The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This is a civil action brought by the United States of
America for declaratory judgment under 28 U.S.C. § 2201.
Specifically, the United States alleges that Edward F. Hill, a
former government employee, violated the conflict of interest
prohibition contained in 18 U.S.C. § 207 by representing Medico
in negotiating a contract on which Medico is currently pressing
a claim for equitable adjustments before the Armed Services
Board of Contract Appeals (ASBCA). The government therefore
seeks to declare the contract void and unenforceable. The facts
are undisputed and the matter is currently before the court on
the cross-motions of both parties for summary judgment. For the
reasons stated below, the court enters judgment for the
Hill was a contracting officer for the United States Army
Munitions Command (ARMCOM) from 1967 until his resignation in
August 1973. On May 31, 1973, Hill was the contracting officer
for two government contracts, (Nos. DAAA09-72C-0055 and
DAAA09-73-C-0259), awarded to defendant Medico Industries, Inc.
for the manufacture and delivery of M49A3 60mm projectiles.
Hill was also the contract officer for Contract No.
DAAA09-73-C-0115, under which the government agreed to purchase
a different quantity of M49A3 60mm projectiles from Airport
Machining Corporation. On both of these contracts, Hill was
assisted by Mrs. Donna Freels.
In December 1973, before the deliveries for contract 0259
were completed, Hill assisted Medico in preparing an
unsolicited proposal for further production of M49A3
projectiles in response to Invitation for Bid DAAA09-73-B-0149.
(Plaintiff's Appendix, p. 7). As explained in the proposal,
Medico was concerned by the adverse financial impact of a break
in production between Contract 0259 and a new contract, and
therefore submitted an unsolicited proposal. Medico was also
aware of an urgent government need for 60 mm projectiles due to
the Vietnam war effort and shortages caused by repeated
defaults on the part of Airport Machining Corporation, which
had entered bankruptcy in June 1973. (Defendant's Response 89
to Plaintiff's First Set of Admissions; Hill Deposition p.
122-23). The December 1973 proposal incorporated all terms and
conditions of contract 0259 except where expressly revised.
During late December 1973 and January 1974, Hill negotiated
the Medico proposal by telephone with Freels, his former
subordinate, and with Marv Jothen, the successor contracting
officer. (Hill Dep. 124-25). They discussed matters such as
quantities, monthly rates, and equipment availability. Hill was
the chief spokesman on behalf of Medico in all areas except
delivery schedules. (Hill Dep. 125-26). Throughout these
negotiations, Hill was careful to avoid all discussion of the
On January 23, 1974, the Government terminated for default
its contract with Airport Machining Corporation. On January 31,
1974, Medico was awarded a portion of Airport Machining's
terminated requirements. As evidenced by the initial proposal
and the minutes of a January 29, 1974 ARMCOM Board of Awards
meeting, the government considered Medico's request as a new
contract proposal. However, due to the time and costs which
would be incurred in drafting a new contract, the procurement
was executed as a Modification (P0002) to the already existing
contract. (Defendant's Exhibit G). The Modification was for
1,815,000 projectiles at a unit price different from that of
Contract 0259, with deliveries to begin on June 30, 1974.
Throughout the period of the negotiations over the
Modification, Medico was still making deliveries on Contract
0259. The final deliveries under that original contract were
made on February 5, 1974.*fn1
On June 14, 1974, Hill wrote a letter to the Commanding
General of the Army Armament Command explaining Hill's new
employment and soliciting the General's opinion regarding
possible conflicts of interest in the Medico transactions. The
government never responded.
On November 25, 1974, Medico filed with the government a
claim, amended February 20, 1975, requesting equitable
adjustment for additional costs incurred in the performance of
its obligations under the Modification. This claim, which Hill
helped prepare, alleged that the government specifications,
identical to those contained in Contracts No. 0055 and 0259,
were defective, in breach of the government's implied warranty,
and commercially impracticable to produce. The claim listed
Vertex Consultants, Hill's company, as Medico's representative.
On June 10, 1977, the government denied Medico's claim and
Medico appealed that denial to the Armed Services Board of
Contract Appeals. This suit followed sometime thereafter.
Conflict of Interest Under § 207
The chief question for resolution is whether Hill violated
the conflict of interest provisions of 18 U.S.C. § 207 in
representing Medico with respect to a Modification P0002. The
applicable statutory provision in effect at the time of the
events underlying this lawsuit*fn2 reads as follows:
Whoever, having been an officer or employee of the
executive branch of the United States
Government . . . after his employment has ceased,
knowingly acts as agent or attorney for anyone
other than the United States in connection with any
judicial or other proceeding, application, request
for a ruling or other determination, contract,
claim, controversy, charge, accusation, arrest, or
other particular matter involving a specific party
or parties in which the United States is a party or