APPELLANT S MOTION FOR SUMMARY JUDGMENT DENIED; RESPONDENT S CROSS MOTION FOR SUMMARY RELIEF DENIED: June 4, 1996 GSBCA 12945 H&A ENGINEERS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David W. Mockbee and Danny A. Drake of Mockbee Hall & Drake, Jackson, MS, counsel for Appellant. Nora A. Huey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, DEGRAFF, and GOODMAN. GOODMAN, Board Judge. Appellant, H&A Engineers, Inc. (H&A), entered into a contract with respondent, the General Services Administration (GSA), to supply an Energy Management System (EMS) for the Toledo Courthouse and Customhouse. This appeal arises from the contracting officer's decision denying appellant's claim for an equitable adjustment to the contract price as the result of an alleged constructive change. On July 31, 1995, pursuant to Board Rule 8(g),[foot #] 1 appellant filed a motion for summary judgment. On September 7, 1995, respondent filed its brief in opposition to appellant s motion for summary judgment and its own cross motion for summary relief. The parties then filed one more exchange of replies. We deny the motions. Background The focus of this dispute is respondent's specification for ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.8 (1995). ----------- FOOTNOTE ENDS ----------- the EMS. Appellant alleges that respondent drafted a proprietary specification, intending only to accept a system by a specific manufacturer (Andover), and that respondent failed to disclose this intent to bidders. Appellant alleges that it reasonably assumed that the specification was written around the Andover product, but was subject to full and open competition. It therefore considered its options and chose to price its bid based upon an Alerton product that it claims met the functional requirements of the specification and contained newer technology. Appellant's bid was accepted by respondent. During the submittal process, the system offered by appellant was not accepted, and appellant ultimately supplied an Andover product and sought an adjustment to the contract price for a constructive change. Appellant argues that respondent did not review its offered system for functional equivalency with the Andover product, but merely rejected the system because it was not an Andover product, which was its unstated intent when it drafted the specification. Respondent argues that appellant has not proven that the specification was proprietary, that appellant's submittal was functionally evaluated, and that appellant's proffered product did not comply with the specifications and was not equal in quality or performance to the item specified by GSA. Furthermore, it argues that GSA did not restrict the specification to an Andover product because any manufacturer's product that could meet the contract requirements would be accepted. Respondent emphasizes that the specifications did not call out a particular brand name product, other than to require that the product be hardware compatible with the existing Andover product located in Columbus, Ohio. Finally, respondent argues that according to appellant's bid take-off sheet, appellant based its bid on providing an Andover product, and not the Alerton product which it initially offered. Discussion Both appellant and respondent contend that there are no issues of material fact in dispute, and that each is entitled to judgment as a matter of law. They have supported their motions with excerpts from deposition transcripts, affidavits, documentation in the appeal file, and other documents identified during discovery. This information raises issues of material fact regarding the circumstances surrounding the drafting of the specification at issue, and the intent of respondent while drafting the specification, evaluating bids, and evaluating appellant's submittals after award of the contract. There are also issues of material fact concerning the basis of appellant's bid, as respondent argues that appellant's take-off sheet appears to indicate that appellant based its bid on the Andover product which it ultimately supplied. Thus, as to the motions of both parties, issues of material fact remain in dispute. Appellant also makes various assertions as to allegedly proprietary features of the specifications which respondent rebuts by arguing that such features are not proprietary. As to these features, the existing record contains only the assertions of the parties, while the subject matter of this issue requires expert opinion testimony. Summary adjudication is not appropriate where the resolution of issues of material fact requires expert opinion testimony, and such testimony has not been presented. Datachron v. Department of Commerce, GSBCA 12589-COM, et al., 95-2 BCA 27,735. As issues of material fact remain in dispute, we therefore must deny the parties' motions for summary relief. CRC Systems, Inc. v. General Services Administration, GSBCA 11173, 93-2 BCA 25,842. Decision Appellant s motion for summary judgment and respondent s cross motion for summary relief are DENIED. __________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ __________________________ ANTHONY S. BORWICK MARTHA H. DEGRAFF Board Judge Board Judge