_________________________ DENIED: January 12, 1995 _________________________ GSBCA 12765 GRIGOR E. ATOIAN, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Grigor E. Atoian, pro se, Woodland Hills, CA. Michele M. Feher, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Board Judges PARKER, BORWICK, and DeGRAFF. DeGRAFF, Board Judge. The General Services Administration (GSA) leased a building from Grigor E. Atoian (Atoian). After GSA terminated the lease, Atoian submitted a claim to GSA requesting payment for repairs to the building. Atoian asserts that GSA's delay in issuing a decision concerning his claim constitutes a breach of contract. Atoian seeks approximately $450,000 as compensation for the breach. GSA moves for summary relief. GSA's motion is granted and the appeal is denied. Findings of Fact On January 30, 1987, GSA awarded a contract to Atoian for the lease of an office building in North Hollywood, California. The lease contains 48 CFR 52.233-1 Disputes (April 1984) (FAR 52.233-1), which provides that the lease is subject to the Contract Disputes Act. FAR 52.233-1 also explains the procedure for asserting a claim and provides, "For Contractor claims of $50,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request." Appeal File, Exhibit 10. On November 8, 1989, pursuant to paragraph 4 of the lease, GSA notified Atoian that the lease would terminate on January 8, 1990, and that GSA would pay no rent after that date. Appeal File, Exhibits 10, 11. On March 20, 1990, Atoian sent a claim letter to GSA, requesting $33,093 for the cost of repairs which Atoian said needed to be made to the building. In his claim letter, Atoian states that the building was vacant and could not be leased until the repairs were made. The claim letter also states, "I would appreciate your earliest attention to this matter . . . ." Appeal File, Exhibit 12. Between March 1990 and June 1991, Atoian contacted GSA several times regarding the status of his claim. According to the letters that Atoian sent to GSA concerning these contacts, Atoian asked to be paid as soon as possible, and GSA told Atoian that his claim was being reviewed. Appeal File, Exhibit 6. In one of Atoian's letters to GSA, he states that in December 1990, a GSA employee -- not the contracting officer -- said that GSA would "initiate payments" to Atoian in a few days. Id. On June 27, 1991, the contracting officer denied Atoian's claim for $33,093. Id., Exhibit 13. On September 25, 1991, Atoian appealed the contracting officer's decision to this Board. Appeal File, Exhibit 14. Atoian's complaint contained Count 1, which took issue with the contracting officer's June 27, 1991 decision, and three additional counts. Id., Exhibit 1. On March 23, 1993, the parties settled the issues raised in Counts 1, 3, and 4. As part of the settlement agreement, GSA paid an amount to Atoian greater than the $33,093 Atoian claimed he needed in order to repair the building, and less than the total amount claimed for Counts 1, 3, and 4. The settlement agreement, which does not apportion the settlement payment among Counts 1, 3, and 4, states that it does not constitute an admission of liability by GSA. Id., Exhibit 3. On August 24, 1993, we dismissed Count 2 for lack of jurisdiction, because the claim contained in that count had never been presented to the contracting officer for decision. Grigor E. Atoian v. General Services Administration, GSBCA 11481, 94-1 BCA 26,402 (1993). On October 4, 1993, Atoian presented a certified claim to the contracting officer for $451,188, which consists of lost rent of $12,533 per month for thirty-six months between February 1990 and March 1993. In the claim, Atoian explains that he lost $12,533 per month because did not have the funds needed to repair his building and that the building could not be leased until the repairs were made. The basis for the claim is "GSA's long and unexcused delay in rendering a decision" upon Atoian's March 20, 1990 claim. Appeal File, Exhibit 6. On January 31, 1994, the contracting officer denied Atoian's claim. Appeal File, Exhibit 7. On February 16, 1994, Atoian filed this appeal. Atoian's complaint is based upon "the post- termination agreement, set forth in the disputes clause of the lease contract . . . ." Complaint at 1. The complaint states that the contracting officer was obligated to issue a decision upon Atoian's March 20, 1990 claim within sixty days after receipt, and that the contracting officer's failure to do so constitutes a breach of the "post-termination agreement." Id., 6. GSA filed a motion for summary relief, asserting that there are no material facts in dispute and that it is entitled to judgment as a matter of law. GSA advances three arguments in support of its motion, only one of which is relevant to our decision. GSA argues that if Atoian was being damaged by GSA's delay in responding to his March 20, 1990 