and there is at least circumstantial evidence that his feelings about the plaintiff, and perhaps that of the Navy, were well known.
Fourth, is the fact that although Mr. Powell the construction representative may have felt that the plaintiff performed the waterfront contract in a satisfactory manner, although perhaps only after receiving construction compliance notices, Commander Wisehart in considering the same contract apparently did not agree. It is noted that Mr. Powell's deposition was taken on November 14, 1989 and the Wisehart statement was made on August 24, 1989.
Fifth, the SBA states its understanding of the Navy's position that the Navy "[doesn't] want Leslie & Elliott to have any work on the base." See SBA Report at 10.
Sixth, the Navy did not give a complete explanation as to the assignment of Mr. Powell to full time inspection of the waterfront project. While the Navy correctly argues that the significant factor is that it was necessary to assign Powell full time, there was added significance in allowing SBA and GAO to believe that it was necessary to pull Powell away from other pending work.
All of the above factors lead the Court to conclude that there has been a de facto debarment of the plaintiff. In reaching this conclusion that Court does not address the merits of any debarment action against the plaintiff. It may be that plaintiff should be debarred from future contracts with the Navy, but if this is so, it should only be after plaintiff has been given adequate notice of the charges against it and afforded an opportunity to defend against those charges. Moreover, the Court cannot find any authority for the proposition that a "temporary" debarment does not entitle plaintiff to due process protection.
Having concluded that the plaintiff was the subject of a de facto debarment, the Court need not address the other issues raised in this case. The plaintiff is entitled to a debarment hearing and provided by the applicable regulations. Pending that hearing and any determinations thereon, the Court concludes that it is appropriate to enjoin the awarding of the subject contract absent a showing by the Navy that safety considerations or other considerations make it necessary to proceed with the contract or contracts without delay.
An appropriate order has been entered.
Pursuant to the Memorandum filed in this case, it is hereby
ORDERED that the hearing on the plaintiff's motion for a preliminary injunction is consolidated with a hearing on the merits, and it is further
ORDERED that the defendants are permanently enjoined from allowing the performance of work on Contract Nos. N62472-89-B-3436 and N62472-89-B-3378 by anyone other than the plaintiff until such time as they afford plaintiff a debarment proceeding pursuant to applicable rules and regulations.
February 9, 1990