__________________________________________ RESPONDENT'S OBJECTION TO DISCOVERY GRANTED IN PART: February 22, 1993 __________________________________________ GSBCA 11676, 11679, 11702, 11732, 11759, 11772, 11773, 11783, 11884, 11885, 11886, 11887, 11888, 11889, 11999, 12033, 12035, 12036, 12052, 12132, 12133, 12134, 12151, P. J. DICK INCORPORATED, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John T. Flynn of Smith, Currie & Hancock, Atlanta, GA; Paul J. Walstad of Walstad & Babcock, Provo, UT; and Rand L. Allen and James J. Gildea of Wiley, Rein & Fielding, Washington, DC, counsel for Appellant. Sharon A. Roach, Gerald L. Schrader, Martin A. Hom, and M. Leah Wright, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC; and Kenneth E. Kendell, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. BORWICK, Board Judge. Background This opinion memorializes the oral rulings made in a telephone conference of February 17, 1993. Respondent objects to appellant's request for production of documents on the grounds of relevance, timeliness, and undue burden given the issues in the case. We sustain in part respondent's objections. The documents sought in appellant's clarified request for production relate to the funding levels for the Federal Building and Courthouse, Pittsburgh Pennsylvania. Appellant seeks: 1. All Public Buildings Service (PBS) Approval Committee Minutes for the years 1989 to 1992 that relate in any way to the construction or funding of the U.S. Post Office and Court House Project, Pittsburgh PA, including any annotation or notes thereto that relate to the subject matter. 2. All PBS Agenda Staff Minutes for the years 1989 to 1992 that relate in any way to the construction or funding of the U.S. Post Office and Courthouse, Pittsburgh PA, including any annotation or notes thereto that relate to the subject matter. 3. All records relating to the BA54 and BA55 Funding Records on the U.S. Post Office and Courthouse, Pittsburgh PA, for the years 1988 to 1992 (Appellant requests both the funding setup and disbursement records relating to the project, including, but not limited to, asbestos removal.) 4. All Prospect[us] Funds Records for the years 1988 to 1992 relating to the Post Office Project, Pittsburgh, PA including, but not limited to, documents related to asbestos removal on the project and the following transactions: RWA A8072470 RWA A7691108 RWA A8072357 RWA A7691111[.] 5. All project budget documents and/or correspondence relating to the Post Office Renovation Project, Pittsburgh PA for the years 1988 to 1992, including, but not limited to, documents relating to asbestos removal on the project. Such documents include, but are not limited to, initial Budget request documents, Internal GSA memoranda relating to available funding, Government estimates of cost of construction, reports showing the expenditure of funds and funds available. 6. All personal notes taken by Libby Baumann or Rob Hewell during agenda staff meeting (July 3, 1990) or in subsequent meetings or discussions that relate to the funding of the Post Office Project, Pittsburgh, PA, including all notes or documents relating to the asbestos removal on the project. Letter From Appellant to The Board (Feb. 10, 1993), Exhibit F. The clarified request, submitted at respondent's request, was submitted January 20, 1993, and was a clarification of an original request dated December 28, 1992. Letter From Appellant to The Board (Feb. 10, 1993). On February 8, 1993, appellant filed a supplemental request for production of seventeen categories of documents. Of those seventeen categories, only one deals with the budget category-- request for production number twelve. The rest deal with other categories of documents. Discussion Approximately one month before trial on the merits of numerous dockets comprising these appeals, appellant seeks to discover all budget documents for the project covering four years from 1989 through 1992. Appellant seeks to demonstrate that the contracting officer acted with improper motive (i.e., in bad faith) in definitizing contract modification ASO5 and AC17. Appellant maintains that the contracting officer sought cost and pricing data for these modifications and definitized the amounts in the final decision because the project was running out of funds. The Government objects on the grounds of relevancy. The Government, nevertheless, has produced a spreadsheet containing financial transaction information for the project, funding data on reimbursable work authorization, and agenda staff and approval committee meetings which relate to the project, with redactions only to eliminate sensitive information on other projects. Respondent's