_______________________________________ MOTION TO DISMISS DENIED: March 7, 1995 _______________________________________ GSBCA 12854 URBAN CLEANING CONTRACTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Sam Zalman Gdanski, Montebello (Suffern), NY, counsel for Appellant. Richard R. Butterworth, Jr., General Services Administration, Office of General Counsel, Washington, DC, counsel for Respondent. Before Board Judges HYATT, VERGILIO, and GOODMAN. VERGILIO, Board Judge. Underlying this appeal is a janitorial and related services contract between Urban Cleaning Contractors, Inc. and the General Services Administration. The contractor disputes the deductions taken for each month of the twenty-four month contract period. With respect to deductions, the contract specifies: (b) The Contractor may, within 10 working days of receipt of the notification of the proposed deductions, present to the Contracting Officer specific reasons why any or all of the proposed deductions are not justified. Reasons must be solidly based and must provide specific facts that justify reconsideration and/or adjustment of the amount to be deducted. Failure to respond within the 10 day period will be interpreted to mean that the Contractor accepts the deductions proposed. Appeal File, Exhibit 1 at G-4 ( 5, FAR 552.232-78, Adjusting Payments (APR 1986)). The agency maintains that it lack records of the contractor timely taking issue with the proposed deductions for each of the twenty-four deductions. It moves to dismiss from the appeal those months for which "there are no material facts at issue with regard to appellant's failure to comply with the contract terms defining appellant's obligations to dispute monthly deductions in a timely fashion." The agency proposes as an undisputed fact in support of its motion the following: "Appellant failed to dispute any of the other proposed deductions in the manner specified in the contract. Appellant's counsel confirms that its case relies upon the Appeal File and states that no other documentation exists. Attachment H." Statement of Material Facts at 2 ( 8). Attachment H indicates that the contractor will not rely on any written documentation not in the appeal file. However, it goes on to note: "Again, I can make my client available for a second round of discovery or depositions at your discretion." Agency Motion, Attachment H. In response to the motion, consistent with Attachment H, the contractor indicates that, during the hearing on the merits, it intends to call two witnesses whose testimony will demonstrate compliance with the above-quoted contract provision. Decision The agency's motion is premised on material facts which are in dispute. Accordingly, the Board DENIES the agency motion to dismiss. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ CATHERINE B. HYATT ALLAN H. GOODMAN Board Judge Board Judge