Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                                                                   
 
                    GRANTED IN PART: April 29, 1999
                                                                   
 
 
                              GSBCA 14402
 
 
                            ROI INVESTMENTS,
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Larry I. Hanson and Jon C. Manzo of Hanson & Clark, Madison,
   WI, counsel for Appellant.
 
        Kevin J. Rice,  Office of General Counsel,  General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), NEILL, and HYATT.
 
   DANIELS, Board Judge.
 
        This  case  involves   a  lease  to  the   General  Services
   Administration (GSA)  of office and  related space in  a building
   owned by ROI Investments (ROI).  As the lease expired,  ROI filed
   a claim for payment of sums  it believed were still due from  the
   agency.   GSA agreed to pay some of  the amounts claimed, and ROI
   appealed  from  the contracting  officer's  decision denying  the
   remainder.
 
        The parties have amicably resolved most of the issues  posed
   by the appeal.  The  following questions remain for resolution by
   the  Board:  Does the agency owe  the lessor additional money for
   "unit  cost" adjustments  stemming from  the  build-out of  space
   which was  added to the  leased area  through Supplemental  Lease
   Agreement (SLA) 7?  Does the agency owe additional money  in rent
   for the period between May 1, 1993  (the effective date of SLA 7)
   and February  1, 1994  (when the  Government began  occupying the
   additional space)?   Does the agency  owe rent for the  months of
   September, October, and November, 1995?  Is the agency  obligated
   to reimburse the lessor for  attorney fees a state court required
   the partnership to pay to a party in litigation with it?
 
 
        We answer the first, third, and fourth of these questions in
   the negative.  We answer  the second question in the affirmative,
   but award to the  lessor considerably less than it  seeks in this
   regard.
 
                            Findings of Fact
 
        1.   On  May  15, 1986,  GSA  entered into  a  contract with
   Dalles Partnership to lease from the latter the  building located
   at  6417  Normandy Lane  in  Madison,  Wisconsin.   The  building
   contained 11,670 net usable square feet  of space.  The lease was
   to  run from August  15, 1986, through August  14, 1996.  Exhibit
   1[foot #] 1   at   1.      (The  term   was   later   changed  to
   October 15,  1986, through October  14, 1996.   Exhibit 2 at  2.)
   GSA was to pay rent of $8,958.67 per month in arrears.  Exhibit 1
   at 1.  The building was leased for occupancy by the United States
   Geological  Survey  (USGS), a  bureau  of the  Department  of the
   Interior.   Exhibit 165 at  11-12.   In 1991,  ROI purchased  the
   property from Dalles Partnership, and the contract was amended to
   reflect ROI's ownership.  Exhibits 7, 13.
 
        2.   The  lease contemplated that GSA would provide a "space
   layout" design for the area which would require the contractor to
   fit out the area to  meet the Government's requirements.  Exhibit
   1  at 8, 25-32.   The parties agreed  that specified "unit costs"
   for   telephone   outlets,   electrical   outlets,   ceiling-high
   partitions, and interior doors would be used "for any alterations
   required under  Paragraphs  19 and  20  of the  Solicitation  for
   Offers  [SFO]."[foot #] 2     Exhibit  1  at  3  (    11).    The
   SFO directed prospective offerors to price their proposals on the
   assumption that the  Government would require one  telephone wall
   or  floor outlet per 150 square feet  of space provided, one wall
   or floor electrical outlet per 90 square feet, one linear foot of
   ceiling-high partitions for each 15 square feet, and one interior
   door for  each 300 square  feet.  Id. at  14, 20 (SFO     47, 53,
   71).
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 All exhibits, except for  four introduced by  ROI
   at   hearing  and  designated   as  "Appellant's  Exhibits,"  are
   contained in the appeal file.
 
        [foot #] 2 Paragraph  19 of the SFO requires each offeror to
   state in its offer unit prices for various  construction elements
   which will  be used for the purpose  of modifying the lease price
   if the  Government requires more  or less of those  elements than
   the quantities  on which  the rent is  based.  Paragraph  20 says
   that the unit  prices will be used  during the first year  of the
   lease when  the Government  orders alterations  involving any  of
   those elements which cost $25,000 or less.  Exhibit 1 at 8.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        3.   The lease provided that "[u]nless the Government elects
   to  have the  space occupied  in  increments, the  space must  be
   delivered ready for occupancy as a complete unit.  The Government
   reserves  the right  to  determine  when the  space  is ready  to
   occupy."  Exhibit 1 at 36 (general clause 10).
 
