___________________________________________________________ MOTION TO DISMISS COUNT I GRANTED: March 27, 1996 ___________________________________________________________ GSBCA 13152 EARL C. WILSON, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David C. Hammond, Elliott B. Adler, and Richard A. Medway of Powell, Goldstein, Frazer & Murphy, Washington, DC, counsel for Appellant. John C. Ringhausen, Office of Regional Counsel, General Services Administration, Atlanta, GA; and Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Judges DANIELS (Chairman), NEILL, and HYATT. NEILL, Board Judge. The General Services Administration (GSA) has moved that we dismiss Count I of this appeal on the grounds that (1) the count is outside of the Board's jurisdiction and (2) a lack of authority defense raised by GSA requires the Board to strike the count as a matter of law. Upon consideration of the arguments put forward by counsel for the parties, we conclude that the motion to dismiss Count I for lack of jurisdiction should be granted. Having concluded that we have no jurisdiction over this count, we do not reach respondent's motion for summary relief. Findings of Fact The Lease 1. On October 15, 1987, appellant and GSA entered into a long-term lease under the terms of which appellant, as lessor, was to furnish to the Government a warehouse facility located in Fulton County, Georgia, to be known as the GSA Distribution Center. Appeal File, Exhibit 1. Appellant's Claim 2. By letter dated October 22, 1992, appellant submitted to the contracting officer a certified claim in the form of a "proposal for equitable adjustment." The claim was based upon GSA's early occupancy and overtime use of the warehouse. Appeal File, Exhibit 18. 3. Appellant's claim provides a comprehensive summary of his version of the facts relating to GSA's early occupancy and overtime use of the warehouse.1 On the issue of overtime use, the claimant points out that, because GSA anticipated only limited overtime use of the warehouse, the lease did not contain an overtime rate. Nevertheless, appellant contends in its claim that, from March 14, 1989, when GSA took 100% occupancy of the warehouse, the contracting officer has directed the lessor to provide the warehouse on an overtime basis. Appeal File, Exhibit 18 at 9. 4. Appellant further contends that in late 1989, the Government negotiated an overtime rate of $400 per hour in supplemental lease agreement (SLA) no. 20. Appellant says that he signed the SLA and returned it to the contracting officer and received from the contracting officer written confirmation that the SLA "was executed." Appeal File, Exhibit 18 at 9. Appellant states that, after the execution of SLA no. 20, he continued to invoice GSA at the $400 per hour rate. A footnote to the claim states: The Lessor has never agreed to or invoiced GSA at an hourly overtime rate less than $400.00 per hour as contained in SLA 20. Moreover, the Lessor's acceptance of payments at an hourly rate of $75.00 has not waived the Lessor's right to recover its full extra costs for the total number of overtime hours claimed. Id. 5. In the narrative portion of his claim, appellant also explains that approximately six months after signing SLA no. 20, he was advised by the contracting officer, by letter dated June 1, 1990, that SLA no. 20 had never been executed by the ____________________ We underscore that our findings here concern only what appellant has, in fact, written in his claim of October 22. Any findings as to the truth of these statements will have to be made at a later date based on a more developed record. Government and was null and void. Appeal File, Exhibit 18 at 5. 6. Appellant's claim, to the extent that it is a "proposal for equitable adjustment," proposes composite overtime rates to be used in lieu of the $400 rate to which the parties had allegedly already agreed. These alternative rates are proposed "in order to expedite the resolution of a fair and equitable overtime rate." The rates are said to be based on an analysis of extra costs resulting from GSA's overtime use of the warehouse. In proposing use of the rates, appellant states that they are based on "several conservative approaches which actually understates [sic] the Lessor's true extra costs." The rates are: Year Hourly Rate 1989 $306.82 1990 $341.07 1991 $378.38 1992 $386.45 Appeal File, Exhibit 18 at 6. 7. In proposing these alternative rates, appellant includes the following footnote in his claim: The Lessor's submission of this proposal for adjustment does not waive the Lessor's right to claim under the Disputes Clause that the SLA is binding upon the Government as the rate established therein. Likewise, the Lessor reserves the right to claim under the Disputes Clause any extra cost it has elected to omit or understate for purposes of settling these matters. Appeal File, Exhibit 18 at 5. 8. By letter dated January 4, 1995, after considerable discussion and an audit of data submitted in support of appellant's proposal for equitable adjustment, the contracting officer issued a decision denying appellant's claim of October 22, 1992. Appeal File, Exhibit 29. That decision is the subject of this appeal. SLA No. 20A 9. In addition to SLA no. 20 described in appellant's claim of October 22, is another SLA, namely, SLA no. 20A. This supplemental lease agreement was provided to appellant by the contracting officer in a letter dated January 11, 1990. On its face, SLA no. 20A, like SLA no. 20, establishes a $400 per hour overtime rate. Unlike SLA no. 20, however, SLA no. 20A also provides for a lower rate of $85 per hour for the first 250 hours of overtime each year. Overtime hours in excess of that amount are to be reimbursed at the $400 per hour rate. Appeal File, Exhibit 5. Appellant's claim of October 22, 1992, contains, as exhibits, copies of both SLA no. 20 and SLA no. 20A. Id., Exhibit 18 at 68-69. Appellant's Complaint 10. In filing his complaint, appellant alleges under Count I that the Government is