U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, DC 20401 STUART M. FOSS Administrative Law Judge The Appeal of RBP CHEMICAL CORPORATION Docket No. GPO BCA 4-91 Purchase Order 744-90 January 23, 1992 DECISION ON MOTION AND ORDER This appeal, timely filed by RBP Chemical Corporation, 150 S. 118th Street, P. O. Box 14069, Milwaukee, Wisconsin 53214 (hereinafter Appellant) is from the final decision, dated January 3, 1991, of Contracting Officer Deborah L. Sharp (hereinafter Contracting Officer), of the U.S. Government Printing Office, North Capitol and H Streets NW., Washington, DC 20401 (hereinafter Respondent or GPO), terminating the Appellant's contract identified as Purchase Order 744-90, for default because of its failure to deliver a product which met the contract specifications (R4 File, Tab A). 1/ On June 4, 1991, the Board issued an order scheduling a prehearing telephone conference in the appeal for Tuesday, June 25, 1991. See, Board Rules, Rule 10. However, on June 14, 1991, the Respondent filed a Motion for Summary Judgment (Motion), contending that the Appellant's defenses to the termination action, discussed infra, were not supported by the pleadings or the evidence, and thus judgment should be entered for the Respondent. The Appellant's Response to Motion For Summary Judgment (Response) was filed with the Board on August 8, 1991. For the reasons which follow, the Motion is DENIED. BACKGROUND This appeal stems from the Respondent's issuance of Purchase Order 744-90 to the Appellant on November 27, 1989, for the supply of 925 gallons of platemaker developer called "Graphex Projection Developer" (Graphex Developer) (Property Number 220396) (R4 File, Tab B). From the record, it seems that the Appellant has been supplying this developer to the Respondent since 1985 (Response, Affidavit of James A. Woodward, ¶ 3). 2/ The Appellant's shipment of 925 gallons of Graphex Developer was received by the Respondent on January 2, 1990 (R4 File, Tab D). The developer delivered to the Respondent was the same product which it had been sending to GPO to fulfill past orders, and there had never been any problem with it before (Response, Affidavit of James A. Woodward, ¶ 4). The Respondent paid for the shipment of Graphex developer on January 10, 1990, by sending the Appellant a check for $13,320.00 (R4 File, Tab A, p. 2; Motion, p. 2). The record discloses that around April 16, 1990, over four months after the developer had been received and paid for by the Respondent, it wrote to the Appellant to inform it that Graphex Developer had been deleted from GPO's "Qualified Product List" because the specifications had been changed (R4 File, Tab E). The new specification was enclosed with the Respondent's letter and the Appellant was invited to submit samples of a substitute developer for requalification (R4 File, Tab E). 3/ It is clear from the record that the respondent did not use the Graphex Developer immediately, but rather kept it stored until it was needed four months later. In that regard, on May 8, 1990, John Axline, Group Chief, Offset Plate Section (OPS), sent a memorandum to the Chief, General Procurement Division (GPD), informing him of a problem which was being experienced with the Graphex Developer that Appellant had delivered in January (R4 File, Tab F). 4/ Specifically, Axline wrote, in pertinent part: We started using Graphex Developer May 2, 1990, after they received the bid for 1990. This developer had been a proven product since 1975. When we started using it last week we noticed lacquer drip marks on some of our plates. These marks were sensitive on press and picked up ink. Not knowing if we had a plate or lacquer problem, I ordered 36 [gallons] of Imperial Lacquer. It was received May 7, 1990, at noon. When the plates were checked using both developers, we found we only had a problem with [the] Graphex Developer. The Graphex Company has been notified. They are checking their samples of this batch to see if they can find the problem. (R4 File, Tab F). 5/ Gouin, the head of the Respondent's Chemical and Environmental Division, agreed with Axline, and recommended that the Appellant be directed to solve the "scumming" problem by either giving proper instructions in the use of the developer or by replacing the "defective shipment, otherwise the Respondent should reject the product (R4 File, Tab L). 6/ Accordingly, the Appellant was notified of Axline's complaint on May 9, 1990, and agreed to send someone to the Respondent's facility the following week to troubleshoot the problem (R4 File, Tab F). Jay Singstock, the Appellant's service representative, visited GPO's plant on or about May 15, 1990, to see for himself what difficulties the Respondent was having with the Graphex Developer. 7/ Meeting with Axline and other GPO operational personnel, Singstock attempted to determine the cause of the lacquer drips and to formulate steps to cure the problem (R4 File, Tab G). As a result of his inspection, Singstock concurred with Axline that the Appellant's developer was leaving lacquer drips on the plates, but there is no agreement in the record as to the cause of the problem. In that regard, Singstock concluded that the spots being left by the developer on the plates was the result of poorly positioned dispensing nozzles on the Respondent's equipment, and the problem could be eliminated with a "minor adjustment" repositioning the nozzle; i.e., there was nothing wrong with the Graphex Developer itself (R4 File, Tab I; Response, Affidavit of Jay Singstock, ¶¶ 4, 5). 8/ Axline, on the other hand, felt that the problem stemmed from the chemical composition of the Graphex Developer; indeed, he complained that Singstock's mechanical adjustments only caused other problems and extra work for the employees; e.g., the operators were frequently cleaning the build up of lacquer on the rollers (R4 File, Tab G). When informed of Axline's continued concerns, the Appellant asked the Respondent to return a case (4 gallons) of the Graphex Developer it had delivered under Purchase Order 744-90 for testing to see if a chemical error had been made in its production and if the problem could be corrected by adjusting the developer's ingredients (R4 File, Tabs G). Accordingly, on May 22, 1990, the Respondent sent the Appellant the 4 gallons of the Graphex Developer for the purpose of a chemical analysis (R4 File, Tab H; Response, Affidavit of Jeffrey S. Huth, ¶ 3). In the meantime, the Respondent continued to use the Imperial Developer it had on hand (R4 File, Tab G). The Appellant's laboratory tests on the Graphex Developer which had been delivered under Purchase Order 744-90 showed that it was chemically correct and matched the chemical composition of other shipments of the same product which the Appellant had supplied to the Government (Response, Affidavit of Jeffrey S. Huth, ¶ 5). On June 26, 1990, having determined that a "latent [chemical] defect" precluded further use of the developer, the Respondent sent a Notice of Rejection to the Appellant and requested shipping instructions for the return of the remainder of the Graphex Developer which had been shipped in January (848 gallons) (R4 File, Tabs J). 