GRANTED: October 9, 1996 GSBCA 13521 JAMES A. PRETE, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David J. Straface of Angotti and Straface, L.C., Morgantown, WV, counsel for Appellant. Robert J. McCall, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. GOODMAN, Board Judge. Appellant, James A. Prete, has entered into lease number GS-03B-20082 (the lease) with respondent, the General Services Administration (GSA). Appellant appealed the contracting officer's decision dated July 11, 1995, denying its claim for $6,720 for the installation of an accordion wall in a conference room. Appellant elected to have his case decided under the small claims procedure pursuant to Rule 202 of the Board s Rules of Procedure.1 Appellant also chose to present testimony at a hearing. Respondent elected to submit its case on the record pursuant to Rule 111, cross-examine appellant's witnesses, and produce the contracting officer for cross-examination. A telephonic hearing was held on August 29, 1996. Pursuant to Rule 202, this decision has no value as precedent and is unappealable in the absence of fraud. ____________________ 1 61 Fed. Reg. 52,347 (1996) (to be codified at 48 CFR 6102.2). Findings of Fact 1. Appellant was an offeror in response to a solicitation for offers (SFO) issued by respondent. The SFO was incorporated into the lease. Appeal File, Exhibit 1 at 5. 2. The leased premises were described in the lease as follows: A minimum of 50,000 to a maximum of 51,000 net usable square feet (NUSF) of office and related space on the first and second ground floors, being further defined as Unit 1-approximately 16,800 NUSF; Unit 2- approximately 9,800 NUSF and Unit 3-approximately 24,300 NUSF; and four (4) reserved, onsite parking spaces at the Prete Building, 3040 University Avenue, Morgantown, West Virginia 26505. Appeal File, Exhibit 1 at 1. 3. In the rider to the lease, appellant was required to: complete all alterations, improvements and repairs required by this lease, and deliver the leased premises [within the time frames set forth in paragraph 1 of the Special Requirements] . . . . Upon the date of completion of such alterations, improvements, and repairs, and inspection and acceptance by the Government, the term of this lease shall commence and . . . the same shall be measured and rental shall be paid, in accordance with paragraph 3.5 of the lease, Net Usable Space and paragraph 7 of the General Clauses, GSA Form 3517, Measurement for Payment at the rate of $18.75 per net usable square foot per year. Appeal File, Exhibit 1 at 3. 4. The lease and SFO contained the following with regard to the accordion wall which is the subject of this appeal: Special Requirements . . . . BLOCK 2[2] . . . . 3. Space for this block shall be allocated as follows: ____________________ 2 The Special Requirements of the lease referred to Units 1-3 as Blocks 1-3. Thus, Block 2 in the Special Requirements referred to Unit 2. . . . . f. One (1) Conference Room of approximately 1,000 nusf. Partitioning must have a minimum STC rating of 50. Lessor is to provide additional cooling/ventilation of 20 CFM. Lessor is required to provide sufficient heating/ventilation to accommodate a minimum of 100 people. Lessor is required to furnish and install one (1) folding accordion type wall. This wall shall be EMCOWALL Model No. 8431 or equivalent but not motorized with a minimum STC rating of 50. Panel construction shall be minimum three inches thick with minimum 20 gauge steel surface, sound retardant core, and minimum 16 gauge welded steel frame. Panel trim shall be aluminum, incorporating vinyl acoustical seals. Appeal File, Exhibit 1 at 32, 36-38. 5. The lease and SFO contained the following language: 3.1 Unit Costs for Adjustments Several paragraphs in this SFO specify means for determining quantities of materials. These are Government projections to assist the offeror in cost estimating. Actual quantities may not be determined until after the lease is awarded and the space layout completed. To enable an equitable settlement if the Government layout departs from the projection, the offeror must list a unit cost for each of these materials. GSA will use each unit cost to make a lump sum payment or rental increase if the amount of material required by the layout is more than specified or take credit from rental if the amount is less than specified. Offerors are required to state in the offer or in an attachment: . . . . *See attachment next page Unit Costs for Adjustments . . . . Cost per square foot folding accordion type wall was as per Special Requirements, Block 2, #3f. Appeal File, Exhibit 1 at 5-6 of 77. 6. At the time the SFO was issued to potential offerors, the plans for the buildout of the interior space were not complete. There were no plans which contained the dimensions of the conference room referenced in the lease, or the location of the accordion wall within the conference room. Transcript at 16- 17. 7. Appellant's representative testified that because no plans existed from which he could ascertain the dimensions of the conference room or the location of the accordion wall within the conference room, there was no methodology by which he could calculate an estimated square footage, and therefore an estimated price, for the accordion wall. Transcript at 27. 8. The square footage as actually installed is determined not only by the dimensions of the room, but the position of the accordion wall in the room. Transcript at 39. 9. Appellant's representative requested clarification and was told by the GSA realty specialist not to include a price for the accordion wall within the base rent, but to include a unit price of $30 per square foot and appellant would be paid in a lump sum for the wall based upon this unit price and the actual square footage installed. Transcript at 24, 27, 35. 10. The GSA realty specialist testified that she had suggested the unit price of $30 per square foot which was incorporated into the lease. Transcript at 45. With regard to discussions concerning promises of payment for the accordion wall, the following testimony was offered: Q: Was there a discussion between yourself and [appellant's representative] as to the payment for that accordion wall? A: Not that I recall. Id. at 45. 