        4.   The lease also contained several provisions relating to
   the payment of rent.  They included the following:
 
        General clause 24:  "The Government shall pay rent only when
        the   entire  premises  or  suitable  units  are  ready  for
        occupancy.   If  the  agency occupies  the space  in partial
        increments,  rent will  accrue  or  be paid  on  a pro  rata
        basis."  Exhibit 1 at 40.
 
        General  clause 26:   "The  initial  monthly rental  payment
        under this contract shall become due on the first workday of
        the  month  following  the  month  in  which  the  lease  or
        supplemental  agreement  establishing  commencement  of  the
        lease term  is executed, or  the first workday of  the month
        following  the month  in  which the  occupancy  of space  is
        effective, whichever is later."  Id. (emphasis added).
 
        SFO   28:  "If the Government fails to occupy any portion of
        the leased premises  or vacates the premises in  whole or in
        part prior to expiration of the firm term  of the lease, the
        rental rate shall be reduced as follows:  The rate  shall be
        reduced  by that  portion of  the costs  per square  foot of
        operating expenses not required to maintain the space.  Said
        reduction shall  occur after  the Government  gives 30  days
        prior notice  to the  lessor, and shall  continue in  effect
        until  the Government  occupies the  premises  or the  lease
        expires or is terminated."  Id. at 10.
 
        5.   One  more  lease  provision relevant  to  this  case is
   general clause 15, "Failure in Performance."  It states:
 
        The covenant to  pay rent and  the covenant to  provide
        any service,  utility, maintenance, or  repair required
        under  this  lease are  dependent.    In  the event  of
        failure by the  Lessor to provide  any of these  items,
        the Government may by contract or otherwise perform the
        service, maintenance, utility, or repair, and charge to
        the Lessor any cost incurred by the Government that  is
        related   to   the   performance   of   such   service,
        maintenance, etc., including  any administrative costs,
        and deduct such cost from any rental payments.
 
   Exhibit 1 at 37.
 
        6.   At  some time  in 1992,  USGS decided  to perform  more
   functions in  Madison  and hire  additional employees  to do  the
   work.  It  needed more office space  for the increased staff  and
   laboratory facilities  for the new  assignments.  USGS  knew that
   ROI had recently built an  addition to the Normandy Lane building
   and asked GSA  to provide  it with more  space at that  location.
   Transcript[foot #] 3  at   123;  Exhibits   165  at   11-13,  167
   at 10.
 
 
        7.   On August 19, 1992, the contracting officer sent to ROI
   a solicitation  for  an offer  to lease  approximately 3,197  net
   usable square  feet of  space to  be used  by USGS.   The  letter
   stated that  GSA desired  to "incorporate  [the additional  area]
   into the existing  lease under the same terms  and conditions and
   rental rate."  The  contracting officer informed ROI  that "[t]he
   expansion   space   requires   that   special   requirements   be
   incorporated in  the build-out."   She said, "We have  included a
   draft layout  design and  special requirements  on which you  may
   base your price per square foot proposal."  Exhibit 15 at 1.  The
   special requirements  included fifty-nine electrical  outlets and
   twenty-nine  telephone  outlets.   They  make no  mention  of the
   number of interior doors or linear feet of partitions which would
   be  required,  however.    Id.  at 4-8.    On  September  2,  the
   contracting officer reiterated  her request for an  offer, making
   clear that the  space would be at the Normandy Lane address as an
   expansion to the current USGS area.  The September 2 letter  also
   contained a  draft layout  design.   Exhibit  17  at 5-13.    GSA
   indicated  the location  of some  electrical  outlet boxes,  some
   telephone  outlets, some interior  doors, and some  interior wall
   partitions on the drawings.  Stipulation of Fact 4.  According to
   the GSA contract specialist who was responsible for administering
   this   contract,  the  layout  showed  what  the  Government  was
   requiring with regard to all unit cost items.  Exhibit 165 at 88.
 