9/ Replying on July 3, 1990, the Appellant told the Respondent to send "400 gallons" each of the developer to the United Nations (UN) in New York City, and the American Red Cross (ARC) in Alexandria, Virginia (R4 File, Tabs K). On July 12, 1990, the Respondent made an equal division of the remaining Graphex Developer and shipped 424 gallons each to the UN and the ARC by Preston Trucking Company, as instructed by the Appellant (R4 File, Tab K). 10/ At the same time that the Appellant was attempting to resolve the problem with the Graphex Developer it had already delivered to the Respondent, it was also trying to formulate a new developer which, according to the Appellant, would be submitted to the Respondent for requalification under the changed specification for Property No. 220396 (R4 File, Tabs E and I; Response, Affidavit of Jeanne D. Kitazaki, ¶¶ 4, 5). In that regard, on June 13, 1990, the Appellant wrote to the Respondent and promised to send it samples of the new product for testing by August 15 (R4 File, Tab I; Response, Affidavit of Jeanne D. Kitazaki, ¶ 6). Sometime in late July or early August, the Appellant shipped six gallons of a black lacquer developer called "GPO Black JH6-52" to the Respondent, but this new developer was rejected by the Respondent's Quality Control staff because it caused random "spotting" on the plates (R4 File, Tab M). 11/ In late August, the Appellant submitted four other newly formulated developers for testing ("GPO Red JH6-79," "GPO Red JH6-80," "GPO Black JH6-81A," and "GPO Black JH6-81B"), but the Respondent determined that these too were unsatisfactory (R4 File, Tab N). Accordingly, On October 12, 1990, the Respondent sent the Appellant a "Cure Notice" regarding Purchase Order No. 744-90, which stated, in pertinent part: . . . [S]ince you have not formulated a new product within the time specified in your letter, dated June 13, 1990, the [G] overnment considers this a condition that has endangered the performance of this contract. Therefore, unless this condition is cured within 10 days after receipt of this notice the Government may terminate for default. (R4 File, Tab O). By letter, dated October 22, 1990, the Appellant confirmed a telephone conversation between the parties three days earlier, and in answer to the "Cure Notice" told the Respondent, in pertinent part: . . . [Purchase Order No. 744-90] had a scheduled delivery date of January 3, 1990. All requirements were met by RBP in accordance with your previous specifications. In response to Joan Lombardo's [Procurement Analyst, GPD] request for requalifying of Projection Developer, numerous conversations were held with Mr. Joseph Gouin and Mr. John Axline regarding your unique process conditions. Our R & D and technical service staff began working on a new developer not only to comply with the new specifications, but also to provide a developer that would work without any mechanical changes strictly adhered to by the plate department. We have given this top priority and extensive staff time to this project. Several shipments of experimental developer have been submitted to GPO to determine what it will take to formulate the exact product. . . . * * * * * * * * * * * * * * * * . . . [We] believe that RBP has met and exceeded your requirements for reformulation. We appreciate your patience and believe you will be pleased with RBP's efforts in offering you a specially-blended product which we have brought to qualification standards in less than a month's time. [Emphasis added.] (R4 File, Tab P). Approximately two months later, and almost one year to the date after the Graphex Developer had been delivered, the Contracting Officer, by letter, dated January 3, 1991, notified the Appellant that its contract under Purchase Order 744-90 had been terminated for default because of a failure to deliver a product which met the contract specifications (R4 File, Tab A). The Contracting Officer's reasoning for this action was essentially four-fold: (1) the Graphex Developer delivered in January 1990 had unsatisfactory side effects with regard to GPO's equipment and was rejected for that reason; (2) the Appellant has been given adequate time to replace the rejected developer; (3) the samples of developer submitted by the Appellant to replace the rejected product also failed to meet the contract specifications; and, (4) because a satisfactory substitute had not been produced within an adequate time, terminating the Appellant's contract was appropriate (R4 File, Tab A). Furthermore, since the Respondent had already paid $13,320.00 for the 925 gallons of Graphex which had been received in January 1990, the Contracting Officer demanded a refund of $12,211.20 of that amount within 60 days (at $14.40 a gallon, the difference-$1,108.80- represents the cost of the 77 gallons of the developer used by the Respondent before the remainder was sent to the UN and the ARC) (R4 File, Tab A). The Appellant responded to the Contracting Officer's termination action by filing this appeal with the Board on February 26, 1991. POSITIONS OF THE PARTIES The Respondent believes that summary judgment is appropriate in this matter for three reasons: (1) the Graphex Developer delivered by the Appellant did not conform to the product specifications and requirements of Purchase Order 744-90; (2) the problems in the use of the Graphex Developer were caused by a defect in the developer itself, and not in the Respondent's equipment; and, (3) the respondent's insistence on a conforming product did not constitute a change to the contract. For its first argument, the respondent principally relies on the well-settled doctrine of public contract law which entitles the Government to strict compliance with its contract specifications, including those of fixed-price supply contracts. Motion, p. 5 (citing, Jefferson Construction Co. v. united States, 151 Ct.Cl. 75 (1960); Red Circle Corporation v. United States, 185 Ct.Cl. 1, 8 (1968); American Electric Contracting Corporation v. United States, 579 F.2d 602, 608 (1978); Dependable Printing Company, Inc., GPO BCA 5-84 (1985)). The strict compliance rule is enforced either by rejecting the defective product or, if the Government deems it in its best interest, accepting the nonconforming supplies at a discounted price. As the Respondent correctly observes, acceptance or rejection of a nonconforming product is solely within the discretion of the procuring agency; i.e., nothing can compel the Government to accept a defective product at a reduced price, even if the defects are relatively minor. Id (citing, Famous Model Company, Inc., ASBCA No. 12526, 68-1 BCA ¶ 6,902; Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3,937). Since, according to the Respondent, the Graphex Developer furnished by the Appellant