DENIED: December 5, 1995 GSBCA 11927 RINCON CENTER ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. William S. Farmer and Ellen Staley Lussier of Collette & Erickson, San Francisco, CA; and Stephen E. Taylor of Taylor & Co., Alameda, CA, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, NEILL, and VERGILIO. NEILL, Board Judge. Appellant, Rincon Center Associates (Rincon), seeks payment for overtime heating, ventilation and air-conditioning (HVAC) services provided for a computer room located on premises it has leased to the General Services Administration (GSA) for the use of the United States court of appeals in San Francisco. Appellant acknowledges that it is required under the lease to provide HVAC systems for the computer room capable of operating on a twenty-four hour basis. It denies, however, that it is required to provide actual air-conditioning for the room outside of normal working hours without being compensated at an hourly rate agreed to by the parties prior to award of the lease. We have previously denied cross-motions for summary relief on the issue of entitlement. Rincon Center Associates v. General Services Administration, GSBCA 11927, 95-2 BCA 27,665. At that time we concluded that the issue was not appropriate for disposition on motions for summary relief owing to the presence of several disputed factual issues material to the ultimate issue of how the applicable lease provisions should be interpreted. In denying the motions for summary relief, we noted that the documentation submitted to date by counsel regarding the issue of entitlement might well be sufficient to permit the Board to decide that aspect of the case without need of a hearing or additional documentary evidence. Counsel have now agreed to proceed in that fashion. With leave of the Board, counsel have submitted closing briefs and reply briefs on the issue of entitlement and formally requested the Board to decide that issue on the record as it currently stands. For the reasons set out below, we conclude that appellant has not prevailed on the issue of entitlement. We, therefore, deny the appeal in its entirety. Findings of Fact 1. On March 16, 1990, GSA awarded a lease (hereinafter "the lease") to Rincon for approximately 158,000 square feet of office space to be occupied by a United States Court of Appeals. Appeal File, Exhibit 1. Lease Provisions 2. Paragraph six of the Standard Form 2 of the lease provides: 6. The Lessor shall furnish to the Government, as part of the rental consideration, the following: A. All labor, equipment, and materials necessary to alter the space to the Government's specifications . . . . B. All utilities, janitorial services and supplies. Appeal File, Exhibit 1, Standard Form 2. 3. Paragraph 62 of the basic lease provisions which were originally set out in the solicitation for offers (SFO) states in part: 62 HEATING AND AIR-CONDITIONING Thermostats shall be set to maintain temperatures between 65 and 70 degrees fahrenheit during the heating season and 76 and 80 degrees Fahrenheit during the cooling season. These temperatures must be maintatined [sic] throughout the leased premises and service areas, regardless of outside temperatures, during the hours of operation specified in the lease. During nonworking hours, heating temperatures shall be set no higher than 55 degrees Fahrenheit and air-conditioning will not be provided. Thermostats shall be secured from manual operation by key or locked cage. A key shall be provided to the GSA field office manager. Heating systems shall not be operated to maintain temperatures above 70 degrees, and cooling systems shall not be operated to achieve temperatures below 76 degrees. . . . . ZONE CONTROL The individual thermostat control shall be provided for office space with control areas not to exceed 2000 square feet. Areas which routinely have extended hours of operation shall be environmentally controlled through dedicated heating and air-conditioning equipment. Appeal File, Exhibit 1 at 21. 4. Paragraph 71 of the basic provisions of the lease provides: 71 NORMAL HOURS Services, utilities, and maintenance will be provided daily extending 6:00 A.M. to 7:00 P.M. except Saturdays, Sundays, and federal holidays. Appeal File, Exhibit 1 at 22-24. 5. Paragraph 72 of the basic provisions of the lease provides, in part, as follows: 72 OVERTIME USAGE (A) The Government shall have access to the leased space at all times including the use of elevators, toilets, lights, and small business machines without additional payment. (B) If heating or cooling is required on an overtime basis, such service will be ordered orally or in writing by the contracting officer or GSA building manager. When ordered, services will be provided at the hourly rate negotiated prior to award. Costs for personal services shall only be included as authorized by GSA. Appeal File, Exhibit 1 at 24. 6. Prior to execution of the lease, the parties did in fact negotiate an hourly rate to be used for heating or cooling on an overtime basis. The lease provides: Pursuant to Paragraph No. 72 of Solicitation For Offers No. 90062 "Overtime Usage" for the first twelve (12) months of the lease term, the cost per hour for overtime usage of air-conditioning or heating is established at $28 per hour. Appeal File, Exhibit 1, Sheet No. 2, 16. 7. The special space requirements of the court of appeals were originally attached to the SFO issued by GSA and are now part of the lease itself. Appeal File, Exhibit 1, Standard Form 2. Among these requirements is the following: SECTION VII COMPUTER SYSTEMS A total of 3520 square feet of space is required for this area as follows: . . . . B) One (1) computer room of 800 sq. ft. of space shall be provided with vinly [sic] tile floor covering, individually zoned HVAC and lighting, and walls and ceiling of Sound Transmission Class of 45. [sic] The HVAC systems shall be provided to accommodate equipment and personnel that will generate 68,000 BTU, and humidity at 50% + or - 10% with a temperature range of 50 degree to 60 degree range [sic]. The HVAC shall be maintained 24 hours and [sic] day 7 days a week. Appeal File, Exhibit 1 (Special Space Requirements, Section VII). Negotiation of the Lease Provisions 8. A GSA realty specialist has testified that she prepared the special space requirements of the Court of Appeals which appear in the lease. Appeal File, Exhibit 54 at 11, 28, 42. It is her testimony that in drafting and negotiating paragraph B of Section VII of the lease she understood that the computer room's HVAC system was to be maintained 24 hours a day, seven days a week and that this "was part of the rental consideration." Id. at 54. In her deposition, she states that she understands "maintaining the system" to mean that it is "up and running." She has also agreed that part of this maintenance involves keeping such a system capable of being up and running. Id. at 28-39, 62.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 We recognize that when asked expressly about the language in paragraph (B) of Section VII, this witness agreed that "maintenance" meant keeping the system "capable" of being up and running. Appeal File, Exhibit 54 at 55. We do not attribute (continued...) ----------- FOOTNOTE ENDS ----------- 9. This same realty specialist has also testified that she specifically recalls discussing with three Rincon representatives the solicitation's special requirements for the Court's computer room.[foot #] 2 She describes these meetings as "negotiations" involving face-to-face meetings and "a lot of clarifications and discussions" on the phone. She states that during these meetings and discussions she explained the Government's special needs and requirements. She contends that her meetings were generally with all three Rincon representatives together, although she is uncertain whether Rincon's general manager attended all the sessions. Appeal File, Exhibit 54 at 47-48, 58. It is her recollection that the computer room requirements were briefly discussed during her first session with the Rincon representatives to review the solicitation package. Id. at 60. 10. In late November 1989, in response to GSA's SFO, Rincon's general manager submitted a proposal which offered the following with regard to the overtime usage under Clause 72: Heating and cooling is available upon oral or written request at the rate of $25.00 to $50.00 per hour to operate the water loop plus actual electrical costs for operating the heat pumps on each floor. ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) to this statement the special significance which appellant would have us give to it. The dialogue in the deposition which led up to this statement is based on what we consider an incomplete characterization of the witness' earlier testimony concerning the meaning of "maintain." From her earlier testimony, it is clear that she considers that maintenance of a system requires not only that the system be capable of being up and running, but also that it actually be up and running. Counsel in questioning her on this section of the lease chose only to focus on the "capability" aspect of "maintain." Not surprisingly, the witness agreed that the clause requires this capability. In the absence of any further interrogation of the witness on this point, we are not prepared to read her answer in this part of the transcript as a repudiation of her earlier statement that a "maintained system" is one which is actually up and running. Moreover, her testimony does not alter the plain language of the provision or indicate that the parties had a mutual understanding of its meaning which is at odds with the plain meaning of the words. [foot #] 2 These individuals, identified by name in her deposition, are in fact Rincon's general manager, Rincon's exclusive broker who had brought Rincon and GSA together, and a consultant who had some experience with Government leases and was retained by Rincon. Appeal File, Exhibits 54 at 46-47, 58; 56 at 10-11; 57 at 30-31. ----------- FOOTNOTE ENDS ----------- Appeal File, Exhibit 10 at 7. The realty specialist found this provision unacceptable and requested instead that Rincon propose a flat rate for overtime heating and cooling. Id., Exhibits 54 at 69, 72; 61 at 43. Accordingly, Rincon, in its best and final offer proposed the following: After hours heating, ventilating and air conditioning cost a flate [sic] rate of $28.00 per hour for the first year of occupancy. The rate is subject to increase thereafter. Id., Exhibit 12. 