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EXPRESS ONE INTL., INC. v. USPS

December 22, 1992

EXPRESS ONE INTERNATIONAL, INC., Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant. EMERY WORLDWIDE AIRLINES, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before the court on the four parties' motions for summary judgment. Upon consideration of the motions for summary judgment, the multiple oppositions filed by each party, and each parties' reply briefs, and for the reasons presented below, Emery and Express One's Motions for Summary Judgment are GRANTED to the extent they comport with this opinion. An appropriate order invalidating the September 16, 1992, ANET-93-01 contract and entering a permanent injunction against the United States Postal Service will issue this date.

 Plaintiffs in these consolidated suits, Emery and Express One, are disappointed bidders for a ten-year, $ 1 billion contract (known as "ANET") with the United States Postal Service (USPS) to provide express mail and priority mail delivery for the Postal Service beginning January 20, 1993. The incumbent provider is Emery. Intervenor-defendant Postal Air, Inc., formerly known as Kitty Hawk Air Cargo, Inc., was awarded the new contract on September 16, 1992.

 In its first encounter with this case, this court denied a motion by Emery for a temporary restraining order due to the lack of imminent harm. Then, on October 23, 1992, the court entered a preliminary injunction which prohibited the USPS from performing any work on the ANET contract. In the interest of resolving this case in an expedited fashion, the court also ordered expedited discovery (which was completed on November 25, 1992) and established an accelerated briefing schedule for the parties' motions for summary judgment.

 It is to those four motions that the court now turns.

 II. FINDINGS OF FACTS.1

 The court finds that there is no genuine dispute concerning the following facts:

 1. William G. Cole worked as an "as required" employee for A.D. Little, Inc., for all relevant periods herein. A.D. Little served the USPS as a consultant/evaluator on the ANET procurement.

 2. Conrad ("Connie") Kalitta is the Chief Executive Officer and sole shareholder of American International Airways, Inc. ("AIA"). Through AIA, he is also one-half owner of Postal Air, Inc., the successful bidder on the ANET procurement.

 3. Mr. Kalitta contacted Mr. Cole on May 26, 1992, and invited him to interview for a potential position as head of the maintenance operation for a Miami-based fleet of 747s Mr. Kalitta was in the process of obtaining. Mr. Cole told Mr. Kalitta that he was "very much" interested in that kind of position.

 4. On May 26, 1992, Mr. Cole wrote the contracting officer on the ANET procurement, Rex M. Maytan, to inform him of this potential employment situation: "I wish you to be aware of the possibility of my being employed by Kalitta Airlines at some future date that may precede the above contract award dates." The letter evidenced Mr. Cole's knowledge that "Kalitta Airlines is a potential bidder for U.S. Postal Service contracts." Letter from William G. Cole to Rex M. Maytan of May 26, 1992.

 5. On June 2, 1992, USPS Assistant General Counsel Michael J. Vandamm wrote a memo to Rex Maytan addressing Mr. Cole's conflict of interest. That memo clearly stated the USPS's contemporaneous position as to what would constitute a conflict of interest:

 We would regard Mr. Cole as having a conflict of interest if, while he is employed by, or while he is negotiating or discussing his prospective employment with Kiletta [sic], he is also a consultant for any procurement in which Kiletta [sic] is an actual or prospective contractor or subcontractor, or otherwise has a financial interest. Therefore, unless and until Mr. Cole affirmatively rejects Mr. Kiletta's [sic] invitation, he should be removed from work on ANET and TNET.

 . . .

 As previously stated, Mr. Cole can remove the conflict of interest by rejecting Mr. Kiletta's [sic] invitation and breaking off all discussion with him regarding employment.

 Letter from Michael J. Vandamm to Rex. M. Maytan of June 2, 1992 (emphasis supplied).

 6. On June 8, 1992, Mr. Maytan sent a letter to Richard Morris, the Project Manager at A.D. Little, which adopted (as the Postal Service's position) Mr. Vandamm's recommendation. That letter was no less clear as to the USPS's position regarding Mr. Cole's conflict of interest:

 Letter from Rex M. Maytan to Richard Morris of June 8, 1992 (emphasis supplied).

 7. On June 9, 1992, Mr. Morris, in a letter countersigned by Mr. Cole, responded to Mr. Maytan. Messrs. Morris and Cole, however, altered the conditions necessary for Mr. Cole to remain a consultant on the ANET procurement. Rather than affirmatively rejecting Mr. Kalitta's invitation, as Messrs. Vandamm and Maytan had required, Messrs. Morris and Cole promised only that Mr. Cole would not discuss employment with Mr. Kalitta until after September 1992. Letter of William G. Cole and Richard Morris to Rex M. Maytan of June 9, 1992.

 8. On June 12, 1992, Mr. Maytan sent a memorandum to Jim E. Orlando, his superior, regarding the conflict. Even though he had previously determined that disavowal was required, Mr. Maytan commented that he was "inclined to keep [Mr. Cole] on board." The memo also made clear that Mr. Maytan was aware that the conflict of interest remained a problem; now, however, his concern was focused not on the legal effect but rather on the "political ramification" of the conflict. Letter of Richard Maytan to Jim E. Orlando of June 12, 1992. Mr. Orlando, who has asserted that his knowledge of the conflict is secondhand and came after the contract was awarded, later testified that Mr. Cole should have been "yanked" if a conflict existed.

 9. Beginning June 16, 1992, the evaluation teams devised the sub factors and relative weightings for the solicitations. Mr. Cole was a member of the ANET technical evaluation team. The ANET technical evaluation team presented its standards and associated point values on June 23.

 10. On June 21, Mr. Kalitta again contacted Mr. Cole in order to set up a personal meeting for June 23. Mr. Cole told Mr. Kalitta that he would not be available for a personal meeting or to discuss a position until August 28, 1992. According to Mr. Cole, in testimony given at a deposition, Mr. Cole believed that Mr. Kalitta was not "too pleased" with this information.

 11. Mr. Cole sent a letter to Mr. Maytan on June 22, 1992, advising him of the second contact and informing him that he had postponed discussion with Mr. Kalitta until August 28, 1992. Mr. Orlando testified that Mr. Maytan did not apprise him of this second contact nor of Mr. Cole's response.

 12. On June 26, 1992, Mr. Maytan approved the weighting factors of the ANET evaluations team.

 13. On July 30, 1992, Mr. Maytan wrote a Memo for the Record which confirmed that Bill Cole had been designated the team leader for one phase of the pre-award survey. Mr. Cole's responsibilities included "the maintenance review and the inspection of the aircraft offered in the proposals submitted in response to Solicitation ANET-93-01." Memorandum for the Record of Richard Maytan of July 30, 1992. Mr. Cole was actively involved in developing the standards and the scoring system and was in fact a "key player" in the award of the contract.

 III. DISCUSSION.

 Based on the above findings of fact, about which the court finds there is no genuine dispute, the court holds the following:

 1. There existed a conflict of interest on the part of William G. Cole due to his contacts with Conrad Kalitta;

 2. The Postal Service, through contracting officer Rex. M. Maytan and Assistant General Counsel Michael J. Vandamm, were aware of the conflict of interest and, through Mr. Maytan, directed that Mr. ...


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