THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON DECEMBER 23, 1992 MOTION FOR SUMMARY RELIEF DENIED: December 11, 1992 GSBCA 12082-P TECHNOLOGY, MANAGEMENT & ANALYSIS CORPORATION, Protester, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, and ORACLE COMPLEX SYSTEMS CORPORATION, Intervenor. William W. Goodrich, Jr., and Thomas W.A. Barham of Arent Fox Kintner Plotkin & Kahn, Vienna, VA, and Jacob B. Pompan and Daniel A. Perkowski of Pompan, Ruffner & Bass, Alexandria, VA, counsel for Protester. Avital G. Zemel, Office of the General Counsel, Environmental Protection Agency, Washington, DC, and L. Carol Roberson, Office of General Counsel, Environmental Protection Agency, Research Triangle Park, NC, counsel for Respondent. Richard O. Duvall, Richard L. Moorhouse, and Michael H. Ditton of Dunnells, Duvall & Porter, Washington, DC, counsel for Intervenor. Before Board Judges NEILL, HYATT, and VERGILIO. NEILL, Board Judge. On October 8, 1992, this protest was filed by Technology, Management & Analysis Corporation (TMA). The procurement in question involves a contract for the supply and support of relational database management system (RDBMS) software and related services under request for proposals (RFP) number W002073-A3 issued by the U.S. Environmental Protection Agency (EPA). Respondent awarded the protested contract to Oracle Complex Systems Corporation (OCSC), which has intervened, as a matter of right, in this protest. Protester's initial complaint set forth four bases of protest. On November 3, on motion from protester, two of the four counts were dismissed with prejudice. Shortly thereafter, the Board granted protester's motion to amend its complaint to include two additional counts. The first alleges negotiations with OCSC after submission of best and final offers (BAFOs). The second count alleges that the offer of OCSC was unbalanced. Both respondent and intervenor moved for summary relief with regard to the allegation of negotiations with OCSC after BAFOs. Protester opposed the motions and brought its own cross-motion for summary relief on the same count. We denied the cross-motion and granted the two motions for summary relief. Technology, Management & Analysis Corp. v. Environmental Protection Agency, GSBCA 12082-P (Dec. 9, 1992). Still before us is a motion for summary relief filed by the EPA regarding the second count of the amended complaint, namely, the allegation that the offer of OCSC was unbalanced. OCSC supports the motion. For the reasons set out below, however, the motion is denied. Discussion Among the facts relevant to the protest count alleging an unbalanced offer, respondent lists the following as undisputed: 5. The estimate of the EPA's ordering needs has not changed since the evaluation of the proposals and award of the contract. . . . 6. The entire basis for Protester's allegation of materially unbalanced offer is the speculation that EPA's ordering pattern will change during the contract (Answers to Respondent's Second Interrogatories, # 23, 24 and 25). Respondent's Motion for Summary Relief as to Count VI at 4. In a relatively detailed opposition to respondent's motion for summary relief, counsel for protester vigorously challenges the two facts set out above and said by respondent to be undisputed. See Protester's Opposition to Respondent's Motion for Summary Relief as to Count VI at 4-9. It is well established that summary judgment 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); 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. We find that respondent in this case has not met its burden. There clearly is an on-going dispute between the parties regarding the stability or immutable character of the EPA's ordering needs and pattern. We, therefore, cannot grant respondent's motion to the extent that it is premised on an alleged lack of controversy on these issues. A second argument raised, in the alternative, by respondent in support of its motion for summary relief is that even if the OCSC offer is unbalanced, neither the solicitation nor the Federal Acquisition Regulation (FAR) mandates rejection of a materially unbalanced offer. Respondent's Motion for Summary Relief as to Count VI at 10-11. Protester counters this second argument of respondent by citing to a provision in Section M of the solicitation which notified offerors that "buy-in" offers which are priced low for some ordering periods and high for other periods could not be accepted. Protester's Opposition to Respondent's Motion for Summary Relief as to Count VI at 3. The record for this case is not yet sufficiently developed for us to be able to conclude that this has or has not occurred or that the parties are in agreement or disagreement on that matter. Protester also points out that in SMS Data Products v. United States, 900 F.2d 1553 (Fed. Cir. 1990), the Court held: [N]o bid meeting the definition of mathematical imbalance can be accepted if it includes bid prices representing anything other than the value of a bona fide fiscal year's requirements, either in the form of explicit "separate charges" or implicit charges. Implicit charges occur if the price of an item is not proportional to its value, but instead includes part of another fiscal year's requirement. Id. at 1556. Protester contends that in this case, it will show unbalancing which falls squarely under the SMS Data Products rule. Whether this is correct rests of course on our eventual assessment of the record as developed on this issue by the parties. In a motion such as this, however, we are required to resolve all significant doubt in favor of the non-movant. Armco, 791 F.2d at 149. Accordingly, we assume that, based on the proffer offered in its opposition, for purposes of this motion, protester will meet its burden of proof on this matter. For this reason, we reject the alternative argument of respondent. Decision Respondent's motion for summary relief as to count VI is DENIED. ____________________ EDWIN B. NEILL Board Judge We concur: _______________________ CATHERINE B. HYATT Board Judge _______________________ JOSEPH A. VERGILIO Board Judge