Plaintiff has not made a strong showing that the Contracting Officer's determination of non-responsibility was contrary to the applicable regulations or lacked a rational basis. The Federal Acquisition Regulations provide:
A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be non-responsible, unless the contracting officer determines that the circumstances were properly beyond the contractor's control or that the contractor has taken appropriate corrective action. . . . The contracting officer shall consider the number of contracts involved and the extent of deficiency of each in making this evaluation.
48 C.F.R. 9.104-3(c) (1991). The Contracting Officer considered the final unsatisfactory evaluation an indication of recent deficient performance. Geo-Con maintains that the Contracting Officer failed to consider its satisfactory performance on other projects and its steps to correct the problems with Bruin Lagoon. Geo-Con's eight-page response to the initial notice of unsatisfactory performance, which cited both those factors, is part of the administrative record. In the absence of contrary evidence, the Court assumes that the Contracting Officer considered that portion of the record before him. Thus, plaintiff has not demonstrated that the Contracting Officer's determination was inconsistent with the Federal Acquisition Regulations. Furthermore, the Contracting Officer's affidavit, albeit prepared subsequent to his determination, demonstrates that he carefully considered the record in making his decision. At this stage, therefore, plaintiff has not made a strong showing that the Contracting Officer's determination of non-responsibility lacked a rational basis.
Plaintiff also has not established a substantial likelihood of success on the merits of its claim that the Contracting Offocer's determination constituted a de facto debarment in violation of due process. "Where a person's good name, reputation, honor or integrity is at stake because of what the Government is doing to him, notice and an opportunity to be heard are essential." Old Dominion, 631 F.2d at 963; See MCI Constr., Inc. v. NASA, 1991 WL 251858 (D.D.C. November 12, 1991). Thus, a contractor has a right to notice of its alleged lack of integrity and an opportunity to refute that allegation before it is denied the opportunity to participate in a goverment contract. See Old Dominion, 631 F.2d 963 at 963-64 ; Related Indus., Inc. v. United States, 2 Cl. Ct. 517 (1983); MCI, 1991 WL 251858.
Geo-Con contends that the Contracting Officer's determination rested on a finding that it lacked integrity and amounts to a de facto debarment. However, in contrast to de facto debarment cases in which contractors have lost several government contracts,
the disqualification in this case is limited to one award. See Community Economic Dev. Corp. v. United States, 577 F. Supp. 425, 28 (D.D.C. 1983). Although the Contracting Officer noted that Geo-Con's business ethics had fallen into question following the indictment of its former employees, that point was secondary to his concerns regarding Geo-Con's performance at Bruin Lagoon. Finally, through the initial Notice of Unsatisfactory Performance, Geo-Con was aware that the indictment of its former employees placed its integrity in doubt with the Corps of Engineers. Geo-Con had an opportunity to respond the initial notice in its eight-page letter, which the Contracting Officer reviewed in reaching his determination. For these reasons, plaintiff has not made a sufficient showing of de facto debarment or of a denial of due process to warrant issuing an injunction. Accordingly, without feeling a need to reach the question of irreparable injury, it hereby is
ORDERED, that plaintiff's motion for a preliminary injunction is denied.
Stanley S. Harris
United States District Judge
Date: JAN 8 1992