11. The contracting officer responsible for the negotiations leading to award of the lease has testified that before award of the lease he participated in some of the discussions which the Rincon representatives had with the GSA contract specialist. He remembers no discussion of a charge for HVAC overtime being mentioned at any of the meetings which he attended. He also has no recollection of any meeting with Rincon's general manager where reference was made to the cost of cooling the computer room on a 24-hour-a-day basis. Appeal File, Exhibit 55 at 26-27. In an affidavit given after his deposition, this same contracting officer states: While I do not recall specific discussions with [Rincon's general manager] concerning the use of an overtime rate, I do know that I did not tell [him] that the overtime rate would apply to the computer room. The purpose of an overtime rate for cooling, specifically the overtime rate for cooling in this lease, is to compensate the lessor for cooling of the leased premises that is unforeseen. Id., Exhibit 64. 12. It is the opinion of this same contracting officer that GSA's lease with Rincon provides for the cost of running the HVAC in the computer room to be paid through the monthly rent. Appeal File, Exhibit 55 at 25. Elsewhere in his deposition, he has explained that, at least for the eleven years he has been with GSA, the agency policy has been to include the cost of overtime cooling for computer rooms in the rent paid to a lessor. It is his understanding that this policy applies to computer room HVAC charges but not generally to overtime charges. Id. at 17-18. 13. Of the three individuals representing Rincon in negotiations leading to award of the lease, two have no recollection of discussions with the Government or among themselves regarding the application of the heating/cooling overtime rate to the cooling of the computer room. The consultant assisting Rincon at the negotiations is clearly now of the opinion that the $28 per hour rate for overtime cooling applies to the computer room. Appeal File, Exhibit 57 at 17-21. He has no recollection, however, of any discussions either with GSA or Rincon concerning the payment for HVAC services for the computer room. Id. at 31. Rincon's exclusive broker frankly admits that he "wasn't aware/tuned into the fact that there was a computer room." Hence he claims to have had no understanding one way or the other on whether the overtime rate was applicable to the computer room. He likewise states that no one from Rincon or GSA ever told him that the rate was applicable to the computer room. Id., Exhibit 61 at 27-28. 14. The recollection of Rincon's general manager is considerably different from that of the other two members of Rincon's negotiating team. He has testified that in more than one negotiating session with the GSA contracting officer, the applicability of the overtime rate to the computer room was discussed. He contends that the contracting officer did tell him specifically that the $28 per hour rate would apply to overtime usage of the HVAC in the computer room. He cannot recall if anyone else was present at these meetings. He believes, however, that there was a meeting of the minds on this point and that the lease supports this. Appeal File, Exhibit 56 at 81-83. Appellant's Claim 15. In early spring of 1991, the contracting officer who negotiated the original lease assigned responsibility for the lease to another contracting officer (hereinafter the "successor contracting officer"). Appeal File, Exhibit 55 at 27. The successor contracting officer retained responsibility for administering the lease until his death on April 27, 1992. Id., Exhibit 54 at 82; Respondent's Opposition to Appellant's Motion for Summary Relief and Respondent's Memorandum of Points and Authorities in Support of Respondent's Cross-Motion for Summary Relief at 11, note 4. 16. Since award of the lease, Rincon has submitted to GSA several invoices covering the cost of cooling the computer room during non-working hours. In calculating these charges, Rincon uses the $28 per hour rate agreed to by the parties for overtime heating and cooling pursuant to clauses 71 and 72 of the lease. Appeal File, Exhibits 17, 21-22, 24. The first of these invoices is dated November 11, 1991, and covers cooling from September 16 to December 31, 1991. Id., Exhibit 17. 17. Rincon's general manager has stated that the successor contracting officer initially advised him that he was not certain the Government owed Rincon for overtime use of the HVAC in the computer room. Appeal File, Exhibit 56 at 22. The general manager recalls that this contracting officer explained that he needed to confer with the contracting officer who negotiated the lease and with those who had written it before making any commitment to pay. Id. at 23. Rincon's general manager has further testified that eventually the successor contracting officer informed him that "they needed to pay us that fee, and to that end they needed to conduct some studies to make certain that the fees were acceptable." Id. at 21, 24. 