MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED; MOTIONS TO DISMISS DENIED: May 17, 1995 GSBCA 13093-TD EHG NATIONAL HEALTH SERVICES, INC., Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Brian A. Bannon and Margaret A. Dillenburg of Dyer, Ellis, Joseph and Mills, Washington, DC, appearing for Appellant. Arthur I. Rettinger and William P. McGinnies, Office of Chief Counsel, United States Customs Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, NEILL, and HYATT. DEVINE, Board Judge. Appellant EHG National Health Services, Inc. (EHG) filed a claim with the Treasury Department's Customs Service (Customs) which arose out of a contract under which appellant undertook to furnish Customs' requirements for the collection of urine specimens to be used in drug screens. Appellant contends that although the contract contained a provision which estimated that 7,200 such screens would be required annually, in practice the required number was approximately half as large as the estimate. According to appellant it was thus deprived of the economies of scale and lost money on the contract. The Government's defense is that appellant was the prior contractor under a similiar contract and thus knew what the actual numbers were likely to be, and in any event waived the issue when it completed the work on the current contract before it raised the issue. The Government has filed a motion for partial summary judgment based on the foregoing defense, contending that appellant's reliance on an admittedly inaccurate Government estimate was unreasonable, and therefore the appeal must be dismissed. Appellant opposes the motion on the ground that there is an issue of fact as to the reasonableness of its reliance on the Government estimate, since it denies that it had accurate knowledge of what the total figure might turn out to be as a result of its experience with the earlier contract. Customs filed a reply to appellant's opposition in which it disputed that a factual dispute existed, and argued that even if one did exist appellant had waived its right to obtain relief by performing the contract without complaint. EHG then moved to strike the Government's defense of waiver on the ground that it was an affirmative defense required to be included in the Government's answer but had not been so included, and, failing a grant of its motion, requested permission to file a reply to the waiver defense. The Government's reply to this motion was to point out that the waiver defense was, indeed, included in its answer to the original appeal. Before the Board had ruled on any of these motions, appellant, by letter, again sought permission to answer the Government's "new" defense of waiver. This letter prompted the Government to file a motion to dismiss appellant's appeal as a sanction, on the ground that appellant was attempting to mislead the Board. Discussion None of these motions is well taken. Customs concedes that summary judgment will not lie where an issue of fact exists. Since both sides apparently agree that Customs' estimates of the number of collections to be made under the contract were wrong, the principal issues of fact are whether or not EHG relied on the estimate, and if so, was the reliance reasonable under the circumstances, and would EHG have avoided a loss (or realized a profit) if the estimates had been more accurate. There may also be other factual issues not obvious on the present state of the record. In any event, there are serious differences of material fact, and summary judgment will not lie. With respect to Customs' motion to dismiss EHG's appeal as a sanction because it continued to insist on a state of facts that the record shows did not exist, it is also denied. The reasons for EHG's actions are obscure, but we attribute them to inattention. In any event the Board was not misled. Finally, EHG's repeated requests to reply to the Government's assertion that it waived its right to challenge the Government's estimates, by its continued performance long after it knew or should have known they were incorrect, are denied. This matter is a legal issue best dealt with in posthearing briefs after the facts are in evidence. Decision The Government's motion for partial summary judgment is DENIED. EHG's motion to strike the Government's defense of waiver is DENIED. The Government's motion to dismiss this appeal as a sanction is DENIED. EHG's request to reply to the Government's defense of waiver is DENIED. This matter will be heard on June 6 and 7, 1995, (discovery to be completed by June 2), unless counsel have an already- scheduled hearing on those days or assert a ground of personal privilege, such as an already-scheduled vacation. ____________________ DONALD W. DEVINE Board Judge We concur: ______________________ ____________________ CATHERINE B. HYATT EDWIN B. NEILL Board Judge Board Judge