                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1869


INFECTION CONTROL CONSULTATION SERVICES, INCORPORATED,

                 Plaintiff – Appellant,

           v.

SMITHKLINE BEECHAM CORPORATION, d/b/a GlaxoSmithKline,

                 Defendant – Appellee,

           and

MARY C. GOSWEILER,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cv-00059-RWT)


Argued:   December 8, 2011                Decided:   January 17, 2012


Before GREGORY and SHEDD, Circuit Judges, and Richard M. GERGEL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Nicholas Hantzes, HANTZES & REITER, McLean, Virginia,
for Appellant.   Michael Evan Blumenfeld, MILES & STOCKBRIDGE,
PC, Baltimore, Maryland, for Appellee.    ON BRIEF: Michael A.
Brown,   Todd  M.   Reinecker,   Timothy  M.   Hurley,   MILES    &
STOCKBRIDGE, PC, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Infection     Control    Consultation           Services,    Inc.    (“ICCSI”)

appeals the district court’s grant of summary judgment in favor

of Smithkline Beecham Corporation, d/b/a GlaxoSmithKline (“GSK”)

on ICCSI’s claims under Maryland law for tortious interference,

unfair competition, and breach of contract.                     For the following

reasons, we affirm.



                                        I.

      In 2005, the Substance Abuse and Mental Health Services

Administration (“SAMHSA”) issued a Request for Proposal (“RFP”)

for   a   pilot   program    (the   Project)      aimed    at     distributing    and

tracking a hepatitis vaccine, Twinrix, to nationwide treatment

centers.      SAMHSA eventually awarded the contract to ICCSI, a

Maryland    corporation      certified       as   a    minority    small    business

under § 8(a) of the Small Business Act.                    GSK, a multinational

pharmaceutical company, is the sole manufacturer of Twinrix. 1

      The   Project    ran    through    October         11,    2006,     with   ICCSI

successfully shipping all 43,950 doses of vaccine.                      SAMHSA then

obtained funding for a new program to continue the goals of the

      1
       Prior to submitting the RFP, SAMHSA investigated the
possibility of GSK operating the program. GSK informed SAMHSA,
however, that, while it was willing to provide the vaccine for
the program, it did not provide the tracking and other services
SAMHSA envisioned under the program.



                                         3
Project.     This second program was classified as an “Indefinite

Delivery/Indefinite Quantity” (“IDIQ”) program, and the eventual

RFP for the program was limited to IDIQ-approved contractors. 2

It is undisputed that ICCSI was not an IDIQ contractor and never

applied to be an IDIQ contractor.              SAMHSA ultimately awarded the

contract for the second program to DB Consulting Group, Inc., a

minority-owned IDIQ contractor.

      In    response,      ICCSI     filed    this    action     against     GSK    in

Maryland    state      court   alleging      claims    (as   relevant    here)      for

common     law   unfair    competition,       intentional      interference        with

economic opportunity, and breach of contract.                   ICCSI also stated

a claim for breach of contract against Mary Gosweiler, a former

ICCSI employee.           ICCSI dismissed the claim against Gosweiler

with prejudice, creating complete diversity of citizenship, and

GSK   promptly     removed     the   case     to   federal     court.       Following

discovery,       GSK   moved   for   summary       judgment,    and   the    district

court granted that motion from the bench.



                                        II.

      On appeal, ICCSI argues that the district court erred in

granting summary judgment in favor of GSK on its claims.                            We


      2
       Approximately 90% of all SAMHSA’s programs are submitted
to IDIQ contractors.



                                          4
review the district court’s grant of summary judgment to GSK de

novo, “viewing the facts in the light most favorable to, and

drawing all reasonable inferences in favor of” ICCSI.                          EEOC v.

Central Wholesalers, Inc., 573 F.3d 167, 174 (4th Cir. 2009)

(internal     quotation         marks      omitted).         Summary      judgment   is

appropriate    “if    ‘the      pleadings,        the   discovery    and    disclosure

materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.’”                     Id. (quoting Fed. R.

Civ. P. 56(c)).       We review each of ICCSI’s arguments in turn.

                                            A.

        ICCSI first contests the district court’s grant of summary

judgment on its tortious interference claim. 3                      To state a claim

for tortious interference with a prospective business advantage

under    Maryland     law,      a    plaintiff      must     show   intentional      and

willful    acts   that    are:       calculated      to    damage   the    plaintiff’s

lawful    business,      done       with   unlawful       purpose   and   malice,    and

cause actual damage and loss.                    Natural Design, Inc., v. Rouse

Co., 485 A.2d 663, 675 (Md. 1984).                  The district court concluded

     3
       ICCSI also alleged a claim for tortious interference with
an existing business relationship.   Because GSK did not induce
SAMHSA to breach an existing contract with ICCSI, the district
court correctly granted summary judgment on this claim.      See
Blondell v. Littlepage, 968 A.2d 678, 696 (Md. Ct. Spec. App.
2009) (noting claim requires proof of an existing contract and a
breach of that contract).