Memorandum (Feb. 12, 1993). The Board remains unconvinced either of the relevance of the discovery of the budget documents or of the necessity of such a far-reaching inquiry so close to the trial date. Cases in which discovery of motive has been allowed to demonstrate the existence of bad faith involved causes of action where subjective bad faith of Government officials was an essential element--a breach of implied contract by the Government to honestly and fairly consider all bids, Keco Industries v. United States, 203 Ct. Cl. 566, 574, 579; 492 F.2d 1200, 1203, 1206 (1974), or fraudulent inducement by Government officials allegedly resulting in an unconscionable contract, Gregory Lumber Co. v. United States, 9 Cl. Ct. 503, 520 (1986). The asbestos claims present issues as to the authority of the contracting officer to definitize the modifications and the reasonableness of the price as definitized. Appellant maintains that the PDL modifications were fixed unit price modifications, binding the contracting officer to pay the modifications at the unit price stated for the quantity of work performed. Motive is immaterial to the contracting officer's authority to definitize prices. With regard to the price that was definitized, the contracting officer could have acted with an admirable motive ("save the taxpayers money") and arrived at an unreasonable price. Conversely, he could have acted with a hostile motive ("squeeze the contractor") and arrived at a reasonable price. His motive is irrelevant, i.e., it does not prove or disprove that the prices definitized were reasonable. Of course, appellant may prove that the contracting officer acted without a reasonable basis based on external facts and circumstances. "Courts often equate wholly unreasonable action with conduct motivated by subjective bad faith." Keco Industries 492 F.2d at 1204; see Computer Sales International, Inc., GSBCA 10443-P, 90-2 BCA 22,736, 1990 BPD 49. An attempt to prove through external facts that the contracting officer's actions were unreasonable does not justify a last-minute flurry of document discovery pertaining to the contracting officer's motives. Appellant maintains that the contracting officer violated the Federal Acquisition Regulation by authorizing work which exceeded available funding for the work and thus "made a conscious choice to deny appellant and its subcontractor the amounts due under the contract." Letter from Appellant to the Board (Feb. 10, 1993). As respondent notes, this allegation is not stated in its complaints in the asbestos dockets. Whatever light the alleged motive sheds on resolution of the claims, the spreadsheet showing funding sources and levels for the project duration is sufficient to demonstrate the funding situation during the various stages of construction. Respondent's objections to the clarified request for production of documents are valid. Appellant also filed a supplemental request for production. In its supplemental request, appellant sought access to reading files or broad classes of documents ("any and all notes of telephone conversation of Richard Newburg") in paragraphs two, three, five and seven. Appellant, however, was granted access to the Government's project files in April and May of 1992, and again in the fall of that year. Appellant's counsel are not satisfied that they had access to all files. Respondent's counsel insists that all files were made available in the spring and fall of 1992. It is too late, less than one month before trial, to revisit this issue. Respondent's objections to further access to the files are valid. The parties shall resolve the objection to paragraph seventeen between themselves. Respondent's objections to the other paragraphs of the supplemental request are not valid. Appellant seeks specific documents relevant to the issues presented. Order Respondent's objection to appellant's clarified request for production of budget documents is GRANTED. This ruling does not apply to the request for Government estimates of the cost of construction in paragraph five of the clarified request. Respondent's objection to paragraph twelve of the supplemental request for production of documents (budget documents) is GRANTED for the same reasons as stated for the clarified request. Respondent's objections to paragraphs two, three, five, and seven of the supplemental request are GRANTED. Respondent's objections to paragraphs one, four, six, eight, ten, eleven, thirteen, fourteen, fifteen, and sixteen of the supplemental request are DENIED. Respondent shall furnish the documents requested in those paragraphs no later than March 8. _________________________ ANTHONY S. BORWICK Board Judge