Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
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      MOTION FOR PARTIAL SUMMARY RELIEF DENIED:  February 19, 1999
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                           GSBCA 14342, 14343
 
 
                   MARINO CONSTRUCTION COMPANY, INC.,
 
                                           Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                           Respondent.
 
        Robert G. Watt,  Thomas J. Powell, and Robert  G. Barbour of
   Watt,  Tieder, Hoffar &  Fitzgerald, L.L.P., McLean,  VA, counsel
   for Appellant.
 
        Jeremy Becker-Welts,  Office  of  General  Counsel,  General
   Services Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN.
 
   DeGRAFF, Board Judge.
 
        Pending  is respondent's motion for partial summary relief ,
   which appellant opposes.  Summary relief is appropriate only when
   the moving party establishes that there is no genuine issue as to
   any   material  fact.    Rule  108(g).    Because  appellant  has
   established that there  are material facts genuinely  in dispute,
   we deny the motion.
 
        In  1990 and 1991, the General Services Administration (GSA)
   awarded contracts  to Marino Construction Company,  Inc. (Marino)
   for   renovation  of  the  Federal  Building  and  Courthouse  in
   Milwaukee, Wisconsin.   For some  reason, Marino  took longer  to
   perform   the   contract  work   than   the  parties   originally
   anticipated.   In  1997,  Marino  submitted  two  claims  to  the
   contracting  officer.  The claims included amounts for unabsorbed
   and underabsorbed  overhead,  which Marino  calculated  by  using
   something other than the Eichleay  formula.  See Eichleay  Corp.,
   ASBCA 5183,  60-2 BCA    2688.   In  late 1998,  Marino sent  GSA
   revisions to its claim calculations. 
 
        In its motion for summary relief, GSA asks us to decide that
   Marino must use only the Eichleay formula to calculate its claims
   for  unabsorbed  and  underabsorbed overhead.    Apparently,  GSA
   believes that Marino has used some other method to calculate this
   portion  of its  claims.   In  response to  GSA's motion,  Marino
   agrees that the Eichleay formula is the appropriate method to use
   to  calculate  its   claims  for  unabsorbed  and   underabsorbed
   overhead.  Also  in response to GSA's motion,  the accountant who
   prepared  Marino's  revised  claim  calculations  stated   in  an
   affidavit  that he  utilized the  Eichleay  formula to  calculate
   Marino's  unabsorbed  overhead  damages.    Whether  Marino  used
   something other than the Eichleay formula to calculate its claims
   for unabsorbed  and underabsorbed  overhead is  a material  fact.
   With  the  accountant's affidavit,  Marino  has  established that
   there is a genuine dispute as to that fact.
 
        In its motion for summary relief, GSA also asks us to decide
   that if it was impractical for Marino to obtain replacement work,
   this was only  because Marino planned to cease  its operations in
   1993.   GSA supports  its motion with  statements contained  in a
   report prepared by  the accountant who prepared  Marino's revised
   claim calculations.   In response to GSA's motion,  the president
   of Marino  stated in an affidavit  that Marino did  not intend to
   cease its operations  in 1993.  Whether Marino  intended to cease
   its operations in 1993 is a  material fact.  With the president's
   affidavit, Marino has established that there is a genuine dispute
   as to that fact.
 
        GSA's motion is DENIED.
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                                      MARTHA H. DeGRAFF
                                      Board Judge
 
   We concur:
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   MARY ELLEN COSTER WILLIAMS         ALLAN H. GOODMAN
   Board Judge                             Board Judge