under Purchase Order 744-90 was defective, it believes that the Contracting Officer properly terminated the contract for default. The Respondent's second contention flows from its first; i.e., the defect in the Graphex Developer, and not the configuration of the Respondent's machinery, was the root cause of the problems experienced in the use of the product. Motion, p. 6. The Respondent's argument in this regard can be reduced to three main points: (1) the Appellant has not shown that the configuration of the Respondent's equipment was in any way related to the problems caused by the developer; (2) the Graphex Developer was tested on several occasions and failed to meet the contract specifications; and (3) the Appellant's developer had been used successfully by the respondent in the past without the need to reconfigure its platemaking machinery. Id. Thus, the Respondent believes that the Appellant's argument, blaming the problems with the Graphex Developer on the configuration of GPO's equipment instead of on a defect in the developer itself, it faulty and should be rejected. Finally, the Respondent denies the Appellant's contention, infra, that the problems with the Graphex Developer were due to a change in the specifications for Purchase Order 744-90 after it had already performed the contract. Motion, p. 6. In that regard, the Respondent claims that its letter of April 16, 1990, was written merely to advise the Appellant that the specification for Property number 220396 would be different for future procurements involving that product, and to solicit its submission of a replacement developer. Motion, p. 7. Furthermore, because that correspondence was written three months after the initial shipment of the Graphex Developer, the Respondent believes it is "unreasonable" for the Appellant to assume that the letter applies to a product which it had already delivered to GPO. 12/ Id. Finally, the Respondent tells us that the Contracting Officer could not change the specifications for Purchase Order 744-90 under these circumstances because it would be "contrary to Federal procurement policies." Id. In order to amend the specifications, according to the respondent, the Contracting Officer would have to: (1) cancel the existing procurement; (2) notify all interested parties, in writing, of the cancellation, and tell them, among other things the reason for the action; and (3) resolicit the contract. Motion, pp. 7-8. Since the Respondent did none of these things, it submits that the Appellant's failure to deliver a conforming product constituted a default of the contract. Motion, p. 8. Accordingly, the Respondent believes that summary judgment is warranted in this instance. The Appellant, on the other hand, opposes the Motion on the ground that the Respondent has not shown that no genuine issue of material fact exists in this case. Response, p. 5 (citing, Adickes v. S. H. Kress and Company, 398 U.S. 144 (1970); First National Bank of Arizona v. Cities Service Company, 391 U.S. 253 (1968)). In that regard, the Appellant believes that the record leaves the following issues unresolved: (1) what were the requirements of the developer specification for Purchase Order 744-90; (2) was the Graphex Developer delivered by the Appellant in January 1990 a conforming product; (3) were the problems experienced by the Respondent in May caused by the Graphex developer or by the configuration of its platemaking equipment; (4) was the termination based on the Appellant's failure to meet the old specification or the revised one; and (5) did the Respondent's insistence on the Appellant's furnishing a developer which complied with the new specification constitute a change to Purchase Order 744-90? Response, pp. 9-10. The Appellant contends that while both parties recognize the central importance of the developer specification to this appeal, the Respondent has not met its burden of proof, which was to provide evidence of the requirements of the applicable specification and to demonstrate how the Appellant failed to satisfy them. 13/ Response, pp. 5-6. That is, even though the Respondent is compelled to demonstrate that the Appellant failed to comply with some aspect of the specification to sustain its termination action, no evidence of such noncompliance has been presented. Response, p. 6. Furthermore, while the Respondent says that it experienced certain problems with the Appellant's developer, not a single unsatisfied requirement of the specification has been identified by the Respondent nor is there evidence that those problems amounted to noncompliance with the specification; i.e., the Respondent's mere unhappiness with Appellant's developer is not sufficient to terminate the contract. Id. The Appellant also argues that the Graphex Developer did, in fact, satisfy the requirements of the specification and that the alleged "defects" in its product could be corrected by minor adjustments to the Respondent's platemaking equipment. Id. Thus, contrary to the Respondent, the Appellant believes that the record contains ample evidence to show that the configuration of GPO's equipment was the cause of the problems experienced with the use of the developer it supplied to the Respondent. Id (citing, R4 File, Tab I, Singstock Memorandum). Moreover, the Appellant points to the statements (Affidavits of Singstock, Huth and Kitazaki) which accompanied its Response as further support for its claim that the problems were mechanical and not chemically- related. Response, pp. 6.7. The Appellant denies the Respondent's contention that its submission of a new developer product to GPO is tantamount to an admission that the Graphex Developer shipped in January 1990 did not meet the requirements of the specification for Purchase Order 744-90. Response, p. 7. Instead, according to the Appellant, it sent samples of newly formulated developers to GPO after January solely for the purpose of requalifying a product under the new specification, pursuant to an invitation it had received from the Respondent itself (R4 File, Tabs I and P). Id. Consequently, the Appellant argues that a related issue- whether the Respondent rejected the January 1990 shipment of Graphex Developer because it did not comply with the revised specification-cannot be resolved on the basis of this record. Response, pp. 7-8.n As the Appellant sees it, the revision of the specification and the discovery of deficiencies in the Graphex Developer occurred subsequent to the delivery of the product, and both were matters within the control of the Respondent. Response, p. 8. Finally, the Appellant argues that notwithstanding the Federal procurement policy against changing a specification during a procurement, the Respondent did, in fact, amend the developer specification in this case and attempt to apply the revised version to Purchase Order 744-90, notwithstanding its self-serving statements to the contrary. 