        8.   On December 28, 1992, ROI responded to the solicitation
   for offers.    It  offered  to lease  the  area  required  as  an
   expansion to the area currently  occupied by the USGS, "under the
   same terms and conditions with the exception of the rental rate,"
   and said that its offer "includes the special requirements."  ROI
   stated:
 
             The  base  rental   rate  for  the  3,197   SF  is
        $15.98/SF.   It  provides  for the  following  interior
        finishing allowances:
 
             --   213 lineal feet of ceiling-high partitions.
             --   11 interior solid core doors.
             --   36 duplex electrical outlets.
             --   21 telephone outlets.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3 The court reporter  provided the  Board with  two
   transcripts of  the hearing  held in this  case.   One transcript
   consists of  full-size, 8-1/2  by 11 inch  pages; the other  is a
   "Multi-Page" version with four pages on each sheet of paper.  The
   pagination of the two versions is unfortunately not the same.  We
   cite to the full-size transcript.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        In the event the finished space exceeds the allowances,
        the additional alterations would be paid as a "Lump Sum
        Item" according to the schedule below:
 
             Telephone Outlet, Wall/Floor       $68/180
             Electrical Outlet, Wall/Floor      $56/206
             Ceiling-high partitions            $110/lineal
                                                foot
             Cost per interior door             $595
 
   Exhibit 17 at 1.  ROI's general partner, John R. Ammerman,  wrote
   the offer.   He derived  the numbers of telephone  and electrical
   outlets, interior doors,  and lineal feet of  partitions included
   in the price of $15.98 per square foot (per year) by applying the
   ratios for  these items  contained in the  original lease  to the
   area of 3,197  square feet.  Transcript  at 15, 105, 114-15.   In
   considering the special requirements contained in the request for
   proposal,  he  "itemized  what would  be  considered  a  lump sum
   payment  and  what would  be  considered  an adjustment  to  rent
   amount."  Id. at 108.
 
        9.   After  GSA received  ROI's offer,  the  parties entered
   into  negotiations regarding the  payments the agency  would make
   for  ROI's building out the space and  allowing the agency to use
   it.  Transcript  at 202; Exhibit 165  at 18-19.  The  record does
   not  contain evidence  sufficient  to  make  findings as  to  the
   substance of  these negotiations.   We do  know that  before they
   were completed, in  March 1993, the parties  agreed separately to
   SLA 6A,  reducing the  rent for the  space already being  used by
   USGS to  $8,529.23 per month,  in exchange  for the  Government's
   acceptance   of  responsibility   for  janitorial   services  and
   utilities.   Exhibit 18.   Apparently, ROI reduced its  price for
   the expansion space  to account for the  Government's performance
   of these  duties in  that area, as  well.   Exhibit 20;  see also
   Exhibit 21 at  4.  What  impact this action  had on the  parties'
   ultimate agreement is not clear, however.
 
        10.  In May 1993,  ROI and GSA  entered into SLA  7.   ROI's
   general partner, Mr. Ammerman, initialed pages of SLA 7 on May 4,
   and a  GSA contracting officer  initialed those pages on  May 11.
   SLA 7 has an effective date of May 1, 1993.  Exhibit 22.
 
        11.  SLA 7 inserted into the lease several paragraphs, among
   them the following:
 
        (1)  The  Lessor hereby  leases  to the  Government the
        following described premises:
 
             14,867  net  usable  square  feet  of  office  and
             related space comprised of  Block A (11,670  S.F.)
             and  Block B (3,197 S.F.) located at 6417 Normandy
             Lane, Madison, Wisconsin 53719.
 
        (3)  The Government shall pay the Lessor annual rent of
        $157,566.59 or $13,130.55  per month in arrears.   Rent
        for  the lesser period shall be  prorated.  Rent checks
        shall be made payable to the Lessor.
 
        (10) The  rate  for  operating  expense  escalator,  as
        escalated, is $1.06 per square foot. . . .
 
        (15) In case  of failure on  the part of the  Lessor to
        complete the  work for beneficial occupancy  within 105
        days  of receipt  of  the executed  Supplemental  Lease
        Agreement   No.    4,[foot #] 4   the    Lessor   shall
        pay  the Government,  as fixed and  agreed[] liquidated
        damages pursuant to this clause, the sum of $150.00 for
        each  and every  calendar  day  that  the  delivery  is
        delayed beyond the  date specified for delivery  of all
        the space for occupancy.
 