18. Internal GSA documentation in the record confirms that, at least in November 1991, the successor contracting officer apparently believed that the $28 per hour rate was applicable to after-hour cooling of the computer room. In a hand-written memorandum dated November 7 regarding the Rincon Center computer room, he wrote: Per 16 of lease, Government has to pay $28.00 per hour for computer room HVAC usage beyond normal hours in the following amount M-F 11 hrs x $28.00 = $308.00 day Sat-Sun/24 hrs x 28.00 = 672.00 day Appeal File, Exhibit 54, Deposition Exhibit 8. 19. The successor contracting officer was, however, concerned with the fairness and reasonableness of the $28 rate. The record contains a work-request dated December 2, 1991, and signed by him. It is directed to GSA's Design and Construction Division (D&C). Appeal File, Exhibit 55 at 66. The scope of work in the request reads as follows: Perform the on site technical analysis to determine if the negotiated HVAC overtime usage rate of $28.00 per hour is fair and reasonable based on equipment BTU's, size of room, and cost of power in Rincon Center grid. The lease specified an 800 square foot area. The room size is approximately 2,121 [net usable square feet]. Because this issue has the potential for dispute with both the Court & Lessor the analysis must be very clear and specific. Appeal File, Exhibit 18. 20. The contracting officer's supervisor concurred in the request. This supervisor was, in fact, the original contracting officer on the lease. Appeal File, Exhibits 18; 55 at 27, 64. He states that it was his understanding that the purpose of the analysis which was being requested was to look at the computer room cost "because of the different size of computer room." Id., Exhibit 55 at 64. The room, as described in the lease, was to be 800 square feet while that which was actually built was 2100 square feet. The contracting officer's supervisor believed the analysis was being sought in order to determine if an equitable adjustment of the rental rate was appropriate in view of the change in the anticipated size of the computer room. He claims to have no idea, however, why the contracting officer chose to use the $28.00 per hour figure for the analysis. He did not discuss this with the contracting officer. He points out, however, that this particular overtime rate was already established by contractual agreement. Id. at 61, 64-67. 21. A handwritten note in the record signed by the successor contracting officer and addressed to the realty specialist who negotiated with the Rincon representatives requests her to provide information on the origin of the $28 per hour rate to the D&C engineer tasked with analyzing the rate. Appeal File, Exhibit 19. The realty specialist has stated in her deposition that she never received the note and never had occasion to speak to the GSA engineer. Id., Exhibit 54 at 90-92. She does, however, recall a brief conversation with the successor contracting officer on whether the HVAC charges for the computer room were to be in the rent. She states that she told him that these charges were part of the rent. Id. at 87-88. 22. In early January 1992, an analysis was provided in response to the successor contracting officer's work-request. Appeal File, Exhibits 20, 59. A GSA realty specialist assigned to work on the Rincon lease at the time recalls that after receipt of the analysis, the successor contracting officer asked his opinion on how GSA would pay for HVAC supplied to a computer room operating 24 hours per day, seven days per week. The specialist states that he replied that payment would be included in the rent. According to the specialist, the successor contracting officer then stated: "That's what I am thinking." Id., Exhibit 60. 23. Upon the death of the successor contracting officer in April 1992, his supervisor, the original contracting officer, reassumed responsibility for the lease. Since appellant's claim for cooling of the computer room had still not been paid, Rincon took up the matter with him. Appeal File, Exhibit 56 at 26-27. 24. By letter dated May 6, 1992, the contracting officer returned Rincon's invoices for overtime cooling of the computer room. The contracting officer explained that the lease required maintenance of the computer room 24 hours a day and that provision of HVAC services was not, therefore, considered to be on an overtime basis. In his letter, the contracting officer did, however, offer an equitable adjustment of the rent based on the fact that the computer room, as actually constructed, was larger than what was called for in the lease. Appeal File, Exhibit 24. 25. Rincon resubmitted the invoices contending that the contracting officer's interpretation of the computer room requirement for cooling was unreasonable. A contracting officer's decision was requested by Rincon on its claim for payment. Appeal File, Exhibit 25. 