Free Response to Cross Motion - District Court of Federal Claims - federal

Case 1:98-cv-00868-FMA

ROBERTA.RIGSBY. JUNE 9, 2004

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I'nge 3

IN THEUNFrED STATES COURT FEDERAl, OF CI.AIMS 2 3 L.P. CONSULTING GROUI'. INC.. 1 4 Plainfil~: ) 5 vs, ) CaseNo. 6 THEUNITED STATES POSTAl.) 98-868 7 SERVICE, ) (Judge Allegro) 8 Defendant. ) 9 10 The deposition oFROBERTRIGSBY. A. called 11 for examination, takenpursuant the FederalRules to 112of CivilProcedure the United of States District 13Courts perlaining the takingo f depositions to for 14the purpose ofdiscoveo,,takenbeforeJanet L. 15 Robbins,CSR 84-2207,aNotar7Public within and No. 16for the County Cook. of State of Illinois, anda 17CertifiedShorthand Reporter said state, at of 18 Suite 3300,Three First National Plaza. Chicago, 19Illinois. ontl~e 9khday'of June.A.D. 2004. at 20 2:24 p.m. 21 22 23 24 3 '4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24

(WHE~UPON. the witness

was dul3

ROBERT A. RIGSBY, called as a witness herein, baving been first duly sworn, was examinedand testified as follows: EXAMINATION BYNLR. Prosen: Q. Please state your name and address for the record. . A. RobertA. Rigsby, 1655 East glst Street, Chicago, 60617. Q. Do you have a work address or phone number, as well? A. Yes. Q. Can you put that on the record, please, too? A. It's the sameaddress. Q. Oh, it's the same address. I'm soru. Sir, myname is Lawrence Prosen, and I'm counsel to L.P. Consulting. I presume you "know /vlr. Battaglin? A. Uh-huh. Q. We're here regarding the claims that were submitted to you and then were appealed to the

Page 2 Page 4 1 PRESENT: 1 Court of Federal Appeals some years ago now, 2 BELL, BOYD LLOYD & PLLC, 2 March 3rd and April 13th, 1998. 3 (1615L Streek N.W., Suite 1200, 3 For ease of reference, there's a list in 4 Washington. D.C. 20036-5610, 4 front of you there which is marked as Southern 5 202o955-6830), by: 5 E~ibit 1. These are the 12 projects which are 6 M~R. LAWRENCE PROSEN, M. 6 involved in the current litigation. Given the time, appeared behalfof the Plaintiff; on 7 7 I thought it wouldbe possibly a good tool to use. 8 UNITED STATESDEPARTMENT JUSTICE, OF 8 And we'll be making reference to that, and you can 9 CIVIL DIVISION-CONlivlERCIAL LITIGATION BRANCH. 9 refresh your recollection using those, as well. I0 (1100L Street, N.W., Floor, 8th 10 Excuse me just a second here. D.C. 20530, 11 Washington, 11 Can you just give a brief background of 12 202-307-0290), by: 12 your educational backgound? I 13 MS. DOMEN1QUE KIRCHNER, 13 A. Starting from when? 14 appeared behalfof the Defendant on and the Deponent. 15 16 I7 ALSOPRESENT: 18 NIP,. IL!CHARD BATTAGL1N, 19 L.P. Consulting Group, Inc.; 20 NLR. STEPHEN LOBAUGH, In-House Counsel, 2I UnitedStates Postal Service. 22 23 REPORTED JANET ROBBINS, BY: L. CSR, KPR, 24 CERTIFICATE 84-2207 NO. 14 Q. Let's say hi~ school on. 15 A. Okay. I'm a high school graduate. I'm 16 also a post college gaduate. 17 Q. What are your degees in? You have an 18 under~ad and ~aduate? 19 A. I have an undergad degee in business, 20 and I have a gaduate degree in urban sociology. 21 Where were your degrees obtained? Q. ' 22 A. Governor State Universit?,. 23 Q. Which is? 24 A. illinois. l (Pages 1 to ESQUK 312.78: - CHICAGO 2.704.4950

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1 2 3 4 5 6 7 8 9 10 11 I2 I3 14 15 116 17 18 19 20 21 22 23 24 for you and report back to you oll postal service construction projects? A. What are you saying, when1 was -during the time i was a manager? Q. Whileyou were at the postal service. A. Oh, yes, yes. Q. Youactually did site visits? A. I did site visits myself,and I also did have people whodid that, yes. Q. The majority of the time, though, was it you in the field or one of your -- I don't know the title -- project managers technical or representatives whowere out in the field? A. It dependedon the project itself. I can't recall. Sometimes whena project is more difficult, the contracting officer could makea visit out to makesure he xvas satisfied with what was going on. Other times, he would have postal employeesgoing out to makesure that the project was progressing the wayit should. Q. I'm going to reference you to Southern Exhibits 2 and 3. It's under Tabs 1 and 2 in your binders. Let's go to the March3rd, 1998. A. Whichtab is that?
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1 2 3 4 5 6 7 8 9 10 11 12 ~13 i4 15 16 17 18 19 20 21 22 23 24

A. No. Q. Bradley? A. I doll't koowwhat happened. I don't kaowany details on that. Q. East Lynn. Momence? A. I don't recall anydetails on that. Q. Papineau? A. I don't recall anydetails. Q. St. Anne, Union Hill? A. No. Q. Doyou recall ~vhetheror not an5, of these projects fell underneathyour responsibilities as contracting officer? A. They may have. t don't know. I'm certain that Aroma Park did not, though. Q. Did not fall underneath your-A. Yes. The others mayhave. Q. Let's go back to Tab 1. Yousaid yon -I believe you said you didn't recall seeing this documentbefore. A. I don't think I said I didn't recall seeing it. I think I said I don't remember whether I sawit or not. I said I mayhaveseen it. Q. You may have seen it. Okay. I thought
Page I2

1 Q. Tab 1, SouthernExhibit 2. Haveyou seen this document before, sir? 2 3 A. Imayhave. 4 Q. How about under Tab 2, Southern 5 E:th.ibit 3, an April13th, i998letter to you? 6 A. This looks morefamiliar. I think 1 7 haveseen this. Q. Whatis your understanding of what these 8 two documents certainly the secondone, whatis -9 i0 your understandingof what this document,the second 11 one, April 13th oneis? 12 A. Fromwhat I can -- from what it looks 13 like to meis L.P. Consulting claiminghere that is 14 they didn't get awarded these projects. I'm looking I5 just fromwhatI see he's sayingthe loss oflost I I6 profit. So it would mean that he lost the profit 17 that he would havegotten. I guess, hadhe gotten 18 the project. 19 Q. Doany of the projects listed on there, 20 are you familiar with anyof these projects? 21 There's eight projectslisted onthis letter. 22 A. I can remembersomething about Aroma 23 Park. I think. "~a Q. How about Beaverv lie.

1 that was the second one. 2 Do you recall the Berwickmodularpost 3 office project? 4 A. Nodetails. 5 Q. Hoopeston? that. 6 A. The Hoopestonramp, I do remember 7 Q. Downers Grove? any 8 A. I don't ~know details about that 9 project in Downers Grove. 10 Q. Howabout Brookfield? A. I don't know of the details about any 11 12 that one. Q. Do you recall that you awarded 13 14 L.P. Consulting two IQCcontracts in the time frame 15 of'96 to '98? 16 A. The awards would not have been made by 17 me. They would have been madeby the Facility 18 Service Center, not by the contracting officer. The I9 contracting officer just administersthe contract 20 itself. 21 Q. So you don't knowabout the contract -22 I understand. Is that so neone,one of yoursuperiors, 23 24 that makesthe award? 3 (Pages9 to 12)

ESQUIK 312.782.

