U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
WASHINGTON, DC 20401
STUART M. FOSS
Administrative Law Judge
The Appeal of RBP CHEMICAL CORPORATION
Docket No. GPO BCA 4-91
Purchase Order 744-90
January 23, 1992
DECISION ON MOTION AND ORDER
This appeal, timely filed by RBP Chemical Corporation, 150
S. 118th Street, P. O. Box 14069, Milwaukee, Wisconsin 53214
(hereinafter Appellant) is from the final decision, dated
January 3, 1991, of Contracting Officer Deborah L. Sharp
(hereinafter Contracting Officer), of the U.S. Government
Printing Office, North Capitol and H Streets NW.,
Washington, DC 20401 (hereinafter Respondent or GPO),
terminating the Appellant's contract identified as Purchase
Order 744-90, for default because of its failure to deliver
a product which met the contract specifications (R4 File,
Tab A). 1/ On June 4, 1991, the Board issued an order
scheduling a prehearing telephone conference in the appeal
for Tuesday, June 25, 1991. See, Board Rules, Rule 10.
However, on June 14, 1991, the Respondent filed a Motion for
Summary Judgment (Motion), contending that the Appellant's
defenses to the termination action, discussed infra, were
not supported by the pleadings or the evidence, and thus
judgment should be entered for the Respondent. The
Appellant's Response to Motion For Summary Judgment
(Response) was filed with the Board on August 8, 1991. For
the reasons which follow, the Motion is DENIED.
BACKGROUND
This appeal stems from the Respondent's issuance of Purchase
Order 744-90 to the Appellant on November 27, 1989, for the
supply of 925 gallons of platemaker developer called
"Graphex Projection Developer" (Graphex Developer) (Property
Number 220396) (R4 File, Tab B). From the record, it seems
that the Appellant has been supplying this developer to the
Respondent since 1985 (Response, Affidavit of James A.
Woodward, ¶ 3). 2/ The Appellant's shipment of 925 gallons
of Graphex Developer was received by the Respondent on
January 2, 1990 (R4 File, Tab D). The developer delivered
to the Respondent was the same product which it had been
sending to GPO to fulfill past orders, and there had never
been any problem with it before (Response, Affidavit of
James A. Woodward, ¶ 4). The Respondent paid for the
shipment of Graphex developer on January 10, 1990, by
sending the Appellant a check for $13,320.00 (R4 File, Tab
A, p. 2; Motion, p. 2).
The record discloses that around April 16, 1990, over four
months after the developer had been received and paid for by
the Respondent, it wrote to the Appellant to inform it that
Graphex Developer had been deleted from GPO's "Qualified
Product List" because the specifications had been changed
(R4 File, Tab E). The new specification was enclosed with
the Respondent's letter and the Appellant was invited to
submit samples of a substitute developer for requalification
(R4 File, Tab E). 3/
It is clear from the record that the respondent did not use
the Graphex Developer immediately, but rather kept it stored
until it was needed four months later. In that regard, on
May 8, 1990, John Axline, Group Chief, Offset Plate Section
(OPS), sent a memorandum to the Chief, General Procurement
Division (GPD), informing him of a problem which was being
experienced with the Graphex Developer that Appellant had
delivered in January (R4 File, Tab F). 4/ Specifically,
Axline wrote, in pertinent part:
We started using Graphex Developer May 2, 1990, after they
received the bid for 1990. This developer had been a proven
product since 1975. When we started using it last week we
noticed lacquer drip marks on some of our plates. These marks
were sensitive on press and picked up ink. Not knowing if we had
a plate or lacquer problem, I ordered 36 [gallons] of Imperial
Lacquer. It was received May 7, 1990, at noon. When the plates
were checked using both developers, we found we only had a
problem with [the] Graphex Developer.
The Graphex Company has been notified. They are checking their
samples of this batch to see if they can find the problem.
(R4 File, Tab F). 5/ Gouin, the head of the Respondent's
Chemical and Environmental Division, agreed with Axline, and
recommended that the Appellant be directed to solve the
"scumming" problem by either giving proper instructions in the
use of the developer or by replacing the "defective shipment,
otherwise the Respondent should reject the product (R4 File, Tab
L). 6/ Accordingly, the Appellant was notified of Axline's
complaint on May 9, 1990, and agreed to send someone to the
Respondent's facility the following week to troubleshoot the
problem (R4 File, Tab F).
Jay Singstock, the Appellant's service representative,
visited GPO's plant on or about May 15, 1990, to see for
himself what difficulties the Respondent was having with the
Graphex Developer. 7/ Meeting with Axline and other GPO
operational personnel, Singstock attempted to determine the
cause of the lacquer drips and to formulate steps to cure
the problem (R4 File, Tab G). As a result of his
inspection, Singstock concurred with Axline that the
Appellant's developer was leaving lacquer drips on the
plates, but there is no agreement in the record as to the
cause of the problem. In that regard, Singstock concluded
that the spots being left by the developer on the plates was
the result of poorly positioned dispensing nozzles on the
Respondent's equipment, and the problem could be eliminated
with a "minor adjustment" repositioning the nozzle; i.e.,
there was nothing wrong with the Graphex Developer itself
(R4 File, Tab I; Response, Affidavit of Jay Singstock, ¶¶ 4,
5). 8/ Axline, on the other hand, felt that the problem
stemmed from the chemical composition of the Graphex
Developer; indeed, he complained that Singstock's mechanical
adjustments only caused other problems and extra work for
the employees; e.g., the operators were frequently cleaning
the build up of lacquer on the rollers (R4 File, Tab G).
When informed of Axline's continued concerns, the Appellant
asked the Respondent to return a case (4 gallons) of the
Graphex Developer it had delivered under Purchase Order
744-90 for testing to see if a chemical error had been made
in its production and if the problem could be corrected by
adjusting the developer's ingredients (R4 File, Tabs G).
Accordingly, on May 22, 1990, the Respondent sent the
Appellant the 4 gallons of the Graphex Developer for the
purpose of a chemical analysis (R4 File, Tab H; Response,
Affidavit of Jeffrey S. Huth, ¶ 3). In the meantime, the
Respondent continued to use the Imperial Developer it had on
hand (R4 File, Tab G). The Appellant's laboratory tests on
the Graphex Developer which had been delivered under
Purchase Order 744-90 showed that it was chemically correct
and matched the chemical composition of other shipments of
the same product which the Appellant had supplied to the
Government (Response, Affidavit of Jeffrey S. Huth, ¶ 5).