        (16) The  Lessor has  submitted  the  proposal for  the
        expansion  space  on  the  approved  layout  which  the
        Government  attached   to  the   Special  Requirements.
        Should   any  changes  be  made  to  this  layout,  the
        adjustment for unit costs shall be made on the basis of
        the following rates:
 
             Telephone Outlet, Wall             $68.00
             Telephone Outlet, Floor            180.00
             Electrical Outlet, Wall              56.00
             Electrical Outlet, Floor           206.00
             Ceiling-high partitions per lineal foot 110.00
             Interior door                      595.00
 
   Exhibit 22 at 2-4.  Paragraphs (1), (3), and (10) above  replaced
   paragraphs  in the original  lease dealing with  similar matters.
   Id. at 2.
 
        12.  When the parties entered into SLA 7, the portion of the
   building  which  included  the  expansion  space  (Block  B)  was
   unfinished.   Exhibit 166 at 13.  ROI did  not begin work in this
   area,  for  the  purpose  of   building  it  out  to  meet  GSA's
   requirements, until about July 19, 1993.  Exhibits 29, 166 at 53;
   Transcript at  73, 135.   As  of 105  days after  receipt of  the
   executed SLA 7, or August 24, 1993, none of the Block B space was
   ready for occupancy.  Stipulation of Fact 6.
 
        13.  On September 3, GSA told  ROI, "USGS will not move into
   the space and GSA will not accept the premises in intervals.  The
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 Clearly, the reference should have been to SLA 7.
   Two amendments labeled "SLA 4" were made to the lease.  The first
   was  dated March  1,  1990,  and the  second  December 18,  1991.
   Exhibits 5, 12.   The parties have stipulated  that the specified
   date is August 24, 1993.  Stipulation of Fact 3.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   entire expansion  must be  completed before  the Government  will
   perform  its  joint  inspection."   Exhibit  34  at 1.    GSA was
   concerned that construction of remaining parts of the  area would
   cause  excessive disruption if  people were occupying  the office
   space.  Transcript at 138; Exhibit 165  at 49.  Completion of the
   new  rest  rooms was  a  particular  concern; if  USGS  employees
   working  in  Block B  had  to  use  facilities elsewhere  in  the
   building,  those facilities  would be  overtaxed,  and because  a
   flight of stairs  was between the  Block B  office space and  the
   other rest rooms, handicapped employees in Block B would find the
   facilities inaccessible.  Transcript  at 236; Exhibit 165  at 49-
   50.   GSA  also feared  that in  light of  ROI's  past record  of
   breaking  promises,  and  the agency's  consequent  past  need to
   prompt the lessor  severely to get it to  take necessary actions,
   if the Government were to occupy part of the space, ROI would not
   complete the build-out of the rest of it.  Transcript  at 138-39,
   210-12; Exhibit 165 at 45-46; see also Exhibits 15, 34.
 
 
        14.  Mr. Ammerman  testified that  he believes  the Block  B
   office space was  ready for  use on  or about  October 10,  1993.
   Transcript at 37-38.  For this conclusion, he relies "mostly" (or
   "basically") on an affidavit signed  by Wayne J. Manternach.  Mr.
   Ammerman did not have personal knowledge of when construction was
   complete; he merely "visited  the property off and  on."  Id.  at
   74-78.  Mr.  Manternach acted as an advisor to  Mr. Ammerman with
   regard  to the  construction,  assisting  him  in  arranging  for
   tradesmen  to  perform  work  at  the  site  and  in  negotiating
   prices.[foot #] 5    Exhibit   166  at  6-7,  12,   14,  20,  32-
   35.   The  key sentence  in  the affidavit  is,  "Except for  the
   laboratory,  the  USGS  office  space  was  fully  available  for
   occupancy   as  of  October  10,  1993  when  the  carpeting  was
   installed."  Exhibit 136 at 6.
 