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IN THE UNITED STATES COURTOF FEDERALCLAI2MS L.P. CONSULTING GROUP,INC., Plaintiff, v. THE UNITED STATES, Defendant. ) )

) )
) No. 98-868C

)
) (Judge Allegra)

)
) DECLARATIONOF ROBERT RIGSBY I, RobertRigsby, under penalty of perjury, do herebystate that the followingstatement is trtle andcorrect: 1. I previonsly provideda declaration in this matter dated January12, 2005. 2. I have read the declaration of RichardBattaglin, dated February18, 2005, and Plaintiffs' ProposedFindings Of UncontrovertedFact, dated February 18, 2005, and am submittingthis declaration in response. 3. I amnot familiar ~vith most of the facts alleged in paragraph2 of PlaintifPs Proposed Findings Of UncontrovertedFact and in paragraph 3 of Mr. Battaglin's declaration. I amaware that Mr. Battaglin previously ~vorkedas a contract employee the USPS. for Architects and engineersare licensed professionals. Mr. Battaglin wasnot an architect or an engineer, and it is incorrect to state that Mr. Battaglin wasan architect or engineer for the USPS. 4. I do not disagree ~vith paragraph3 of PlaintifPs ProposedFindings of Uncontroverted Fact or paragraph4 of Mr. Battaglin's declaration. 5. With regard to paragraphs 4 and 5 of PlaintifPs ProposedFindings of Uncontroverted Fact and paragraphs 5 and 6 of Mr. Battaglin's declaration, I became Manager the of Administrative Services for the USPS Central Illinois District Office in about December 1992

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and served in that position until myretirement effective March4, 1999 (March3, 1999 wasmy last day of work). Duringnay service as the Manager Administrative Services, LP had various of indefinite quantity contracts ("IQCs")with the USPS various areas, generally described for below, within the Great LakesRegion; those IQCswere as follows: 162640-99-B-0039, awardedabout Janum 28, 1999, Central I~L area, zip codes T 604, 605, 609, 613 through 619, 625 through 627; 162640-96-B-0096, axvardedabout June 7, 1996, for Springfield, IL area, zip codes 618,619, 625 through 627; 162640-96-B-0098, a~vardedJtme 3, 1996, for North Central IL area, zip codes 604, 605,609; 162640-96-B-0094, awardedJune 6, 1996, for Peoria, lL area, zip codes 613,614, 615,616, 617; 162640-94-B-0083, awardedMay18, 1994, for North Central IL area, zip codes 604, 605, 609. App.43, 52-54, 155-57.~I wasthe contracting officer for these IQCs. 6. Paragraphs 6 and 7 of PlaintifPs ProposedFindings of UncontrovertedFact and paragraphs7 and 8 of Mr. Battaglin's declaration are incorrect in stating that the two-yeartemaof IQC162640-94-B-0083 xvas extended through a modification for an additional one-year period of time. As stated in the contract modifications si~maedby LP and the USPS (through Contracting Officer Larry Linnenburger), LP's IQC162640-94-B-0083 modified in May1995 to increase was its limit to $600,000.00,and was modifiedagain in November to increase its limit to 1995 $1,000,000.00. App. 37, 40. The contract modifications also stated: "The contract completion date of May18, 1996, will remain unchanged." App. 37, 40. The IQCprovided that ~vork would

:1_ "App." refers to pages of the Govenmlent's appendix. "LP App." refers to LP's Appendix. 2

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be "ordered during the 24-monthperiod beginuing on the day following the date" on which the IQCwas si~mned. App. 716. After May18, I996, newwork orders could not be issued pursuant to the 1994 IQC. The IQCfurther provided: Thecontractor is required to perfom~all workunder a workorder for xvhich a Notice to Proceedhas been issued and received before the expiration date of the contract. If the Notice to Proceedunder a workorder is not received by the contractor before the expiration date of the contract, the workorder will be considered terminated for the convenience the Postal Service. of App. 718. 7. I agree with paragraph8 of Plaintiff's ProposedFindings of Uncontroverted Fact and paragraph9 of Mr. Battaglin's declaration. App.52, 54, 155, 157. 8. Paragraph 9 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraph 10 of Mr. Battaglin's declaration are incorrect. I nevertold Mr.Battaglin to performsite visits and submit draft workorders on projects at the end of the term of the IQC162640-94-B-0083 "with the verbal understanding that those workorders wouldbe performedunder the follow on IQCs." I never told Mr. Battaglin that he wouldbe issued workorders for projects under IQCs, if he perforated site visits and submitted workorders for those projects. There was never any promise or guarantee to LPthat it wouldreceive a USPS workorder if it madea site visit and prepared a draft scope of work. 9. With regard to paragraphs 10 and I 1 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraphs11 and 12 of Mr. Battaglin's declaration, it is my understandingthat LP is claiming damages this lawsuit based solely upon asserted breaches of in 12 alleged impliedcontracts as set forth in its letters dated March 1998and April 13, 1998, 3, whichwereresubmittedby letter dated August1 I, 1998, as stated in myearlier declaration. 3

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10. ParagaphI2 of Plaintiffs ProposedFindings of Uncontroverted Fact and paragraph 13 of Mr. Battaglin's declaration are incorrect. TheGovernment's appendixdoes not contain all 12 of LP'salleged draft ~vorkorders/scopesofxvorkthat pertain to the litigation. LP'salleged draft ~vork order for the East Lym~ building renovation is not contained in the Govenm~ent's appendix. 11. Para~aphs13 through 16 and the other paraN'aphsof Plaintiffs ProposedFindings of UncontrovertedFact and paragraphs 14 through 17 m~d other para~aphsof Mr. Battaglin's the declaration do not correctly reflect the practice or course of dealing under LP's IQCsduring the time I served as AdministrativeServices Manager the Central IL District. for The IQCs provided that the USPS contracting officer woulddecide what workwould be doneat postal facilities. TheIQCcontractor could not decide ~vhat ~vork ~vouldbe done at a postal facility. Thus, the IQCsstated that "workwill be doneon workorders issued as required for various amounts types of workcoveredby the specification," that "written workorders" and wouldbe "signed by the contracting officer," and that no workwouldbe perforated without a written workorder signed by the contracting officer and a written Notice to Proceed~vith that work. App. 64-65, 167-68. The IQCcontractor could not dictate the workthat wouldbe done at a postal facility. Pursuantto the IQC,the contracting officer wasthe person~vho~voulddecide whatworkwouldbe done at postal facilities, and the IQCcontractor ~vas obligated to perform

the workcontainedin ~vritten workorders signed by the contracting officer. LP, uponits own initiative or at the request of the USPS, visited postal facilities and prepared draft workorders, also called scopes of work, and submitted themto the USPS. However, making a site visit by LPand its preparation of a draft workorder/scope of work the of

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did not guarantee that LP wouldbe awardedthe proposed work. The USPS,tba'ough its contracting officer, could contract for the sameworkthat had been the subject of a draft work order/scope of workthrough a fixed price contract or another contractual means. LP wouldbe a~varded ~vork under its IQC~vhen(1) the USPS LP cameto and a~eementupon the work to be performed, (2) the USPS provided LP ~vith a USPS workorder for signature, ~vhich Mr. Battaglin signed and returned to the USPS, (3) the contracting and officer signed that same~vork order. TheUSPS followedthis practice during the time that I served as Administrative Services Manager the Central IL Dist~ct. Mr. Battaglin l~ew that for this ~vas the process, and that LPdid not havea contract for the ~vorkuntil the contractingofficer si~m~ed workorder and issued it to LP. Mr. Battaglin wouldask meto issue ~vritten USPS a work orders to LP, indicating that he understoodthat, ~vithout a signed USPS workorder, LPdid not havea contract to performworkat the facility. LP would submit draft work orders/scopes ofxvork prepared with the USPS project manager, and the USPS wouldreviexv them and madechanges in the world to be perfomaedat the facility. The draft workorder/scope of workwas only a guide. Adraft world order/scope of work often under,vent changesbefore LPand the USPS contracting officer agreed on the ~vork to be doneat the facility. LP'smaking a site visit and the preparing of a draft worldorder/scope of workwith a of USPS project managerdid not guarantee that LP wouldreceive a signed USPS workorder or that the USPS would go for~vard with the proposed work. LP sometimes submitted draft work orders/scopes ofxvork, and the USPS not issue LP a workorder for that work. The makingof did a site visit and the preparing of a draft xvorkorder/scopeof workby an IQCcontractor did not 5