11. Appellant testified that he acted upon the response from respondent, and did not include a price for the accordion wall in the offered base rent, in either his first or best and final offer. Transcript at 24, 27. 12. The rider to the lease incorporated various unit prices into the lease, including [c]ost per square foot accordion type wall $30. Appeal File, Exhibit 1 at 4. 13. On March 16, 1992, appellant was awarded the lease as lessor. Respondent did not issue plans detailing the dimensions of the conference room or the location of the accordion wall until after the lease was executed by appellant. Transcript at 16-17; Appeal File, Exhibit 15. 14. Supplemental lease agreement (SLA) number 3, dated November 18, 1992, entered into between GSA and appellant, incorporated actual rental, square footage, lease term, and occupancy for Block 1 and itemized debits and credits. Included in this SLA was a credit for $6,720 for the accordion wall. Appeal File, Exhibit 2 at 3. 15. SLA number 6, dated August 16, 1993, entered into between GSA and appellant, incorporated debits and credits for Block 2. The payment of $6,720 for the accordion wall that was initially credited to appellant in SLA 3 was debited in SLA 6. Appeal File, Exhibit 3 at 3. 16. Appellant testified that at the time of execution of both SLA 3 and SLA 6, the accordion wall had not been installed. Transcript at 17-18. He was advised that the payment of $6,700 was debited by SLA 6 because the wall had not been installed, but would be recredited upon installation. He therefore executed SLA 6 with this understanding. Id. at 18-19. 17. The accordion wall was installed in May 1994. Transcript at 19. Appellant submitted an invoice dated June 22, 1994, requesting payment in the amount of $6,720 (based upon the unit price and the actual square footage of the wall as installed), Appeal File, Exhibit 5, which was denied by the contracting officer's letter dated October 31, 1994, id., Exhibit 7. 18. By letter dated May 22, 1995, appellant submitted a claim pursuant to the Contract Disputes Act. Appeal File, Exhibit 10. 19. By letter dated October 16, 1995, the contracting officer issued a decision denying appellant's claim. Appeal File, Exhibit 11. 20. Appellant appealed the contracting officer's decision to this Board by notice of appeal dated January 10, 1996. Appeal File, Exhibit 12. Discussion Appellant seeks payment for installation of an accordion wall. Respondent has denied the claim, alleging that appellant had an obligation under the terms of the lease to deliver a conference room of approximately 1,000 square feet, with one accordion wall, as part of the base rent. Because appellant did not have the plans for the conference room containing the accordion wall at the time he prepared his initial and final offers, Finding 6, appellant testified that he could not estimate the square footage of the wall. Finding 7.3 Appellant considered the SFO to be obviously ambiguous since the SFO did not contain information appellant believed he needed to prepare his offer and, therefore, appellant requested clarification. Appellant testified that he was told by the GSA realty specialist to whom he directed his request for ____________________ 3 The square footage as actually installed is determined not only by the dimensions of the room, but also by the position of the accordion wall in the room. The testimony at the hearing of respondent's representative confirmed that the square footage of the wall would be determined by the dimensions of the conference room and the position of the wall within the room. Finding 8. clarification that since the plans for the build out of the tenant space had not been finalized, appellant should not include an estimated cost of the accordion wall in the rent, but should include a unit price of $30 per square foot to be paid in a lump sum for the wall as installed. Finding 9. Appellant acted accordingly, expecting to be paid in a lump sum based upon the actual square footage of the wall when installed. Finding 11. Appellant explained that he had signed SLA 6, which revoked the prior lump payment under SLA 3 for the accordion wall, Findings 14-15, because the wall had not been installed when the SLA was executed, and he was told payment would be received when the wall was installed. Finding 16. Respondent's testimony at the hearing did not rebut appellant's testimony with regard to appellant's request for clarification of the bid documents or respondent's response. Respondent's realty specialist remembered suggesting the $30 unit price for the accordion wall, but did not recall the other conversations about which appellant's representative testified. Finding 10. Appellant's testimony was credible and stands unrebutted. Where a contract's terms are obviously or patently ambiguous prior to the contractor submitting its offer, a contractor is required to request clarification of the ambiguity from the Government. John Jennings, Jr., GSBCA 7520, 87-2 BCA 19,824. This rule is a major device of preventative hygiene, which is designed to avoid post-award disputes by encouraging offerors to seek clarification before anyone is legally bound. S.O.G. of Arkansas v. United States, 546 F.2d 367 (Ct. Cl. 1977). Appellant complied with the rule prior to making his offers. It is clear from the record in this appeal that appellant believed the SFO was ambiguous, requested and received clarification from respondent as was appellant's duty under the circumstances, and relied upon the clarification in submitting appellant's offers. Respondent cannot now assert that the SFO was clear and unambiguous and ignore appellant's request for clarification, the response that appellant received, and appellant's reliance thereon. We grant appellant's claim. Decision Appellant's claim is GRANTED in the amount of $6,720, with interest to be paid in accordance with the Contract Disputes Act. ________________________ ALLAN H. GOODMAN Board Judge