        15.  We find that contrary to Mr. Ammerman's  belief and the
   sentence  in the  Manternach affidavit, on  which he  relies, the
   Block B office was not ready  for occupancy on October 10 or  any
   date shortly thereafter.  The affidavit is not  credible.  It was
   prepared months later (in September 1994) by some unknown person,
   and Mr. Manternach signed  it as a favor to  Mr. Ammerman because
   he "basically . . . agreed with .  . . it."  Exhibits 136 at 5-6,
   166 at 133.  Mr. Manternach testified that he did not inspect the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5 Although some of the documents in the appeal file
   refer to Mr. Manternach as  the general contractor for the build-
   out,  this individual's deposition testimony confirms that he did
   not function in that capacity.  He  testified that he was not the
   general  contractor  and  was  not  even  employed  or under  any
   contract for the project.  Exhibit 166 at 6-7, 52, 128.   Neither
   he nor  anyone from his company was on the site at all times; the
   tradesmen worked  essentially without  supervision.   Id. at  36.
                                                         ___
   Mr. Manternach said  that he "was pretty  much in and out  of the
   project" and that  he "didn't really have  a closeout of my  work
   because I didn't really have any work."  Id. at 90, 150.
                                            ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   premises on  October 10 and that he does  not know whether it was
   habitable  on that date.  Exhibit 166  at 135, 150.  Construction
   schedules  prepared  by  Mr. Manternach  and/or  approved  by Mr.
   Ammerman throughout October show that  as late as October 26, ROI
   had not yet  installed ceiling tile  and tracks, stairway  doors,
   rest room  fixtures, partitions,  mirrors,  and accessories,  and
   miscellaneous  trim and  finish  items  (in  addition  to  having
   considerable work  to perform in the laboratory  area).  Exhibits
   37, 157 at 2, 166  at 1, 3 of Deposition Exhibit 11.  Inspections
   of  the space by GSA employees  in December 1993 and January 1994
   demonstrated  that  as late  as January  28, construction  in the
   Block B  laboratory space was  still incomplete.   Transcript  at
   218-25; Exhibits 49, 51, 59, 62, 165 at 59.
 
 
        16.  On December 22, 1993, GSA sent ROI a letter alerting it
   to  "major deficiencies noted during our [December 20] inspection
   of the expansion space."  The letter referred to problems in both
   the office and laboratory spaces.  GSA was particularly concerned
   about items  affecting safety and  heating and cooling.   Exhibit
   51;  Transcript at  141-42.   On January 13,  1994, GSA  told the
   lessor that  if all the  space was not  ready for  occupancy very
   soon,  the Government  would  take  over  construction  and  make
   deductions from  future rent payments  for the cost of  the work.
   Exhibit  54;  Transcript at  143.    The agency  reiterated  this
   warning  on  January  19.    Exhibit 61.    On  February  1,  the
   Government   moved    into   the    Block   B    space.[foot #] 6
   Stipulation of  Fact 8.   The contracting officer  explained that
   although the laboratory was still  inoperable, "We had to move in
   at that point in time.  The agency was getting additional people,
   [and] had already  ordered additional furniture."   Transcript at
   149; see  also Exhibit  165 at  90-92.   GSA again  asked ROI  to
   complete the  laboratory.  When  the lessor  did not  do so,  GSA
   contracted with others for performance  of the necessary work, at
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6 The Government  had occupied  a small portion  of
   the Block  B space prior  to this date.   Beginning at  some time
   after October 10, 1993, it had used one tiny room for  storage of
   office furniture  and equipment.   Transcript  at 57-58,  227-28;
   Exhibit 166 at Deposition Exhibit 1.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   a   cost   of   $3,672.49.[foot #] 7     Transcript   at  100-01,
   150-52, 229-30; Exhibit 96.
 
 
        17.  ROI  installed  fifty-eight  electrical  wall  outlets,
   twenty-nine telephone wall outlets,  thirteen interior doors, and
   approximately 394 feet of interior wall partitions in the Block B
   office  space.   Stipulations of  Fact 11-14.   According  to the
   contracting   officer  and   the  GSA   employee   who  inspected
   construction progress, GSA made no changes to the layout from the
   drawings contained  in SLA 7.  Transcript at  154, 157, 257.  The
   inspector testified specifically that she measured the partitions
   which were  built and determined  that their dimensions  were the
   same as those in the drawings.  Id. at 225-27.
 
        18.  When ROI missed  the August 24, 1993,  deadline for the
   build-out of the  Block B space,  GSA informed ROI that  it would
   assess liquidated damages at  the rate of $150 per  day until the
   space was ready for occupancy.   The agency reduced rent payments
   to reflect deductions for these damages.  After a month, at ROI's
   request,  GSA agreed to defer collection of subsequent liquidated
   damages until  after the agency  began paying rent on  the space.
   Transcript at 136-37, 194.   GSA ultimately assessed, and set off
   against rent payments, $24,000 in liquidated damages.  Exhibit 76
   at   1-2.[foot #] 8      The   agency   also   made   two   other
   deductions from rent  payments to ROI --  $3,672.49, representing
   the costs  GSA incurred in having construction  of the laboratory
   completed,  and $770.06  "due to  maintenance that you  failed to
   complete   and    that   GSA    had   to    complete   in    your
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 Mr.  Ammerman  testified that  this  sum actually
   represented the  cost of  making improvements  to the  laboratory
   beyond  what   was   specified  in   the   special   requirements
   incorporated  into  SLA  7.    Transcript   at  45-46;  see  also
                                                           _________
   Appellant's Reply Brief  at 11.  The record  contains no evidence
   in support  of this  theory.  To  the contrary, the  GSA contract
   specialist  who administered this lease testified that the agency
   made  no changes  to the  plans  for the  laboratory, other  than
   allowing  ROI to substitute  inferior quality cabinets  for those
   specified.   Exhibit 165  at 53-54, 88-89.   Even  Mr. Manternach
   could  not recall  GSA having  ordered  any laboratory  equipment
   additional to what it originally required.  Exhibit 166 at 123.
 