claim, Atoian's remedy was to file an appeal with the Board, which he could have done sixty-one days after the contracting officer received the claim. In opposition to GSA's motion, Atoian states that there are material facts in dispute, but he does not identify any such facts. Atoian argues that GSA breached its promise to render a decision within sixty days after receipt of his claim, and that this breach directly caused his loss of $12,533 per month. Atoian also argues that, if the contracting officer had denied the claim within sixty days after receipt, Atoian could have appealed immediately and "the time lost would have been a fraction of the three years . . . ." Appellant's Reply at 3. Atoian explains that he did not appeal immediately after the sixtieth day passed because he was led to believe by GSA that his claim would be paid soon, and that he relied upon GSA's statements. Discussion This appeal is amenable to disposition by summary relief because there are no material facts in dispute and GSA is entitled to judgment as a matter of law. Although Atoian claims that there are material facts in dispute, he has identified no such facts and we have not found any such facts. GSA is entitled to judgment as a matter of law because GSA did not breach the lease contract. A contract is not breached if a particular event occurs and the contracting parties anticipated that it might occur and provided in the contract for relief from such an event. For example, if a contract provides that the Government may change the work required by a contract and also provides that the contractor is entitled to an equitable adjustment to the contract price in the event of a change, the Government does not breach the contract when it directs the contractor to make a change. "[A] contractor cannot maintain a breach claim for which . . . contractual relief is available." Hoel-Steffen Constr. v. United States, 197 Ct. Cl. 561, 574, 456 F.2d 760, 768 (1972); Edward R. Marden Corp. v. United States, 194 Ct. Cl. 799, 442 F.2d 364 (1971); Mega Const. Co. v. United States, 29 Fed. Cl. 396 (1993). GSA did not breach its contract with Atoian because the contract anticipates that the contracting officer might take more than sixty days to issue a decision upon a claim and provides Atoian with relief from such inaction. The contract provides that it is subject to the Contract Disputes Act (CDA) and, according to the CDA, a contracting officer's failure to render a written decision within sixty days after receipt of a claim of $50,000 or less is deemed to be a decision denying the claim, and the claimant is permitted to file an appeal after the sixty days expires. 41 U.S.C. 605(c) (1988). Thus, the contract creates the remedy for the GSA contracting officer's failure to render a written decision within sixty days: The contracting officer was deemed to have issued an unfavorable decision and Atoian could have filed an immediate appeal. Atoian contends that he did not take immediate advantage of the opportunity to pursue an appeal because GSA led him to believe that his claim would be paid. GSA is not estopped from defending against Atoian's breach claim even if, as one of Atoian's letters to GSA states, a GSA employee stated that GSA would initiate payments to Atoian. Atoian was not entitled to rely upon the employee's statement because the employee who made the statement was not the contracting officer and only the contracting officer was authorized to issue a decision upon Atoian's claim. In addition, detrimental reliance is an essential element of estoppel and even if Atoian relied upon the employee's statement, Atoian has not established that his delay in filing an appeal caused him any loss or harm. JANA, Inc. v. United States, 936 F.2d 1265 (Fed. Cir. 1991), cert. denied, 112 S.Ct. 869 (1992); American Electronic Laboratories v. United States, 774 F.2d 1110 (Fed. Cir. 1985); Emeco Industries, Inc. v. United States, 202 Ct. Cl. 1006, 485 F.2d 652 (1973). Finally, even if GSA had breached the contract, Atoian would not be entitled to recover the damages he seeks because, at the time the parties entered into the lease, those damages were not a foreseeable consequence of a breach. Prudential Insurance Co. v. United States, 801 F.2d 1295 (Fed. Cir. 1986), cert. denied, 479 U.S. 1086 (1987); Tele-Sentry Security, Inc. v. General Services Administration, GSBCA 8950, 9093, 92-3 BCA 25,008. GSA could not have foreseen, when it entered into the contract, that its failure to issue a written decision upon a $33,093 claim within sixty days after receipt would result in a loss of $12,533 per month for thirty-six months. Decision GSA did not breach its contract with Atoian. GSA's motion for summary relief is granted and the appeal is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ ________________________________ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge