_________________________________________________________________ RESPONDENT'S MOTION FOR RECONSIDERATION DENIED: May 22, 1995 _________________________________________________________________ GSBCA 12915 HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Ogden, Lieberman, Gaughan & Stone, Houston, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. Background GSA seeks reconsideration of our decision denying its motion for summary relief in Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961 (March 15, 1995), an appeal from the Government's default termination. We deny the motion for reconsideration. Discussion We denied GSA's motion for summary relief because material facts are in dispute, thus making summary relief inappropriate. GSA's motion for reconsideration focuses on two issues: appellant's alleged anticipatory repudiation of the contract and appellant's alleged violations of the Davis-Bacon Act, both of, which according to GSA, justified the termination action. On the issue of anticipatory repudiation, we noted that appellant's sole proprietor, Mr. Taylor, submitted a detailed affidavit denying that appellant intended to abandon the contract. In the affidavit, Mr. Taylor noted that its heavy equipment, job superintendent, and tools and materials remained on the job site. He stated that appellant's instructions for withdrawal, or the actual withdrawal, of laborers from the construction site were only in response to an alleged failure by GSA to pay appellant the progress payments due for installed work. Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961, slip op. at 2.[foot #] 1 In its motion for reconsideration, GSA presents a list of its allegedly countervailing evidence and argues that: Even viewed in the light most favorable to the [appellant], the affidavit of Mr. Taylor should not be accorded such weight as to completely countervail the testimony offered by all of these other parties and witnesses. Respondent's Motion for Reconsideration at 2. Our duty at the summary relief stage of proceedings, however, is not to weigh the evidence, but to determine the existence of genuine issues for trial. If genuine disputes of material facts exist, summary relief must be denied. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 6 F.3d 990, 1003 (3rd Cir. 1993) (district court's summary judgment reversed in suit challenging set-aside program as violative of Equal Protection Clause of Constitution where defendant presented evidence of racial discrimination sufficient to defeat motion).[foot #] 2 Since in this case, appellant has presented evidence showing the existence of genuine disputes of material facts on the repudiation issue, the weighing of the evidence that respondent would have us engage in now must await a trial. Regarding the alleged Davis-Bacon Act violations, GSA argues it is entitled to summary relief, relying upon Quality Granite Construction Co., ASBCA 43846, 93-3 BCA 26,073, recon. denied 94-1 BCA 26,430, aff'd, 26 F.3d 138 (Fed. Cir. 1994)(table). There, the Board granted summary relief to sustain a termination for default based on Davis-Bacon Act violations, unknown to the ----------- FOOTNOTE BEGINS --------- [foot #] 1 This opinion is available on WESTLAW at 1995 WL 110958. [foot #] 2 Of course, if the evidence presented failed to address an essential legal element of a claim, Dairyland Power ________________ Cooperative v. United States, 16 F.3d 1197, 1202-03 (Fed. Cir. _____________________________ 1994), or if the evidence taken as a whole could not lead a rational trier of fact to find for the party opposing the motion, Street v. J. C. Bradford & Co., 886 F.2d 1472, 1480 (6th. Cir. _______________________________ 1989), then summary relief might be appropriate. We cannot say those conditions exist here. Mr. Taylor's affidavit set forth more than a scintilla of evidence which makes plausible appellant's explanation of appellant's instructions to withdraw laborers, or the actual withdrawal of the laborers, from the construction site. ----------- FOOTNOTE ENDS ----------- contracting officer at the time of the termination, but which served as an independent and existing ground at the time of the termination. The key to Quality Granite was the board's observation that "appellant had not disputed any of the facts associated with the [Department of Labor's] Wage and Hour Division's findings and conclusions." Quality Granite, 93-3 BCA at 129,588. In response to GSA's motion for summary relief in this case, Mr. Taylor submitted an affidavit denying Davis-Bacon Act violations; he stated that when the Department of Labor officially charged appellant with a violation, appellant would dispute and appeal any such charges. Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961, slip op. at 3. Unlike Quality Granite, there is an issue of fact as to whether appellant violated the Davis-Bacon Act. Respondent's motion meets none of the tests of Rule 32 of the Board's rules and is groundless. Decision Respondent's motion for reconsideration is DENIED. _________________________ ANTHONY S. BORWICK Board Judge We concur: ______________________________ EDWIN B. NEILL Board Judge _____________________________ CATHERINE B. HYATT Board Judge