________________________________ MOTIONS FOR SUMMARY RELIEF DENIED: September 18, 1997 ________________________________ GSBCA 12773, 12774, 13627 CONTRACT AUTOMOTIVE REPAIR AND MANAGEMENT, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stephen J. Reiss, Calabasas, CA, counsel for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges NEILL, HYATT, and VERGILIO. NEILL, Board Judge. Appellant, Contract Automotive Repair and Management (CARAM), has filed motions in these cases for summary relief. CARAM contends that the renewal options for years three and four of two contracts it had with the General Services Administration (GSA) were invalidly exercised. CARAM further contends that this is a conclusion which we can readily reach based on uncontested facts. CARAM, therefore, asks that we find that: (l) the renewal options were improperly exercised, (2) both contracts terminated as a result, and (3) CARAM is entitled to an equitable adjustment for the period of performance following the ineffective exercise of the renewal options. For the reasons stated below, we deny the motions. Background On October 12, 1989, GSA awarded contract number GS-04F-89- ETS-0451 to appellant for the preventative maintenance, overhaul, inspection, and repair of the Government-owned vehicles at Fort Steward and Hunter Army Airfields in Georgia (the Fort Steward/Hunter contract). Appeal File, GSBCA 12773, Exhibit 1. On December 12, 1989, GSA awarded contract number GS-04F-89-ETS-0466 to appellant for the preventative maintenance, overhaul, inspection, and repair of the Government-owned vehicles at Fort Benning, in Georgia (the Fort Benning contract). Appeal File, GSBCA 12774, Exhibit 1. Both contracts permitted the Government to extend unilaterally the contract beyond the initial base year, provided: (1) the Government gives the contractor a preliminary written notice of intent to extend at least sixty days before the contract expires and (2) the term of the contract is extended by written notice to the contractor "within 30 days prior to expiration." The option provisions also stated that the preliminary notice does not commit the Government to an extension and the total duration of the contract shall not exceed five years. Appeal Files, GSBCA 12773, Exhibit 1 at 40; GSBCA 12774, Exhibit 1 at 42. Both contracts also provided that, each time an option was to be exercised extending the contract, prices would be adjusted, if necessary, in accordance with the contract provision: Fair Labor Standards Act and Service Contract Act - Price Adjustment (option contracts). Appeal Files, GSBCA 12773, Exhibit 1 at 41-42; GSBCA 12774, Exhibit 1 at 43-44. The contracting officer first purported to exercise the options to renew the two contracts by issuing a unilateral contract modification for each during the last month of the base year (1990). This was done after the preliminary notice of intent to extend each contract had been given at least sixty days prior to contract expiration. The modification for the Fort Steward/Hunter contract, after providing written notice that the renewal option was exercised, also set out adjusted labor rates to be used during the new option year (1991). The Fort Benning contract modification, after providing written notice that the option was exercised, listed no revised labor rates since no changes had taken place which would require adjustments for the new option year. Appeal Files, GSBCA 12773, Exhibits 3, 5; GSBCA 12774, Exhibits 2, 4. For the second option year (1992), the contracting officer issued similar signed modifications after providing preliminary notice. This time the modification for the Fort Steward/Hunter contract had no labor rate adjustments for the new option year while that for the Fort Benning contract did. Appeal Files, GSBCA 12773, Exhibits 7-8; GSBCA 12774, Exhibits 6, 9. For the third option year (1993) of the Fort Steward/Hunter contract, the contracting officer again, after providing preliminary notice, issued a signed contract modification. Appeal File, GSBCA 12773, Exhibit 12. The modification began with a statement of its purpose, which was: to exercise Option No. 3 in accordance with the Clause "Option to Renew Contract" to extend the contract from January 2, 1993 through January 1, 1994. Appeal File, GSBCA 12773, Exhibit 13. The modification then set out adjusted labor rates to be used for the new option year. In addition, it stated that two other items were incorporated into the modification. The first called for a slight change in the wording of a subparagraph in contract clause F-4 which dealt with operating instructions for repairs and maintenance. The second item added a subparagraph to contract clause I-38 which concerned guarantees. A final line in this same modification directed the contractor to sign and return the modification. Id. The contracting officer followed an almost identical procedure for the third option year (1993) of the Fort Benning contract. She first provided preliminary notice of the intent to exercise the renewal option. Appeal File, GSBCA 12774, Exhibit 16. She later issued a signed modification which, before all else, advised the contractor that the purpose of the modification was to exercise the option to renew. This was followed by adjusted labor rates to be used during the new option year and the same changes in the two contract provisions as called for in the renewed Fort Steward/Hunter contract. This modification likewise concluded with the instruction to the contractor to sign and return the modification. Id., Exhibit 17. For the fourth option year (1994), a new contracting officer provided preliminary notice of intent to exercise the renewal options for both contracts. Appeal Files, GSBCA 12773, Exhibit 14; GSBCA 12774, Exhibit 20. Then, by letter dated December 14, 1993, the contracting officer provided appellant with two unsigned contract modifications. The first contained written notice that the Fort Steward/Hunter contract was extended for another year. The second contained a similar notice that the Fort Benning contract was extended for an additional year. Both modifications contained adjusted labor rates to be used during the new option years and called for the replacement of the Fair Labor Standards Act and Service Contract Act - Price Adjustment clause in each contract with a different version of that clause. The contracting officer's letter advised appellant that the contracting officer would