Free Witness List - District Court of Federal Claims - federal

Case 1:99-cv-00194-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARKETING AND MANAGEMENT INFORMATION, INC. , Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 99-194C (Judge Bruggink)

DEFENDANT'S WITNESS LIST Pursuant to Appendix A, ¶ 15 of the Rules of the United States Court of Federal Claims, defendant hereby identifies the following witnesses: 1. Lawrence P. Hahn, formerly Supervisory Procurement Analyst, Chief of the

Subsistence Contracting Division, currently, Chief, Resale Contracting Division, Marketing Business Unit (MBU), Defense Commissary Agency (DeCA), Fort Lee, VA 23801, (804) 7348884. Mr. Hahn was the DeCA contracting officer with respect to (1) Contract F41689-89S1001, the product movement and sales data exchange contract with Marketing and Management Information, Inc. (MMI), which DeCA inherited from the Air Force (the Air Force contract); (2) Contract DECA01-96-S-0001, which is the subject of this litigation; (3) the spot bid sale of the scanner data which led to the granting of scanner data licenses to MMI, Information Resources, Inc. (IRI), and ACNielsen Corporation (ACNielsen) in the spring and summer of 1996; (4) the second spot bid sale of the scanner data leading to the licenses issued in the spring of 1999; and (5) Contract DECA04-00-C-0026 between DeCA and IRI, which provided DeCA access to IRI's database containing sales/movement data for all DeCA commissaries as well as commercial

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grocery stores within the same geographical area (the IRI contract). Mr. Hahn will testify about the nature of the various contracts DeCA had with MMI, IRI, and ACNielsen relating to the sale of its scanner data, his responsibilities under these contracts, and what occurred under these contracts, from 1995 through 1999, to the extent relevant.. He will testify concerning the differences and similarities between the Air Force Contract and the Contract, and, to the extent relevant, the IRI Contract. It is anticipated that Mr. Hahn's testimony will require three to five hours on direct. 2. Major General (Ret.) Richard E. Beale, former Director of DeCA, from 1992

through September 1999, is currently retired. His address is 267 Long Point Lane, Cardinal, VA 23025, (804) 725-0156. General Beale will testify concerning his responsibilities as agency director and the mission and evolution of DeCA during the relevant time period. To the extent any of the following issues are still relevant,1 he will testify concerning (1) DeCA's needs at the time it issued the solicitation in connection with the Contract and how its needs evolved as events unfolded; (2) DeCA's decision to cancel the solicitation after the General Services Administration Board of Contract Appeals (GSBCA) issued its decision declaring the Contract void ab initio and DeCA's development of category management capabilities; and (3) the actions DeCA took subsequent to the time the Federal Circuit issued its decision to vacate the GSBCA

It is defendant's understanding that the issues related to the following testimony were resolved by the Court in its decision, Marketing and Management Information, Inc. v. United States, ___ Fed. Cl. ___, 2004 WL 2095568 (Sept. 20, 2004). Accordingly, there would be no need for testimony on these and related issues. However, in an abundance of caution, we wish to apprise the Court of which witnesses will be available to provide testimony upon these and other similar issues. -2-

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decision. It is anticipated that Gen. Beale's testimony will require one to two hours on direct. 3. William F. Mehler, currently, Special Projects Manager, MBU , DeCA, Fort Lee,

VA 23801, (804) 734-8274. Mr. Mehler will testify concerning his responsibilities as Special Projects Manager, Special Projects Officer, and Commissary Management Specialist while at DeCA. He will discuss the general nature of the commissaries, how they operate, and how product selections are made. He will also discuss what category management is, DeCA's category management needs as of 1995, and how DeCA's category management needs and practices have evolved since the early 1990s. Mr. Mehler will discuss the difficulties that DeCA had with the information it received from MMI prior to the award of the Contract. He will describe his responsibilities as head of the evaluation team with respect to the award of the Contract. To the extent relevant, he will discuss his responsibilities in connection with the 2002 award of the information retrieval contract to IRI (the second IRI Contract). He will also testify concerning the decline of DeCA's sales since the early 1990s and will testify regarding DeCA sales within the continental United States (CONUS) and outside of the continental United States (OCONUS). It is anticipated that Mr. Mehler's testimony will require two to four hours on direct. 4. R. Alan Jones ­ formerly, Deputy Chief, MBU, DeCA, Fort Lee, VA 23801;

currently, Zone 29 Manager, Eastern Region, DeCA, Seymour-Johnson Air Force Base Commissary, 1310 Edwards Street, Building 3722, Seymour-Johnson AFB, NC 27531-6290, (919) 735-3209. Mr. Jones will testify about his responsibilities at DeCA as a Buyer, Category Manager, Chief of the Reset and Planogram Division of the MBU, Chief of National Brands, and -3-