contractually bound to pay the overtime rates agreed to in SLA no. 20A. In Count II of his complaint, appellant claims, in the alternative, that the contracting officer's decision rejecting appellant's claim is erroneous because it fails to pay for the fair market value of the overtime services rendered by appellant. Complaint 46-60. Discussion Respondent contends that we lack jurisdiction over Count I of this appeal because, contrary to requirements of the Contract Disputes Act, the claim embodied in this count has not been first submitted in writing to the contracting officer. See 41 U.S.C. 605(a) (1994). We agree. It is well established that, if a claim arises from operative facts different from those which form the basis of the claim presented to the contracting officer or if that claim is not contained within the scope of the claim previously presented to the contracting officer, then a separate decision is required. Santa Fe Engineers, Inc. v. United States, 818 F.2d 856 (Fed. Cir. 1987). Similarly, in deciding whether a specific claim is distinct from another already presented to a contracting officer, it is appropriate to consider the evidence which must be examined to resolve the claims. If the court will have to review the same or related evidence to make its decision, then only one claim exists. Otherwise, the claims are deemed to be distinct. Placeway Construction Corp. v. United States, 920 F.2d 903 (Fed. Cir. 1990). The contracting officer's decision from which this appeal arises was a denial of appellant's claim of October 22, 1992. On its face, that claim was a proposal for equitable adjustment. Finding 2. The rates proposed were said to be based upon lessor's extra costs resulting from GSA's overtime use of the warehouse. Finding 6. To prove this claim, appellant will be expected to put into evidence documentation supporting these costs. In contrast, Count I of appellant's complaint sounds in breach. Complaint 49. To prove a claim that the Government has failed to honor the $400 per hour overtime rate to which the parties allegedly agreed, appellant will be expected to prove that SLA no. 20A was actually executed by the contracting officer and remains in effect. We recognize that there is some factual overlap in the two claims to the extent that they both seek compensation for overtime use of appellant's facility, and to prove both, appellant will have to prove the number of overtime hours actually used. Nevertheless, the key operative facts and evidence required to prove the claims are unquestionably distinct. For this reason we agree with respondent that until the claim which is the subject of Count I is submitted in writing to the contracting officer for a decision, we do not have jurisdiction over it. Appellant, in opposing the Government's motion to dismiss Count I, reminds us repeatedly that many of the operative facts relating to the negotiation of the alleged contract rate of $400 per hour were, in fact, set out in the narrative portion of the proposal for equitable adjustment. Furthermore, the proposal itself contains, as specific documentary exhibits, copies of SLA nos. 20 and 20A and copies of correspondence from the contracting officer concerning these modifications. Appellant, therefore, argues that, because the factual basis of the breach claim was set before the contracting officer in the proposal for equitable adjustment, rejection of the proposal by the contracting officer constitutes a "de facto" rejection of the breach claim as well. We do not believe this occurred. Appellant's argument would be more persuasive if, in fact, the alleged breach claim had actually been presented in the proposal for equitable adjustment. It clearly was not. Appellant's proposal on its face represents a compromise settlement offered in lieu of a breach claim based on the alleged $400 overtime rate. Finding 6. To induce the contracting officer to accept the compromise rate, appellant, for obvious reasons, has attempted to make a strong case in support of his entitlement to the $400 rate. This, however, does not mean that in doing so, he intended to assert a specific claim based on that rate. From the context of the proposal and the relevant footnote itself (see Finding 7), we consider it beyond question that appellant had no intention of actually asserting in his proposal for equitable adjustment a claim based on the Government's repudiation of what he contends is a contract rate for overtime. Rather, the thrust of the footnote is precisely the opposite. A claim based on breach of the alleged contract rate of $400 per hour will not be asserted unless or until the proposal for equitable adjustment is rejected by the contracting officer. We are, therefore, unpersuaded that, in rejecting the proposal for equitable adjustment, the contracting officer also rejected appellant's claim of breach. Rather, rejection of the former would only serve to open the way for the eventual assertion of the latter.2 Decision Respondent's motion to dismiss Count I of this appeal is GRANTED. Count I is dismissed. ________________ EDWIN B. NEILL Board Judge We concur: ___________________ __________________ STEPHEN M. DANIELS CATHERINE B. HYATT Board Judge Board Judge ____________________ Following the filing of his complaint in this case, appellant did, in fact, file an updated certified claim for overtime compensation. In this submission he seeks payment from March 1989 to July 1995 at the alleged contract rate set out in SLA no. 20A or, alternatively, in SLA no. 20. The contracting officer has issued a decision denying this claim as well. An appeal from the decision has been filed with the Board and docketed as GSBCA 13530. In an order of even date with this decision, the Board is consolidating that appeal with the instant case. The Government may, therefore, if it wishes, renew the motion for summary relief previously filed with regard to Count I but not reached herein owing to our decision to dismiss that count for lack of jurisdiction.