                                             5
that ICCSI failed to show that any improper actions caused ICCSI

damages, and we agree.            Simply put, ICCSI was not qualified to

bid on the second contract and never even applied to bid for it. 4

It was ICCSI’s own actions—not any allegedly improper acts by

GSK—that    caused       its   failure   to   gain     a   prospective     business

advantage.

     In    order    to    avoid   this    conclusion,      ICCSI      contends    that

SAMSHA’s decision to use the IDIQ contracting process for the

second program resulted from pressure from GSK.                    Again, however,

even assuming GSK engaged in improper acts aimed to harm ICCSI,

GSK put forth deposition testimony from Susan Pearlman, SAMHSA’s

Director   of     Contract     Management,       and   Robert   Lubran,    SAMHSA’s

Director     of    Pharmacologic      Therapies,       that     the    decision     to

proceed with an IDIQ RFP was made independently of anything done

or said by GSK. 5

     In    sum,     the    district      court    correctly      granted    summary

judgment on this claim because ICCSI failed to show that GSK

prevented it from gaining the contract for the second program.

     4
       ICCSI asserts that it was promised the follow-on contract
assuming the Project was completely successfully. It put forth
no evidence supporting this claim, however, and the district
court correctly rejected it.
     5
       ICCSI attacked the credibility of these two witnesses but
has failed to provide any evidence beyond speculation to rebut
their testimony. Moreover, there was nothing unique or unusual
about using the IDIQ process for the second program.



                                          6
Instead, the undisputed evidence is that ICCSI never even bid

(or was eligible to bid) on that contract and that SAMHSA was

not influenced by GSK when it made the decision to proceed with

an IDIQ RFP. 6

                                                B.

     ICCSI       also      alleges     that         the     district     court      erred    in

granting      summary      judgment        on   its       breach   of    contract      claim.

According      to    ICCSI,     it    was   the       third-party       beneficiary     of    a

contract       between     SAMHSA     and       GSK    to    purchase     Twinrix.          The

district court granted summary judgment to GSK on this claim

after concluding that any alleged contract violated the statute

of frauds and that ICCSI failed to show that GSK and SAMHSA ever

entered into a contract or a contract intended to benefit a

third-party.

     GSK offers its vaccines at several different price points

depending      on    the   status      of   the       purchaser.        In    2005,    Andrew

Maine,    a    SAMHSA      contract     specialist           working    on    the    Project,

contacted GSK to discuss pricing and supply options for Twinrix.

A GSK employee, Robert Turner, emailed Maine on May 9, 2005, to

confirm       that   SAMHSA,     as    a    federal         agency,     was   eligible       to

purchase      Twinrix      at   the   Federal         Supply    Schedule      price.        The

     6
       This conclusion that ICCSI failed to show causation also
forecloses its unfair competition claim and summary judgment on
that claim was thus appropriate.



                                                7
email specified that, if SAMHSA purchased the vaccine through an

outside company or contractor, the price might vary depending on

“the contract the organization is able to access.”                   (J.A. 164).

The following month, SAMHSA officially requested a quote from

GSK   for   the   supply    and   distribution      of   Twinrix   to   60   sites

nationwide.       On June 30, 2005, GSK informed SAMHSA that it could

supply Twinrix at the Federal Supply Schedule price, but that

GSK   was   unable   to    perform   the    other   tasks   required      for   the

Project.      This    information    ultimately      led    SAMHSA   to   hire    a

primary contractor (ICCSI) for the Project.

      Based on these interactions, ICCSI alleges that GSK entered

into a contract to sell Twinrix at the Federal Supply Schedule

price to whomever eventually operated the program for SAMHSA and

that GSK breached this contract by eventually selling Twinrix to

ICCSI at a higher price.          The difficulty with this allegation is

that both SAMHSA and GSK denied that they had a contractual

relationship, and we agree that the parties’ exchanges do not

form a contract for an indefinite quantity of Twinrix at the

Federal Supply Schedule price.             ICCS has also failed to produce

any additional record evidence in support of its argument that

SAMHSA and GSK entered into such an agreement.                Maine and Turner

both gave deposition testimony that no contract existed between

GSK and SAMHSA, testimony that was affirmed by SAMHSA’s chief

contracting officer, Pearlman.

                                       8
     Accordingly, because ICCSI failed to show that a contract

existed between GSK and SAMHSA, the district court correctly

granted summary judgment on this clam. 7



                               III.

     For the foregoing reasons, we affirm the district court’s

grants of summary judgment to GSK.

                                                       AFFIRMED




     7
       Because we conclude that no contract existed between
SAMHSA and GSK, we do not reach the district court’s alternate
rationales for granting summary judgment on this claim—that any
contract violated the statute of frauds and that any contract
did not clearly benefit a third-party.



                                 9