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Deputy Chief of the MBU. He will testify about what category management is, what planogramming is, and the importance of having commissary scanner data and civilian scanner data available to DeCA in order to carry out these functions. He will testify how DeCA's category management needs and practices evolved through the 1990s based upon the information DeCA received. To the extent relevant, he will testify concerning his responsibilities as a member of the Technical Evaluation Board in connection with the award of the IRI Contract in 2000. It is anticipated that Mr. Jones' testimony will require one to two hours on direct. 5. William E. Sherman ­ General Counsel, DeCA, Fort Lee, VA 23801, (804) 734-

8116. Mr. Sherman will testify about his responsibilities as General Counsel during the relevant time period. To the extent relevant, he will testify concerning the needs of the agency and how they evolved during the mid- to late 1990s. He will also discuss DeCA's decision to cancel the solicitation in September 1996, and to terminate the contract in June 1998. It is anticipated that Mr. Sherman's testimony will require one to two hours on direct. 6. Maurice Whalen ­ Director, Ellin & Tucker, Chartered, Suite 250, 655 Fifteenth

Street, N.W., Washington, D.C. 20005-5701. Mr. Whalen will testify as a damages expert to rebut the testimony of MMI's damages expert, Mr. Kenneth Metcalfe. He will testify that Mr. Metcalfe's opinions cannot be relied upon as a reasonable measure of damages because he did not conduct sufficient independent research, analysis, or investigation into the substance of MMI's representations to him in the course of preparing his damages analysis. He will testify that management's representations as to damages do not have proper relevant foundation. Mr. Whalen will also testify regarding his alternative calculation of damages based upon the breach -4-

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date of September 30, 1996, in which he concluded that MMI would not have experienced any damages, because its costs and expenses would have exceeded its lost revenues. Finally, Mr. Whalen will testify concerning any new damages issues that MMI might raise at trial. It is anticipated that Mr. Whalen's' testimony will require two to four hours on direct. 7. Gustavo E. Bamberger, Senior Vice President, Lexecon, 332 S. Michigan Ave.,

Chicago, IL 60604-4306. Dr. Bamberger will testify as an economics expert to rebut the testimony of MMI's damages expert, Mr. Metcalfe, concerning the revenues MMI allegedly would have achieved from selling CONUS and OCONUS reports "but for" the breach. He will testify that MMI's CONUS revenue projections ignore the responses of MMI's customers to high "but-for" prices and are inconsistent with information regarding the sales of civilian scanner data. He will testify as to what MMI's CONUS revenues would have been "but for" the breach. Dr. Bamberger will testify that the OCONUS estimates prepared by Mr. Metcalfe are inconsistent with the evidence, and he will testify as to what OCONUS revenues would have been "but for" the breach. Dr. Bamberger will reply to Mr. Metcalfe's erroneous criticisms of Dr. Bamberger's elasticity of demand analysis and his "but-for" world OCONUS revenues. Finally, Dr. Bamberger will testify concerning any new damages issues that MMI might raise at trial. It is anticipated that Mr. Bamberger's testimony will require two to four hours on direct. 8. Thomas W. Bragg, Chief Technology Officer, ResQSoft, Inc., 8300 Boone

Boulevard, Suite 500, PMB 5015, Vienna, VA 22182. Mr. Bragg will testify as an information technology expert that the solicitation which resulted in the award of the Contract to MMI involved Automated Data Processing Equipment (ADPE), as contemplated under the Brooks Act, and that the value of the ADPE resources under the Contract exceeded $10 million. -5-

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It is anticipated that Mr. Bragg's testimony will require two to three hours on direct. Defendant reserves the right to call as a witness any witnesses listed on plaintiff's proposed witness list in the event that plaintiff does not call them to testify at trial or does not ask them to testify about matters which plaintiff has described in plaintiff's proposed witness list. In addition, defendant reserves the right to amend this list to include any witnesses whose existence or relevance later becomes apparent. Respectfully submitted, PETER D. KEISLER Assistant Attorney General /s/ David M. Cohen DAVID M. COHEN Director

OF COUNSEL: THOMAS D. RATHGEB ELLIOTT CLARK Office of General Counsel Defense Commissary Agency Fort Lee, VA 23801-1800

/s/ Sheryl Floyd SHERYL FLOYD Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0282 Facsimile: (202) 514-8624 Attorneys for Defendant

OCTOBER 13, 2004

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CERTIFICATE OF FILING I hereby certify that on 13th day of OCTOBER, 2004, a copy of the "DEFENDANT'S WITNESS LIST" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Sheryl Floyd