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result in a contract to performthe work. There was never any promiseor guarantee that LP wouldreceive the ~vork if it madea site visit and prepared a draft workorder/scopeof workwith a USPS project manager. Mr. Battaglin also madeunauthorizedsite visits to USPS facilities and submitted unsolicited draft workorders/scopes of workto the USPS. Theseactions resulted in nay issuance of a letter dated, June 4, 1997,instructing LPas follows: Nosite visits will be pemaitted under any circumstancesunless directed by the Contracting Officer through the USPS project manager.This includes sending subcontractors to sites to do preliminary surveys ~vithout an issued workorder/contract. Again, this meansno unauthorizedvisits ~vill be made postal to facilities by contractors. Yourfull cooperationin this matter is appreciated. App.437. In that sameletter, I informedLPthat it wouldbe considered for projects whenthe USPS "determines your services are needed." App. 437. Mr. Battaglin was informed that there wasnever any guarantee that LP ~vouldreceive a USPS workorder if it madea site visit and prepared a draft workorder/scope of work. The IQCscontemplatedthat the IQCcontractor wouldsubmit proposals or draft work orders/scopes of work. It also was important for the IQCcontractor and the USPS project manager makea site visit and reasonablyestimate the quantities of each item for the proposed to ~vork. Eachworkorder that was signed and issued by the USPS contracting officer wasa line item contract for the workcontained in that ~vork order. TheUSPS wouldinspect the workand detemainewhether the line items of workhad been performedand whether the quantities included in the workorder had beenused. If the contractor did not use all of the quantity of an item in the workorder, the USPS wouldadjust the workorder to reflect the quantity actually

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used. 12. With regard to paragraphs17 and 18 of Plaintiff's ProposedFindings of Fact and paragraphs18 mad19 of Mr. Battaglin's declaration, I never told Mr. Battaglin to makea site visit at a USPS facility and that, if he did so, LPwould receive a workorder for that facility. There wasnever any understandingor any statements by meto LP or Mr. Battaglin to the effect that LP wouldbe issued a workorder, if it wouldmake site visit and prepare a draft work a order/scope of~vork. Myproject managers, including SamSouthern, Bruce Rothermel, Paul Steiner, Jesse McNabb, Lois Gunlogson, and l~aewthat the makingof a site visit and the preparation of draft workorders/scopes of workwith an IQCcontractor did not guarantee that the USPS wouldissue a workorder to the contractor, and they also kmew that only the contracting officer possessed the authority to issue a USPS workorder. App. 50. USPS project managers did not have any authority to issue workorders pursuant to IQCs. App. 50. Only the coutracting officer wasdesi~aated as havingthe authority to issue workorders. App.50. Byletters dated May 1994, June 3, 1996, and June 6, 1996, LP xvas informedthat only the contracting officer 17, had authority to issue workorders, and wasnotified that USPS project managersdid not have authority to issue workorders. App.41, 52, I55. I gavedirections to the project managers conceruingthe facilities that they wereto visit and the types of workthat they wereto scope out at the facility. Project mangers to work had throughmeand they did not have the attthority to decide unilaterally whetherthey xvoulddirect an IQCcontractor to makea site visit for the purposeof preparing a draft workorder/scope of work.Project managers no actual authority and I did not ratify their actions xvith regard to had giving directions to IQCcontractors to make site visits for the purposeof preparing draft work

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orders/scopes of ~vork. 13. In paragaph 19 of Plaintiffs Proposed Findings of Uncontroverted Fact and

para~aph 20 of Mr. Battaglin's declaration, LP asserts that "project managers assisted LP in obtaining access to the facility and acted as mediators between LP and the facility Post Master."

USPSproject managers did not act as mediators between LP and the facility

postmasters. LP

was not supposed to negotiate with the USPSpostmasters and was not supposed to provide postmasters with draft work orders/scopes of~vork. However, LP got into arguments with

postmasters, and I repeatedly received complaints from postmasters relating to LP's actions. 14. Para~'aphs 20 through 22 of Plaintiff's Proposed Findings of Uncontroverted Fact

and paragraphs 21 ttza'ough 23 of Mr. Battaglin's declaration do not con'ectly state the practice under LP's IQCs. In my para~aphs 11 through 12 above, I described the practice under LP's IQCs. It also was improper for LP to submit draft work orders/scopes of work to the facility postmaster. LP xvas allowed to make site visits and prepare draft work orders/scopes of work together with the USPSproject manager. Ho~vever, Mr. Battaglin also made unauthorized site visits to USPS facilities and submitted unsolicited draft work orders/scopes of~vork. Proposed Findings of Uncontroverted Fact, LP asserts that,

In paragaph 21 of Plaintiff's

if Mr. Battaglin was directed to makea site visit and develop a draft work order, "Mr. Battaglin expected and understood that LP would thereafter be given the xvork for which LP had

developed" the draft work order. Mr. Battaglin could not have reasonably expected or understood that LP would receive the work ifLP was instructed to perform a site visit mad prepare a draft work order, and did so. There was never any promise or guarantee by the USPS that LP would receive the work ifLP madea site visit and scoped the work. I never promised or

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stated to Mr.Battaglin that LPwouldreceive the xvorkif it made site visit and scopedthe work. a Mr. Battaglin's letters also ack~aowledged the USPS that could contract with other sources for xvorkthat LPhad scopedor prepareda draft xvorkorder. In his letter dated April 30, 1997, Mr. Battaglin requested that LPbe placed on Mr. Fernandez's"solicitation bid list" and ackaaowledged that the USPS might contract with other sources for projects that LPallegedly had scoped. LP App.28. In his letter dated September20, 1996, Mr. Battaglin requested that the USPS scheduleanother site visit at facilities that, accordingto Mr. Battaglin, already had been scoped by LP. LP App. 26. The IQCs themselves stated that the USPS could contract for such workthrough other sources. App. 57, 60. In paragraph 22 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraph 23 of Mr. Battaglin's declaration, LPrefers to 98 worldorders. I aminformedthat LP'sreference to 98 world orders refers to the list of 98 projects at pages 410-435of the Govennnent's appendix. Hmvever, list of 98 projects in the Government's the appendixincludes the fixed price contracts that were awardedto LP. App.423-35. Thus, LP is incorrect in referring to "a total of 98 work orders issued under the IQCs"becansethe 98 projects listed inclnde LP's fixed price contracts, and those fixed price contracts were not issued under any IQCs. Theprocess for awardingfixed price contracts, including those issued to LP, wasdifferent fromthe process for issuing ~vork orders under an IQC. 15. Paragraphs 23-24 of PlaintifPs ProposedFindings Of UncontrovertedFact and paragraphs24-25of Mr. Battaglin's declaration do not correctly describe the practice under LP's IQCs, and I have described the practice under LP's IQCsin myparagraphs11 ttza'ough 12 above. LPand Mr. Battaglin did not reasonably anticipate the issuance of a sigqaed USPS world order for

