Exhibit 10.29
BEFORE THE ARMED SERVICES
BOARD OF CONTRACT APPEALS
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IN THE MATTER OF THE APPEAL OF )
)
GOVERNMENT TECHNOLOGY SERVICES, INC. ) ASBCA No. 49614
)
UNDER CONTRACT NO. F01620-93-D-0001 )
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SETTLEMENT AGREEMENT
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This Settlement Agreement ("Agreement") is entered into as of
this [20th] day of December, 1996, by and between Government
Technology Services, Inc. ("Appellant") and the United States of
America, Department of the Air Force ("Respondent"), acting by and
through Appellant's duly authorized Contracting Officer.
R E C I T A L S
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WHEREAS, on February 2, 1993, Appellant and Respondent entered
into Contract No. F01620-93-D-0001 ("the Contract"), pursuant to
which Appellant agreed to provide certain microcomputer hardware,
software, services and related items to Appellant to support
general purpose applications for desktop computer needs, including
certain operating systems and office automation software;
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WHEREAS, the Contract provided more specifically for the
purchase of Contract Line Item ("CLIN") 0001 basic systems, CLIN
0002 intermediate systems, CLIN 0003 advanced systems, CLIN 0004
open systems-common application environment, CLIN 0005 orderable
software, CLIN 0006-0009 orderable hardware, CLIN 0010-0015
user-installable components, CLIN 0016-0023 extended warranty, CLIN
0024 data, and CLIN 0025 one-time maintenance training;
WHEREAS, GTSI proposed Microsoft Corporation ("Microsoft")
Windows Version 3.1 as the bundled operating system for CLIN 0001,
CLIN 0002 and CLIN 0003;
WHEREAS, for office automation software for CLIN 0001, CLIN
0002, and CLIN 0003, GTSI proposed Microsoft Word for Windows 2.0,
Microsoft Excel 4.0, Microsoft PowerPoint 2.0, SPI Window Base
Version 1.5, Hinsch Time Planner, and Microsoft Communications
software included in Windows Version 3.1;
WHEREAS, Section H-10 of the Contract provided, in pertinent
part, that for the base year and first two option periods of the
Contract all updated/upgraded versions of the software and
associated documentation was to be furnished by Appellant to the
Government without additional charge;
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WHEREAS, Appellant's proposal leading to the Contract
(i) agreed to provide software upgrades [*]
[*] and (ii) stated that
[*]
[*] ;
WHEREAS, Respondent advised Appellant in August, 1995 that
Respondent believed that Appellant was required to provide Windows
95 and Office 95 software to users under the Contract as upgrades
without additional compensation;
WHEREAS, Appellant provided to Respondent its position and the
position of Microsoft Corporation that Windows 95 and Office 95
were not upgrades under the Contract;
WHEREAS, by letter dated November 27, 1995, Respondent issued
its Final Decision that Windows 95 and Office 95 were upgrades
under the Contract to be provided by Appellant to Respondent's
users without additional charge;
WHEREAS, on July 31, 1996, Appellant timely filed a complaint
with the Armed Services Board of Contract Appeals, ASBCA No. 49614,
("Action") appealing the Contracting Officer's Final Decision and
seeking, among other things, a determination that Windows 95 and
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Office 95 are not "Upgrades" to be provided free of charge under
the Contract; and
WHEREAS, the Action involves contested questions of fact and
law, and the parties now wish to compromise and settle the Action
and other specifically identified disputes between them without
further litigation:
NOW, THEREFORE, for and in consideration of the recitals set
forth above, which are deemed substantive parts of this Settlement
Agreement, the mutual promises contained herein, the consideration
set forth below, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, Appellant and Respondent hereby
agree as follows:
1. Within five business days of the execution of this
Agreement by both parties, Appellant shall file with the ASBCA a
motion to dismiss the Action with prejudice. Each party shall bear
its own costs and fees for litigating the Action, consistent with
the requirements of Federal Acquisition Regulation Part 31 and the
allowability provisions therein.
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2. Appellant agrees, as full resolution of its Upgrade
responsibilities under the Contract in general and under Contract
Section H-10 in particular, that Appellant will promptly provide
without charge: (a) licenses for Windows 95 and/or Office 95
products to [*]
[*] ; and
(b) Windows 95 and/or Office 95 products licenses to all users of
Respondent who register under the Contract with Appellant in
writing on or before February 28, 1997, both (a) and (b) subject to
the limitations in Paragraph 3 below, and provided further that
[*]
[*]
[*]
[*]
[*]
[*] .
