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In the Court of Federal Claims In the United States District Court for Maryland |
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Notice of Findings Filed in the United States of America Court of Federal Claims 13 June 1995 |
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No. 95-86C |
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| FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION
Judgment in the matter, "Eugene Robert Zarwell v. The United States, Department of Defense fraudulent representation between Plaintiff, Eugene R. Zarwell (Zarwell), and both Defense (DoD), Major Kelly Wheaton, and Justice Department (Justice) attorneys, Frank Hunger, David Cohen, and Thomas Mason, who inserted after signature on a stipulation stating several restrictions causing loss of damages created by inadvertent fraud on the part of several action officers; Marine Colonels, Rex Williams and Bill Gresslin who refused to ratify an agreed contract for Plaintiff through Defense Supply and Service Washington (DSSW). After 120 days of Zarwell's efforts to acquire outside sources for post-production, COL Gresslin offered him Reserve Officer active duty orders to circumvent DoD policy. Lewis Brodsky, PA - AD, Selective Service, recommended Zarwell to the action officers as an expert in videotape production for an after-action project on behalf Assistant Secretary of Defense for Reserve Affairs (OASD-RA), Stephen Duncan, in early December of 1990. It was to be a commercial contract affirmed rate set by precedence over 27 years at $100 per hour funded through Department of the Army Audio Visual Center (DAVC), Tom Culverwell, supervised by Defense Audio Visual Information Services Center (DAVISC) James Ashcroft, and authorized by Doc Cook, Defense Supply Service Washington (DSSW). All OASD-RA needed to do was to ratify the by-name contract for Zarwell to perform services on OASD-RA's proposed project that would be funded by Department of Army available funds at DAVC due to Zarwell's past record to bring in projects below projected budgets. According to records recovered in 2009, Ltc Paul Knox, now at Army Board for Correction of Miliary Records (ABCMR), and Mr. George Kundahl, principle executive (USAR BG) were unsuccessful with submission because of their request for orders as a less costly means of compensation than a standing agreement with DSSW that would have been covered from DA funding with no charge backs to OASD-RA. Zarwell had already obtained authorization and key project contract numbers and had prepared a proposed budget for outsourcing post-production services, including his compensation. His reputation as expert came from supporting several government agencies as Selective Service System, Army Reserve Personnel Center, State Department, Social Security, and all seven military services with similar videos as well as complete national and local marketing programs for all fifty states' reserve component recruiters in Army, Navy, Air force, Marines, and Army & Air National Guard organizations. After 120 days of initial work beginning in late December 1990 through February and mid-March, identifying and writing Requests for Bids (RFB) the Colonels in mid-February informed Zarwell they were going to seek an active duty assignment for up to six weeks for his work to get him some money. Zarwell was to provide technical assistance and production expertise to include commercial contracting of post-production out-sourcing, voice-over talent searches, creating special effects, supervise video editing, and write contract specifications sent out for bid to three sources for each post-production service required before drafting a narrative script for scene selection. This was essentially accomplished between Mid-December 1990 and end of February 1991. On February 3, 1991, Gresslin and Army Reserve Colonel Richard Flahaven contacted Zarwell who explained the procedure and precedents with DAVC, DAVISC and DSSW to ratify a verbal agreement of Dec 27, 1990 with complete contract language regarding a video production on Desert Shield/Storm and that active duty orders would be illegal without a position vacancy, AR 140-145, Chap 4-2, dtd: 20 June 1985. While Gresslin created logs of each videotape at his temporary quarters in Alexandria, Zarwell worked in his home office with frequent updates on negotiations with outside production houses at meetings with the Colonels in Room 2C512 in the Pentagon. It was complicated negotiations needing constant communications with potential bidders on such short notice for such a big production commitment for studio time. Zarwell's reputation in the industry opened doors at some of the best facilities in Washington willing to schedule many hours needed to compress source materials, create graphics, scene transitions, and record local OASD-RA talking heads. Some audiovisual recording was accomplished at Pentagon Fifth floor studios. Gresslin worked in our prime post-production house, Interface Video while loading his selected scenes into an Avid, computer videotape editor, but he overloaded it leaving no memory to edit requiring Zarwell to manually organize scenes for final edit. Many studio hours available to Zarwell were from 1800 hrs to 1000 hrs each day with graphic preparation time for special effects between 1030 hrs to 1600 hrs or audio and remotes and meetings with ABC, NBC, CBS and Fox News requesting video from news bites. Time not in studio was spent gathering speech materials from Defense PA and both Joint Chief of Staff and the White House for strategy and video inserts used to tie it all together. After 8 weeks into the project, without consulting Zarwell a change in his annual training (AT) orders to report in April 1991 to First Army HQ at Fort Meade were amended directing him to report to OASD-RA for a two-week AT period until a contract could be ratified at DAVISC. This action was not available to IMA Reservists, in accordance with AR 140-145 until proposed changes in 1993 to AR 140-145, Chp 4, 4-1 Purpose, declaring that only duty assignments to other organizations required at least 60 days requests for extended periods exceed 19 days must be fully justified in writing and submitted through appropriate command's (OASD-RA) to HQDA (attn: DAAR-PE) at least 90 days prior to the requested start date thus precluding active duty orders from December1990 to August 1991, and project officers never contacted DSSW to confirm requested private or contracted services. However, Active duty and inactive duty was not an option according to either set of orders in 1990-1991 as explained to project officers before they attempted to block contractual