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the 12 projects. Thepractice ~vas that (1) LP and the USPS wouldagee on the workto be done, including the line items and quantities of each line item, (2) the USPS wouldprovide a written worldorder to LP, (3) Mr. Battaglin wouldsign the USPS workorder and return it, and (4) contracting officer wouldsiva the USPS workorder and issue it to LP. Thecontracting officer also wouldsign and issue a Notice to Proceedwith the work. App. 65, 168. Absentsuch actions by the contracting officer, there wasnever any contract for workat a facility. I haveaddressed the 12 alleged draft workorders/scopes of~vorkat issue below. 16. Paragraph 25 of PlaintifPs Proposed Findings Of Uncontroverted Fact and para~aph 26 of Mr. Battaglin's declaration makeallegations with regard to the alleged 12 draft work orders/scopes of work. I have reviewedthe records for the Ber~vickModularPost Office together with the records for the St. DavidsModular Post Office. These~vere two sites wherethe USPS wantedto install a trailer or modularpost office. The USPS requested and received bids from WM Aupperle for site preparation work at both sites. App. 302-03,470-71. LP was invited to submitbids for site preparation worldat both sites. LPsubmitteddraft workorders for site preparation ~vorkat both sites. App.305-07, 466-69. I awardedthe workto the lowest bidder, a~varding the Ber~vickModularsite preparation workto WM Aupperleas a fixed price contract (App. 304), and the St. Davids Modularsite preparation workto LPas a workorder under its IQC(App. 472). LP's price for Ber~vick~vas considered, but WM Aupperle's bid for Berwickwas lo~ver. I decided to a~vard the Downers Grovedock enclosure workthrough a simplified acquisition process, rather than an IQC.App. 343. By letter dated November 1996, I notified 26, Waner Enterprises of our intention to a~vard it a contract for the Downers Grovedock enclosure.

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App. 343. In January 1997, I awardedWanerEnterprises the DownersGrove dock enclosure contract, in the amountof $46,890.00, after adequate competition. App.344, 341-42. I received LP's letter dated December 1996, inquiring about the USPS's 3, solicitation of bids for the Downers Grovedock enclosure. App.345. I also received the letter of LP's attorney, dated December 1996, regarding the bid results for the Downers 17, Grovedock enclosure and requesting a final decision on its claim concerning LP's not being awardedthe Downers Grove dock enclosure. App.346. In February 1997, I received a January 31, 1997letter from LP's attorney ~vithdrawing LP's claim regarding the Downers Grovedock enclosure. App. 351. There also were difficulties with LP's workat the Downers GrovePost Office. The USPS

issued LP workorder number20.00, dated September9, 1996, in the amountof $77,070.92, for lobby renovation workat the DownersGrove Post Office. App. 901-11. There was a concern about the structural intega~ty of an interior partition wall which~vas to be removed. App.913, 918. That concernwas resolved through an inspection and report of a structural engineer, dated October9, 1996. App.919. There were days that LP did not perform workat the facility. App.

922,937-38. Byletter dated November 1996, LP stated that it wouldsuspend ~vork at the 15, site. App. 931. At a meeting on November 1996, I directed LP to immediatelyproceed with 20, the work at Downers Grove, and issued a letter so directing. App. 939. OnDecember 1996, 19, the USPS issued workorder 20.01, deleting certain items of workfrom the Do~vners Grove project and reducing the prior workorder by $16,572.07. App. 941-49. Withregard to LP's claim that it submitted a draft workorder for the Hoopeston handicap ramp, LPdid not provide mewith a draft ~vork order. Rather, in May1997, in a letter referencing the "Hoopeston Post Office; Concrete Ramp,"LPstated as follows:

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As wepreviously discussed, and outlined in our April 30th letter to you, weare pleased to submita price to accomplishthe subject workas shownper A.M.Fernandez, Arch., drawings. Total cost: $62,752.00. App.370. LP did not submit the draft workorder in the amountof $62,000for the Hoopeston ramp, that is contained in the Government's appendixat pages 663-65. Instead, LP provided an unsolicited bid in the amountof $62,752.00in its May1997letter. App.370, 379. I provided a detailed response to LP's July 25, 1997 bid protest in mymemorandum dated September10, I997, whichaddresses other allegations related to this matter. App378-83. ha late April 1997, Mr. Battaglin had visited myoffice m~d noticed the drawingfor the Hoopeston ralnp out on a table and asked to take a copy. App.379. I replied that it was"too late to bid, all decisions had been made."App.379. Mr. Battaglin responded, "Ohthat's okay, I just want to see the difference bet~veenthis and Paxton." App. 379. I permitted him to take the drawing, and in May 1997, I received LP's letter containing an unsolicited bid in the amountof $62,752for the Hoopeston handicap ramp. App. 379. I later sa~v Mr. Battaglin and again explainedthat LP's bid "wastoo late" and he responded,"I lcnow,I just ~vantedyou to haveit any~vay." App. 379. Thenotes contained on Mr. Battaglin's letter dated May 1997, were not on the letter 29, whenI received it. LP App.29. I have no k~aowledge regarding those notes. 17. With regard to para~aph 26 of PlaintifPs ProposedFindings of UncontrovertedFact and paragaph27 of Mr. Battaglin's declaration, the USPS issued the following workorders to LP: Rossville workorder 7.00 (July 1997)(App.849-59); Sugar Grove workorder 31.00 (August 1995)(App. 772-78);

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Sugar Grovework order 31.01 (October 1995, a modification)(App. 779-84); Millbrook ~vork order 10.00 (September 1996)(App.817); Millbrook ~vork order 49.00 (December1995)(App. 785-93); Millbrook workorder 49.01 (March 1997, a modification)(App. 818); Millbrook workorder 49.02 (March 1997, another modification)(App. 819); Wellington work order 5.00 (October 1997)(App.868-76). The USPS also issued South Holland work order 1.00 (September 1999, under IQC162640-99B-0039), after I left the USPS.App.897. Theprocess for issuance of workorders wasas described in nay para~aphs11 through 12 above, and not as described in Plaintiffs Proposed Findings of Uncontroverted Fact or Mr. Battaglin's declaration. 18. In paragraph 27 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraph28 of Mr. Battaglin's declaration, LPasserts that I informedMr. Battaglin that Mr. Fernandez in the process of soliciting competitivelyfor the 12 projects at issue in LP's was lawsuit. That is incorrect, and I did not make alleged statement to Mr.Battaglin. the Further, Mr. Fernandezwasnot involved with a number the 12 projects listed in LP's of claim letters. With regard to the BerwickModularPost Office and the St. David ModularPost Office, Mr. Fernandezdid not serve as the architect and wasnot involved in the procurement.I never told Mr. Battaglin that Mr. Fernandezwas soliciting bids for the Ber~vickModular Post Office. On November 1996, I awardedWM 26, Aupperlea contract for site preparation workfor the Ber~vick ModularPost Office. App. 304. Upuntil nay retirement in March 1999, the USPS not solicit bids for: (1) the did Beaverville Post Office lobby and building renovation, (2) the East LynnPost Office building renovation, (3) the PapineauPost Office interior renovation and concrete ramp, (4) the St. Post Office concrete and asphalt and interior renovation, (5) the UnionHill Post Office interior

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and exterior ramp, and (6) the AromaPark interior

lobbies and building renovation. App. 960. bids for any of those six projects. bids for that project in

never told Mr. Battaglin that Mr. Fernandez was soliciting

With regard to the Momence handicap ralnp, the USPS solicited the summer of 1998. App. 442-45. As indicated

in my September 8, 1998 note to Samuel which

Southern, I decided to award the Momencehandicap ramp to Somers Company, Inc.,

submitted the Imvest bid. App. 445-46. In August 1998, Mr. Fernandez prepared dra~vings for the Momence handicap ramp, but did not solicit bids for that procurement. App. 442-44. The

bids were submitted to the contracting officer. App. 442-44. I never told Mr. Battaglin that Mr. Fernandez was soliciting bids for the Momence handicap ramp.