        [foot #] 8 The deductions for liquidated damages were  taken
   as  follows: $1,050  for August  1993 (taken  on March  1, 1994),
   $4,500 for September 1993 (taken on November 1, 1993), $4,650 for
   October 1993 (taken  on April 1, 1994), $4,500  for November 1993
   (taken on May  2, 1994), $4,650 for December 1993  (taken on June
   1, 1994), and  $4,650 for January 1994  (taken on July 1,  1994).
   Exhibits 36, 38, 39, 43, 65, 71, 73, 76 at 3-5, 84, 87, 88, 169. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   absence."[foot #] 9   Transcript   at    150-52;   Exhibits   71,
   96.
 
 
        19.  Exclusive of the deductions for liquidated damages, GSA
   paid ROI, as rent for each of the following months, the following
   amounts:    May  through September,  1993:  $8,529.53  per month;
   October     1993:     $8,547.83;[foot #] 10     November     1993
   through January 1994: $8,562.53 per  month.  Exhibits 36, 38, 39,
   42, 43, 65, 71,  73, 76 at 3-5,  84, 87, 88,  169.  The total  of
   these amounts is $76,883.07.
 
        20.  In  July 1993,  ROI  asked GSA  to  have rent  payments
   deposited  by electronic funds  transfer to the  lessor's account
   with Community National Bank (CNB) of Oregon, Wisconsin.  Exhibit
   93; Transcript  at 62-63.   ROI  never changed  this arrangement.
   Transcript at 64.
 
        21.  In  September 1995,  GSA  began to  receive information
   regarding a  bankruptcy of  Mr. Ammerman, ROI,  or both,  and the
   foreclosure of a  loan or  loans on  the building  by a  mortgage
   holder or  holders.  The  contracting officer and her  staff were
   confused; following the agency's usual practice when ownership of
   a leased facility is unclear, they stopped paying rent until they
   determined to whom  payments should  be made.   ROI and CNB  each
   contended that  payment was  due to it.  Around the  beginning of
   December 1995, GSA concluded that  payment should be made to ROI.
   On December 19,  1995, it wired payment of rent for the months of
   September,    October,    and   November    --    a    total   of
   $39,645.96[foot #] 11   --   into    ROI's   account   at    CNB.
   Transcript at 154-57, 188, 246-56, 261-64, 279-83; Exhibits 93 at
   3, 126, 128, 161 at 1, 162 at 5, 169.
 
        22.  CNB's monthly  statement of ROI's account  for December
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 The deduction for costs  of maintenance work  was
   taken on April 1, 1994, and the deduction for costs of completing
   the laboratory construction was taken on April 3, 1995.  Exhibits
   71, 76 at 6, 96, 169.
 
        [foot #] 10 GSA  increased rent for the space covered by the
   original lease  ("Block A")  by $395.97 per  year, or  $33.00 per
   month, for the period October 15, 1993, through October 14, 1994,
   due to  escalation in costs  of operating the building.   Exhibit
   42.   This  increase had a  proportionate impact on  rent due for
   October  1993.   GSA  did  not implement  the  increase on  time;
   instead of increasing the rent  payment for October 1993 (paid on
   November 1, 1993) by $18.10,  it included an extra $18.30 in  the
   payment  for November 1993  (paid on December 1,  1993).  Exhibit
   169.
 