arrangements that only required a request from OASD-RA, Secretary Duncan. Several more weeks passed. Still no contract and no additional AT monies, but reports that it (contract or active duty orders) was soon to be issued. In the mean time, Col Flahaven presented administrative tasks to Zarwell, i.e.: draft a justification for a civilian and military award (medal) for those individuals assigned to support Operation Desert Storm/Shield at The Pentagon that was implemented and issued to everyone but Zarwell. An additional project was inserted into the workload to produce a video short for an annual Reserve Anniversary dinner at Ft. McNair in February1991; plus, another in April 1991 for an Employer Support the Guard and Reserve, annual national conference in St. Louis This required intensive post-production scripting, audio recording, and selective editing from hundreds of hours of field video recorded of Reserve support activities during pre-war preparations the in Persian Gulf Theater. That project was delivered on time in good faith that a contract was imminent. Instead, Flahaven reported difficulty receiving a contract due to 45 day bidding requirements that had been waived at DAVC and that his attempt to secure orders was failing because of politics with DCAR - orders were not forthcoming due to a lack of TDA vacancy and use of annual training orders was outside regulations as explained by Zarwell to all three Colonels in February. Although Gresslin testified that he had no involvement in securing orders or interest in ratifying any since he could make more money not on orders, his signature appears on several requests for orders for Zarwell as submitted to Office of Chief of Army Reserve (OCAR) that were denied. Other officers, BG Roger Bultman, USAR; BG Thomas Kilmartin, USAR, Ltc Bob Pratt, USAR, and Col Kenneth Gailbraith, USAR, USMC named Gresslin as demanding orders i.l.o of a contract. There was resistance to orders at OCAR from earlier assignments when several Four-Star Generals including Army Chief of Staff John Wickham, General Richard Thompson, General Jimmy Solomon, and General Max Thurman repeatedly requested Zarwell for high visibility projects as a Special Project Officer around the world throughout the eighties. In fact, Zarwell's records were requested for several promotion boards, but miraculously disappeared each time before 1995 only to miraculously resurface in 2002, when Defense Finance was given them after LTC Robert Pratt retired and BG Roger Bultman was relieved for misconduct. Zarwell managed, at four well-known Advertising agencies, several ten-million dollar, multi-cycle contracts in the 70's for military public service advertising and recruit marketing for both Chief Army Reserve and Chief National Guard Bureau and was quite aware of regulations because he wrote them in 1973 authorizing certain expenditures and procedures. He also audited the Army's account at N.W. Ayer ABH to find $750,000 in non-obligated status that was recycled into Reserve advertising in the 22 East Coast states Orders were neither adequate nor was a contract issued to Zarwell for his 2,200 hours of post-production supervision, multi-source contracting, creative production or final editing. Work was completed and accepted by
Secretary Duncan on July 15, 1991 as he was leaving the pentagon for premier presentation of that video at a NATO conference in Paris, France. On two separate occasions, DoD requested additional political changes per the White House and DAVISC before distribution throughout the Military. One statement that correctly represented this situation was from COL Rex Williams, USMC, when he stated that Zarwell was the only person who could explain (audit) this project for its cost overruns. "Most were caused by errors in information feeds from corroborating military resources and short fuse deadlines of ancillary projects needing less post-production. It required Zarwell to create animations for statistical data, maps for insertion routs, maps for USAR unit location, verification of comments and quotes from Senior DoD executives and Chiefs of Staff, etc. Much of the misinformation required Zarwell to redo significant portions of factual editing containing erroneous submitted materials. Note: a project of this size in a short timeline normally costs close to $250,000 , this project came in at $33,042.39 not including compensation to Zarwell NOTICE This report is a recommendation. The matter has been referred to the Army Board for Correction of Military Records on three occasions with no resolution due to their belief that that is no indication of mistreatment, to Defense Contracting with no resolution because OASD-RA was misinformed about preliminary negotiations in December 1990, and as charged in the Federal Court of Claims a Judgment in favor of Zarwell with fraudulent stipulations added after signature agreement before collection of less than 10 percent of a contract amount. Justification for What is Due is matter of law Quantum merit - as amount of recovery means as much as deserved and measures recovery under complied contract to pay compensation as reasonable value of services rendered. Under an expressed or implied contract in effect for 27 years, and ratified by other agencies within DoD setting a precedent - an implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from this act or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary assumption that a contract existed between them by tacit understanding. Rejecting either the expressed or implied contract for professional, private contractor services in preference of illegal orders by a DoD Assistant Secretary's office was denied by a subordinate agency months after the project was completed, but assumed by OASD-RA as the remedy to overcome contractual procedures paying Zarwell at a commercial rate for commercial services. There was never any prior discussion of a military assignment at Zarwell's Army Reserve rank because of its illegality with no position vacancy. Thus, a Quasi Contract should have been an immediate remedy. However, after many years of dispute, and intent of DoD operatives to secure orders, that option offers payment under which Zarwell was expected to perform to include in addition to professional services, military tasks for administration of the project office and other miscellaneous duties not originally discussed to include creating the Pentagon War duty medal. STATEMENT OF ISSUES
FINDINGS OF FACT
RECOMMENDATION IT IS RECOMMENDED:
Dated this ______ day of _________2009. Approved Deny Signature of Commander In Chief Date Administrative Law Judge Recent (2009-2010) letters for support:
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