Also, ~vith regard to the Momence Post Office, in January 1999, Mr. Fernandez prepared drawings for the USPSdetailing the lobby renovation xvork to be completed at Momence.In Somers Company,Inc. for the lobby

February 1999, I awarded work order 4.0 to IQC contractor

renovation work at Momence.App. 966-73. Any draft work order/scope of work that Mr. Battaglin may have prepared in 1996 for Momence conld not have been based upon the detailed drawings that Mr. Fernandez provided to the USPSin 1999. 19. With regard to paragraph 28 of PlaintifPs Proposed Findings of Uncontroverted Fact

and paragraph 29 of Mr. Battaglin's declaration, I received LP's letter dated April 30, 1997. LP App. 28. LP refers to this letter as LP's "attempts to be included in that competitive process" regarding the handicap ramps for which Mr. Fernandez solicited letter bids. As I informed LP in my

dated June 4, 1997, the Hoopeston handicap ramp already had been decided. LP App. 30. for various handicap rmnps in August and September of 1996.

Bids already had been solicited

App. 309-15 (Bradley ramp), 332-39 (Brookfield ramp); 353-67 (Hoopeston ramp).

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20. In paragraph 29 of Plaintiffs ProposedFindings of UncontrovertedFact and paragaph30 of Mr. Battaglin's declaration, LPasserts that, "[f]or reasons never explained by the USPS,LPwas summarilyexcluded from the solicitation process" for the 12 projects. That is incorrect. As explained in myparagaph 16, LP was invited to submit a bid for the Ber~vick ModularPost Office, and provideda draft workorder. LP's price was higher than the price of the awardee, WM Aupperle. App. 302-07. Upuntil myretirement in March1999, the USPS not solicit bids for six of the 12 did projects and LP wasnot excludedfrom any solicitation for those six projects: (1) the Beaverville Post Office lobby and building renovation; (2) the East Lym~ Post Office building renovation; (3) the PapineauPost Office interior renovation and concrete ramp; (4) the St. AnnePost Office concrete and asphalt and interior renovation; (5) the UnionHill Post Office interior and exterior ramp; and (6) the Aroma Park interior lobbies and building renovation. With regard to the Hoopestonhandicap ramp, LP was provided with myletter, dated

September10, 1997, and supporting documents,whichaddressed the solicitations for handicap ramps in Augustand Septemberof 1996. App. 378 (my letter); App. 309-I5 (Bradley ramp),

332-39 (Brookfield ran~p); 353-67 (Hoopestonramp). The USPS adequate competition had the projects that it solicited cmnpetitively,and it wasnot necessaryor advisableto invite all potential contractors to submitbids for those projects, i.e., the Hoopeston handicapramp, Bradley Post Office handicap ramp, Brookfield Post Office dock enclosure, Brookfield Post Office handicap ranap, DownersGrove Post Office dock enclosure, and Momence Post Office handicap rmnp. Contractors that were not invited to bid were not "summarilyexcluded;" the

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USPShad adequate competition. 21. In paragraph 30 of PlaintifPs Proposed Findings of Uncontroverted Fact and

paragraph 31 of Mr. Battaglin's declaration, LP asserts that I "handpicked" the contractors that were permitted to bid the 12 projects. That assertion is incorrect. Up until nay retirement in March1999, the USPS did not solicit bids for six of the 12

projects, i.e.._=. (I) the Beaverville Post Office lobby and building renovation, (2) the East Post Office building renovation, (3) the Papineau Post Office interior renovation and concrete ramp, (4) the St. AnnePost Office concrete and asphalt and interior renovation, (5) the Union Hill Post Office interior and exterior ramp, and (6) the A~'oma Park interior lobbies and building renovation. With regard to tbe Hoopeston handicap ramp, tile Bradley handicap ramp, and the Brookfield handicap ramp, bids were solicited in August and September 1996. App. 309-I5

(Bradley), 332-39 (Brookfield); 353-67 (Hoopeston). Mr. Fernandez was provided with a list five contractors to solicit Those contractors bids. App. 395 (Fernandez letter to Rigsby dated Augnst 13, 1996).

had done work for tbe USPSbefore and "had the expertise to do ramp work."

App. 689 (Rigsby Dep. 113). Mr. Fernandez added Phoenix Construction Companyto the list, and I agreed to that addition. App. 395. 22. With regard to paragraph 31 of Plaintiffs Proposed Findings of Uncontroverted Fact dated April 30, 1997, LP submitted a

and paragraph 32 of Mr. Battaglin's declaration, by letter

bid ill the amount of $42,000 for the handicap ramp at the Paxton Post Office. App. 489. On June 28, 1997, I awarded LP a simplified purchase contract in the amount of $42,000 for the Paxton handicap ramp. App. 491.

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23. In para~'aphs 32 and 33 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraphs33 and 34 of Mr. Battaglin's declaration, LP asserts that Mr. Battaglin asked for and received the bid packagefor the Hoopeston handicap ramp, and that LPprovided an offer, ~vhich for reasons unknown LP, ~vas rejected. LP's assertions are incon'ect. I addressed the to Hoopestonhandicap rampin my paragraph 16 above. Mr. Battaglin asked if he could take a drawing for the Hoopestonhandicap rmnp, and he took the drawing. App. 379. Mr. Battaglin did not ask for a bid packagefor the Hoopeston handicaprampand did not receive a bid package. App. 379. As stated in my September 10, 1997 n~emorandum, in late April 1997, Mr. Battaglin visited by office to drop off some documents as he was leaving he noticed a drawing for the and HoopestonRamp a table near the door and said, "Can I take one on of these," and I replied, "It is too late to bid, all decisionshavebeen made,"and he said, "Ohthat's okay, I just wantto see the difference betweenthis and Paxton." In the spirit of cooperationI pernaitted himto take the drawing, and on May 19971 received 19, a ($62,752)bid for the project. I later sawMr.Battaglin and again explainedto himthat his bid was"too late" and he replied, "I know,I just wantedyou to have it anyway." App. 379. Mr. Battaglin kmew LP's unsolicited bid for the Hoopestonrampwas rejected. why BeforeLPprovidedits bid, I told Mr.Battaglin that it ~vas "too late" for LPto bid the Hoopeston rampand that "all decisions had been made."App.379. After receipt of LP's unsolicited bid containedin its May 1997letter, I again told Mr.Battaglin that LP'sbid wastoo late and he replied, "I kaaow,I just wanted to have it any~vay."App.379. LPalso filed a bid protest and you received mySeptember10, 1997 letter (App. 378) and supporting documentation,as well as the USPS'sOctober 1, 1997decision denying the bid protest. App. 438.

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24. In paragaph 34 of Plaintiffs Proposed Findings Of Uncontroverted Fact and paragaph35 of Mr. Battaglin's declaration, LP asserts that "whenLP became aware that several of the subject facilities had beensolicited, LPprotested," and cites to its April 30, I997 letter containedin its appendixat page28. I received the April 30, 1997LPletter. It is unclear ~vhat solicitations LPclaims to have kJ~own about. Bids had been solicited for various handicap ramps in August and September1996, inclnding the Hoopestonramp (App. 353-68), the Bradley ramp (App. 309-11), and the Brookfield ramp. App. 332-39. 25. In paragaphs 35 and 36 of Plaintiffs Proposed Findings Of Uncontroverted Fact and paragraphs36 and 37 of Mr. Battaglin's declaration, LPasserts that, after its April 30, 1997letter "protesting" to the USPS,LP was not contacted to produce scopes of workor perfoml work under its IQC. Thesestatements are incorrect. The USPS continued to issue workorders to LP, and LP continued to perform workunder its IQCs. For example,with regard to the St. David ModularPost Office, on December 1996, the 9, USPS issued LP work order 2.0 in the amountof $31,932.72.00. App. 472. On about had August25, 1997, LP submitted a draft work order in the amountof $17,308.27. App. 890. On about October15, 1997, LP submitted another draft ~vork order in the amountof $45,130.33. App. 891-92. In November 1997, the USPS issued LP work order 2.01 in the amountof $39,932.63 for the St. David ModularPost Office. App. 886-89. OnJuly 2, 1997, LP submitted a request for paymentfor workperformedat St. Davidin the amountof $21,412.72. App. 893. OnMay 1998, LP submitted its final request for payment ~vork perforated at St. David. 28, for App. 896. In May1997, the USPS issued LP workorder 4.0 for lobby/interior painting at the