On June 26, 1990, having determined that a "latent
[chemical] defect" precluded further use of the developer,
the Respondent sent a Notice of Rejection to the Appellant
and requested shipping instructions for the return of the
remainder of the Graphex Developer which had been shipped in
January (848 gallons) (R4 File, Tabs J). 9/ Replying on
July 3, 1990, the Appellant told the Respondent to send "400
gallons" each of the developer to the United Nations (UN) in
New York City, and the American Red Cross (ARC) in
Alexandria, Virginia (R4 File, Tabs K). On July 12, 1990,
the Respondent made an equal division of the remaining
Graphex Developer and shipped 424 gallons each to the UN and
the ARC by Preston Trucking Company, as instructed by the
Appellant (R4 File, Tab K). 10/
At the same time that the Appellant was attempting to
resolve the problem with the Graphex Developer it had
already delivered to the Respondent, it was also trying to
formulate a new developer which, according to the Appellant,
would be submitted to the Respondent for requalification
under the changed specification for Property No. 220396 (R4
File, Tabs E and I; Response, Affidavit of Jeanne D.
Kitazaki, ¶¶ 4, 5). In that regard, on June 13, 1990, the
Appellant wrote to the Respondent and promised to send it
samples of the new product for testing by August 15 (R4
File, Tab I; Response, Affidavit of Jeanne D. Kitazaki, ¶
6). Sometime in late July or early August, the Appellant
shipped six gallons of a black lacquer developer called "GPO
Black JH6-52" to the Respondent, but this new developer was
rejected by the Respondent's Quality Control staff because
it caused random "spotting" on the plates (R4 File, Tab M).
11/ In late August, the Appellant submitted four other
newly formulated developers for testing ("GPO Red JH6-79,"
"GPO Red JH6-80," "GPO Black JH6-81A," and "GPO Black
JH6-81B"), but the Respondent determined that these too were
unsatisfactory (R4 File, Tab N).
Accordingly, On October 12, 1990, the Respondent sent the
Appellant a "Cure Notice" regarding Purchase Order No.
744-90, which stated, in pertinent part:
. . . [S]ince you have not formulated a new product within the
time specified in your letter, dated June 13, 1990, the [G]
overnment considers this a condition that has endangered the
performance of this contract. Therefore, unless this condition is
cured within 10 days after receipt of this notice the Government
may terminate for default.
(R4 File, Tab O). By letter, dated October 22, 1990, the
Appellant confirmed a telephone conversation between the parties
three days earlier, and in answer to the "Cure Notice" told the
Respondent, in pertinent part:
. . . [Purchase Order No. 744-90] had a scheduled delivery date
of January 3, 1990. All requirements were met by RBP in
accordance with your previous specifications. In response to
Joan Lombardo's [Procurement Analyst, GPD] request for
requalifying of Projection Developer, numerous conversations were
held with Mr. Joseph Gouin and Mr. John Axline regarding your
unique process conditions. Our R & D and technical service staff
began working on a new developer not only to comply with the new
specifications, but also to provide a developer that would work
without any mechanical changes strictly adhered to by the plate
department. We have given this top priority and extensive staff
time to this project. Several shipments of experimental
developer have been submitted to GPO to determine what it will
take to formulate the exact product. . . .
* * * * * * * * * * * * * * * *
. . . [We] believe that RBP has met and exceeded your
requirements for reformulation. We appreciate your patience and
believe you will be pleased with RBP's efforts in offering you a
specially-blended product which we have brought to qualification
standards in less than a month's time. [Emphasis added.]
(R4 File, Tab P).
Approximately two months later, and almost one year to the
date after the Graphex Developer had been delivered, the
Contracting Officer, by letter, dated January 3, 1991,
notified the Appellant that its contract under Purchase
Order 744-90 had been terminated for default because of a
failure to deliver a product which met the contract
specifications (R4 File, Tab A). The Contracting Officer's
reasoning for this action was essentially four-fold: (1) the
Graphex Developer delivered in January 1990 had
unsatisfactory side effects with regard to GPO's equipment
and was rejected for that reason; (2) the Appellant has been
given adequate time to replace the rejected developer; (3)
the samples of developer submitted by the Appellant to
replace the rejected product also failed to meet the
contract specifications; and, (4) because a satisfactory
substitute had not been produced within an adequate time,
terminating the Appellant's contract was appropriate (R4
File, Tab A). Furthermore, since the Respondent had already
paid $13,320.00 for the 925 gallons of Graphex which had
been received in January 1990, the Contracting Officer
demanded a refund of $12,211.20 of that amount within 60
days (at $14.40 a gallon, the difference-$1,108.80-
represents the cost of the 77 gallons of the developer used
by the Respondent before the remainder was sent to the UN
and the ARC) (R4 File, Tab A). The Appellant responded to
the Contracting Officer's termination action by filing this
appeal with the Board on February 26, 1991.
POSITIONS OF THE PARTIES
The Respondent believes that summary judgment is appropriate
in this matter for three reasons: (1) the Graphex Developer
delivered by the Appellant did not conform to the product
specifications and requirements of Purchase Order 744-90;
(2) the problems in the use of the Graphex Developer were
caused by a defect in the developer itself, and not in the
Respondent's equipment; and, (3) the respondent's insistence
on a conforming product did not constitute a change to the
contract. For its first argument, the respondent
principally relies on the well-settled doctrine of public
contract law which entitles the Government to strict
compliance with its contract specifications, including those
of fixed-price supply contracts. Motion, p. 5 (citing,
Jefferson Construction Co. v. united States, 151 Ct.Cl. 75
(1960); Red Circle Corporation v. United States, 185 Ct.Cl.
1, 8 (1968); American Electric Contracting Corporation v.
United States, 579 F.2d 602, 608 (1978); Dependable Printing
Company, Inc., GPO BCA 5-84 (1985)). The strict compliance
rule is enforced either by rejecting the defective product
or, if the Government deems it in its best interest,
accepting the nonconforming supplies at a discounted price.
As the Respondent correctly observes, acceptance or
rejection of a nonconforming product is solely within the
discretion of the procuring agency; i.e., nothing can compel
the Government to accept a defective product at a reduced
price, even if the defects are relatively minor. Id
(citing, Famous Model Company, Inc., ASBCA No. 12526, 68-1
BCA ¶ 6,902; Cherry Meat Packers, Inc., ASBCA No. 8974, 1963
BCA ¶ 3,937). Since, according to the Respondent, the
Graphex Developer furnished by the Appellant under Purchase
Order 744-90 was defective, it believes that the Contracting
Officer properly terminated the contract for default.
