RESPONDENT'S MOTION FOR SUMMARY RELIEF DENIED: June 6, 1995 GSBCA 12589-COM, 13032-COM DATACHRON, INC., Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Christian M. Dillon of Dana Point, CA, counsel for Appellant. Jerry A. Walz and Fred Kopatich, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges PARKER, HYATT, and GOODMAN. GOODMAN, Board Judge. Appellant, Datachron, Inc. (Datachron), entered into a contract with respondent, the Department of Commerce, for eleven Global Positioning Satellite Time Transfer Receivers. The contracting officer issued a decision which terminated the contract for default and thereafter issued another decision assessing excess reprocurement costs against appellant. Appellant has appealed both decisions to this Board, and the appeals have been consolidated. Respondent has filed a motion for summary relief pursuant to Board Rule 8(g),[foot #] 1 requesting that the Board dismiss both appeals and award respondent its excess reprocurement costs. We deny the motion. Findings of Fact ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.8 (1994), as amended by 60 Fed. Reg. 17,023 (1995). ----------- FOOTNOTE ENDS ----------- 1. On November 10, 1992, the National Institute of Standards and Technology (NIST), an agency of respondent, issued solicitation number 51RANB30C017 (the solicitation) for a firm- fixed price contract (the contract) for eleven Global Positioning Satellite Time Transfer Receivers (receivers). Appeal File, Exhibit 3. Procurement was to be accomplished by sealed bids, with award to be made to the low, responsive and responsible bidder. Id. at 52. The solicitation required that the receivers be capable of providing "common view time transfer" at the ten nanosecond (ten billionths of a second) level. Id. at 4. 2. Datachron was determined to be the low, responsive and responsible bidder, and was awarded the contract on January 14, 1993. Appeal File, Exhibit 7. The contract required delivery of the first three receivers within 60 days of the award date, the next four receivers within 90 days of award, and the final four units within 120 days of award. Id., Exhibit 3 at 10. 3. Based upon information received from the Government after contract award, Datachron determined that it was necessary to modify the printed circuit board of the receivers prior to delivery. Datachron offered to perform the modification at no cost, but requested a thirty-day extension in delivery of the first three receivers. Appeal File, Exhibit 9. The parties executed a modification to the contract, which allowed an additional thirty days to deliver the first three units, so that the first seven receivers were to be delivered within ninety days of award. Id., Exhibit 11. 4. Datachron did not deliver any receivers to the Government for testing within ninety days from contract award. Appeal File, Exhibit 12. The first four receivers were delivered on or about May 17, 1993. Id., Exhibit 15. It is the position of NIST that numerous software errors were detected which prevented acceptance testing from being conducted. Id., Exhibit 13. Datachron was notified that the receivers were rejected. Id., Exhibit 14. 5. Datachron requested that it be given until late June 1993 to retest its receivers and install new memory chips. Appeal File, Exhibit 16. The contracting officer granted Datachron another extension in the delivery schedule to June 25, 1993. Id., Exhibit 17. 6. On June 25, 1993, Datachron notified the contracting officer that it could not meet the new delivery schedule. Appeal File, Exhibit 19. The contract was then modified to provide for a new delivery date of July 9, 1993. Id., Exhibit 22. 7. Datachron delivered receivers in July. NIST experienced significant difficulty entering data into the receivers, and determined that the receivers were not acceptable and had extensive problems. Appeal File, Exhibit 23. 8. On July 28, 1993, the contracting officer notified Datachron that the receivers were being rejected, and gave it ten days to explain why the receivers failed to perform as required. Appeal File, Exhibit 24. Datachron responded by letter on July 29, 1993. Id., Exhibit 25. 9. The president of Datachron requested that he be allowed to travel to the NIST facility to install software corrections and to demonstrate that the Datachron receivers could perform common view time transfer. Appeal File, Exhibit 28. He was given permission to do so by the contracting officer, who informed Datachron by letter that: This will be the last opportunity for Datachron to cure all deficiencies and to demonstrate that the receivers are fully compliant with the contract specifications. Specifically, the Government is concerned that performance specifications for common-view use are met. Failure to satisfactorily demonstrate this during your visit, will be cause for an immediate termination. Id., Exhibit 30. Attached to the contracting officer's letter was a summary of the problems NIST had detected in the Datachron receivers. Id. 10. Datachron's president subsequently traveled to the NIST facility from August 25-27, 1993, to modify the Datachron receivers. Respondent's Motion for Summary Relief, Appendix 4 (Deposition of Clyde Davis) at 83-84. 