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Roberts Post Office. App. 839. OnMayI, 1997, the USPS issued LP work order 3.00 in the amountof $21,666.51 for lobby renovation workat the Tha~vville Post Office. App. 820. On July 28, 1997, the USPS issued LP workorder 7.00 in the amountof $30,990.20for interior renovation workat the Rossville Post Office. App. 849. OnOctober 25, 1997, the USPS issued LP workorder 5.00 in the amountof $19,998.85 for lockboxrenovation ~vork at the Wellington Post Office. App. 868. In addition, LP wasissued fixed price contracts after April 30, 1997. OnJune 28, 1997, I awardedLP a simplified purchase contract in the amountof $42,000for the Paxton Post Office hmadicap ramp. App. 491. 26. With regard to paragraphs 37 mad38 of Plaintiffs ProposedFindings of UncontrovertedFact and paragraphs38 and 39 of Mr. Battaglin's declaration, I have no laaowledgeof these activities of the Office of Inspector General("OIG")madthe OIGdid not contact mewith regard to Andrew Fernandez. 27. With regard to paragraph 39 of Plaintiffs ProposedFindings Of UncontrovertedFact and paragraph40 of Mr. Battaglin's declaration, I do not have l~ao~vledge regarding those allegations. 28. I agree with paragraph 40 of Plaintiffs ProposedFindings Of UncontrovertedFact and paragraph41 of Mr. Battaglin's declaration for the period of time that I served as Manager of Administrative Services for the Central Illinois District Office. 29. In paragraph 41 of Plaintiffs ProposedFindings Of UncontrovertedFact and paragraph42 of Mr.Battaglin's declaration, LPasserts that it xvas Mr. "Battaglin's understanding and expectation that the USPS ProcurementManualand Purchasing Mmaual their applicable and

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regulations wouldrequire that LPbe providedwith at least the opportunity to compete the" for 12 projects and "for COlnparableworkwhich ~vas formally competed."LP's alleged understanding and expectation are not supported by any provisions of the USPS Procurement Manual, the Purchasing Manualor regulations. The USPS Procurement Manualand the USPS

PurchasingManual not require that the USPS did solicit bids from all interested contractors. The USPS ProcurementManual,in the provisions for simplified purchases, provided: "Proposals or quotations mustbe solicited from a sufficient number qualified sources (nonnally at least of three) to ensure that the price is fair and reasonable." App.260. The USPS Pumhasing Manual (effective January 31, 1997) provides: "Proposals or quotations must be solicited from sufficient number qualified sources to ensure adequate competition." App. 265, 267. Also of LP's IQCsstated, in their Quantity of Work clause, as follows: ThePostal Service reserves the right to undertake, by Postal Service sources or others, the sametype of workor similar workas contractedfor in this contract, in the area coveredby this contract, ~vhilethis contractis in force. App.4, 57, 160. 30. With regard to para~mapb of Plaintiffs ProposedFinding Of UncontrovertedFact 42 and para~aph43 of Mr. Battaglin's declaration, it wasstmadardpractice for the USPS have its to project managers meetxvith IQCcontractors for site visits madtogether estinaate quantities of items and prepare draft workorders/scopes of workor price proposals. As explained in my paragaphs11 through 12 above, LP's practice wasdifferent, however,in that Mr. Battaglin also wouldscope out workat USPS facilities, USPS. without being directed or requested to do so by the

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31. In paragaph43 of Plaintiffs ProposedFindings Of UncontrovertedFact, LP asserts that I have"no cunentdirect recollection of the [12] projects in question," and that I am"not familiar with any with the exception of Aroma Park." That is incorrect. At mydeposition, I stated: "The Hoopestonramp, I do remember that." App. 975 (Rigsby Dep. 12). t also addressed other handicap rampprojects. For example, I stated that we competed Bradley the Post Office handicaprampbecause"wefelt it wasin the best interest of the postal service to do that." App.687 (RigsbyDep. 78). I explainedthat "in the case of the ramps, it wasnot just one rampinvolved ... there mayhave been 20-plus rampsinvolved.... So the decision wasto do all the ramps at one time." App.687 (Rigsby Dep. 80). I also stated that there was"adequate competition" because the USPS "four contractors bidding," and that "you don't have to invite had the IQC[contractor] to bid on the project under the simplified purchasingprocess." App.687 (Rigsby Dep. 80). I retired in March1999, and much time has passed since the events at issue, much of whichrelates to the 1995to 1997timeframe.Many the relevant facts are set forth in myletter of dated September10, 1997, App. 378-84, which was supported by documentation. I do need to see the relevant documents,and I have relied uponthemto refresh myrecollections. 32. I agree with paragaph44 of Plaintiffs' ProposedFinding Of UncontrovertedFact. However,someof the drat~ work orders/scopes of workthat the USPS received from LP ~vere not requested by the USPS. 33. With regard to paragaphs45 and 46 of Plaintiff's ProposedFindings Of

Uncontroverted Fact, LPasserts that the USPS, including the contracting officer, routinely and regularly directed LPto go to USPS facilities and performsite surveysor field surveys, typically

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with USPS persomael, and generate workorders at USPS's request. This is not wholly correct. LP was requested to go and look at the facility with the USPS project manager,and the USPS manager LP together ~vouldestimate the quantities of line items of workand prepare a draft and workorder/scope of workfor a particular project. LPwas to look at only those items or areas pertinent to the proposedproject, madwasnot requested to make general survey of the facility a to suggest deficiencies or recommend possible improvements. 34. In para~aph47 of Plaintiff's ProposedFindings Of UncontrovertedFact, LP asserts that the USPS wouldalso regularly ask other IQCcontractors, including St. Louis Desi~ and Construction and SomersCompany, Inc., to "self-perform such tasks." Whatthe USPS asked of its IQCcontractors, including St. Louis Designand Construction and Somers,was to go and look at USPS facilities with USPS project managersand estimate the quantities of workitems for a proposedproject, and submit a proposal. 35. Withregard to paragaph 48 of Plaintiffs' ProposedFindings of UucontrovertedFact, A.M.Fernandezhad an IQCcontract for architectural services with the USPS.App. 388. Sometimes Feruandezprepared draft scopes of workfor that contract and submitted themto Mr. the USPS,and sometimesthe USPS prepared the scopes of workand issued them to A.M. Fernandez. 36. Para~aphs49 and 50 of Plaintiffs ProposedFindings Of UncontrovertedFact do not correctly describe the process under LP's IQCs. As explained in myparagraphs 11 through 12 above,LP wasnot directed to performdetailed field surveys of a facility to determinepossible improvements.Mr. Battaglin and the USPS project managertogether wouldlook at the site and estimate the quantities of various line items of xvorkand prepare a draft workorder/scope of 22

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work. As explained in myparagraph 16 above, LP was invited to submit bids for the site preparation ~vork for the BerwickModularPost Office and the St. David ModularPost Office, and provideddraft workorders/scopes of work~vith its prices. 37. In paragraph 51 of Plaintiffs ProposedFindings Of UncontrovertedFact, LP states that "it wasagainst USPS policy to send two IQCcontractors to the sameproject." It was the practice of the USPS to request or direct that two IQCcontractors scope out the sameproject not at a facility, but this practice ~vas not a written policy. App.679 (RigsbyDep. 26-27). The USPS could request that different IQCcontractors scope out different projects at the same facility. 38. In paragraph 52 of Plaintiffs ProposedFindings Of UncontrovertedFact, LPasserts "if the USPS sent an IQCcontractor to performa USPS facility field survey, it ~vas reasonable for themto assume that there wasworkto be doneat that facility," and "there ~vas an interest in having that contractor performsuch work." As I stated, if we requested an IQCcontractor to make site visit, "it's fair to assume there's mainterest in havingworlddoneat that site." a that App.680 (Rigsby Dep. 29-30). I also stated that everyoneknowsthat by "virtue of your going visit mad look to see if there's workthat needs to be donedoes not guaranty(sic) that you're going to get it done." App.680 (Rigsby Dep. 29-30). There was never any guarantee that the contractor that madethe site visit wouldreceive a USPS workorder for the project. I also was asked:"So, it's their cost [of the site visit] to eat, the contractor's?" and I ans~vered: the time "At that that contract was being administered,.., that wasthe case." App.680 (Rigsby Dep. 30). 39. I agree with paragraph 53 of PlaintifPs ProposedFindings Of UncontrovertedFact. 40. In paragraph 54 of PlaintifPs ProposedFindings Of UncontrovertedFact, LP asserts 23