14/ Id. As the Appellant sees it, the sequence of events here warrants an inference that the Respondent made a conscious decision to substitute the Imperial Developer, a qualifying developer under the new specification, for the Graphex Developer, a product which satisfied the specification in existence at the time Purchase Order 744-90 was placed. Id. Furthermore, the Respondent's "Cure Notice," which was based on the Appellant's inability to "formulate a new product," has no validity because the Appellant was under no obligation to develop a "new product" for Purchase Order 744-90; i.e., the Graphex Developer was a qualified product at the time it was shipped, and indeed, had satisfied the Government's requirements for years. Id. Accordingly, the Appellant believes that there are too many "loose ends" in the record to justify summary judgment in this case. DECISION This summary judgment proceeding was triggered by the Respondent's Motion in which it claims an entitlement to a ruling in its favor as a matter of law, because there are no genuine issues of material fact, and the pleadings and the evidence of record support its position and not the Appellant's . In ruling on motions for summary judgment, this Board applies the rule which permits summary judgment if the pleadings, the Rule 4 file, the results of any discovery, and affidavits (when submitted) show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. See, Castillo Printing Company, GPO BCA 10-90 (May 8, 1991), Sl. op. at 22. FED. R. CIV. P. 56(c). Accord, Ite, Incorporated, NASA BCA No. 1086-6, 88-1 BCA ¶ 20,269; R & D Associates, ASBCA No. 30738, 30750, 86-3 ¶ 19,062. Under the standard Default clause which applies to contracts awarded by GPO, the Contracting Officer can, among other things, on written notice of default to the contractor, terminate a contract, in whole or in part, if the contractor fails to "[d]eliver the supplies or to perform the services within the time specified or any extension, thereof; . . .". GPO Contract Terms, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88), ¶20(a)(1)(i). The Board has applied this provision not only to late deliveries of supplies, see, e.g., Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 12-15; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at 3-5, but also to the timely delivery of nonconforming products. 15/ See, e.g., Stephenson, Inc., GPO BCA 02-88 (December 19, 1991), Sl. op. at 18-19. Accord, Kopier Produckte, ASBCA No. 29471, 85-3 BCA ¶18,367; Meyer Labs, Inc., ASBCA No. 18347, 77-1 BCA ¶ 12,539. The Contracting Officer here terminated the Appellant's contract under Purchase Order 744-90 for default because, in the Respondent's view, the Graphex Developer delivered in January 1990 did not conform to the developer specifications, and the Appellant was unable to correct the defect with a suitable replacement product within a reasonable period of time. 16/ On the other hand, the Appellant's defense, when reduced to its essentials, is that the Graphex Developer it shipped did in fact conform to the developer specifications in existence at the time, and thus there was no defect in the delivered product which needed to be cured; i.e., this is not a case where the contractor admits the default but claims that it is excusable. See, e.g., Chavis and Chavis Printing, supra, Sl. op. at 13; Jomar Enterprises, Inc., supra, Sl. op. at 3-5. The parties could not be farther apart. This Board regards a default termination as a drastic action, which should only be taken for good cause and on the basis of solid evidence. 17/ See, e.g., Stephenson, Inc., supra, Sl. op. at 19. Accord, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Avco Corporation, Avco Electronics Division, NASA BCA No. 869-18, 76-1 BCA ¶ 11,736; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567. Similarly, the Board also recognizes that a summary judgment proceeding is, by its nature, a "drastic device" for disposing of litigation. 18/ See, Castillo Printing Company, supra, Sl. op. at 20 (citing, IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., 590 F.Supp. 769, 771 (D.S.D.N.Y. 1984); Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975)). Nonetheless, summary judgment is appropriate if there is no genuine issue of any material fact in the record. 19/ As recently explained by the Board: 22 Under Rule 56(c) of the Federal Rules of Civil Procedure, courts are instructed to grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Thus, the principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists. [Footnote omitted.] Stated otherwise, on a motion for summary judgment, a court cannot try issues of fact; it can only determine whether there are issues to be tried. See, e.g., IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., 590 F.Supp. at 771 (citing, Schering Corporation v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983). Is no such issue exists, the rule permits the immediate entry of judgment. See, e.g., Reingold v. Deloitte Haskins and Sells, 599 F.Supp. 1241, 1261 (D.S.D.N.Y. 1984); United States v. ACB Sales and Service, Inc., 590 F.Supp. 561 (D. Ariz. 1984). [Original emphasis.] Castillo Printing Company, Supra, Sl. op. at 21-22. As indicated, the Board's function in deciding a motion for summary judgment is not to resolve any questions of material fact, but only to ascertain whether any such questions exist. Id. See, also, John's Janitorial Services, Inc., ASBCA No. 34234, 90-3 BCA ¶ 22,973 (citing, General Dynamics Corporation, ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851); Ite, Incorporated supra, 88-1 BCA ¶20,269, (citing, B.S.A. Painting Company, Inc., ASBCA No. 32060, 87-1 BCA ¶ 19,367). It is not necessary or appropriate to make explicit factual findings for purposes of ruling on the motion. Id (citing, Lemelson v. TRW, Inc., 760 F.2d 1254, 1260 (Fed. Cir. 1985); Pioneer Services, Inc., NASA BCA Nos. 578-9, 578-10, 81-2 BCA ¶ 15,164). The Appellant briefly discussed the principles governing the summary judgment procedure in its Response to the Respondent's Motion. Response, p. 5. As the Appellant correctly states, the burden is on the party moving for summary judgment to demonstrate that there is on genuine issue as to any material fact and that it is entitled to judgment as a matter of law. 20/ Id. See, e.g., Adickes v. S. H. Kress & Company, 398 U.S. 144, 157 (1970); Rodway v. Department of Agriculture, 482 F.2d 722 (D.C. Cir. 1973); Weisberg v. Department of Justice, 438 F.Supp. 492 (D.D.C. 1977). Furthermore, as the Appellant recognizes, before a court will grant the motion it must be satisfied that the truth is clear and any doubt will be resolved against the movant. Id. (citing, Adickes v. S. H. Kress & Company, supra, 398 U.S. 144, 157). See also, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962); Union Carbide Corporation v. American Can Company, 724 F.2d 1567, 1571 (Fed. Cir. 1984); Washington v. Cameron, 411 F. 2d 705 (D.C. Cir. 1969); B & A Electric Company, Inc., ASBCA No. 33667, 87-1 BCA ¶ 19,606. Essentially, this