MOTION FOR PARTIAL SUMMARY RELIEF DENIED: December 22, 1993 GSBCA 12361-COM INFORMATION SYSTEMS & NETWORKS CORPORATION, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Joseph G. Billings, General Counsel, Information Systems & Networks Corporation, Bethesda, MD, counsel for Appellant. Kenneth A. Lechter, Office of General Counsel, Contract Law Division, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges NEILL, VERGILIO, and DEVINE. NEILL, Board Judge. This appeal was filed by Information Systems & Networks Corporation (ISN) on April 6, 1993. It concerns a claim for unpaid invoices in the amount of $39,309.68, plus interest. The respondent has filed a motion for partial summary relief in which it contends that those invoices for work done after the expiration of the period established in the contract for performance of the task at issue, cannot, as a matter of law, be paid. For the reasons set forth below, we deny the respondent's motion for partial summary relief. Findings of Fact Contract Provisions 1. On August 13, 1987, the Department of Commerce (Commerce) awarded contract number 50-SATA-7-18936 (the contract) to ISN. Appeal File, Exhibit 3. According to the statement of work, the purpose of the contract was to provide "automation of the Data Entry, License Printing, and Licensing Officer Access Sub-Systems of the Export Control Automated Support System (ECASS)" for the Office of Export Licensing, International Trade Administration, Department of Commerce, Washington, DC. Appeal File, Exhibit 3 at Appendix A. 2. The contract stated that the contractor was responsible for providing, installing, integrating, and implementing all sub-system components. Once operational, the contractor was to provide on-going support. The project was said to specifically include: An analysis of existing sub-system processes and definition of detailed specifications sufficient to meet all sub-system requirements. Provide all sub-system components and support sub-system installation. Systems integration, programming, and implementation. Associated documentation, maintenance, and on-going support. Appeal File, Exhibit 3 at Appendix A. 3. The contract included an option item, Task 5, which was for an indefinite quantity of technical support service. Appeal File, Exhibit 3. Specifically, the statement of work for Task 5 stated that the contractor should: make available to the Government personnel knowledgeable in the design and programming of the Data Entry and License Printing subsystem software modules. This on-site and hot-line support will identify, resolve, and document sub-system software problems not to exceed 2080 staff hours. Id., Exhibit 4. 4. The contractor was not to perform the technical support services for Task 5 until a delivery order was issued by the contracting officer. Appeal File, Exhibit 3. 5. On August 19, 1988, Commerce issued contract modification 6. Appeal File, Exhibit 4. In that modification, the Government exercised its option to extend the term of the contract for maintenance provided under another contractual task, Task 4, for the period of August 15, 1988, through September 30, 1989. According to the contracting officer's technical representative (COTR), Task 4 is a fixed price task. Id., Exhibit 6. In modification 6, Commerce also exercised its option for technical support services under Task 5. The modification provides that this support shall be provided on a time and materials basis. The modification also states that it constitutes the requisite delivery order for Task 5. Id., Exhibit 4. The modification likewise provides that Task 5 is "effective 1 week from the date of award through March 1, 1989. Id. Appellant's Invoices 6. On October 15, 1991, ISN submitted a claim to Commerce for $39,309.68 plus $3,660.57 in interest. Supplemental Appeal File, Exhibit 4. The unpaid invoices involved in this claim are for work allegedly done in conjunction with Task 5 and are as follows: Invoice No. Invoice Date Period Covered Amount 1174-07-009 11/29/89 4/1 - 30/89 $10,581.51 1174-07-010 11/29/89 5/1 - 31/89 $11,068.80 1174-07-011 11/29/89 6/1 - 30/89 $ 9,200.94 1174-07-012 11/29/89 7/1 - 31/89 $ 7,748.16 1174-07-003 11/09/88 10/1 - 31/88 $ 700.32 Appeal File, Exhibit 1. 7. The principal problem with these invoices said to cover services rendered under Task 5 during October 1988 and April, May, June, and July of 1989, was that Commerce's records did not indicate that the contractor's employees actually put in the hours claimed. Invoice number 1174-07-009 was marked "Hours are incorrect" and was signed by the COTR. Appeal File, Exhibit 7. The same notation also appeared on invoice numbers 1174-07-010, 1174-07-011, and 1174-07-012. Id. 8. With regard to invoice number 1174-07-003, the Government's records did show that the project director and manager were on site for a portion of the time claimed in that invoice covering October 1 to 31, 1988. A partial payment of $5,669.29 was made, therefore. A remaining $700.32 was, however, denied on the ground that there was no documentation supporting the fact that ISN's employees put in the hours in question. Appeal File, Exhibit 1. 