposed settlement  agreement to
   the Board.   The sole filing  on remand is  the joint motion  and
   memorandum.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   I.   Should  the  Board  Vacate  Its Decision  in  Light  of  the
 
        Parties' Settlement?
 
        After  reviewing the  cases  cited,  we  conclude  that  the
   parties'  request  that we  vacate  the merits  decision  in this
   protest is  inconsistent with  the holding  and rationale  of the
   United States  Supreme  Court's recent  decision in  U.S. Bancorp
   Mortgage Co. v. Bonner Mall Partnership,  115 S. Ct. 386.  There,
   the Court  held that "mootness  by reason of settlement  does not
   justify vacatur of a judgment under review."  Id. at 393.
 
        The  Court  revisited  its  decision  in  United  States  v.
   Munsingwear, Inc., 340  U.S. 36 (1950), which stated  that "[t]he
   established practice  of the Court  in dealing with a  civil case
   from a court in the federal system which has become moot while on
   its way here or pending our decision on the merits is  to reverse
   or  vacate the  judgment below  and  remand with  a direction  to
   dismiss."   Id.  at 39.   In  the U.S.  Bancorp  case, the  Court
   expressly stated  that "[t]he  principles that  have always  been
   implicit in our treatment of moot cases counsel against extending
   Munsingwear to  settlement."   U.S. Bancorp, 115  S. Ct.  at 391.
   The Court  pointed out  that a principal  inquiry in  determining
   whether to vacate is whether  the parties seeking relief from the
   judgment below caused the mootness by voluntary action.
 
        The Court noted that where mootness results from settlement,
   the  losing party has  voluntarily forfeited the  appeal, thereby
   surrendering its claim to the  equitable remedy of vacatur.  U.S.
   Bancorp, 115 S. Ct. at 392.  The Court explained:
 
        The judgment is not unreviewable, but simply unreviewed
        by [the party's] own choice.   The denial of vacatur is
        merely  one  application  of the  principle  that  '[a]
        suitor's conduct in relation to the matter  at hand may
        disentitle him to the relief he seeks.'
 
   Id. (citation omitted).   Thus, the Court reasoned  that the case
   would  stand no  differently than  if  jurisdiction were  lacking
   because  the losing  party  failed to  appeal  at all.    This is
   precisely the situation  before the Board.  The  parties by their
   voluntary action have abandoned the appeal.
 
        Another  consideration  the  Supreme  Court  articulated  in
   deciding  whether or  not a  tribunal should  grant vacatur  of a
   decision is the public interest.  The Court quoted:
 
        'Judicial  precedents  are  presumptively  correct  and
        valuable to the  legal community as a whole.   They are
        not merely the property of private litigants and should
        stand unless a court concludes that the public interest
        would be served by vacatur.'
 
   U.S. Bancorp,  115 S.  Ct. at 392  (quoting Izumi  Seimitsu Kogyo
   Kabushiki Kaisha  v. U.S.  Phillips Corp., 114  S. Ct.  425, 428,
   (1993) (Stevens, J.,  dissenting)).  The Court  explained that to
   allow a party to  seek relief from a judgment not through appeal,
   but through a  "secondary remedy of vacatur as a  refined form of
   collateral attack  on the  judgment," would  disturb the  orderly
   operation of the federal judicial system.
 
 
        The Court went  on to state that  "exceptional circumstances
   may  conceivably counsel"  vacatur, but  that  "those exceptional
   circumstances do  not include the  mere fact that  the settlement
   agreement  provides for vacatur  -- which neither  diminishes the
   voluntariness of the abandonment of  review nor alters any of the
   policy  considerations we  have discussed."    U.S. Bancorp,  115
   S. Ct. at 393.   Thus, the parties' efforts  here to characterize
   their settlement as an "exceptional  circumstance" which requires
   vacatur must  fail.   The fact that  the parties  condition their
   settlement upon  vacatur  or revision  of our  decision does  not
   alter   this  result.[foot #] 4     In  this  case,   the  public
   policy  favoring  the  orderly operation  of  the  Board  and the
   precedential effect of the decision outweighs any policy favoring
   post-decisional  settlements.   Indeed, as the  Court recognized,
   permitting  parties to undo a tribunal's  decision by settling on
   appeal may  have the  effect of discouraging  settlements at  the
   stage when  they are  most beneficial,  i.e., pre-decision.   The
   Court explained:
 
        But while  the availability  of vacatur  may facilitate
        settlement after  the judgment  under  review has  been
        rendered and certiorari  granted (or appeal filed),  it
        may  deter  settlement  at  an  earlier  stage.    Some
        litigants,  at least, may  think it worthwhile  to roll
        the dice rather  than settle in the district  court, or
        in   the  court  of  appeals,   if,  but  only  if,  an
        unfavorable outcome can be washed away by a settlement-
        related vacatur.   And the judicial  economies achieved
        by   settlement   at  the   district-court   level  are
        ordinarily much more extensive  than those achieved  by
        settlement on appeal.   We find it  quite impossible to
        assess the effect of our holding,  either way, upon the
        frequency or systemic value of settlement.
 
   U.S. Bancorp, 115 S. Ct. at 393.
 
        Thus,  the   "extraordinary  remedy"   of  vacatur  is   not
   appropriate here.  See U.S. Bancorp, 115 S. Ct. at 392, 393.
 
   II.  Should the Board Grant the Parties Relief From Decision?
 
        In  the  alternative,  the  parties  seek  relief  from  our
   decision in  the form of deletion of  the remedy from the Board's
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4     Given our  amendment of our  decision in  the
   manner discussed, infra, the parties may be able to settle.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   decision    on     the    merits.[foot #] 5         While    this
   resolution   might   conceivably    be   appropriate   in    some
   circumstances, the Board believes that the public policy favoring
   preserving the viability of unreviewed legal precedent  militates
   against a wholesale deletion of the remedy.  The remedy fashioned
   by the  Board was  that which,  in the  view of  the Board,  best
   rectified  the myriad violations of statute and regulation found.
   Nothing in  the parties'  motion  papers persuades  us that  this
   relief was unwarranted or incorrect.
 
 
        Recognizing, however, that the detailed remedy fashioned  by
   the Board  did not  contemplate alternative  legal approaches  to
   proceeding  with the procurement,  the Board grants  the parties'
   request  for relief  from decision  in two  respects.   First, we
   delete  the  words "the  only  manner  in  which" from  the  last
   sentence of  the  paragraph beginning  on page 91  and ending  on
   page 92  of  our  decision  and  replace  those  words  with  "an
   appropriate  mechanism."     This  sentence   as  amended  reads:
   "Nonetheless, after careful consideration,  we conclude that this
   is an appropriate mechanism to ensure that further competition is
   on  an  equitable  basis."   Second,  immediately  following this
   amended sentence, we insert:
 
             In  the alternative,  the  agency's delegation  of
        procurement  authority  is  amended  to  permit  it  to
        proceed to acquire  its needs in any  manner consistent
        with statute and regulation.
 
        The Board, as the parties  have urged, should not review the
   parties' settlement.   See Joint Memorandum at 11.   However, the
   Board deems  it appropriate to  amend its decision to  permit the
   agency additional latitude in acquiring its needed services.
 
                                Decision
 
        The  parties'  joint  motion for  vacatur  is  DENIED.   The
   parties'  joint motion  for relief  from decision  is GRANTED  IN
   PART.
 
                                      _____________________________
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   I concur:
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5     Given the remand, the Board finds the  motion
   for relief from decision timely.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   ____________________________
   STEPHEN M. DANIELS
   Board Judge