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that mysubordinates, including Messrs. Southern, Rothermeland McNabb, were directed and authorized to contact LPto perforn~ site visits and direct LPto self-develop, prepare and submit workorders. LP has not con'ectly described the responsibilities of mysubordinates or the process wherein LP and the USPS project managertogether developed a dramwork order/scope of work. In myparagaphs 11 through 12 above, I described the process under LP's IQCs. With regard to mysubordinates, different individuals ~vouldbe directed to do different things depending upontheir abilities and their levels of expertise. At times, I directed Messrs. Southern, Rothermel,and McNabb makesite visits to certain facilities for the purposeof to scoping out certain types ofxvork. As explained in myparagraphs 11 through 12 above, my project managers not have actual authority to decide what type of workthey wouldscope out did at postal facilities. Myproject managers were instructed to follow mydirections with regard to Some mysubordinates wereseldom, if ever, of

the type ofxvorkto be scopedat postal facilities. directedto scopeout ~vorkat postal facilities.

41. In paragaph 55 of Plaintiffs ProposedFindings Of UncontrovertedFact, LP claims that the USPS "utilized... Mr. Battaglin's expertise to developscopes of work." This is

inconect. Mr. Battaglin together with USPS project managersxvould develop draft work orders/scopes ofxvork. The USPS knewof Mr. Battaglin's ability to go out and prodncea proposed scope of work and he was allowed to do that upon request. App. 678-79 (Rigsby Dep. 24-25). 42. I agree with para~aph56 of Plaintiffs ProposedFindings Of UncontrovertedFact. 43. In paragraph 57 of PlaintifPs ProposedFindings Of UncontrovertedFact, LPasserts that "the USPS not permitted to competeworkto be perforn~ed under an IQCcontract." This is

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is incorrect in that there is no particular project that is "to be performed underan IQC contract." The USPS IQCsstate as follows: ThePostal Service reserves the right to undertake, by Postal Service sources or others, the sametype of workor similar workas contractedfor in this contract, in the area coveredby this contract, whilethis contract is in force. App.4, 57, 160. It was not the USPS'spractice to competeIQCworkin the sense that the USPS wouldnot request or direct two IQCcontractors to scope out the sameproject at a facility. App.679 (Rigsby Dep. 26-27). TwoIQCcontractors could be requested to makesite visits at the same facility to scope out different work. 44. In paragraphs 58 and 59 of Plaintift's ProposedFindings Of UncontrovertedFact, LP asserts that "LPwasnot included in the bidders selected by Mr. Rigsbyto bid uponthe following projects: Aroma Park, Ber~vick, Bradley [ramp], Brookfield dock enclosure, Brookfield ramp, DownersGrove[dock enclosure], Hoopestonramp, and Paxton [ramp]" and that "LP ~vas not excludedfor any particular reason" from these solicitations, "except that Mr. Rigsbybelieved that LP had gotten enoughwork." These statements are incorrect. As explained in nay paragaph 18 above, there was no solicitation for Aroma Park before nay retirement, and I did not select the contractors that were invited to bid for Aroma Park. As explained in mypara~aph16 above, LPwas invited to submit a bid for the Ber~vick ModularPost Office site preparation work, and submitted a draft workorder/scope of workwith its price. LP's price wasconsidered, but the a~vardee'sprice waslower than LP's price. App. 302-07.

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Withregard to the hm~dicap rampprojects, it wasin the USPS's interest to compete the rampprojects, and "in the case of the ramps, it wasnot just one rampinvolved... there mayhave been 20-plus ramps involved .... So the decision wasto do all the rampsat one time." App. 687

(Rigsby Dep. 80). I also stated that the USPS "adequate competition" because wehad "four had contractors bidding," and that "youdon't have to invite the IQC[contractor] to bid on the project under the simplified purchasingprocess." App.687 (Rigsby Dep. 80). I also explained that the list of contractors for the rampscame"from contractors that had done workfor us before and whohad the expertise to do ramp work." App. 689 (Rigsby Dep. 113). LP' attorney asked why s LPwasnot on the list, and I responded "becausethis [referring to the list of contractors for the ramps] was enoughcompetition right here" and LP "was not excluded for any particular reason. Wejust had enoughcompetition." App. 689 (Rigsby Dep. 113). As I stated, "if you've got enoughcompetition, you have enoughcompetition. I don't xvant to put ten contractors [on the list]." App. 689 (Rigsby Dep.113). The USPS adequate competition to award contracts for had

the Bradley hm~dicapramp(309-15), the Brookfield ramp(App. 332-34), and the Hoopeston handicap ramp. App. 353-67, 378-83 (my Sept. 10, 1997 letter). TheUSPS also had adequate competition to awm'd contracts for the Brookfield dock the enclosure and the DownersGrove dock enclosure. App. 325, 329-30. As explained in mypara~aph 22 above, LP submitted a bid for the handicap rampat the Paxton Post Office, and, in June 1997, I awarded a simplified purchase contract for the LP Paxton ramp. App. 489-91.

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I decl~e ~ade'r p~alty of p¢~ur,/' ~hat [he ~'ore~oing is true

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BEI:::]RI~E

S.

SMITH,

May

19,

1997

Board of Directors L. P. Consulting Group, Inc. 10401 South 75th Avenue Palos Hills, IL 60465-2015

We have reviewed the accompanying balance sheet of L. P. Consulting Group, Inc. as of December 31, 1996 and 1995 and the related statements of income and retained earnings, and statement of cash flow for the years then ended, in accordance with ~enerally accepted review standards. All information included in these financial statements is the representation of the management of L. P. Consulting Group, Inc. A review consists principally of inquiries of company personnel and analytical procedures applied to financial data. It is substantially less in scope than an examination in accordance with generally accepted auditing standards, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion. Based on our review, we are not aware of any material modifications that should be made to the accompanying statements in order for them to be in conformity with accepted accounting principles.

financial generally

GEORGE $. SMITH Certified Public

Accountant

1003

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GROUP, INC.

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EXHIBIT 1

BALANCE SHEET (Reviewed without Audit) ASSETS For 1996 CURRENT ASSETS: Cash Receivables Deposit Inventory Recoverable income taxes Note and account due from shareholder TOTAL CURRENT ASSETS the Years Ended December 31, 1995

$ 26,440. 17,884. 375. 5,194.

$

5,768. Iii,184. 375. 1,648. 11,398.

$ 65 995.

$130

373.

EQUIPM~NTANDVEHiCLES at cost, less OTHER

depreciation

6 563.

6 842.

ASSETS: Non-currsnt portion of installment note due from shareholder Investment in coins Organization expense, less amortization TOTAL OTHER ASSETS

280. $ 42 877. $115 435. $ 4 189. 404.

$141

LIABILITIES CURRENT LIABILITIES: Short-term portion of note Accounts payable Accrued payroll taxes Retirement liability Dues to officer TOTAL INSTALLMENT shown NOTES above CURRENT - less payable 11,402. 17,750. $ 2,965. 10,272. 1,214. 11,375. 13 149.

LIABILITIES maturities

$ 38 975.

4 246.