The Respondent's second contention flows from its first;
i.e., the defect in the Graphex Developer, and not the
configuration of the Respondent's machinery, was the root
cause of the problems experienced in the use of the product.
Motion, p. 6. The Respondent's argument in this regard can
be reduced to three main points: (1) the Appellant has not
shown that the configuration of the Respondent's equipment
was in any way related to the problems caused by the
developer; (2) the Graphex Developer was tested on several
occasions and failed to meet the contract specifications;
and (3) the Appellant's developer had been used successfully
by the respondent in the past without the need to
reconfigure its platemaking machinery. Id. Thus, the
Respondent believes that the Appellant's argument, blaming
the problems with the Graphex Developer on the configuration
of GPO's equipment instead of on a defect in the developer
itself, it faulty and should be rejected.
Finally, the Respondent denies the Appellant's contention,
infra, that the problems with the Graphex Developer were due
to a change in the specifications for Purchase Order 744-90
after it had already performed the contract. Motion, p. 6.
In that regard, the Respondent claims that its letter of
April 16, 1990, was written merely to advise the Appellant
that the specification for Property number 220396 would be
different for future procurements involving that product,
and to solicit its submission of a replacement developer.
Motion, p. 7. Furthermore, because that correspondence was
written three months after the initial shipment of the
Graphex Developer, the Respondent believes it is
"unreasonable" for the Appellant to assume that the letter
applies to a product which it had already delivered to GPO.
12/ Id. Finally, the Respondent tells us that the
Contracting Officer could not change the specifications for
Purchase Order 744-90 under these circumstances because it
would be "contrary to Federal procurement policies." Id.
In order to amend the specifications, according to the
respondent, the Contracting Officer would have to: (1)
cancel the existing procurement; (2) notify all interested
parties, in writing, of the cancellation, and tell them,
among other things the reason for the action; and (3)
resolicit the contract. Motion, pp. 7-8. Since the
Respondent did none of these things, it submits that the
Appellant's failure to deliver a conforming product
constituted a default of the contract. Motion, p. 8.
Accordingly, the Respondent believes that summary judgment
is warranted in this instance.
The Appellant, on the other hand, opposes the Motion on the
ground that the Respondent has not shown that no genuine
issue of material fact exists in this case. Response, p. 5
(citing, Adickes v. S. H. Kress and Company, 398 U.S. 144
(1970); First National Bank of Arizona v. Cities Service
Company, 391 U.S. 253 (1968)). In that regard, the Appellant
believes that the record leaves the following issues
unresolved: (1) what were the requirements of the developer
specification for Purchase Order 744-90; (2) was the Graphex
Developer delivered by the Appellant in January 1990 a
conforming product; (3) were the problems experienced by the
Respondent in May caused by the Graphex developer or by the
configuration of its platemaking equipment; (4) was the
termination based on the Appellant's failure to meet the old
specification or the revised one; and (5) did the
Respondent's insistence on the Appellant's furnishing a
developer which complied with the new specification
constitute a change to Purchase Order 744-90? Response, pp.
9-10.
The Appellant contends that while both parties recognize the
central importance of the developer specification to this
appeal, the Respondent has not met its burden of proof,
which was to provide evidence of the requirements of the
applicable specification and to demonstrate how the
Appellant failed to satisfy them. 13/ Response, pp. 5-6.
That is, even though the Respondent is compelled to
demonstrate that the Appellant failed
to comply with some aspect of the specification to sustain its
termination action, no evidence of such noncompliance has been
presented. Response, p. 6. Furthermore, while the Respondent
says that it experienced certain problems with the Appellant's
developer, not a single unsatisfied requirement of the
specification has been identified by the Respondent nor is there
evidence that those problems amounted to noncompliance with the
specification; i.e., the Respondent's mere unhappiness with
Appellant's developer is not sufficient to terminate the
contract. Id.
The Appellant also argues that the Graphex Developer did, in
fact, satisfy the requirements of the specification and that
the alleged "defects" in its product could be corrected by
minor adjustments to the Respondent's platemaking equipment.
Id. Thus, contrary to the Respondent, the Appellant
believes that the record contains ample evidence to show
that the configuration of GPO's equipment was the cause of
the problems experienced with the use of the developer it
supplied to the Respondent. Id (citing, R4 File, Tab I,
Singstock Memorandum). Moreover, the Appellant points to
the statements (Affidavits of Singstock, Huth and Kitazaki)
which accompanied its Response as further support for its
claim that the problems were mechanical and not chemically-
related. Response, pp. 6.7.
The Appellant denies the Respondent's contention that its
submission of a new developer product to GPO is tantamount
to an admission that the Graphex Developer shipped in
January 1990 did not meet the requirements of the
specification for Purchase Order 744-90. Response, p. 7.
Instead, according to the Appellant, it sent samples of
newly formulated developers to GPO after January solely for
the purpose of requalifying a product under the new
specification, pursuant to an invitation it had received
from the Respondent itself (R4 File, Tabs I and P). Id.
Consequently, the Appellant argues that a related issue-
whether the Respondent rejected the January 1990 shipment of
Graphex Developer because it did not comply with the revised
specification-cannot be resolved on the basis of this
record. Response, pp. 7-8.n As the Appellant sees it, the
revision of the specification and the discovery of
deficiencies in the Graphex Developer occurred subsequent to
the delivery of the product, and both were matters within
the control of the Respondent. Response, p. 8.
Finally, the Appellant argues that notwithstanding the
Federal procurement policy against changing a specification
during a procurement, the Respondent did, in fact, amend the
developer specification in this case and attempt to apply
the revised version to Purchase Order 744-90,
notwithstanding its self-serving statements to the contrary.
14/ Id. As the Appellant sees it, the sequence of events
here warrants an inference that the Respondent
made a conscious decision to substitute the Imperial Developer, a
qualifying developer under the new specification, for the Graphex
Developer, a product which satisfied the specification in
existence at the time Purchase Order 744-90 was placed. Id.
Furthermore, the Respondent's "Cure Notice," which was based on
the Appellant's inability to "formulate a new product," has no
validity because the Appellant was under no obligation to develop
a "new product" for Purchase Order 744-90; i.e., the Graphex
Developer was a qualified product at the time it was shipped, and
indeed, had satisfied the Government's requirements for years.
Id. Accordingly, the Appellant believes that there are too many
"loose ends" in the record to justify summary judgment in this
case.
