MOTION AND CROSS MOTION FOR SUMMARY RELIEF DENIED: April 19, 1995 GSBCA 11927 RINCON CENTER ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. William S. Farmer of Collette & Erickson, San Francisco, CA, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and VERGILIO. NEILL, Board Judge. Appellant in this dispute seeks payment for overtime heating, ventilation and air conditioning (HVAC) services provided for a computer room located on premises it has leased to the General Services Administration (GSA). Appellant has moved for summary relief claiming that, as a matter of law, the lease between itself and GSA obligates GSA to pay for the overtime usage of the computer room's HVAC system. GSA opposes the motion and has, itself, filed a cross motion for summary relief also based upon specific provisions in the same lease. At the heart of this controversy is a lease provision which reads: One (1) computer room of 800 sq. ft. of space shall be provided with vinly [sic] tile floor covering, individually zoned HVAC and lighting, and walls and ceiling of Sound Transmission Class of 45. The HVAC systems shall be provided to accommodate equipment and personnel that will generate 68,000 BTU, and humidity at 50% + or - 10% with a temperature range of 50 degree to 60 degree range [sic]. The HVAC shall be maintained 24 hours and [sic] day 7 days a week. Appeal File, Exhibit 1 (Special Space Requirements, Section VII). Appellant contends that this provision of the lease merely requires the lessor to provide a system capable of operating on a 24 hour basis. The cost of such service provided outside of normal work hours, however, according to appellant, should be based on the lease's hourly rate for overtime usage of air conditioning or heating. Respondent disagrees, contending that the cost of HVAC services for the computer room on a twenty-four hour basis is included in the basic charge for rent. While both parties are of the opinion that this dispute is ultimately a question of contract interpretation, they have, nonetheless, supported their motions with excerpts from deposition transcripts, affidavits and documentation identified during the course of pretrial discovery. This material indicates considerable disagreement regarding the circumstances leading to the negotiation and execution of the lease under which this dispute has arisen. The documentation submitted to date by the parties regarding the issue of entitlement may well be enough to permit the Board to decide this aspect of the case without need of a hearing or any additional documentary evidence. Nevertheless, because we find several of the unresolved factual issues material to the ultimate issue of how the lease provisions should be interpreted, we do not consider that the issue of entitlement is appropriate for disposition on motions for summary relief. 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. Copeland's Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986). In this case, after a review of the record as currently constituted, we conclude that neither moving party has met this burden. Accordingly, both motions for summary relief are denied. Decision Appellant's motion for summary relief and respondent's cross motion for summary relief are DENIED. ___________________________ EDWIN B. NEILL Board Judge We concur: _____________________________ ROBERT W. PARKER Board Judge _____________________________ JOSEPH A. VERGILIO Board Judge