        [foot #] 11 On  October  14,  1994, rent  was  increased  to
   $13,215.32  per month  due  to  escalation  of  operating  costs.
   Exhibit 94.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   1995  shows  the  deposit  made   by  GSA.    It  also   shows  a
   miscellaneous  debit (withdrawal) of  $33,423.79 and includes the
   notation, in  the address block, "DO  NOT MAIL - GIVE  TO JERRY."
   Exhibit 161 at 1.   Gerald ("Jerry") Luebke was the president  of
   CNB.  Id. at 2-3.
 
 
        23.  After 1995, CNB  gained ownership of the  Normandy Lane
   property as  the result  of  a foreclosure  sale, and  litigation
   ensued among ROI and the three owners  of the former mortgages on
   the property regarding allocation of  the proceeds from the sale.
   A July 15, 1998,  judgment by a  Wisconsin circuit court  awarded
   ROI $38,438.23 plus interest from CNB, to restore funds which had
   been paid  by ROI pursuant to an earlier  state court order.  The
   judgment  allowed CNB to keep  $5,694.74 in attorney's fees which
   had previously been  ordered to be paid by ROI.  This judgment is
   currently  before  a  Wisconsin  appellate  court.    Appellant's
   Exhibit 3; see  also materials filed with the  Board by Appellant
   on January 25, 1999.
 
        24.  ROI  submitted to the contracting officer a claim dated
   October   14,  1996,  which   includes  amounts  for   unit  cost
   adjustments  and rent  for the  months  May 1993  through January
   1994, inclusive.   Exhibit 133.  The lessor revised this claim on
   November 27, 1996,  and again  on April 2,  1997.  Exhibits  136,
   139.  The  contracting officer issued her decision  on this claim
   on August 18, 1997.  Exhibit 147.
 
        25.  ROI made a claim for  two additional sums -- $32,597.79
   and $5,694.74 --  in the context of a February 6, 1998, amendment
   to the  complaint filed in  this case.   The lessor  now explains
   that the former amount  is for rent for the months  of September,
   October, and November of 1995, and the latter is  for legal fees.
   Appellant's Prehearing Statement  at 3; Appellant's Brief  at 10.
   On July  10, 1998, GSA moved to dismiss  this claim from the case
   for lack of jurisdiction,  on the ground that  it had never  been
   presented  to the  contracting officer.   At  the end  of October
   1998, the presiding judge in  this case announced his resignation
   from the Board and the case was  reassigned to the author of this
   decision.     The  new  presiding  judge  convened  a  telephonic
   conference  with counsel, at which he asked Government counsel to
   present this claim to the  contracting officer, so that she could
   issue a decision on  it no later than the date of  the hearing in
   the case  (November 12,  1998), and  the jurisdictional  question
   could thereby be  mooted.  Government  counsel complied with  the
   request, and  in the  course of  her  testimony, the  contracting
   officer discussed  in detail her  reasons for denying  the claim.
   Transcript at 245-59.
 
                               Discussion
 
   Does the agency  owe the lessor additional money  for "unit cost"
   adjustments stemming from the build-out of space  which was added
   to the leased area through SLA 7?
 
        Both the  original lease  and SLA 7  required the  lessor to
   build out its property to meet the needs of the Government.  Both
   instruments   provided  that  some  of  the  necessary  costs  of
   construction  would be paid  by GSA  at the  outset of  the lease
   period, and if the lessor wished to recoup others of those costs,
   it would have to do so through payments of rent at an agreed-upon
   rate.   Each  instrument included  a means  for allocating  these
   costs as  to telephone  and electrical  outlets, partitions,  and
   interior  doors: the  costs  would have  to  be recouped  through
   payments of rent, unless the Government ordered more (or less) of
   any  of these  items than  a  number specified  in or  capable of
   derivation from  the  instrument.    If the  number  ordered  was
   greater than  that number,  the Government  would compensate  the
   lessor for  the difference  at an  agreed cost  per unit;  if the
   number  ordered was less,  the lessor would  similarly compensate
   the agency.  Findings 2, 11.  This sort of provision is common in
   GSA  leases.    See,  e.g.,  Rock  Creek  Associates  K   Limited
   Partnership v. General Services Administration, GSBCA 11333, 93-1
   BCA   25,351 (1992).
 
        The original  lease  and  SLA  7 used  different  means  for
   describing  the  number  of  telephone  and  electrical  outlets,
   partitions, and interior  doors whose costs  were to be  recouped
   through rent payments.  The original lease used ratios of each of
   these items to area  to be leased; SLA 7 used  a list of "special
   requirements" and  a layout  drawing.  At  the time  the original
   lease was entered into, the means used in SLA 7  was unavailable,
   since  the Government had not yet prepared a layout.  Findings 2,
   11.
 
