advantage of available administrative remedies.
Public policy alone is a sufficient justification to refrain from completely accepting Postal Air's position. The leading - and most appropriate - case is United States v. Mississippi Valley Generating Co., 364 U.S. 520, 5 L. Ed. 2d 268, 81 S. Ct. 294 (1961). There, the Supreme Court expounded at length on the importance of maintaining integrity and accountability in the procurement process. The conflict of interest here is one which cannot be tolerated by the government, the public, or the court. Thus, all actions taken after the conflict arose are tainted; this includes the contract.
The innocence or fault of Postal Air has not been determined by this court as it was not necessary for granting summary judgment. Emery argues that Postal Air's motion places Postal Air's conduct in inquiry, and therefore urges the court to find that Postal Air both knew about the conflict and stands guilty of allowing the conflict to persist. Again, such a finding is unnecessary.
As USPS notes, Postal Air has not pursued its available administrative remedies to determine whether it will be able to recoup its start-up expenses. When it seeks them from USPS, USPS will have the opportunity to either grant them or deny them. If USPS denies them, Postal Air will have the opportunity to seek judicial review, apparently in the Court of Claims.
However, the court's finding the contract to be illegal and void prejudges and precludes any such claim by Postal Air before it even begins. If the contract is void, Postal Air, regardless of guilt, will be unable to recover on anything but a quantum meruit standard. And, as the government has yet to receive any benefits, quantum meruit apparently equals zero recovery for Postal Air.
Therefore, Postal Air's motion is GRANTED in part; the court will modify P 1. of its order as follows: The words "declared illegal and void" are replaced with "set aside."
II. Emery's Statement of Costs.
The court is in receipt of objections filed by Postal Air and USPS to Emery's bill of costs as well as Emery's reply in support of its costs. As the clerk has not yet taxed defendants, these briefs are premature and are stricken from the record. After the clerk has taxed costs, defendants may object or move to retax under Local Rule 214.
III. Other Motions.
These seven motions are also before the court and are disposed of as follows:
o Emery's Motion for Leave to Respond, filed January 29, 1993, is GRANTED;
o Emery's Motion for Leave to Respond, filed February 4, 1993, is GRANTED;
o USPS's Motion for Enlargement of Time, filed January 19, 1993, is GRANTED nunc pro tunc;
o USPS's Motion for Enlargement of Time, filed January 22, 1993, is GRANTED nunc pro tunc;
o USPS's Motion for Enlargement of Time, filed January 25, 1993, is DENIED as moot;
o Postal Air's Motion for Enlargement of Time, filed January 25, 1993, is DENIED as moot; and
o Emery's Motion for Enlargement of Time, filed February 11, 1993, is DENIED as moot.
For the reasons stated above, USPS's motion to modify the court's memorandum opinion is GRANTED. Postal Air's motion to alter judgment is GRANTED in part as explicated above.
Royce C. Lamberth
United States District Judge
DATE: FEB 23 1993