DECISION
This summary judgment proceeding was triggered by the
Respondent's Motion in which it claims an entitlement to a
ruling in its favor as a matter of law, because there are no
genuine issues of material fact, and the pleadings and the
evidence of record support its position and not the
Appellant's . In ruling on motions for summary judgment,
this Board applies the rule which permits summary judgment
if the pleadings, the Rule 4 file, the results of any
discovery, and affidavits (when submitted) show
that there is no genuine issue of any material fact and the
moving party is entitled to judgment as a matter of law. See,
Castillo Printing Company, GPO BCA 10-90 (May 8, 1991), Sl. op.
at 22. FED. R. CIV. P. 56(c). Accord, Ite, Incorporated, NASA
BCA No. 1086-6, 88-1 BCA ¶ 20,269; R & D Associates, ASBCA No.
30738, 30750, 86-3 ¶ 19,062.
Under the standard Default clause which applies to contracts
awarded by GPO, the Contracting Officer can, among other
things, on written notice of default to the contractor,
terminate a contract, in whole or in part, if the contractor
fails to "[d]eliver the supplies or to perform the services
within the time specified or any extension, thereof; . . .".
GPO Contract Terms, GPO Publication 310.2, effective
December 1, 1987 (Rev. 9-88), ¶20(a)(1)(i). The Board has
applied this provision not only to late deliveries of
supplies, see, e.g., Chavis and Chavis Printing, GPO BCA
20-90 (February 6, 1991), Sl. op. at 12-15; Jomar
Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at
3-5, but also to the timely delivery of nonconforming
products. 15/ See, e.g., Stephenson, Inc., GPO BCA 02-88
(December 19, 1991), Sl. op. at 18-19. Accord, Kopier
Produckte, ASBCA No. 29471, 85-3 BCA
¶18,367; Meyer Labs, Inc., ASBCA No. 18347, 77-1 BCA ¶ 12,539.
The Contracting Officer here terminated the Appellant's contract
under Purchase Order 744-90 for default because, in the
Respondent's view, the Graphex Developer delivered in January
1990 did not conform to the developer specifications, and the
Appellant was unable to correct the defect with a suitable
replacement product within a reasonable period of time. 16/ On
the other hand, the Appellant's defense, when reduced to its
essentials, is that the Graphex Developer it shipped did in fact
conform to the developer specifications in existence at the time,
and thus there was no defect in the delivered product which
needed to be cured; i.e., this is not a case where the
contractor admits the default but
claims that it is excusable. See, e.g., Chavis and Chavis
Printing, supra, Sl. op. at 13; Jomar Enterprises, Inc., supra,
Sl. op. at 3-5. The parties could not be farther apart.
This Board regards a default termination as a drastic
action, which should only be taken for good cause and on the
basis of solid evidence. 17/ See, e.g., Stephenson, Inc.,
supra, Sl. op. at 19. Accord, Mary Rogers Manley d/b/a Mary
Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519;
Avco Corporation, Avco Electronics Division, NASA BCA No.
869-18, 76-1 BCA ¶ 11,736; Decatur Realty Sales, HUDBCA No.
75-26, 77-2 BCA ¶ 12,567. Similarly, the Board also
recognizes that a summary judgment proceeding is, by its
nature, a "drastic device" for disposing of litigation. 18/
See, Castillo Printing Company, supra, Sl. op. at 20
(citing, IBM
Poughkeepsie Employees Federal Credit Union v. Cumis Insurance
Society, Inc., 590 F.Supp. 769, 771 (D.S.D.N.Y. 1984);
Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975)).
Nonetheless, summary judgment is appropriate if there is no
genuine issue of any material fact in the record. 19/ As
recently explained by the Board:
22
Under Rule 56(c) of the Federal Rules of Civil Procedure, courts
are instructed to grant a motion for summary judgment if the
pleadings and supporting affidavits and other submissions "show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c). Thus, the principal judicial inquiry
required by Rule 56 is whether a genuine issue of material fact
exists. [Footnote omitted.] Stated otherwise, on a motion for
summary judgment, a court cannot try issues of fact; it can only
determine whether there are issues to be tried. See, e.g., IBM
Poughkeepsie Employees Federal Credit Union v. Cumis Insurance
Society, Inc., 590 F.Supp. at 771 (citing, Schering Corporation
v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983). Is no such
issue exists, the rule permits the immediate entry of judgment.
See, e.g., Reingold v. Deloitte Haskins and Sells, 599 F.Supp.
1241, 1261 (D.S.D.N.Y. 1984); United States v. ACB Sales and
Service, Inc., 590 F.Supp. 561 (D. Ariz. 1984). [Original
emphasis.]
Castillo Printing Company, Supra, Sl. op. at 21-22.
As indicated, the Board's function in deciding a motion for
summary judgment is not to resolve any questions of material
fact, but only to ascertain whether any such questions
exist. Id. See, also, John's Janitorial Services, Inc.,
ASBCA No. 34234, 90-3 BCA ¶ 22,973 (citing, General Dynamics
Corporation, ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851);
Ite, Incorporated supra, 88-1 BCA ¶20,269, (citing, B.S.A.
Painting Company, Inc., ASBCA No. 32060, 87-1 BCA ¶ 19,367).
It is not necessary or appropriate to make explicit factual
findings for purposes of ruling on the motion. Id (citing,
Lemelson v. TRW, Inc., 760 F.2d 1254, 1260 (Fed. Cir. 1985);
Pioneer Services, Inc., NASA BCA Nos. 578-9, 578-10, 81-2
BCA ¶ 15,164).
The Appellant briefly discussed the principles governing the
summary judgment procedure in its Response to the
Respondent's Motion. Response, p. 5. As the Appellant
correctly states, the burden is on the party moving for
summary judgment to demonstrate that there is on genuine
issue as to any material fact and that it is entitled to
judgment as a matter of law. 20/ Id. See, e.g., Adickes v.
S. H. Kress & Company, 398 U.S. 144, 157 (1970); Rodway v.
Department of Agriculture, 482 F.2d 722 (D.C. Cir. 1973);
Weisberg v. Department of Justice, 438 F.Supp. 492 (D.D.C.
1977). Furthermore, as the Appellant recognizes, before a
court will grant the motion it must be satisfied that the
truth is clear and any doubt will be resolved against the
movant. Id. (citing, Adickes v. S. H. Kress & Company,
supra, 398 U.S. 144, 157). See also, Poller v. Columbia
Broadcasting System, Inc., 368 U.S. 464 (1962); Union
Carbide Corporation v. American Can Company, 724 F.2d 1567,
1571 (Fed. Cir. 1984); Washington v. Cameron, 411 F. 2d 705
(D.C. Cir. 1969); B & A Electric Company, Inc., ASBCA No.