means that the record evidence in summary judgment proceedings is construed in favor of the party against whom the motion is raised, and the non-mover receives the benefit of all favorable inferences that can be drawn from it. See, e.g., United States v. General Motors Corporation, 518 F.2d 420, 442 (D.C. Cir. 1975); Federal Savings and Loan Insurance Corporation v. Williams, 599 F.Supp. 1184, 1192 (D.Md. 1984); Turner v. United States, 553 F.Supp. 347, 349 (D.Va. 1982); Weisberg v. Department Justice, 438 F.Supp. 492 (D.D.C. 1977). Indeed, as the United States District Court for the District of Columbia recently told GPO: . . . [I]t is well established that the Court must believe the non-movant's evidence and must draw all justifiable inferences in its favor. [Citation omitted.] . . . The movant bears the initial responsibility of informing the district court of the basis for its motion for summary judgment, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits which is believed demonstrate the absence of a genuine issue of material fact. See, Camm v. Kennickell, et at., Civil Action No. 85-3844 (CRR), (D.D.C., November 20, 1990), Sl. Op. at 3 (citing, Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 255; Celotex Corporation v. Catreet, supra, 477 U.S. at 323). See also, Matsushita Electric Industrial Company v. Zenith Radio Corporation, 465 U.S. 574 (1986). Thus, as the Appellant also states, under this standard if after all the moving party's obligations pursuant to Rule 56(c) have been followed, the record still contains "sufficient evidence" of a factual dispute requiring resolution of differing versions of the truth by a jury or a judge at a trial, then summary judgment will be defeated. Response, p. 5 (citing, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). Even though the nonmoving party in summary judgment proceedings receives the benefit of all favorable evidence and inferences, this does not mean that it has no evidentiary responsibilities at all. Admittedly, the burden on the nonmoving party is not a heavy one; it is simple required to go beyond allegations in the pleadings and designate specific facts in the record or by affidavits to show there is a genuine issue to be heard. 21/ See, e.g., McDonnell v. Flaharty, 636 F.2d 184 (7th Cir. 1980); United States v. Kates, 419 F.Supp. 846 (D.Pa. 1976); Upper West Fork River Watershed Association v. Corps of Engineers, United States Army, 414 F.Supp. 908 (D.W.Va. 1976), affirmed 556 F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010 (1978). See also, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269. In that regard, in deciding whether a genuine issue exists, the court may not simply accept a party's statement that a fact is challenged. See, Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984) ("The party opposing the motion must point to an evidentiary conflict created on the record at least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant."). Furthermore, mere protestations by the nonmoving party that material facts are in dispute have been held insufficient to defeat a motion for summary judgment. R & D Associates, supra, 86-3 ¶ 19,062. Cf., Central Mechanical Construction, ASBCA No. 29431, 86-3 BCA ¶ 19,160. Accordingly, when all of these principles are considered, it becomes clear that the purpose of the summary judgment procedure is to cut through the pleadings and distinguish substantial issues from phantom issues raised only in the pleadings. See, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269 (citing, 6 J. MOORE, W. TAGGART & J. WICKER, MOORE'S FEDERAL PRACTICE ¶ 56.15(2), (2d ed. 1985)). In this appeal a grant of summary judgment would be based on the conclusion that no genuine issues of material fact exist which prevent a conclusion on the record that the default termination was justified. The grounds given for defaulting the Appellant's contract under Purchase Order 744-90 was that the Graphex Developer delivered in January 1990 did not conform to the product specifications, and the contractor was unable to correct the defect with an acceptable replacement developer within a reasonable period of time (R4 File, Tab A). Consequently, to sustain its default action in this proceeding the Respondent, as the moving party, had an affirmative obligation under the summary judgment rules to show that the Graphex Developer received in January 1990 did not, in fact, meet the relevant specifications and that the Appellant's efforts to supply a conforming product under the contract was a failure. FED.R. CIV.P. 56(c). That is, it was incumbent on the Respondent to demonstrate to the Board not only which of the two developer specifications the Appellant failed to satisfy, but also to point out in what manner the Graphex Developer and/or the "replacement" developer not meet the product standards applicable to Purchase Order 744-90. In the Board's view, the Respondent has failed to carry its burden in this regard. In this proceeding, the Respondent relies on the "scumming" or lacquer drip marks on the plates as proof that the Graphex Developer delivered by the Appellant did not conform to the product specifications for Purchase Order 744-90. Furthermore, even though the Respondent admits minor adjustments to its machinery eliminated this "scumming," it views other problems which resulted, such as the build up of lacquer on the rollers and improper development of the outer edges of the plates, as additional evidence of the nonconforming nature of the product. In short, since the Appellant's developer had been used successfully by GPO in the past without the need to reconfigure the platemaking machinery, the Respondent concludes that the problems experienced in this case were caused by chemical makeup of the product itself. It must be observed that the Respondent does not support its Motion with any affidavits but merely relies on its own version of the record to support its request for summary judgment. 28 The Appellant, on the other hand, has done all that is required of it under the Federal Rules to oppose a motion for summary judgment. In particular, it has pointed to an evidentiary conflict created on the record both by presenting its own counter statement of facts set forth in detail and by supporting then with affidavits of knowledgeable affiants. See, Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., supra, 731 F.2d at 836. That is, the Appellant not only disputes the Respondent's conclusion that the some chemical imbalance in the Graphex Developer caused the "scumming" problems, but has supported its position with affidavits from its own experts who tell us, in particular, that: (1) there was nothing chemically wrong with the Graphex Developer delivered to the Respondent in January 1990 (Affidavit of Jeffrey S. Huth); and (2) the product shipped under Purchase Order 744-90 met the same specifications and was identical to the Graphex Developer which the Appellant had sent to the Respondent under past purchase orders (Affidavit of James A. Woodward). The chemical makeup of the Graphex Developer delivered in January 1990 and the product specifications for the developer on the date of shipment are material facts. Because the central issue in the appeal-whether or not the Graphex Developer conformed to the product specifications applicable to developers on the date it was shipped or deviated from that norm-is in dispute, and the controversy is clearly genuine, this case is inappropriate for summary judgment on that basis alone. 