3. Notwithstanding any other provision in this Agreement,
the maximum number of additional licenses Appellant shall be
required to provide for those [*] without
additional charge under the Contract for any Upgrades/Updates of
any kind shall be up to [*] licenses for Windows 95 and up to
[*] licenses for Office 95, and shall exclude any [*]
[*]
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[*]
[*] .
4. In consideration for Respondent's agreement to resolve
this matter without protracted litigation, as well as Respondent's
agreements recited herein, Appellant agrees to release and
discharge Respondent, its employees, officials, affiliates,
representatives, successors and assigns, from any and all claims,
causes, liabilities, costs or demands at law or in equity which are
alleged in, relate to, concern, or involve the subject matter of
the Action, including but not limited to any liability of
Respondent concerning compensation to Appellant for upgrades under
the Contract.
5. In consideration for Appellant's agreement to resolve
this matter without protracted litigation, as well as Appellant's
agreements recited herein, Respondent agrees to release and
discharge Appellant, its employees, officers, directors,
affiliates, representatives, successors and assigns, from any and
all claims, causes, liabilities, costs or demands at law or in
equity which are alleged in, relate to, concern or involve the
Action, including but not limited to any liability of Appellant for
any additional upgrades or updates of any kind under the Contract
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in general or Section H-10 in particular, including but not limited
to Office 97 and/or Internet Explorer 4.0.
6. This Settlement Agreement is inclusive of, and in full
satisfaction of, all interest, attorneys' fees, and any costs
incurred by either party to the Action. Appellant and Respondent
specifically agree that the terms of this Settlement Agreement or
any actions required by the terms of this Settlement Agreement do
not impact, waive, release, discharge or otherwise in any way
affect any claims or subsequent actions relating to any items not
covered in this Agreement.
7. The terms of this Settlement Agreement are contractual in
nature and are not mere recitals. This Settlement Agreement has
been carefully read, the contents hereof are known and understood,
and it is freely signed after consultation with counsel, by all
parties hereto. The parties agree and acknowledge that both
parties jointly drafted the terms and conditions contained in this
Settlement Agreement. Therefore, this Settlement Agreement shall
not be construed against either party on the basis that both
parties are responsible for the drafting of any section alleged to
be ambiguous or uncertain in the event of any ambiguities or
uncertainties.
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8. The parties acknowledge and agree that this Settlement
Agreement and the obligations it creates are the result of
compromise and are entered into in good faith, and that nothing
contained in this Settlement Agreement shall be construed as an
admission of liability or fact or as an admission against interest
by either party hereto.
9. The parties agree that the terms of this Agreement are
strictly confidential, and shall not be disclosed by either party
hereto except as required by law, regulation, or judicial process.
10. This Settlement Agreement represents and contains the
entire and only agreement and understanding with respect to the
subject matter of this Settlement Agreement, and supersedes any and
all prior and contemporaneous oral and written agreements,
understandings, representations, inducements, promises, warranty,
and conditions among the parties.
11. This Settlement Agreement and each of its provisions
shall become effective, valid, and binding upon the parties hereto
upon the execution and delivery by each of the parties hereto and
may be amended only in writing executed by each of the parties
hereto.
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12. This Settlement Agreement shall be binding upon the
parties, and their successors and assigns.
13. Each party represents, warrants, and covenants that it
has full and complete authority and authorization to execute and
effect this Settlement Agreement and to take or cause to be taken
all acts contemplated by this Settlement Agreement.
14. This Settlement Agreement will be executed in two
duplicate originals each of which shall constitute an original and
all of which when taken together shall constitute but a single
agreement.
DEPARTMENT OF THE AIR FORCE
Dated: /s/ 23DEC96 By: /s/ Christine Mitchell
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Christine Mitchell
Contracting Officer
GOVERNMENT TECHNOLOGY SERVICES, INC.
Dated: /s/ 12/20/96 By: /s/ Paul F. Cantwell
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Paul F. Cantwell
Vice President,
Program Management
[*] Pursuant to Rule 24b-2, confidential material has been
redacted and filed separately with the SEC.
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