33667, 87-1 BCA ¶ 19,606. Essentially, this means that the
record evidence in summary judgment proceedings is construed
in favor of the party against whom the motion is raised, and
the non-mover receives the
benefit of all favorable inferences that can be drawn from it.
See, e.g., United States v. General Motors Corporation, 518 F.2d
420, 442 (D.C. Cir. 1975); Federal Savings and Loan Insurance
Corporation v. Williams, 599 F.Supp. 1184, 1192 (D.Md. 1984);
Turner v. United States, 553 F.Supp. 347, 349 (D.Va. 1982);
Weisberg v. Department Justice, 438 F.Supp. 492 (D.D.C. 1977).
Indeed, as the United States District Court for the District of
Columbia recently told GPO:
. . . [I]t is well established that the Court must believe the
non-movant's evidence and must draw all justifiable inferences in
its favor. [Citation omitted.] . . . The movant bears the
initial responsibility of informing the district court of the
basis for its motion for summary judgment, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits which is believed demonstrate the absence of a genuine
issue of material fact.
See, Camm v. Kennickell, et at., Civil Action No. 85-3844 (CRR),
(D.D.C., November 20, 1990), Sl. Op. at 3 (citing, Anderson v.
Liberty Lobby, Inc., supra, 477 U.S. at 255; Celotex Corporation
v. Catreet, supra, 477 U.S. at 323). See also, Matsushita
Electric Industrial Company v. Zenith Radio Corporation, 465 U.S.
574 (1986). Thus, as the Appellant also states, under this
standard if after all the moving party's obligations pursuant to
Rule 56(c) have been followed, the record still contains
"sufficient evidence" of a factual dispute requiring resolution
of differing versions of the truth by a jury or a judge at a
trial, then summary judgment will be defeated. Response, p. 5
(citing, First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968)).
Even though the nonmoving party in summary judgment
proceedings receives the benefit of all favorable evidence
and inferences, this does not mean that it has no
evidentiary responsibilities at all. Admittedly, the burden
on the nonmoving party is not a heavy one; it is simple
required to go beyond allegations in the pleadings and
designate specific facts in the record or by affidavits to
show there is a genuine issue to be heard. 21/ See, e.g.,
McDonnell v. Flaharty, 636 F.2d 184 (7th Cir. 1980); United
States v. Kates, 419 F.Supp. 846 (D.Pa. 1976); Upper West
Fork River Watershed Association v. Corps of Engineers,
United States Army, 414 F.Supp. 908 (D.W.Va. 1976), affirmed
556 F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010
(1978). See also, Ite, Incorporated, supra, 88-1 BCA ¶
20,269. In that regard, in deciding whether a genuine issue
exists, the court may not simply accept a party's statement
that a fact is challenged. See, Barmag Barmer
Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831,
835-36 (Fed. Cir. 1984) ("The party opposing the motion must
point to an evidentiary conflict created on the record at
least by a counter statement of a fact or facts set forth in
detail in an
affidavit by a knowledgeable affiant."). Furthermore, mere
protestations by the nonmoving party that material facts are in
dispute have been held insufficient to defeat a motion for
summary judgment. R & D Associates, supra, 86-3 ¶ 19,062. Cf.,
Central Mechanical Construction, ASBCA No. 29431, 86-3 BCA ¶
19,160. Accordingly, when all of these principles are considered,
it becomes clear that the purpose of the summary judgment
procedure is to cut through the pleadings and distinguish
substantial issues from phantom issues raised only in the
pleadings. See, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269
(citing, 6 J. MOORE, W. TAGGART & J. WICKER, MOORE'S FEDERAL
PRACTICE ¶ 56.15(2), (2d ed. 1985)).
In this appeal a grant of summary judgment would be based on
the conclusion that no genuine issues of material fact exist
which prevent a conclusion on the record that the default
termination was justified. The grounds given for defaulting
the Appellant's contract under Purchase Order 744-90 was
that the Graphex Developer delivered in January 1990 did not
conform to the product specifications, and the contractor
was unable to correct the defect with an acceptable
replacement developer within a reasonable period of time (R4
File, Tab A). Consequently, to sustain its default action
in this proceeding the Respondent, as the moving party, had
an affirmative obligation under the summary judgment rules
to show that the Graphex Developer received in January 1990
did not, in fact, meet the relevant specifications and that
the Appellant's
efforts to supply a conforming product under the contract was a
failure. FED.R. CIV.P. 56(c). That is, it was incumbent on the
Respondent to demonstrate to the Board not only which of the two
developer specifications the Appellant failed to satisfy, but
also to point out in what manner the Graphex Developer and/or the
"replacement" developer not meet the product standards applicable
to Purchase Order 744-90. In the Board's view, the Respondent
has failed to carry its burden in this regard.
In this proceeding, the Respondent relies on the "scumming"
or lacquer drip marks on the plates as proof that the
Graphex Developer delivered by the Appellant did not conform
to the product specifications for Purchase Order 744-90.
Furthermore, even though the Respondent admits minor
adjustments to its machinery eliminated this "scumming," it
views other problems which resulted, such as the build up of
lacquer on the rollers and improper development of the outer
edges of the plates, as additional evidence of the
nonconforming nature of the product. In short, since the
Appellant's developer had been used successfully by GPO in
the past without the need to reconfigure the platemaking
machinery, the Respondent concludes that the problems
experienced in this case were caused by chemical makeup of
the product itself. It must be observed that the Respondent
does not support its Motion with any affidavits but merely
relies on its own version of the record to support its
request for summary judgment.
28
The Appellant, on the other hand, has done all that is
required of it under the Federal Rules to oppose a motion
for summary judgment. In particular, it has pointed to an
evidentiary conflict created on the record both by
presenting its own counter statement of facts set forth in
detail and by supporting then with affidavits of
knowledgeable affiants. See, Barmag Barmer Maschinenfabrik
AG v. Murata Machinery, Ltd., supra, 731 F.2d at 836. That
is, the Appellant not only disputes the Respondent's
conclusion that the some chemical imbalance in the Graphex
Developer caused the "scumming" problems, but has supported
its position with affidavits from its own experts who tell
us, in particular, that: (1) there was nothing chemically
wrong with the Graphex Developer delivered to the Respondent
in January 1990 (Affidavit of Jeffrey S. Huth); and (2) the
product shipped under Purchase Order 744-90 met the same
specifications and was identical to the Graphex Developer
which the Appellant had sent to the Respondent under past
purchase orders (Affidavit of James A. Woodward). The
chemical makeup of the Graphex Developer delivered in
January 1990 and the product specifications for the
developer on the date of shipment are material facts.