22/ As indicated previously, default is a drastic action and should be sustained only for good grounds and on solid evidence. See, e.g., Stephenson, Inc. supra, Sl. op. at 19. See also, J. D. Hedin Construction Co. v. United States, supra, 187 Ct. Cl. at 47, 408 F.2d 424 (1969); Avco Corporation, Avco Electronics Division, supra, 76-1 BCA ¶ 11,736. On this motion, the Respondent was required to show that as to matters within its own burden of proof there was no genuine issue of fact. Professional Divers, ASBCA No. 37117, 89-3 BCA ¶ 22,251 (citing, 2 Moore's Manual § 17.10(3) at 17-40 (1988)). However, it is clear to the Board that numerous facts material to the resolution of the issue of whether the Appellant performed its obligations under the contract remain in dispute. 23/ As the record currently stands, the Board would be required to review the conflicting assertions and evidence presented by both parties and make a factual determination based on that review in order to decide whether the Government is entitled to judgment as a matter of law. The Board has already stated that it is inappropriate to make such a factual determination in a summary judgment proceeding, 24/ and we decline to make one here. Oak Cliff Realty, Inc., supra, 91-1 BCA ¶ 23,481. Accordingly, it is the opinion of the Board that the Respondent has simply not carried its burden to show that there are no genuine issues of material fact in dispute. Therefore, the Motion is DENIED. ORDER The Respondent's Motion, which was filed with the Board on June 24, 1991, had the effect of postponing the prehearing telephone conference in this appeal which the Board had scheduled for Tuesday, June 25, 1991. See Order Setting A Prehearing Telephone Conference, dated June 4, 1991. The Motion is now DENIED. Therefore, within thirty (30) days after the date of this DECISION ON MOTION AND ORDER the parties shall jointly advise the Board of two alternate dates for a rescheduled prehearing telephone conference on this appeal. It is so Ordered. _______________ 1. The Contracting Officer's appeal file, assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, was delivered to the Board on April 1, 1991. It will be referred to hereafter as R4 File, with an appropriate Tab letter also indicated. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984 (Board Rules), Rule 4. 2. According to Woodward, the Appellant has been producing the developer since 1983, and prior to this dispute it had shipped approximately 7,300 gallons of the same product to the Respondent under other purchase orders (Response, Affidavit of James A. Woodward, ¶¶ 2, 5, 6). 3. The Appellant enclosed both the old and new specifications with its formal notice of appeal filed with the Board on February 26, 1991. Without analyzing the changes in detail, it seems to the Board that the new characteristic having the most relevance to this dispute is the requirement that the developer should be "water based rather than solvent based." See, New Specification, Requirement No. 5. This change apparently stemmed from the fact that even though both the old and new specifications required that the "[d]eveloper should have no strong or objectionable odors," the solvents used in the Graphex Developer resulted in employee complaints about offensive smells in the work area which were then brought to management's attention by their union. See, [GPO] Memorandum from Joseph U. Gouin (Gouin), Chief, Chemical and Environmental Division to Chief, General Procurement Division, Subject: Lacquer Developer, Property No. 220396, dated April 12, 1990 (R4 File, Tab E). The solution to this environmental and labor relations problem was to use a waterbased developer such as "Imperial ECO Systems Developer" (Imperial Developer) made by the Imperial Metal and Chemical Company of Philadelphia, Pennsylvania, which would be odor free. Id. However, in making this change Gouin cautioned that should: ". . . GPO encounter unexpected offset plate development problems or not be able to purchase a satisfactory water based lacquer developer for whatever reasons, the lab recommends that the lacquer developer [Graphex Developer] be purchased to maintain uninterrupted production. It has never been determined at anytime that [the Graphex Developer] is unsafe under the conditions in which it is used despite its objectionable odor. The change being recommended is merely to reduce volatile solvents in the working area, dispel objectionable odors, and thereby provide a more comfortable work area [emphasis added]." Id. 4. The GPD is located in the Respondent's Materials Management Service. The Chief of the GPD is Robert Ramsey. 5. The specification language which seems to most relate to the problem being experienced in the OPS is the requirement that the developer ". . . must be compatible for use in the automatic plate processor used in platemaking because the plates are not hard [sic] developed. An important characteristic of this compatibility is the proper viscosity so that the dispensing bar on the processor does not become clogged." See, Old Specification, Requirement No. 1. Although there is a minor variation in language and emphasis in the revised specification, this characteristic is unchanged. See, New Specification, Requirement No. 2. Furthermore, it should be noted that the 36 gallons of Imperial Developer mentioned by Axline represented a 9-10 day supply. A week later, the Respondent had 60 gallons of Imperial Developer, or a month's supply, on hand (R4 File, Tab G). The Imperial Developer, it should be recalled, qualified as a developer under the new specifications issued by the Respondent. See note 3 supra. 6. Gouin's memorandum of May 9, 1990, to Ramsey is attached to another memorandum from Harry J. Wilson, Chief, General Stores to Ramsey, dated July 19, 1990 (R4 File, Tab L). However, it is clear from Gouin's memorandum that ". . . the attached memorandum concerning the alleged defective offset plate lacquer developer from Graphex . . ." refers to Axline's memorandum of May 8, 1990, particularly since the subject of the memorandum is also "Property No. 220396, Purchase Order No. 074490." 7. Singstock recalls his visit as occurring on May 15, 1990 (Response, Affidavit of Jay Singstock, ¶ 3). The Respondent, however, remembered Singstock coming to its plant on May 16, 1990 (R4 File, Tab G; Motion, p. 2). 