26. By letter dated July 2, 1992, the contracting officer issued his decision denying appellant's claim. Appeal File, Exhibit 26. Rincon has filed a timely appeal of that decision. Id., Exhibit 27. Discussion Rincon's position in this appeal is that its lease with GSA expressly provides that normally there shall be no cooling of the premises outside of established workhours. When cooling is required, GSA is required to pay a flat rate of $28 per hour. Because GSA has required air-conditioning of the computer room twenty-four hours a day, seven days a week, since award of the lease, Rincon claims it is entitled to payment of $28 for each hour during which air-conditioning has been provided to the court's computer room outside of normal workhours. Furthermore, Rincon argues that when the lease was negotiated, GSA led the Rincon negotiating team to believe that this $28 per hour rate would be applicable to the continuous air-conditioning of the computer room outside of normal working hours. Finally, Rincon asserts that, after award and prior to any formal dispute on this matter, the GSA contracting officer recognized that the lessor was entitled to payment of these charges. GSA's position in this dispute is that the hourly rate which Rincon is attempting to collect for cooling the computer room outside of normal work hours is not applicable to the computer room but rather to the general office areas made available under the lease. The obligation to provide cooling for the computer room on a continual basis is understood by GSA to be based on a separate lease provision. This provision addresses a specific requirement of the court of appeals for a computer room which is to be cooled on a continual basis. GSA contends that the cost of this cooling is covered by the monthly rent paid to Rincon. GSA denies that it ever led appellant's representatives to believe that the $28 per hour rate for cooling outside of normal workhours would be applicable to the computer room. We are unpersuaded by the arguments which Rincon offers in support of its claim. It is indeed correct that a basic provision of the lease states that air-conditioning shall not be provided during non-working hours unless ordered by the contracting officer or the building manager. In the event this occurs, the lease does in fact provide a flat rate of $28 per hour for cooling or heating. There is more, however, to the lease than these two provisions on which appellant relies so heavily. It is well settled that a contract must be interpreted, when possible, as a whole in a manner which gives reasonable meaning to all its parts and avoids conflict or surplusage of its provisions. Granite Construction Co. v. United States, 962 F.2d 998, 1003 (Fed. Cir. 1992); B.D. Click Co. v. United States, 614 F.2d 748, 753 (Ct. Cl. 1980). As respondent points out, elsewhere in Rincon's lease is a specific requirement for continuous air-conditioning of the court's computer room. When this provision is read in conjunction with those relied upon by appellant, an altogether different picture emerges. We refer, of course, to Section VII of the special space requirements in the lease. Finding 7. Paragraph (B) of this section calls for individually zoned HVAC capable of maintaining a temperature range of 50 to 60 degrees. This provision further states that the HVAC shall be maintained 24 hours a day, 7 days a week. Appellant argues that because this requirement appears in the special space requirements of the lease, it should be understood as referring to capability rather than actual operation. In other words, Rincon would have us interpret "maintained" as meaning that the lessor should install and have systems ready and available which are capable of providing the air-conditioning for the computer room on a continuous basis. We decline to interpret the provision in this manner. Certainly the language appearing in the first part of paragraph (B) calls for this capability. Nevertheless, we read the final sentence of the same provision as imposing a clear operational requirement as well. We consider the plain meaning of the words to be inescapable. Indeed, we perceive a certain logic in the structure of paragraph (B) which sets out in one place not only the capability requirements of the HVAC but also, for the sake of clarity, the operational requirement that the HVAC actually function on a continual basis.[foot #] 3 Appellant urges us to interpret clauses 62 and 72 as applying to the computer room as well as to the general office area. This approach, however, leads to serious conflict between the provision in clause 62 stating that cooling will not be provided during nonworking hours and the requirement in paragraph (B) of Section VII for continuous cooling of the computer room. Similarly, if clause 62 is seen as applying to the computer room, there is also a conflict between the temperature range in clause 62 for cooling during working hours (76 to 80 degrees) and that required during working and nonworking hours for the computer room in paragraph (B) of Section VII (50 to 60 degrees). Finally, if clause 62 and 72 apply to the computer room with its requirement for continuous cooling, then the purpose of clause 72 ----------- FOOTNOTE BEGINS --------- [foot #] 3 Appellant contends, based on deposition testimony, that the author of this provision has herself testified that "maintained" in the final sentence of Section VII (B) merely means that the installed HVAC must be capable of operating 24 hours a day. Appellant's Closing Brief at 7. We have already found that the more complete characterization of her testimony on this matter is that "maintained," as used in this provision, means that the HVAC equipment should be capable of operating and, in fact, be up and running on a continual basis. See Finding 8, note 2. ___ ----------- FOOTNOTE ENDS ----------- is thrown into question. Specifically, one is constrained to ask what purpose is served by clause 72, which provides for the occasional use of overtime cooling at an agreed upon flat rate, subject to the approval of the contracting officer or building manager. If this same flat rate mentioned in clause 72 is applicable to the computer room as well as the general office area, then it is applicable from the moment of award and remains in effect for the duration of the lease. Any arrangement for its occasional use is, therefore, superfluous. We do not view the specific requirement for continuous cooling of the computer room as being in conflict with the more general provisions regarding cooling which appear in clauses 62 and 72. Rather, in an effort to harmonize these contract provisions among themselves, we interpret the latter two clauses as applying to the general office area while that dealing with the cooling of the computer room is, on its face, limited to that area alone. As to payment provisions covering the cost of running the cooling equipment in the computer room, we see no reason why the provisions of paragraph six of Standard Form 2 do not apply. Under that provision, lessor is required to furnish all utilities as part of the rental consideration. Our interpretation of the applicable lease provisions destroys the predicate of appellant's claim. Nevertheless, because our interpretation gives a reasonable meaning to the clauses in question, renders none of them meaningless, and avoids conflict among them, it is to be preferred. Fortec Constructors v. United States, 760 F.2d 1288, 1292 (Fed. Cir. 1985); United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983); Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 1965). Appellant contends that an earlier decision of the Board, Adelaide Blomfield Management Co. v. General Services Administration, GSBCA 11909, 94-2 BCA 26,679, appeal docketed, No. 95-1089 (Fed. Cir. Dec. 6, 1994), supports the claim it now brings for compensation for air-conditioning of the computer room outside of normal work hours. We disagree. There is an unquestionable parallel between the two cases. Both involve claims for overtime cooling of a computer room. Both involve leases with somewhat similar provisions. The applicable lease provisions in the two cases, however, differ in at least two significant respects. First, in Adelaide Blomfield, the rate agreed upon for overtime cooling was expressly stated as applicable to "all or any part" of the leased premises. 94-2 BCA at 132,706. Were a similar provision in Rincon's lease, we could not of course interpret the rate in clauses 72 as not applicable to the computer room cooling. Second, and even more importantly, the computer room cooling requirement in Adelaide Blomfield did not contain a provision similar to that in Rincon's lease which requires the lessor to maintain the HVAC 24 hours a day, 7 days a week. To the contrary, in Adelaide Blomfield, the temperature and humidity in the computer room had to be controlled only during working hours. Id. at 132,709. Given these critical differences in the applicable lease provisions, it should not be surprising that we reach a conclusion in this case which is different from that reached by the majority in Adelaide Blomfield.[foot #] 4 Nothing in the record regarding the negotiation or administration of the lease convinces us that we should depart from the interpretation that is compelled by the applicable lease provisions. Only the testimony of Rincon's general manager supports Rincon's allegation that during negotiations GSA led the negotiating team to believe that the $28 per hour rate for overtime heating and cooling would be applicable to the computer room. On balance, we conclude that the testimony of the general manager is not persuasive. Although he is certain that the applicability of the overtime rate was discussed in more than one negotiating session with the contracting officer and that the contracting officer specifically told him that the $28 per hour rate would apply to overtime usage of the HVAC in the computer room, he is extremely vague as to just what was said and the circumstances surrounding these conversations. Finding 14. Furthermore, while the other two members of Rincon's negotiating team may now support the general manager in his interpretation of the lease, they cannot corroborate his claim that there were discussions and assurances given concerning the application of the $28 rate to the cooling of the computer room. Finding 13. We find this particularly significant in view of the degree to which they were obviously involved in the negotiations. Findings 9, 11. Finally, no contemporaneous documentation supports the present testimony of the general manager. In contrast, we