Because the central issue in the appeal-whether or not the
Graphex Developer conformed to the product specifications
applicable to developers on the date it was shipped or
deviated from that norm-is in dispute, and the controversy
is clearly genuine, this case is inappropriate for summary
judgment on that basis alone. 22/
As indicated previously, default is a drastic action and
should be sustained only for good grounds and on solid
evidence. See, e.g., Stephenson, Inc. supra, Sl. op. at 19.
See also, J. D. Hedin Construction Co. v. United States,
supra, 187 Ct. Cl. at 47, 408 F.2d 424 (1969); Avco
Corporation, Avco Electronics Division, supra, 76-1 BCA ¶
11,736. On this motion, the Respondent was required to show
that as to matters within its own burden of proof there was
no genuine issue of fact. Professional Divers, ASBCA No.
37117, 89-3 BCA ¶ 22,251 (citing, 2 Moore's Manual §
17.10(3) at 17-40 (1988)). However, it is clear to the
Board that numerous facts material to the resolution of the
issue of whether the Appellant performed its obligations
under the contract remain in dispute. 23/ As the record
currently stands, the Board would be
required to review the conflicting assertions and evidence
presented by both parties and make a factual determination based
on that review in order to decide whether the Government is
entitled to judgment as a matter of law. The Board has already
stated that it is inappropriate to make such a factual
determination in a summary judgment proceeding, 24/ and we
decline to make one here. Oak Cliff Realty, Inc., supra, 91-1 BCA
¶ 23,481. Accordingly, it is the opinion of the Board that the
Respondent has simply not carried its burden to show that there
are no genuine issues of material fact in dispute. Therefore,
the Motion is DENIED.
ORDER
The Respondent's Motion, which was filed with the Board on
June 24, 1991, had the effect of postponing the prehearing
telephone conference in this appeal which the Board had
scheduled for Tuesday, June 25, 1991. See Order Setting A
Prehearing Telephone Conference, dated June 4, 1991. The
Motion is now
DENIED. Therefore, within thirty (30) days after the date of
this DECISION ON MOTION AND ORDER the parties shall jointly
advise the Board of two alternate dates for a rescheduled
prehearing telephone conference on this appeal.
It is so Ordered.
_______________
1. The Contracting Officer's appeal file, assembled pursuant to
Rule 4 of the Board's Rules of Practice and Procedure, was
delivered to the Board on April 1, 1991. It will be referred to
hereafter as R4 File, with an appropriate Tab letter also
indicated. GPO Instruction 110.12, Subject: Board of Contract
Appeals Rules of Practice and Procedure, dated September 17, 1984
(Board Rules), Rule 4.
2. According to Woodward, the Appellant has been producing the
developer since 1983, and prior to this dispute it had shipped
approximately 7,300 gallons of the same product to the Respondent
under other purchase orders (Response, Affidavit of James A.
Woodward, ¶¶ 2, 5, 6).
3. The Appellant enclosed both the old and new specifications
with its formal notice of appeal filed with the Board on February
26, 1991. Without analyzing the changes in detail, it seems to
the Board that the new characteristic having the most relevance
to this dispute is the requirement that the developer should be
"water based rather than solvent based." See, New Specification,
Requirement No. 5. This change apparently stemmed from the fact
that even though both the old and new specifications required
that the "[d]eveloper should have no strong or objectionable
odors," the solvents used in the Graphex Developer resulted in
employee complaints about offensive smells in the work area which
were then brought to management's attention by their union. See,
[GPO] Memorandum from Joseph U. Gouin (Gouin), Chief, Chemical
and Environmental Division to Chief, General Procurement
Division, Subject: Lacquer Developer, Property No. 220396, dated
April 12, 1990 (R4 File, Tab E). The solution to this
environmental and labor relations problem was to use a waterbased
developer such as "Imperial ECO Systems Developer" (Imperial
Developer) made by the Imperial Metal and Chemical Company of
Philadelphia, Pennsylvania, which would be odor free. Id.
However, in making this change Gouin cautioned that should: ". .
. GPO encounter unexpected offset plate development problems or
not be able to purchase a satisfactory water based lacquer
developer for whatever reasons, the lab recommends that the
lacquer developer [Graphex Developer] be purchased to maintain
uninterrupted production. It has never been determined at
anytime that [the Graphex Developer] is unsafe under the
conditions in which it is used despite its objectionable odor.
The change being recommended is merely to reduce volatile
solvents in the working area, dispel objectionable odors, and
thereby provide a more comfortable work area [emphasis added]."
Id.
4. The GPD is located in the Respondent's Materials Management
Service. The Chief of the GPD is Robert Ramsey.
5. The specification language which seems to most relate to the
problem being experienced in the OPS is the requirement that the
developer ". . . must be compatible for use in the automatic
plate processor used in platemaking because the plates are not
hard [sic] developed. An important characteristic of this
compatibility is the proper viscosity so that the dispensing bar
on the processor does not become clogged." See, Old
Specification, Requirement No. 1. Although there is a minor
variation in language and emphasis in the revised specification,
this characteristic is unchanged. See, New Specification,
Requirement No. 2. Furthermore, it should be noted that the 36
gallons of Imperial Developer mentioned by Axline represented a
9-10 day supply. A week later, the Respondent had 60 gallons of
Imperial Developer, or a month's supply, on hand (R4 File, Tab
G). The Imperial Developer, it should be recalled, qualified as
a developer under the new specifications issued by the
Respondent. See note 3 supra.
6. Gouin's memorandum of May 9, 1990, to Ramsey is attached to
another memorandum from Harry J. Wilson, Chief, General Stores to
Ramsey, dated July 19, 1990 (R4 File, Tab L). However, it is
clear from Gouin's memorandum that ". . . the attached memorandum
concerning the alleged defective offset plate lacquer developer
from Graphex . . ." refers to Axline's memorandum of May 8, 1990,
particularly since the subject of the memorandum is also
"Property No. 220396, Purchase Order No. 074490."
7. Singstock recalls his visit as occurring on May 15, 1990
(Response, Affidavit of Jay Singstock, ¶ 3). The Respondent,
however, remembered Singstock coming to its plant on May 16, 1990
(R4 File, Tab G; Motion, p. 2).
8. Singstock observed that Axline and the Respondent's
operational personnel ". . . were not overly pleased that we did
some mechanical changes on the machine; however, that was the
only way we could possibly correct the problem they were having.
. . ." (R4 File, Tab I).
9. Duplicate copies of the documents exchanged by the Respondent
and Appellant regarding the disposal of the rejected Graphex
Developer are also contained as attachments in Tab I of the R4
File.