STOCKHOLDERS' EQUITY: Capital stock Additional paid-in Retained earnings TOTAL

capital

100. 8,239. 77 944. EQUITY $ 86 283. $115 435.

I00. 8,239. 89 844.

STOCKHOLDERS'

1004
The accompanying auditor's review notes reDort to are

$14!

404.

the financial statements an integral part of this

and the unaudi~ed

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L. p. CONSULTING GROUP, INC. STATEMENT OF iNCOM~ AND RETAINED EAP/qINGS (Reviewed without Audit)

For 1996 $680 COST OF JOBS Materials sub-Contractors TOTAL GROSS PROFIT EXPENSES FROM OPERATIONS COST OF SALES

the Years December

Ended 1995

737.

$610

476.

183,359. 314 340. 497 699.

$204,620. 256 175o 460 795.

183,038. 177 077.

149,681. 119 082.

OPERATING INCOFfE OTHER

5 961.

30 599.

INCOME OR (DEDUCTIONS) Retirement expense Interest income Interest expense Miscellaneous expense TOTAL OTHER OR INCOME OR (DEDUCTIONS) TAXES

(17,750.) 463. (274.)

(Ii,375.) 159. (954.)

(17 s61.)
(ll,900.) 16,652. 3 691.

NET

INCOME

(LOSS)

BEFORE

Income NET

taxes OR (LOSS) AFTER TAXES (II,900.)

INCOME

12,871.

RETAINED

EARNINGS of Year 89 844. $ 77 944. 76 973. $ 89 844.

- at Beginning - at End of

Year

The are

accompanying an integral

notes to the financial part of this unaudited

statements statement.

and

the

Auditor's

review

report

1005

Case 1:98-cv-00868-FMA

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E~IBIT 3 Page I of 2 L. P. CONSULTING GRO[YF, INC. STATEMENT OF CASH FLOWS (Reviewed without Audit) For the 1996 INCP~F~ASE OR (DECREE) CASH EQUI%r~-LENTS IN C-ASH Years Ended December 1995 31,

CASH FLOWS FROM OPERATING ACTIVITIES: Net income Or (loss) Adjustments to reconcile net income to cash provided by operating activities: Depreciation Amortization (Increase) or decrease in Accounts receivable Deposits Inventory Recoverable income taxes Prepaid expenses Increase or (decrease) in Accounts payable Accrued payroll taxes Retirement contributions Accrued expenses, other Total adjustments BY OPERATING

$(11,900.)

$ 12,871.

$

3,001. 140.

$

4,563. 140.

93,300. 1,648. 6,204. -

(88,172.) (375.) 235. (12,313.) 5,514.

(10,272.) 10,188. 6,375.

4,061. (I,422.) 1,922.

ll0

584.

NET C_ASH CONSUMED ACTIVITIES CASH FLOW FROM INV~STiNG Investment in coins Purchased equipment CASH CONSUMED BY

98,684. ACTIVITIES: (1,054.)

(75,014.)

INVESTING

ACTIVITIES

(2,722.)

(1,054.)

CASH FLOWS FROM FINANCING Proceeds from officer Advances to officers, notes and accounts PayTnent of installment NET NET CASH FROM FIN/LNCiNG IN

ACTIVITIES: loans

648. (68,727.)

21,000. (7,851.)

note ACTI~/!T!ES AND CASH EQ~ENT (75 290.) 20,672. ~. (65,683.)

(DECREASE)

CASH

CASH AND CASH EQUI-tr/~LENTS - at - at beginning end of of year 5 768. $26 440. 71 451. $ 5 768.

year

Case 1:98-cv-00868-FMA

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EX~IB IT 3 Page 2 Of 2 L. P. CONSK[LTING GROUP STATE~IENT OF C~.SH FLOIqS (Reviewed without Audit)

SUPPLEMENTARY FOR

DISCLOS[TRES OF CASH FLOW INFOP/~TION THE YEARS ENDED DECEMBER 31, 1996 199~

Cash

payments

during

the

year:

Interest Income

expense taxes

DISCLOSD~E

OF

ACCOUI~TING

POLICY

For the purpose of the statement checking account, any certificates total cash and cash equivalents.

of

cash flows, the Company considers its bank of deposit and money market accounts as its

The are

accompanying an integral

netes to the financial part of this unaudited

statements statement.

and

the

Auditor's

review

report

1007

Case 1:98-cv-00868-FMA

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April

26,

1998

Board of Directors L. P. Consulting Group, Inc. 10401 South 75th Avenue Palos Hills, IL 60465-2015

We have reviewed the accompanying balance sheet of L. P. Consulting Group, Inc. as of December 31, 1997 and 1996 and the related statements of income and retained earninHs, and statement of cash flow for the years then ended, in accordance with generally accepted review standards. All information included in these financial statements is the representation of the management of L. P. Consulting Group, Inc. A review consists principally of inquiries of company personnel and analytical procedures applied to financial data. It is substantially less in scope than an examination in accordance with generally accepted auditing standards, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion. Eased on our review, we are not aware of any material modifications that should be made to the accompanying statements in order for them to be in conformity with accepted accounting principles.

financial generally

GEORGE S. SMITH Certified Public

Accountant

1008

Case 1:98-cv-00868-FMA
2-

Document 98-12
P-

Filed 04/06/2005
INC.

Page 36 of 49
EXHIBIT 1

CONSULTING GROUP,

BALANCE SHEET (Reviewed without Audit) ASSET___~S the Years Ended December 31, _ 199____/7 1996 CURRENT ASSETS: Cash Receivables Deposit Prepaid income taxes Note and account due shareholder TOTAL EQUIPMENT AND at cost, 0THER CURRENT For

$ 26,864. 39,500. 375. 2,425. from 16 558. $ 85 722.

$ 26,440. 17,884. 375. 5,194. 16 102. $ 65 995.

ASSETS

VEHICLES less depreciation

4 495.

6 563.

ASSETS: Non-current portion of installment note due from shareholder Investment in coins Organization expense, less amortization TOTAL OTHER ASSETS

31,556. 6,367.

38,828. 3,769. 280. $ 42 877. $115 435.

__ 14o_.
$ 38 063.

LIABILITIES CURRENT LIABILITIES: Accounts payable Accrued payroll taxes Retirement liability TOTAL CURRENT LIABILITIES 21,124. 1,214. 10 000. $ 32 338.

11,402. 17 750. $ 29 152.

STOCKHOLDERS' EQUITY: Capital stock Additional paid-in Retained earnings TOTAL

capital

i00. 8,239. 87 603. EQUITY $ 95 942. $128 280.

I00. 8,239. 77 944. $ 86 283. $115 435.

STOCKHOLDERS'

1009
The accompanying notes to the financial accountant's review report are an integral statement. statements part of this and the unaudited

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EXHIBIT

2

L. P. CONSULTING GROUP, INC. STATE~IENT OF INCOME AND RETAINED EARNINGS (Reviewed without Audit)

the Years Ended December 31, 1997 1996 $658 COST OF JOBS Materials Sub-Contractors TOTAL GROSS PROFIT EXPENSES OPERATIONS COST OF SALES 902. $680 737.

For

36,681. 475 458. 512 139.

$183,359. 314 340. 497 699.

146,763. 127 18 809. 954.

183,038. 177 077. 5 961.

OPERATING INCOME OTHER

FROM

INCOME OR (DEDUCTIONS) Retirement expense Interest income Interest expense Miscellaneous expense TOTAL OTHER INCOME OR (DEDUCTIONS) T~%XES

(10,000.) 3,500. (26.)

(17,750.) 463. (274.)

__.)
( 6 526.) 12,428. 2 769.

__11~. )
~.) (11,900.)

NET

INCOME

OR (LOSS)

BEFORE

Income NET

taxes OR (LOSS) AFTER TAXES

INCOME

9,659.

(11,900.)

RETAINED

EAP/qINGS Beginning End of Year 77 944. $ 87 603. 89 844. ~ 77 944.