find the testimony of the contracting officer on this matter to be highly credible. He has no recollection of ever having given the Rincon general manager the alleged assurance. Indeed, he is relatively certain that he would not have done so since this would have conflicted with what he understood to be a well established GSA policy regarding payment for computer room cooling and would also have conflicted with what he perceived to be the purpose of the overtime cooling rate, namely, for unforeseen needs. Finding 11. ----------- FOOTNOTE BEGINS --------- [foot #] 4 This case is more like Universal Development ______________________ Corp. v. General Services Administration, GSBCA 11469, 93-2 BCA ________________________________________ 25,736, in which we denied recovery of overtime computer room cooling costs where the lease specified that the temperature in that room be kept within a specified range "regardless of whether computers are on or off; or whether lighting is on or off; or the normal contingent of personnel is present or not" -- in other words, at all times. ----------- FOOTNOTE ENDS ----------- Rincon's general manager contends that between him and the contracting officer there was a meeting of the minds on the application of the $28 rate to the computer room and that the lease supports this. Finding 14. Whatever understanding the general manager may have taken away with him on this issue following negotiations, based on the record before us, we are not prepared to accept the claim that it was induced by any false or misleading representation on the part of the contracting officer. Rincon also asserts that, after award and prior to any formal dispute on this matter, the GSA contracting officer recognized that the lessor was entitled to payment of these charges. Unfortunately, the contracting officer is not available to testify on this matter. Documentary evidence in the record does suggest that, at least initially, he did believe that the lease's $28 rate for overtime heating and cooling was applicable to the computer room. See Finding 18. It is also alleged that this contracting officer, at one juncture, actually admitted to Rincon's general manager that something was due appellant for cooling the computer room. Finding 17. When seen in context, none of these facts are particularly significant. First, it must be recognized that the contracting officer in question was the successor contracting officer who, even according to Rincon's general manager, readily confessed to a need to consult on appellant's claim with those who had negotiated the lease. Thus, if required to look beyond the language of the lease, we would attribute much greater weight to the interpretation of the lease provisions given by the original contracting officer than to that of the successor contracting officer. Neither do we believe that the original contracting officer concurred in the successor contracting officer's interpretation of the lease when he approved the successor contracting officer's request for an analysis of the $28 rate. The supervisory contracting officer's testimony is that he understood the analysis was being undertaken for purposes of proposing an equitable adjustment of the monthly rental payment.[foot #] 5 We consider this testimony credible especially since the $28 rate for overtime heating and cooling was already fixed through award of the lease itself. See Finding 20. Second, the contracting officer's alleged admission that Rincon needed to be paid was not unconditional. Rincon's general manager candidly admits that this statement was subject to the ----------- FOOTNOTE BEGINS --------- [foot #] 5 Our decision here concerning the issue of entitlement should not be understood as precluding possible recovery of a claim for equitable adjustment based on the increased size of the computer room. To our knowledge, no such claim has ever been brought by Rincon or addressed by the contracting officer in a formal decision. ----------- FOOTNOTE ENDS ----------- completion of "studies" to determine if the "fees were acceptable." Finding 17. Third, it is not at all certain that the successor contracting officer remained firm in his initial belief that the $28 rate was applicable to the computer room. At least two GSA employees report brief conversations with him in which they expressed the contrary opinion that the cost of cooling of the computer room was paid through the monthly rent. Findings 21-22. Most importantly, the claim was never paid. Finding 23. Although the analysis of the $28 rate was eventually completed, the successor contracting officer never did authorize payment of Rincon's claim. Consequently, the opinion of the successor contracting officer on this issue -- whatever it may have been -- does not constitute a precedent or formal position on respondent's part and certainly does not establish a pattern of prior dealing between the parties. Decision This appeal is denied as to entitlement. Accordingly, the appeal itself is DENIED. ___________________________ EDWIN B. NEILL Board Judge We concur: __________________________ __________________________ ROBERT W. PARKER JOSEPH A. VERGILIO Board Judge Board Judge