MOTION FOR SUMMARY RELIEF DENIED:  March 29, 2007 
CBCA 469 
P.J. DICK, INCORPORATED, 
Appellant, 
v.
 
GENERAL SERVICES ADMINISTRATION,
 
Respondent. 
John C. Person of Person & Craver LLP, Washington, DC, counsel for Appellant. 
Timothy C. Tozer, Office of Regional Counsel, General Services Administration, 
Washington, DC, counsel for Respondent.
 
Before Board Judges BORWICK, DeGRAFF , and GOODMAN .
 
GOODMAN , Board Judge.
 
Appellant, P.J. Dick, Incorporated, was awarded a firm, fixed price contract by the 
General Services Administration (GSA or respondent) to construct a facility for the National 
Oceanic & Atmospheric Administration’s National Environmental Satellite Data and 
Information Services in Suitland, Maryland.  Appellant filed a claim alleging that it incurred 
additional costs in the amount of $197,140 performing the structural concrete work on the 
project.  Respondent’s contracting officer issued a decision dated May 10, 2006, denying 

     
  
     
  
         
    
  
   
 
 
   
          
   
 
 
        
 
     
 
2CBCA 469 
the claim from which appellant appealed. 1   Respondent has filed a motion for summary 
relief.  As there are issues of material fact in dispute, we deny appellant’s request to defer 
ruling on the motion and deny respondent’s motion. 2 
Background 
Respondent acknowledges that appellant incurred additional costs as the result of 
GSA’s late issuance of a notice to proceed (NTP) to appellant, which thereby resulted in 
appellant’s concrete subcontractor pouring concrete three months later than planned, during 
the winter and summer months. Respondent’s Memorandum in Support of Motion for 
Summary Relief (Respondent’s Memorandum) at 1. Respondent further acknowledges that 
as the result of this shift in schedule, appellant incurred additional costs.  Id. at 2.  After this 
delay occurred, the  parties entered into four bilateral contract modifications (the four 
modifications) -- PA03, PS07, PS10, and PS11. According to respondent, the four 
modifications compensated appellant for all costs that arose from the conditions encountered 
as the result of performing the concrete work three months later than planned - unusually 
wet weather, 
3 expanded plumbing work, repair to the mud mat caused by expanded 
plumbing work, dewatering of the elevated water table, and supersaturated silt above 
subgrade.  Id. 
1   This case was docketed at the General Services Administration Board of Contract 
Appeals (GSBCA) as GSBCA 16941. On January 6, 2007, pursuant to section 847 of the 
National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 
3391, the GSBCA was terminated and its cases, personnel, and other resources were 
transferred to the newly-established Civilian Board of Contract Appeals (CBCA).  This case 
was docketed by the CBCA as CBCA 469. The holdings of the GSBCA and other 
predecessor boards of the CBCA are binding on this Board.  Business Management 
Research Associates, Inc. v. General Services Administration, CBCA 464, 07-1 BCA 
¶ 33,486.  Until the rules of the CBCA are approved, the proceedings at this Board will be 
guided by the Federal Rules of Civil Procedure and specific orders of the Board. 
2 With its opposition to respondent’s motion for summary relief, appellant requested 
that this Board defer ruling on the motion pending further discovery by appellant against 
respondent and third parties to obtain additional evidence to justify its opposition.  Based 
on the information submitted with appellant’s opposition, appellant has met its burden to 
demonstrate the existence of issues of material fact in dispute.
3   Respondent emphasizes that the basis of the modification for “unusually severe 
weather” is redundant of the subject matter of the claim at issue, appellant’s “cold and hot 
weather concreting claim.”  Respondent’s Memorandum at 8. 

 
    
 
   
 
  
     
       
  
 
    
 
 
   
      
  
