giving government employees gratuities to influence their official actions, and refusing to give government auditors access to records, if proven in the administrative hearing, are each probably causes for debarment. The audit proceedings were separately pursued by the agency and were not a ruse to set up the debarment proceedings.
42. The MOI alleges that plaintiff Baranowski conspired with John Del Vecchio to boost Del Vecchio's price for supplying clay to the Brown's Battery site and to pass that fraudulently increased price on to EPA. That allegation is based on the immunized trial testimony of John Del Vecchio, testimony of other witnesses, and documentary evidence. The testimony of witnesses at the criminal trial and the trial exhibits may have probative value even though the prosecution had failed to prove plaintiffs guilty beyond a reasonable doubt.
43. BES allegedly submitted payment requests to EPA representing that it owned equipment that was actually rented and charged EPA the rate appropriate for owned equipment. Examples of these payment requests are attached to EPA's MOI.
44. EPA has some evidence (e.g., charge card records and the corporate ledger) showing that Baranowski took Mr. Massey, EPA's on-scene coordinator at the Brown's Battery site, on a Canadian vacation. Baranowski allegedly bricked in Massey's carport. There is a dispute as to whether Massey paid for the brick wall. There may be a dispute about the allegedly paid vacation.
45. The credit card records and hotel receipts are not "matters occurring before the grand jury" because they are independently created business records the disclosure of which neither compromises grand jury secrecy nor reveals the grand jury's scope or direction. Even if the credit card and hotel records and the other evidence derived from grand jury subpoenas were "matters occurring before the grand jury," the administrative proceedings are based largely on other issues, stopping the debarment would be a disproportionate sanction and the charge card records could be obtained by an administrative subpoena. Moreover, it is premature to determine whether any future debarment will even rest on any matters derived from grand jury subpoenas. The subpoena and debarment actions are based on other evidence having no relation to "matters occurring before the grand jury." The fraud charges are based on the criminal trial transcript and exhibits. The gratuity charges are based on hotel receipts, the employee's time card, the investigation in Canada, the BES general ledger which was a trial exhibit and the statements of the persons who did the brick work. The plaintiffs' failure to provide information requested during audit had nothing to do with any grand jury investigation.
46. EPA has been seeking access to records from various projects that BES has performed for EPA since March 25, 1988. BES's refusal to give agency auditors the access to these records which their contracts require could constitute a violation of the terms of a Government contract. 48 CFR § 9.406-2(b)(1); 40 CFR § 32.200(c).
47. Plaintiffs have not shown that EPA or any of its employees are engaged in an improper campaign to harass plaintiffs. EPA's subpoena and debarment actions are motivated by concern for the agency's legitimate business interests, not by any personal or institutional vendetta. EPA's debarring official is a neutral fact finder insulated from any bias on the part of other EPA employees.
48. Plaintiffs have not shown sufficient irreparable harm between now and the time their debarment case can be resolved administratively to justify the relief they seek.
49. Plaintiffs are not foreclosed from completing their multi-million dollar existing contracts with EPA nor from bidding additional contracts in the hope that BES will be eligible to receive contracts when the awards occur. The suspension incident to the debarment proceedings does not foreclose plaintiffs from dealing with Government agencies besides EPA.
50. Granting a preliminary injunction would harm the agency's orderly conduct of its business and the public interest in the responsible conduct of the agency's affairs.
CONCLUSIONS OF LAW
1. EPA has met its burden of establishing
(1) that the subpoena is within the agency's statutory authority and has a legitimate purpose.
(2) that the information sought is relevant to EPA's inquiry and necessary.