the debarring official concluded, on the basis of the October written submissions, the November 1, 1993, hearing, plaintiff's December 6, 1993, submission and all other material in the record, that there was no genuine dispute as to any material fact. It is this conclusion that plaintiff says was arbitrary and capricious. He requests the Court to deny the government's motion for summary judgment and to direct the Army to conduct the adversarial proceeding called for by the FARs.
In considering plaintiff's arguments, it is not the Court's function to determine whether in fact there was a genuine issue of material fact or whether the Court would find a genuine dispute of material fact if it were considering a motion for summary judgment de novo in a normal civil case. Rather, the Court must consider only whether there is a genuine issue of material fact as to whether the Army's decision not to grant plaintiff a hearing under 48 C.F.R. § 9.406-3(b)(2) was arbitrary or capricious, an abuse of discretion or otherwise not in accordance with the law. See Koehler v. United States, 1991 WL 277523, at * 5. The Court has carefully reviewed plaintiff's affidavit, dated October 19, 1993, and the entire transcript of the debarment hearing held by the debarring official on November 1, 1993, as well as all other documents in the administrative record in this case. The Court agrees with the debarring official that the essential facts are undisputed and, more importantly, it concludes that it was not an abuse of discretion for the debarring official to so conclude.
Plaintiff admits that he received goods and services from Mr. Yassa and never paid him for them in cash or currency. A.R. Tab D, at 10-11. He admits that he gave Mr. Yassa's church an automobile and that he took a tax deduction, claiming it as a charitable contribution, but says that he intended this as payment to Mr. Yassa for the services and goods Mr. Yassa provided. A.R. Tab D, at 26-27, 30-31, 33-35. Plaintiff claims that he did this because Mr. Yassa refused any other form of payment to him. A.R. Tab D, at 11. The only evidence that the goods and services were not a gratuity was Mr. Waterhouse's own statement that the car he donated to the church for which he took a tax deduction "served both to compensate Mr. Yassa for the value of the work as well as being a contribution to the church" and that he took a tax deduction only for the difference between the value of the services and the value of the car. A.R. Tab D, at 33-35. On this basis, plaintiff claims that he did not have the intent necessary to accept an illegal gratuity and that his assertion that he lacked the requisite intent raises a genuine issue of material fact. While Mr. Waterhouse stated on numerous occasions during the hearing that he did not knowingly accept a gratuity, that he intended to pay Mr. Yassa for the goods and services, that he wanted Mr. Yassa to bill him for the services, which Mr. Yassa refused to do, and that he had no intention of accepting a gratuity from Mr. Yassa, he also acknowledged that Mr. Yassa accepted the car on behalf of the church and that Mr. Waterhouse knew that it was going to the church and not to Mr. Yassa. A.R. Tab D, at 30-31.
On the basis of the record before him, the debarring official concluded that Mr. Waterhouse accepted gratuities from Mr. Yassa, that Mr. Waterhouse did not donate the automobile to Mr. Yassa, that Mr. Waterhouse donated an automobile to Mr. Yassa's church and took a charitable contribution for his donation, that the church (not Mr. Yassa) provided the receipt for the donation of the automobile, that the donation could not be both compensation for the goods and services received from Mr. Yassa and a charitable contribution in the amount of $ 3,684.00, that the charitable contribution of the automobile to the church was not compensation for the goods and services Mr. Yassa provided to Mr. Waterhouse, that the goods and services provided by Mr. Yassa were gratuities for which Mr. Waterhouse did not compensate Mr. Yassa, and that it was improper for Mr. Waterhouse to accept the gratuities because they were given during a period of time when Mr. Waterhouse approved purchase orders issued to and work performed by Mr. Yassa's company. A.R. Decision, Tab C, at 4-6. On the evidence before him, the debarring official found that there were no issues of material fact in dispute and, specifically, that plaintiff's assertion that he did not have the requisite intent did not raise a genuine issue of material fact. A.R. Decision, Tab C, at 4-5.
Upon a thorough review of the record, including Mr. Waterhouse's affidavit and testimony, the Court cannot conclude that General Cuthbert's decision was arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law. See Robinson v. Cheney, 277 U.S. App. D.C. 393, 876 F.2d 152, 161-63 (D.C. Cir. 1989); Koehler v. United States, 1991 WL 277523, at * 2, 5. Nor can the Court conclude that the debarring official failed to consider mitigating factors or that his action was "punitive" in violation of plaintiff's substantive due process rights. On this record, it was not arbitrary and capricious to conclude that plaintiff is not a "presently responsible contractor."
In view of the foregoing, the Court GRANTS defendants' motion for summary judgment and enters judgment on all counts in favor of the defendants.
PAUL L. FRIEDMAN
United States District Judge