  
3CBCA 469 
Modification PA03 contained the following language:  “This change includes all 
direct costs, indirect and impact costs related to this change.” Appeal File, Exhibit 3. 
4Modifications PS07, id., Exhibit 6; PS10 ; and PS 11, id., Exhibit 8, contained the following 
language:  “Settlement of this claim includes all costs, direct, indirect, impact and general 
conditions associated with this change order.”  Respondent maintains that this language in 
the four modifications is clear and unambiguous and that the four modifications serve as 
accords and satisfactions of all costs incurred as the result of the delay in issuing the NTP. 
Respondent’s Memorandum at 3-9. 
Discussion 
Summary relief is appropriate when there is no genuine issue of material fact and the 
moving party is clearly entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); US 
Ecology, Inc. v. United States , 245 F.3d 1352, 1355 (Fed. Cir. 2001); Olympus Corp. v. 
United States, 98 F.3d 1314, 1316 (Fed. Cir. 1996).  A fact is material if it will affect our 
decision, and an issue is genuine if enough evidence exists so the fact could reasonably be 
decided in favor of the non-movant at a hearing.  John A. Glasure v. General Services 
Administration, GSBCA 16046, 03-2 BCA ¶ 32,284, at 159,746 (citing Celotex Corp.; 
Matsushita Electric Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986)). 
Respondent  moves for summary relief on the basis that all costs incurred as the result 
of the late issuance of the NTP, including those asserted by appellant in the claim which is 
the subject of this appeal, have been paid or settled by the four modifications.  Appellant 
opposes the motion on several grounds.  First, appellant contends that the subject matter of 
the claim at issue in this appeal, which it refers to as appellant’s “cold and hot weather 
concreting claim,” was never considered by the parties during the negotiations of the four 
modifications, was therefore not encompassed within the subject matter of the modifications, 
and the modifications therefore did not serve as accords and satisfactions of this claim. 
Appellant’s Opposition to Respondent’s Motion for Summary Relief (Appellant’s 
Opposition) at 2-5.  To factually support this allegation, appellant notes that its “cold and 
hot weather concreting claim” was submitted to GSA on January 9, 2004, with a separate 
tracking number (RCO 15) which differed from the tracking number assigned to the other 
claims which ultimately became the subject of the four modifications. 
5 Id. at 6. 
4   Respondent’s Memorandum, Exhibit 9.  (Modification PS10 has not been 
submitted by the parties as an exhibit in the appeal file.) 
5 Respondent does not dispute that the claim was assigned a tracking number which 
differed from those assigned to the claims that were the subject of the four modifications. 

   
 
  
 
 
    
  
 
   
 
 
   
 
  
 
 
      
         
 
   
  
4 CBCA 469 
To support the factual allegation that the claim at issue was not the subject of the 
negotiations that led to the parties’ agreeing to the four modifications, appellant submits 
with its opposition to respondent’s motion a sworn declaration of Robert MacDaniels, 
president of Oncore, Construction L.L.C., appellant’s concrete subcontractor. 
Mr. MacDaniels states, based upon his personal knowledge, that he was involved in all 
negotiations with GSA regarding the four modifications, and during those negotiations the 
claim which is the subject of this appeal was never “discussed or even mentioned, . . . or the 
factual bases underlying that claim.”  Declaration of Robert MacDaniels (Jan. 31, 2007) ¶ 3. 
Appellant also opposes respondent’s characterization of its claim as redundant of the 
basis for modification PA03 for unusually severe weather.  Appellant notes that the 
modification was a non-compensable time extension of forty-two days and contends that the 
modification could not be considered an accord and satisfaction of a claim for a 
compensable delay as the result of Government-caused delay, and that GSA is “mixing and 
matching two entirely different weather-related concepts.”  Appellant’s Opposition at 8. 
Finally, appellant argues that the situation in the instant case is similar to that in 
Dawson Construction Co. , GSBCA 5611, et al., 83-1 BCA ¶ 16,160.  Appellant’s 
Opposition at 3.  In Dawson, the Board held that a bilateral modification could not serve as 
an accord and satisfaction of a claim that had not been before the parties during the parties’ 
negotiation. 
Based upon the record in this appeal, we find that issues of material fact exist as to 
whether the claim which is the subject of this appeal was the subject of any of the four 
modifications.  We reach this conclusion as to the existence of issues of material fact based 
upon 1) the fact that the claim which is the subject of this appeal was assigned a tracking 
number which differed from those that were assigned to the claims that were the subject of 
the four modifications and 2) the sworn declaration of appellant’s subcontractor’s president, 
based upon his personal knowledge and participation in the negotiations, that the claim 
which is the subject of this appeal and their factual bases were never “discussed or even 
mentioned” during the negotiations. 
6 See, e.g., Parcel 49C Limited Partnership v. General 
Services Administration, GSBCA 15932, 03-1 BCA ¶ 32,207 at 159,286 (the substance of 
the negotiations of a modification is material to the interpretation of the scope of that 
6  This declaration, based upon personal knowledge and relevant to the subject matter, 
questions the credibility of the Government’s position that the four modifications included 
the subject matter of the claim which is the subject of the appeal.  As such, it is sufficient 
by itself to defeat the motion for summary relief.  10B Charles AlanWright, Arthur R.Miller 
& Mary Kay Kane, Federal Practice and Procedure § 2738 (3d ed. 1998). 

 
 
_______________________________ 
________________________________ ________________________________ 
5 CBCA 469 
modification).  We find this evidence sufficient to create genuine issues of material fact as 
to whether the subject matter of the four modifications included the claim at issue.  
Decision 
As genuine issues of material fact remain in dispute, respondent’s MOTION FOR 
SUMMARY RELIEF is DENIED . 
ALLAN H. GOODMAN 
Board Judge 
We concur: 
ANTHONY S. BORWICK MARTHA H. DEGRAFF 
Board Judge Board Judge