decision which the Navy required over two years to make, creating the impression that the Court had a dramatic choice between doing its duty under the law and the Constitution or jeopardizing the Navy's ability to defend the Nation. In these circumstances, the Navy's failure to facilitate GAO consideration of Aero's earlier protests was a breach of its duty, and seriously interfered with the ability of the GAO and of this Court to perform their duties.
Neither of these failures by the Navy justifies interference with its plans for the first 20 planes. However, they do require the fashioning of a remedy that will guarantee first that the Navy further considers all possibilities for competing some or all of SLEP for the remaining planes and second that Aero have a full and early opportunity to protest any decision to procure SLEP for these planes on a sole-source basis in time for deliberate GAO and judicial review. Accordingly, an accompanying Order will require the Navy to reconsider its decision not to compete SLEP after it acquires experience from the initial SLEP installations, and notify all potential competitors for SLEP, including Aero, at the earliest practicable time, of any practically irreversible plans to undertake further SLEP procurement on a sole-source basis.
The Court has further considered the parties' cross-motions for summary judgment on Aero's claim that the issue of Aero's capability to perform SLEP be submitted to the Small Business Administration for determination. For the reasons set forth in the GAO opinion, the Court finds that SBA referral is inappropriate, and that the Navy is entitled to summary judgment on this claim.
There remains for consideration Aero's motion to add Lockheed Corporation as a defendant, which was filed on February 8, 1980, three days after the hearing in this case. Aero maintains that because the Navy's decision not to prepare kits relies ultimately on Lockheed's estimates about how soon kits could be prepared, Lockheed's participation as a defendant is essential in order to afford Aero complete relief.
There can be no doubt about the Court's authority to join Lockheed as a defendant, even at this late stage in the proceedings. Rule 21, Fed.R.Civ.P., expressly provides that parties may be added "at any stage of the action and on such terms as are just." The fact that hearings have been completed does not render Aero's motion untimely; district courts frequently have added parties after the trial has been completed. See, e.g., Hayward v. Clay, 456 F. Supp. 1156 (D.S.C.1977); Reichenberg v. Nelson, 310 F. Supp. 248 (D.Neb.1970).
However, no useful purpose would be served by adding Lockheed as a defendant now. On a number of occasions, most recently at the beginning of the hearing on February 4, the Court inquired of counsel for Aero why it had not joined Lockheed as a defendant. At that time, Aero reiterated that "(o)ur principal beef is with the United States Government . . . not with Lockheed and this is why we chose only the United States Government as the defendant in this case." Transcript of Proceedings, February 4, 1980, at page 5. Nothing has occurred since then to alter the character of this action. While it is true that any subsequent decision the Navy may make regarding the availability of kits will depend in part on schedule estimates provided by Lockheed, those estimates may be reviewed for their reasonableness at a later date. And if evidence is adduced that Lockheed, for whatever reasons, has exaggerated the kit schedule, there will be time enough to add Lockheed as a defendant if it is appropriate and necessary for complete relief. The Court at all times retains power to add a necessary party or to otherwise tailor its judgments in order to afford complete relief to the plaintiff. See Hayward v. Clay, 456 F. Supp. at 1161. Accordingly, Aero's motion will be denied without prejudice.
ORDER AND JUDGMENT
In consideration of the whole record of this case, including affidavits, exhibits, depositions, and the record of the hearings held on February 4 and 5, 1980, and for the reasons set forth in the accompanying Memorandum, it is, this 4th day of March, 1980, hereby
ORDERED: That the Navy's motion for summary judgment on Aero's claim for mandamus to compel the issue of its capability to perform SLEP to be submitted to the Small Business Administration for determination is GRANTED; and Aero's motion for summary judgment on the same claim is DENIED; and it is
FURTHER ORDERED: That the Navy's motion for summary judgment is GRANTED in part, in that the Navy's decision to procure SLEP on a sole-source basis for the first twenty (20) C-130's was not unreasonable and was supported by substantial evidence; and it is
FURTHER ORDERED: That Aero's motion for summary judgment is GRANTED in part, in that the Navy acting in good faith but without sufficient attention to its duty to procure competitively, hindered Aero from obtaining, and the GAO and this Court from conducting, adequate review of the Navy's sole-source determination; and it is
FURTHER ORDERED: That the Navy honor the commitment made for it by Captain Neil P. Ferraro in his affidavit filed February 11, 1980; and it is
FURTHER ORDERED: That the Navy will continue in good faith to consider the feasibility of competitive procurement for the remaining planes to undergo SLEP, including the use of kits tailored to depot level contractors experienced with the C-130; and, will closely monitor Lockheed's initial performance to determine whether its original assessment of technical risks and the need for kits remains reasonable; and, should the Navy find it necessary to exercise any option or enter into any new contract with Lockheed prior to the completion of such study, any such contract shall be made terminable upon a finding by the Navy that competition, under practicable conditions, is feasible; and it is
FURTHER ORDERED: That the Navy shall give Aero at least six months written notice of (1) its intention to enter into any new contract for the sole-source procurement of SLEP from Lockheed, or (2) the formation of practically irreversible plans to undertake further SLEP procurement from Lockheed on a sole-source basis; and it is
FURTHER ORDERED: That Aero's motion to add the Lockheed Corporation as a defendant is DENIED without prejudice.