_________________________________________________ MOTION FOR RECONSIDERATION DENIED: January 13, 1994 _________________________________________________ GSBCA 10971-R, 10975-R, 11942-R 301 HOWARD STREET ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Patrick Martell and Bryant Zimmerman of Pettit & Martin, San Francisco, CA, counsel for Appellant. Robert W. Schlattman and M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, BORWICK, and WILLIAMS. LaBELLA, Board Judge. On September 30, 1993, we granted in part the appeal of 301 Howard Street Associates involving a lease of commercial office space. 301 Howard Street Associates v. General Services Administration, GSBCA 10971, et al. (Sept. 30, 1993). On November 1, 1993, the General Services Administration (GSA) filed a Motion for Reconsideration pursuant to Board Rule 32 seeking reconsidera- tion of the remedy awarded to appellant for GSA's changes to the lease under the Changes clause. In its motion, GSA contends that the remedy applied by the Board was incorrect as a matter of law. Appellant opposes GSA's motion and further complains that the remedy the Board granted was inadequate to compensate appellant for damages caused by the delay. We deny the Government's motion. Discussion As we have previously stated, "we are less than enamored of motions to reconsider." International Business Machines Corp., GSBCA 11359-P-R, 92-1 BCA 24,438, at 121,945, 1991 BPD 273, at 3. We will not grant reconsideration on the basis of arguments already made or on reinterpretations of old evidence. Id.; see also Rule 32(a).[foot #] 1 While we deny reconsideration because the Government's argument should have been raised prior to our decision in the matter, we nevertheless take this opportunity to explain why the Government's argument is meritless. GSA argues that the remedy awarded in the appeal is incorrect as a matter of law in light of the Board's correct decision that the delay in providing layout drawings to appellant was a constructive change pursuant to the Changes clause. GSA contends that appellant cannot recover the rent that it did not receive during the delay period under the Changes clause and relies entirely on Coley Properties Corp. v. United States, 593 F.2d 380 (Ct. Cl. 1979), in advancing this argument. Respondent's reliance on Coley is misplaced. In Coley, the plaintiff challenged a decision of the Postal Service Board of Contract Appeals denying recovery of certain costs and losses it incurred as a result of delays the Post Office Department caused in the construction of a postal facility and commercial office tower by plaintiff. Under the contract, Coley agreed to purchase land owned by the Government, build a single building housing a postal facility and commercial office tower on the site, and lease the postal portion of the building for an agreed-upon term. 593 F.2d at 382. As a practical matter, construction of the commercial office tower could not begin until the postal portion was topped off. Id. During the construction period, the Post Office ordered a large number of changes which resulted in a delay completing both the postal portion and office tower. Id. at 383. As part of its claim for an equitable adjustment, Coley sought the amount of rent it would have received from the commercial office space located in the tower for the period of delay. Id. The Court of Claims held that Coley was not entitled to an equitable adjustment under the Changes clause for the rent it did not receive during the period of delay. 593 F.2d at 385. The court stated that the purpose of the Changes clause was to compensate the contractor for additional, unanticipated out-of- pocket expenses incurred in performing the contract as a result of the changes. Id. The court found that the loss of income was not an additional cost of performance of the contract even though Coley suffered economic detriment when it did not receive the rents it expected during the period of delay. Id. ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69,246, 69,264 (1993) (to be codified at 48 CFR 6101.32(a)). Board's amended rules became effective on January 3, 1994. The amendment to Rule 32(a) merely codifies existing case law on this issue. ----------- FOOTNOTE ENDS ----------- The situation in Coley is distinguishable from that presented in this appeal. The contract in Coley was for the purchase of land, construction of a postal facility and commercial office tower, and lease of the postal facility back to the Government. The lost rent which Coley was seeking was for the space in the commercial office tower, not the postal facility. The rent sought was for space which had not yet been constructed at the time the parties entered into the contract and, thus, unlike 301 Howard Street Associates, there was no diminution in the structure's useful life stemming from the Government's delay. The court in Coley was addressing whether the delayed income from third parties renting the commercial space to be constructed by Coley was a cost of performing the contract with the Government. In that case, the delayed income from third parties was not a cost of performance. This appeal does not involve determining whether delayed income from a third party for commercial space to be constructed by the contractor is a cost of performance. Appellant's lease involved the lease of existing commercial office space to the Government. Most significantly, the focus of this case was whether the Government had to pay damages for lost (reduced) marketability of an existing structure with an established and ongoing useful life when it delayed in providing layout plans for space it was leasing. Lost marketability was applied as the proper measure of damages because the total income that could be obtained from an existing structure decreases as the structure's useful life decreases. The Government's significant delay in providing the layout drawings and, ultimately, in occupying the existing space decreased the amount of income that could be derived from the structure. Because appellant could not foresee that there would be such delays, it did not take the reduced marketability of the property into consideration when negotiating rent for the space. Thus, instead of facing a delayed income stream from a building yet to be constructed and with its entire useful life ahead of it as in Coley, appellant faced a delayed income stream from a structure with a shortened useful life. We found that the lost marketability for the existing space was a cost of performance of the contract which entitled appellant to damages. 301 Howard Street Associates, slip op. at 27. Thus, we reject the Government's attempt, late as it is, to apply Coley here. In its opposition to the Government's Motion for Reconsideration, appellant avers that the award was inadequate. As in its previous submissions during the course of the appeal, appellant argues that the delay in providing the layout drawings was a breach of the lease, rather than a change, which entitles it to recover lost rent as breach of lease damages. Appellant's arguments that the Board should reconsider the amount of the award and grant an increased amount as breach of lease damages are untimely. Rule 32(c) states that a motion for reconsideration must be filed within 30 days after the date of receipt of the moving party of the decision.[foot #] 2 Appellant advances its argument concerning the award well after the thirty day deadline. Therefore, we will not consider its arguments. Decision The Government's Motion for Reconsideration is DENIED. __________________________ VINCENT A. LaBELLA Board Judge We concur: _________________________ ANTHONY S. BORWICK Board Judge __________________________ Mary Ellen Coster Williams Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 The thirty day deadline in Rule 32(c) was not changed by the Board's amendments to its rules.