8. Singstock observed that Axline and the Respondent's operational personnel ". . . were not overly pleased that we did some mechanical changes on the machine; however, that was the only way we could possibly correct the problem they were having. . . ." (R4 File, Tab I). 9. Duplicate copies of the documents exchanged by the Respondent and Appellant regarding the disposal of the rejected Graphex Developer are also contained as attachments in Tab I of the R4 File. 10. On its face, Wilson's memorandum to Ramsey concerns the return of the remaining 848 gallons of the Graphex Developer "on hand" to the Appellant (R4 File, Tab L). See note 6 supra. Therefore, the Board is unclear why the memorandum is hand dated July 19, 1990, since it relates to an action which was completed a week earlier. 11. The record clearly demonstrates that the parties were operating under divergent perceptions at this time. The Appellant believed its developmental efforts were directed toward producing a product that would satisfy the new specification and requalify for placement on the Respondent's product list (Response, Affidavit of Jeanne D. Kitazaki, ¶¶ 4-8). The Respondent, on the other hand, viewed the Appellant's efforts as an attempt to replace the Graphex Developer which had been shipped under Purchase Order 744-90 and rejected (R4 File, Tabs M and N). 12. The Respondent also relies on the fact that the April 16, 1990, letter was written prior to the time that it discovered the defects in the Graphex Developer on hand. Motion, p. 7, n. 1. 13. The Appellant argues that although this case depends on whether or not it complied with the developer specification for Purchase Order 744-90, " . . . the specification is not even in the record." Response, p. 5. By this the Board takes the Appellant to mean that the specifications are not in the Rule 4 file. The Appellant itself enclosed both the old and new specifications with its February notice of appeal. See note 3 supra. 14. In that regard, the Appellant believes that the Respondent's reliance on the principle entitling the Government to strict compliance with its specifications is misplaced. Response, pp. 8-9. According to the Appellant, it does not argue that the Respondent should relax the requirements of the specification in existence when Purchase Order 744-90 was awarded, but rather, it contends that the subsequently revised specification was improperly applied to its contract. 15. The rationale for this dual application of the default clause is simple. As explained by Cibinic and Nash: "While these clauses explicitly make untimely performance the basis for the default action, it is important to recognize that nearly every Government contract spells out the contractor's required performance in terms of the nature of the product or service which is to be delivered or performed as well as the time by which these performance efforts are to be completed. Thus, in order for the contractor to render 'timely performance,' two basic requirements must be satisfied. The product, service, or construction work must conform to the required design/performance characteristics, and the product must be delivered or the work completed by the specified due date." [Emphasis added.] John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 677. 16. As previously indicated, the Graphex Developer was delivered to the Respondent on January 2, 1990, but the contract was not terminated for default until a year later, on January 3, 1991 (R4 File, Tabs A and D). Recently, in Stephenson, Inc., the Board reviewed the law of "reasonable forbearance' as it applies to Government contracts, observing: "it is well-settled that the Government does not waive its right to terminate a defaulted contract because is fails to do so immediately when the right to terminate accrues. [Citation omitted.] Instead, a contracting officer has a reasonable period of time to investigate the facts and to determine what course of action would be in the best interest of the Government as the non-defaulting party. During this forbearance period the Government may terminate the contact at any time, without prior notice. [Citation omitted.] Under the law, the extent of a reasonable forbearance period depends on the facts and circumstances of each individual case. [Citation omitted.]" Stephenson, Inc., supra, Sl. op. at 21-22. The Board also noted that since there is no clear demarcation between reasonable forbearance and waiver, when the "circumstances" test is applied, the result can be rather lengthy Government forbearance periods before the actual default termination is effected. Id., Sl. op. at 22, n. 26 (and cases cited therein). On the other hand while the length of the forbearance period is usually a matter of discretion with the contracting officer, in some cases a contractor who ships nonconforming supplies will be entitled, as a matter of law, to a reasonable period in which to cure minor defects provided that the supplies shipped are in substantial conformity with the contract specifications. Id., Sl. op. at 46-49 (citing, Radiation Technology, Inc. v. United States, 366 F.2d 1003 (1966)). Thus, it seems to the Board that even if it was to find that the Graphex Developer shipped in January 1990 was defective in a major way, or in the alternative that the defects while minor could not be cured within a reasonable time, it would still have to face the question of whether a year's delay in terminating the contract was a reasonable period of forbearance under the circumstances, or whether in fact a waiver had occurred. Deciding that issue, however, is beyond the scope of this proceeding. 17. Default terminations-as a species of forfeiture-are strictly construed. See, D. Joseph DeVito v. United States, 188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1069). See also, Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969). 18. Although the courts believe that the summary procedure, "properly employed," is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation, they tend to be cautious in granting such a judgment so that a litigant is not deprived of the right to a hearing. IBM Poughkeepsie Employees Federal Credit union v. Cumis Insurance Society, Inc., supra, 590 F.Supp. at 771 (citing, Quinn v. Syracuse Model Neighborhood Corporation, 63 F.2d 438, 445 (2d Cir. 1980); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970)). Hence, even where the moving party seems to have discharged its burden in summary judgment cases, the court still has discretion to deny the motion. See, e.g., Flores v. Kelley, 61 F.R.D. 442 (D.Ind. 1973); John Blair & Co. v. Walton, 47 F.R.D. 196, 197 (D.Del. 1969). The thinking is that regardless of whether the burden is met, the court should have the freedom to allow the case to continue when it has any doubt as to the wisdom of terminating the action prior to a full trial. See, e.g., Olberding v. Department of Defense, et al., 564 F.Supp. 907, 908, n. 1 (D.Ia. 1982), affirmed 709 F.2d 621 (8th Cir. 1983). Furthermore, where difficult