10. On its face, Wilson's memorandum to Ramsey concerns the
return of the remaining 848 gallons of the Graphex Developer "on
hand" to the Appellant (R4 File, Tab L). See note 6 supra.
Therefore, the Board is unclear why the memorandum is hand dated
July 19, 1990, since it relates to an action which was completed
a week earlier.
11. The record clearly demonstrates that the parties were
operating under divergent perceptions at this time. The
Appellant believed its developmental efforts were directed toward
producing a product that would satisfy the new specification and
requalify for placement on the Respondent's product list
(Response, Affidavit of Jeanne D. Kitazaki, ¶¶ 4-8). The
Respondent, on the other hand, viewed the Appellant's efforts as
an attempt to replace the Graphex Developer which had been
shipped under Purchase Order 744-90 and rejected (R4 File, Tabs M
and N).
12. The Respondent also relies on the fact that the April 16,
1990, letter was written prior to the time that it discovered the
defects in the Graphex Developer on hand. Motion, p. 7, n. 1.
13. The Appellant argues that although this case depends on
whether or not it complied with the developer specification for
Purchase Order 744-90, " . . . the specification is not even in
the record." Response, p. 5. By this the Board takes the
Appellant to mean that the specifications are not in the Rule 4
file. The Appellant itself enclosed both the old and new
specifications with its February notice of appeal. See note 3
supra.
14. In that regard, the Appellant believes that the Respondent's
reliance on the principle entitling the Government to strict
compliance with its specifications is misplaced. Response, pp.
8-9. According to the Appellant, it does not argue that the
Respondent should relax the requirements of the specification in
existence when Purchase Order 744-90 was awarded, but rather, it
contends that the subsequently revised specification was
improperly applied to its contract.
15. The rationale for this dual application of the default
clause is simple. As explained by Cibinic and Nash: "While these
clauses explicitly make untimely performance the basis for the
default action, it is important to recognize that nearly every
Government contract spells out the contractor's required
performance in terms of the nature of the product or service
which is to be delivered or performed as well as the time by
which these performance efforts are to be completed. Thus, in
order for the contractor to render 'timely performance,' two
basic requirements must be satisfied. The product, service, or
construction work must conform to the required design/performance
characteristics, and the product must be delivered or the work
completed by the specified due date." [Emphasis added.] John
Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government
Contracts 2d ed., (The George Washington University, 1986), p.
677.
16. As previously indicated, the Graphex Developer was delivered
to the Respondent on January 2, 1990, but the contract was not
terminated for default until a year later, on January 3, 1991 (R4
File, Tabs A and D). Recently, in Stephenson, Inc., the Board
reviewed the law of "reasonable forbearance' as it applies to
Government contracts, observing: "it is well-settled that the
Government does not waive its right to terminate a defaulted
contract because is fails to do so immediately when the right to
terminate accrues. [Citation omitted.] Instead, a contracting
officer has a reasonable period of time to investigate the facts
and to determine what course of action would be in the best
interest of the Government as the non-defaulting party. During
this forbearance period the Government may terminate the contact
at any time, without prior notice. [Citation omitted.] Under
the law, the extent of a reasonable forbearance period depends on
the facts and circumstances of each individual case. [Citation
omitted.]" Stephenson, Inc., supra, Sl. op. at 21-22. The Board
also noted that since there is no clear demarcation between
reasonable forbearance and waiver, when the "circumstances" test
is applied, the result can be rather lengthy Government
forbearance periods before the actual default termination is
effected. Id., Sl. op. at 22, n. 26 (and cases cited therein).
On the other hand while the length of the forbearance period is
usually a matter of discretion with the contracting officer, in
some cases a contractor who ships nonconforming supplies will be
entitled, as a matter of law, to a reasonable period in which to
cure minor defects provided that the supplies shipped are in
substantial conformity with the contract specifications. Id.,
Sl. op. at 46-49 (citing, Radiation Technology, Inc. v. United
States, 366 F.2d 1003 (1966)). Thus, it seems to the Board that
even if it was to find that the Graphex Developer shipped in
January 1990 was defective in a major way, or in the alternative
that the defects while minor could not be cured within a
reasonable time, it would still have to face the question of
whether a year's delay in terminating the contract was a
reasonable period of forbearance under the circumstances, or
whether in fact a waiver had occurred. Deciding that issue,
however, is beyond the scope of this proceeding.
17. Default terminations-as a species of forfeiture-are strictly
construed. See, D. Joseph DeVito v. United States, 188 Ct. Cl.
979, 413 F.2d 1147, 1153 (1069). See also, Murphy, et al. v.
United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction
Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969).
18. Although the courts believe that the summary procedure,
"properly employed," is a useful device for unmasking frivolous
claims and putting a swift end to meritless litigation, they tend
to be cautious in granting such a judgment so that a litigant is
not deprived of the right to a hearing. IBM Poughkeepsie
Employees Federal Credit union v. Cumis Insurance Society, Inc.,
supra, 590 F.Supp. at 771 (citing, Quinn v. Syracuse Model
Neighborhood Corporation, 63 F.2d 438, 445 (2d Cir. 1980);
Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir.
1970)). Hence, even where the moving party seems to have
discharged its burden in summary judgment cases, the court still
has discretion to deny the motion. See, e.g., Flores v. Kelley,
61 F.R.D. 442 (D.Ind. 1973); John Blair & Co. v. Walton, 47
F.R.D. 196, 197 (D.Del. 1969). The thinking is that regardless
of whether the burden is met, the court should have the freedom
to allow the case to continue when it has any doubt as to the
wisdom of terminating the action prior to a full trial. See,
e.g., Olberding v. Department of Defense, et al., 564 F.Supp.
907, 908, n. 1 (D.Ia. 1982), affirmed 709 F.2d 621 (8th Cir.
1983). Furthermore, where difficult legal issues are involved,
the court can refuse summary judgment on the ground that a fuller
development of the facts may serve to clarify the law or help
indicate its application to the case. See, e.g., Davidson v.
Stanadyne, Inc., 718 F.2d 1334, 1339, (5th Cir. 1983); Security
Pacific National Bank v. OL.s. Pacific Pride, O/N, 549 F.Supp.