9. In her decision of February 3, 1993, the contracting officer referred to this lack of documentation as the reason for her denying most of appellant's claim. She explained that the Government's records simply do not show that the individuals said to have worked the hours claimed were in fact at Commerce during the periods in question. In her decision she also observed that services rendered after March 1, 1989, were provided at the risk of ISN because, per modification 6, Task 5 was effective from August 26, 1988, through March 1, 1989. Appeal File, Exhibit 1. Nevertheless, because Commerce's records did show that ISN employees were on site for a portion of the month of April 1989, she agreed to pay $5,651.56 of the total $10,581.51 claimed in ISN's invoice 1174-07-009 which covers the month of April. Id. 10. Appellant has submitted, for the record, two payment vouchers approved by the COTR and the contracting officer. The vouchers are for services rendered by ISN for the last half of March and for April 1989. These vouchers, however, make no reference to any specific contract task. Affidavit of Clifton Goodwin (August 18, 1993) Attachments 1-2. Discussion The Department of Commerce has moved that we grant partial summary relief in this case on the ground that there exist no genuine issues of material fact as to appellant's entitlement to payment on invoices for services rendered after March 1, 1989. Commerce's motion is based on the assertion that unless appellant can contradict the statements submitted in support of the motion, appellant cannot make out a prima facie case that an implied-in-fact contract existed as to any work allegedly performed outside the period of performance for Task 5, namely, August 26, 1988, to March 1, 1989. Respondent's Motion for Summary Relief 7. After examining the brief and supporting statements presented by respondent in support of its motion, we conclude that the principal facts upon which respondent relies are as follows: (1) Amendment 6, which authorized Task 5, expressly provides that Task 5 was effective one week from the date of award through March 1, 1989. (2) The COTR's approval of appellant's invoice for services rendered after March 1 was inadvertent and would not have been given if the COTR had realized the time for performance had expired. (3) The contracting officer states that payment to appellant for services rendered after March 1 was "based solely on equitable grounds," as the work in question was "outside the period of performance" of Task 5. (4) The contracting officer also states that no documentary evidence or memorialization indicates that any discussions occurred between the appellant and herself or her office regarding an intent to extend the period of performance of Task 5. In reply to respondent's motion, appellant has filed statements given under penalty of perjury by its employees alleging that after March 1, 1989, Task 5 work was in fact done, both on site and off site, and that no indication was ever given by Department of Commerce employees that the work should stop. It is also noted that Commerce has paid for work done after March 1, 1989, where it could verify from its own records that the work was actually done. Counsel for appellant argues convincingly that, as a matter of law, because work did continue after March 1 and Commerce accepted and paid for at least those services it believes it received, an implied contract must be found to exist. It is axiomatic that summary relief cannot be given 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); Integrated Systems Group, Inc., GSBCA 11494-P, 92-1 BCA 24,621, at 122,807 n.2, 1991 BPD 335, at 2 n.2; Griffin Services, Inc., GSBCA 11171, 91-3 BCA 24,156, at 120,872. In this case, respondent identified for us certain facts which it considers material to its case and concerning which there is presumably no dispute. Appellant's submissions have convinced us, however, that there is considerably more to the material facts in this case than counsel for respondent would have us believe. The factual representations provided by appellant in opposition to the respondent's motion appear to be particularly relevant to the ultimate issue of whether we are or are not confronted here with an implied amendment to the contract. If the contract delivery period for Task 5 services was implicitly amended by the conduct of the parties, we would hardly expect to encounter evidence or memorializations indicating discussions on this precise point. If such is the case, some of the material facts in this case will, of necessity, be more subtle. As appellant reminds us: "A contract implied in fact is not created or evidenced by explicit agreement of the parties, but is inferred as a matter of reason or justice from the acts or conduct of the parties." See Prudential Insurance Co. of America v. United States, 801 F.2d 1295, 1297 (Fed. Cir. 1986), cert. denied, 479 U.S. 1086 (1987). If the parties are interested in pursuing the issue of whether the contract will support payment subsequent to March 1, we invite them to develop the material facts they consider relevant to their respective positions on this issue. For the present, therefore, we leave matters in the hands of counsel. In the meantime, respondent's motion for partial summary relief is denied. Given the record currently before us, we remain unconvinced that there is no genuine issue of material fact. Decision Respondent's motion for partial summary relief is DENIED. ___________________________ EDWIN B. NEILL Board Judge We concur: _____________________________ ___________________________ DONALD W. DEVINE JOSEPH A. VERGILIO Board Judge Board Judge