execute the modifications as soon as they were signed and returned by the contractor. Id., GSBCA 12773, Exhibit 21; GSBCA 12774, Exhibit 25. Based upon the record as it currently stands, it does not appear that a CARAM official signed any of the contract modifications which provided written notice that the contract was extended for an additional year. Indeed, in response to an express request of the new contracting officer that he sign the modifications providing notice of the extension for the fourth option year, appellant's president declined to do so. He explained in a letter dated January 6, 1994, that he was concerned that by signing them he would jeopardize CARAM s pending claims. He pointed out to this new contracting officer that in previous years the Government had exercised the option by unilateral modification. He urged her to continue this practice so maintenance services may be continued. Appeal File, GSBCA 12774, Exhibit 28. The claims to which appellant's president referred are those which are the subject of GSBCA 12773 and 12774. Midway through the first option year of the Fort Benning contract, CARAM advised the contracting officer that it was experiencing losses on that contract and was in need of an equitable adjustment of contract prices. Appeal File, GSBCA 12774, Exhibit 7. Shortly after the start of the second option year, CARAM proposed revised rates for both the Fort Benning and the Fort Steward/Hunter contracts. Appeal Files, GSBCA 12773, Exhibit 9; GSBCA 12774, Exhibit 10. In response to CARAM's proposal, an administrative contracting officer wrote that relief could not be offered by increasing contract labor rates but that a claim for equitable adjustment would be considered. Appeal Files, GSBCA 12773, Exhibit 10; GSBCA 12774, Exhibit 11. CARAM did eventually submit claims for both contracts and periodic updates of them as well. Id., GSBCA 12773, Exhibits 11, 18, 22; GSBCA 12774, Exhibits 13, 15, 22. By letter dated December 7, 1993, however, the contracting officer issued a decision denying the claims. Id., GSBCA 12773, Exhibit 20; GSBCA 12774, Exhibit 24. Shortly thereafter, on December 14, 1993, a new contracting officer sent to CARAM the two above mentioned modifications which provided written notice that each of the two contracts was extended for a fourth option year. As already noted, CARAM refused to sign these two modifications on the ground that this would jeopardize its claims. Shortly thereafter, CARAM appealed the contracting officer s denial of its claims. Appeal Files, GSBCA 12773, Exhibit 25; GSBCA 12774, Exhibit 29. Discussion It is well established that summary relief will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Copeland Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986). Upon a review of the record for this case, as it currently stands, we conclude that appellant has not met this burden. One material fact on which appellant contends that there is no dispute is that the modifications used to exercise the options for the third and fourth option years for both the Fort Steward/Hunter contract and the Fort Benning contract contained provisions that changed the terms of each contract, as it existed, at the time of election of each option. Appellant s Response to Respondent s Opposition to its Motion for Summary Relief at 7. In challenging this fact, respondent must, of course, do more than merely deny it. Sweat Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1564 (Fed. Cir. 1987). Respondent has done so in this case. GSA contends that the changes in question were not in the contract as it existed at the time the option was exercised but rather after contract renewal. The modifications in question are said to have served a dual purpose. The first was to provide written notice that the option was exercised. Once that was accomplished, the Government then sought to obtain bilateral agreement as to certain changes in the contract as thus renewed for the coming year. Respondent s Opposition to Appellant s Motion for Summary Relief at 3, 5. Respondent s argument is not without some support in the record as it currently stands. In the context of these motions, therefore, CARAM has not demonstrated that the agency improperly exercised the options at issue. Consequently the motions cannot be granted. A similar problem exists for appellant concerning another fact which it acknowledges as material to its motion, namely, that on January 6, 1994, CARAM protested, in writing, to GSA the fact that each of the modifications was not exercised unconditionally, as required by the Contracts. Appellant s Response to Respondent s Opposition to its Motion for Summary Relief at 7. This fact is mired in sharp controversy. The Government contends that appellant s argument -- that the exercises of the options for the third and the fourth years were deficient because they were conditional -- is a new argument never raised before the conclusion of contract performance. In the event the exercise of the options for the third or fourth years should ultimately be found to be deficient, the Government argues, in the alternative, that CARAM has waived its right to an equitable adjustment based on this new allegation since it was never raised during contract performance. See Respondent s Opposition to Appellant s Motion for Summary Relief at 3, 6. Given the record, as it currently stands, we find a degree of merit in respondent s challenge to appellant s contention that CARAM s letter of January 6 challenged the allegedly conditional exercise of the renewal options. On its face, CARAM s letter says nothing regarding conditional exercise. Rather, it raises an objection to signing the modifications, which contained the respective notices of renewal, based simply on a concern that signing would jeopardize CARAM s claims. While we do not at this time rule on the merits of the Government s position on this matter, we do acknowledge, again for purposes of ruling on appellant s motion, that the Government s denial of appellant s contention is not without some support in the record. The dispute on this issue of material fact, therefore, is genuine and thus constitutes an additional reason why appellant's motions cannot be granted. Decision Appellant s motions for summary relief are DENIED. _______________________ EDWIN B. NEILL Board Judge We concur: ______________________ _______________________ CATHERINE B. HYATT JOSEPH A. VERGILIO Board Judge Board Judge