53,55 ((D.Wash. 1982). In the light of this accepted rationale,
boards of contract appeals tend to be as cautious as the courts
where default terminations are involved. See, e.g., Castillo
Printing Company, supra, Sl. op. at 39-41 (contract
interpretation issue); 330 Main Street Associates Limited
Partnership (contract interpretation issue), GSBCA No. 9477, 91-2
BCA ¶ 23,981; Lou Faro Leasing, Inc., PSBCA No. 2889, 91-2 BCA ¶
23,668 (unresolved safety issue); Dowty Batteries (Loudwater),
ASBCA No. 39811, 91-1 BCA ¶ 23,396 (unresolved excusability
issue); Foremost Threaded Products, GSBCA No. 10091, 90-3 BCA ¶
22,980 (unresolved contracting authority issue); Sonora
Manufacturing, Inc., ASBCA Nos. 31589, 31591, 89-1 BCA ¶ 21,553
(unresolved excusability and contract formation issues).
19. Generally, a fact is material if it tends to resolve any of
the issues that have been properly raised by the parties. See,
e.g., Contemporary Mission, Inc. v. New York Times Co., 665
F.Supp. 24, 257 (D.S.D.N.Y. 1987), affirmed 842 F.2d 612 (2nd
Cir. 1988), cert. denied 109 S. Ct. 145 (1989); Hahn v. Sargent,
523 F.2d 461 (1st Cir. 1975), cert. denied 425 U.S. 904 (1976).
Consequently, in ruling on motions for summary judgment Federal
courts have held that a fact or facts are material if they
constitute a legal defense, or if their existence or nonexistence
might affect the result of the action, or if the resolution of
the issue they raise is so essential that the party against whom
it is decided cannot prevail. See, e.g., Weiss v. Marsh, 543
F.Supp. 1115, 1116 (D.Ala. 1981) (legal defense); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (affect result of
action); Alvarado Morales v. Digital Equipment Corporation, 669
F.Supp. 1173, 1178 (D.P.R. 1987) (cannot prevail). Similarly,
courts have used a variety of shorthand expressions to indicate
whether a genuine factual issue exists. Thus, summary judgment
is not warranted as long as the "slightest doubt" remains as to
the facts, or alternatively, that summary judgment should be
granted only when the movant is entitled to it "beyond all
doubt." See, e.g., Schwatrzbord v. United States, 575 F.Supp.
1560, 1561 (D.S.D.N.Y. 1983); Anderson v. Liberty Lobby, Inc.,
supra (slightest doubt); Evans v. McDonnell Aircraft Corporation,
395 F.2d 359 (8th Cir. 1968); United States v. White, 40 F.R.D.
27 (D.Ark. 1964) (beyond a "reasonable" doubt). The thrust of
all these formulations is the same-a movant is not entitled to
summary judgment merely because its facts appear more plausible
than those tendered in opposition, or because it appears that the
adversary is unlikely to prevail at trial. See, e.g., H. E.
Reeves, Inc. v. Laredo Ready Mix, Inc., 589 F.Supp. 132 (D.Tex.
1984); Harl v. Acacia Mutual Life Insurance, 317 F.2d 577
(D.C.Cir. 1963). If the evidence presented on the motion is
subject to conflicting interpretations or reasonable persons
might differ as to its significance, summary judgment is
improper. See, e.g., Sears, Roebuck & Co. v. General Services
Administration, 553 F.2d 1378 (D.C. Cir. 1977), cert. denied 434
U.S. 826 (1978); United States v. Conservation Chemical Company,
619 F.Supp. 162 (D.Mo. 1985); United States v. General Motors
Corporation, 65 F.R.D. 115 (D.D.C. 1974).
20. In Celotex Corporation v. Catreet, the United States Supreme
Court stated: "[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial. In such a situation, there can be 'no genuine
issue as to any material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other immaterial." Celotex Corporation
v. Catreet, 477 U.S. 317, 322-23 (1986)). It should be noted,
however, that the burden on the party moving for summary
judgement is an affirmative one and is not met merely by
disproving the unsupported claims of its opponent. See, Ite,
Incorporated, supra, 88-1 BCA ¶ 20,269 (citing, Celotex
Corporation v. Catreet, supra, 477 U.S. at 323).
21. As the Federal Rules provide: "[A]n adverse party may not
rest upon the mere allegations or denials of his pleadings, but
his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him." FED. R.
CIV. P. 56(e). See, e.g., First National Bank of Arizona v.
Cities Service Co., supra, 391 U.S. 253, 289; Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed.
Cir. 1987).
22. Among other things, the Respondent also argued that
notwithstanding the Appellant's contention in its complaint that
the problems were mechanically-based, it ". . . has presented no
evidence to show that the configuration of the Respondent's
equipment was in any way related to the problems caused by the
use of its product." Motion, p. 6. In its Response, the
Appellant not only stated its belief to the contrary, but also
provided affidavits to augment the evidence it relied on in the
record for it's claim that the problems were mechanical and not
chemically-related. Response, pp. 6-7 (Affidavits of Jay
Singstock, Jeffrey S. Huth and Jeanne D. Kitazaki). Furthermore,
the parties are in dispute over whether the Appellant's samples
of new developer which it sent to GPO after January 1990 was
meant to replace the "defective" January shipment or was intended
solely for the purpose of requalification under the new
specification, pursuant to an invitation it had received from the
Respondent itself. See, Motion, pp. 6-7; Response, pp. 7-8. It
would be inappropriate for the Board to resolve these factual
disputes in the context of a summary judgment proceeding. Oak
Cliff Realty, Inc., VA BCA No. 3232, 91-1 BCA ¶ 23,481. However,
the Board notes that for the purposes of it's Motion the
Respondent had the burden of showing by evidence in the record
that the Graphex Developer was clearly the cause of the
platemaker problems and that no genuine issue existed as to that
material fact; the Appellant was not required to demonstrate that
the Respondent's machinery was at fault.
23. Apart from their disputes over the cause of the "scumming"
problems (whether from the chemical makeup of the developer or
the configuration of the Respondent's equipment) and the purpose
of the samples of new developer sent by the Appellant to GPO
after January 1990, see note 22 supra, the Board also observes
that there other unresolved issues in this case. For example,
the parties will need to address whether the Graphex Developer
shipped in January 1990 was accepted at that time (when it was
delivered to the Respondent and paid for), or whether the
Respondent had some reserved contractual right to reject the
product at a later date. Furthermore, some explanation will be
needed as to why the Respondent waited until January 1991 to
terminate the Appellant's contract under Purchase Order 744-90
for default when the product was delivered in January 1990; i.e.,
was one year a reasonable period of forbearance under the
circumstances? Cf., Professional Divers, supra, 89-3 BCA ¶
22,251 (citing, Thiokol Corporation, ASBCA No. 32629, 89-3 BCA ¶
22,063).
24. See note 22 supra.