11. After Datachron's president modified the receivers, NIST personnel began acceptance testing in accordance with Section E.3. of the contract. Respondent's Motion for Summary Relief, Appendix 5 (Deposition of Donald Sullivan) at 39, 43, 48- 49, 52-53. Upon commencement of acceptance testing, however, they discovered that problems remained. Appeal File, Exhibit 35. 12. Because NIST could not calibrate the Datachron receivers, NIST concluded that the receivers failed to pass acceptance testing. Respondent's Motion for Summary Relief, Appendix 7 (Deposition of Marc Weiss) at 24, 39. NIST also concluded that the output data from the receivers was not proper "common view" data. Id., Appendix 5 (Deposition of Donald Sullivan) at 49-50, 54; Appendix 6 (Deposition of Dick Davis) at 34-35; Appendix 7 (Deposition of Marc Weiss) at 43. 13. After Datachron was informed of the problems NIST was having with its receivers, it sent a substitute set of erasable programmable read-only memory chips (EPROMs) to NIST and requested that they be installed in the receivers and the receivers be retested. Appeal File, Exhibit 39. After NIST installed the new EPROMs, it concluded that the receivers' data output was still not acceptable, as the number of "outlying data points" increased, and further concluded that the receivers could not be used to fulfill program requirements and did not meet specifications. Id., Exhibit 36. 14. On September 15, 1993, the contracting officer issued findings and a determination that the Datachron receivers, after three rounds of testing, had failed to meet specifications, and that the contract should be terminated for default. Appeal File, Exhibit 37. The contracting officer's final decision terminating the contract for default was sent to Datachron on September 17, 1993. Id., Exhibit 38. 15. Respondent reprocured the receivers from two sources. Appeal File, Exhibits 53, 63. On July 13, 1994, the contracting officer submitted a demand for excess reprocurement costs to Datachron. The Government sought $23,485.20 in excess reprocurement costs, representing the difference between the cost of reprocuring the eleven receivers and Datachron's contract price. Id., Exhibit 66. 16. Datachron appealed to this Board the contracting officer's decisions terminating the contract for default and assessing excess reprocurement costs. The appeals were consolidated. Discussion Respondent contends that there are no issues of material fact in dispute, that appellant's receivers failed to comply with specifications and the default termination was therefore proper, and that respondent is entitled to its excess reprocurement costs. Appellant's position is that "Datachron provided receivers that conformed to the specifications, even though the receivers were not acceptable to NIST." Appellant alternatively argues that "the specifications were so ambiguous and inadequate as to make the delivery of what NIST wanted impossible." Appellant's Memorandum in Support of Appellant's Opposition to Respondent's Motion for Summary Relief at 2. At issue is the contractual requirement of "common view time transfer" and whether appellant's receivers met the requirement. The parties have not offered expert testimony as to the accepted definition of "common view time transfer," nor have they offered expert testimony supporting their contentions as to the receivers' alleged ability to comply or failure to comply with the requirement. In order to determine whether the receivers met or failed to meet the requirement, or whether the specifications were ambiguous and inadequate so as to make delivery of what NIST wanted impossible, the Board would need expert opinion testimony as to the definition of "common view time transfer," the interpretation of the output data from the receivers, and respondent's acceptance test results. The existing record contains only the assertions of the parties as to these issues. Summary adjudication is not appropriate where the resolution of issues of material fact requires expert opinion testimony, and such testimony has not been presented. See, e.g., Freeman v. Minnesota Mining and Manufacturing Co., 675 F. Supp. 877 (D. Del. 1987). As issues of material fact remain in dispute, we therefore must deny respondent's motion for summary relief. CRC Systems, Inc. v. General Services Administration, GSBCA 11173, 93-2 BCA 25,842. Decision Respondent's motion for summary relief is DENIED. __________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ __________________________ ROBERT W. PARKER CATHERINE B. HYATT Board Judge Board Judge