legal issues are involved, the court can refuse summary judgment on the ground that a fuller development of the facts may serve to clarify the law or help indicate its application to the case. See, e.g., Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1339, (5th Cir. 1983); Security Pacific National Bank v. OL.s. Pacific Pride, O/N, 549 F.Supp. 53,55 ((D.Wash. 1982). In the light of this accepted rationale, boards of contract appeals tend to be as cautious as the courts where default terminations are involved. See, e.g., Castillo Printing Company, supra, Sl. op. at 39-41 (contract interpretation issue); 330 Main Street Associates Limited Partnership (contract interpretation issue), GSBCA No. 9477, 91-2 BCA ¶ 23,981; Lou Faro Leasing, Inc., PSBCA No. 2889, 91-2 BCA ¶ 23,668 (unresolved safety issue); Dowty Batteries (Loudwater), ASBCA No. 39811, 91-1 BCA ¶ 23,396 (unresolved excusability issue); Foremost Threaded Products, GSBCA No. 10091, 90-3 BCA ¶ 22,980 (unresolved contracting authority issue); Sonora Manufacturing, Inc., ASBCA Nos. 31589, 31591, 89-1 BCA ¶ 21,553 (unresolved excusability and contract formation issues). 19. Generally, a fact is material if it tends to resolve any of the issues that have been properly raised by the parties. See, e.g., Contemporary Mission, Inc. v. New York Times Co., 665 F.Supp. 24, 257 (D.S.D.N.Y. 1987), affirmed 842 F.2d 612 (2nd Cir. 1988), cert. denied 109 S. Ct. 145 (1989); Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975), cert. denied 425 U.S. 904 (1976). Consequently, in ruling on motions for summary judgment Federal courts have held that a fact or facts are material if they constitute a legal defense, or if their existence or nonexistence might affect the result of the action, or if the resolution of the issue they raise is so essential that the party against whom it is decided cannot prevail. See, e.g., Weiss v. Marsh, 543 F.Supp. 1115, 1116 (D.Ala. 1981) (legal defense); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (affect result of action); Alvarado Morales v. Digital Equipment Corporation, 669 F.Supp. 1173, 1178 (D.P.R. 1987) (cannot prevail). Similarly, courts have used a variety of shorthand expressions to indicate whether a genuine factual issue exists. Thus, summary judgment is not warranted as long as the "slightest doubt" remains as to the facts, or alternatively, that summary judgment should be granted only when the movant is entitled to it "beyond all doubt." See, e.g., Schwatrzbord v. United States, 575 F.Supp. 1560, 1561 (D.S.D.N.Y. 1983); Anderson v. Liberty Lobby, Inc., supra (slightest doubt); Evans v. McDonnell Aircraft Corporation, 395 F.2d 359 (8th Cir. 1968); United States v. White, 40 F.R.D. 27 (D.Ark. 1964) (beyond a "reasonable" doubt). The thrust of all these formulations is the same-a movant is not entitled to summary judgment merely because its facts appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. See, e.g., H. E. Reeves, Inc. v. Laredo Ready Mix, Inc., 589 F.Supp. 132 (D.Tex. 1984); Harl v. Acacia Mutual Life Insurance, 317 F.2d 577 (D.C.Cir. 1963). If the evidence presented on the motion is subject to conflicting interpretations or reasonable persons might differ as to its significance, summary judgment is improper. See, e.g., Sears, Roebuck & Co. v. General Services Administration, 553 F.2d 1378 (D.C. Cir. 1977), cert. denied 434 U.S. 826 (1978); United States v. Conservation Chemical Company, 619 F.Supp. 162 (D.Mo. 1985); United States v. General Motors Corporation, 65 F.R.D. 115 (D.D.C. 1974). 20. In Celotex Corporation v. Catreet, the United States Supreme Court stated: "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other immaterial." Celotex Corporation v. Catreet, 477 U.S. 317, 322-23 (1986)). It should be noted, however, that the burden on the party moving for summary judgement is an affirmative one and is not met merely by disproving the unsupported claims of its opponent. See, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269 (citing, Celotex Corporation v. Catreet, supra, 477 U.S. at 323). 21. As the Federal Rules provide: "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." FED. R. CIV. P. 56(e). See, e.g., First National Bank of Arizona v. Cities Service Co., supra, 391 U.S. 253, 289; Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). 22. Among other things, the Respondent also argued that notwithstanding the Appellant's contention in its complaint that the problems were mechanically-based, it ". . . has presented no evidence to show that the configuration of the Respondent's equipment was in any way related to the problems caused by the use of its product." Motion, p. 6. In its Response, the Appellant not only stated its belief to the contrary, but also provided affidavits to augment the evidence it relied on in the record for it's claim that the problems were mechanical and not chemically-related. Response, pp. 6-7 (Affidavits of Jay Singstock, Jeffrey S. Huth and Jeanne D. Kitazaki). Furthermore, the parties are in dispute over whether the Appellant's samples of new developer which it sent to GPO after January 1990 was meant to replace the "defective" January shipment or was intended solely for the purpose of requalification under the new specification, pursuant to an invitation it had received from the Respondent itself. See, Motion, pp. 6-7; Response, pp. 7-8. It would be inappropriate for the Board to resolve these factual disputes in the context of a summary judgment proceeding. Oak Cliff Realty, Inc., VA BCA No. 3232, 91-1 BCA ¶ 23,481. However, the Board notes that for the purposes of it's Motion the Respondent had the burden of showing by evidence in the record that the Graphex Developer was clearly the cause of the platemaker problems and that no genuine issue existed as to that material fact; the Appellant was not required to demonstrate that the Respondent's machinery was at fault. 23. Apart from their disputes over the cause of the "scumming" problems (whether from the chemical makeup of the developer or the configuration of the Respondent's equipment) and the purpose of the samples of new developer sent by the Appellant to GPO after January 1990, see note 22 supra, the Board also observes that there other unresolved issues in this case. For example, the parties will need to address whether the Graphex Developer shipped in January 1990 was accepted at that time (when it was delivered to the Respondent and paid for), or whether the Respondent had some reserved contractual right to reject the product at a later date. Furthermore, some explanation will be needed as to why the Respondent waited until January 1991 to terminate the Appellant's contract under Purchase Order 744-90 for default when the product was delivered in January 1990; i.e., was one year a reasonable period of forbearance under the circumstances? Cf., Professional Divers, supra, 89-3 BCA ¶ 22,251 (citing, Thiokol Corporation, ASBCA No. 32629, 89-3 BCA ¶ 22,063). 24. See note 22 supra.