        When GSA asked ROI for  a proposal to lease additional space
   in  its building,  the agency  asked  the lessor  to prepare  the
   proposal on the basis  of a list  of requirements and a  drawing.
   Finding  7.    ROI  replied  that  it  would  meet  the  agency's
   requirements and would charge a rental rate based on installation
   of only as many telephone and electrical outlets, partitions, and
   interior doors  as would have  to be provided in  accordance with
   the ratios stated in the original lease.   The rental rate in the
   proposal was  $15.98 per  square foot for  3,197 square  feet, or
   $4,257.34 per  month.    Under  this  proposal,  if  GSA  ordered
   additional  outlets,  partitions,  and  doors  (as  the  list  of
   requirements and  the drawing  indicated it  would do),  it would
   have to pay for the additional items at fixed unit prices.  ROI's
   general partner, John Ammerman, understood in making the proposal
   that some  of the  lessor's costs would  be recouped  through the
   rental rate and some through a lump sum payment based on the unit
   costs.  Finding 8.
 
        GSA did not  accept this proposal; instead, it  entered into
   negotiations with ROI regarding it.  Finding 9.  The negotiations
   culminated in  the parties' agreement  to SLA 7,  which increased
   the  rent for  all  space  leased by  GSA  in  the building  from
   $8,529.53 to $13,130.55 per month.  Finding  11 (   1, 3).  SLA 7
   also provided that the unit prices included in ROI's proposal for
   outlets, partitions, and  doors would be imposed  only if changes
   "[s]hould   . . .  be   made  to   [the]   layout"  and   special
   requirements.     The   layout   and  requirements   contemplated
   incorporation of considerably more outlets, partitions, and doors
   than  would have  been required  under  the ratios  on which  the
   original lease's rental rate had been predicated.  Id. (  16).
 
 
        Thus, the result of the  negotiations was that GSA would pay
   more in rent  than ROI had asked (and even more than ROI's rental
   rate would  have been, taking  into consideration a  reduction to
   compensate  for  the   Government's  assumption  of   maintenance
   responsibilities),  but ROI  would  have to  absorb  the cost  of
   including  in its build-out of the additional space more outlets,
   partitions, and doors than it would have if its proposal had been
   accepted.  This is the sort of trade-off which occurs commonly in
   the  business  world.    Mr. Ammerman,  who  recognized  that his
   proposal incorporated recoupment  of costs through both  rent and
   lump sum payments, Finding 8,  surely could not have been unaware
   that the  reallocation of  responsibility for  costs of  outlets,
   partitions,  and  doors was  included in  the trade-off  that was
   made.
 
        GSA  ultimately  ordered  exactly  the  number of  telephone
   outlets it had listed among  "special requirements," and one less
   electrical outlet than it had listed.  Finding 17.  Because SLA 7
   stated that  ROI would  be reimbursed for  the cost  of providing
   outlets only if  GSA ordered more than the  number specified, and
   the agency  did not  do so,  the lessor  is not  entitled to  any
   payment for providing outlets.   The special requirements  do not
   specify any number of partitions  or doors, and we cannot discern
   any particular  number of either  of these items from  the layout
   drawing.    Finding  7.    A GSA  inspector  testified  that  the
   dimensions of the partitions constructed are the same as those in
   the drawing.    Finding 17.    Whether this  is  true or  not  is
   immaterial, since the appellant has the burden of proof as to its
   claims, and  it has produced  no evidence  as to any  variance in
   partition dimensions between the drawing and actual construction.
   In the absence of proof, the claim  fails.  Similarly, we have no
   evidence  as to  any  variance  in number  of  doors between  the
   drawing and actual construction, so the  claim as to the cost  of
   doors fails as well.
 
        ROI notes a possible problem  with this analysis:  the first
   sentence of paragraph 16 of SLA 7 says, "The Lessor has submitted
   the proposal for the expansion space on the approved layout which
   the Government  attached to  the Special  Requirements," but  the
   proposal actually appears to  have been priced with  reference to
   the ratios included in the original lease.  Findings 8, 11.  This
   sentence is  nothing more  than a characterization  of an  action
   which preceded  the agreement itself.   In light of  the lessor's
   commitment in its  proposal to build out the space to comply with
   the special requirements, Finding 8, the sentence  is an accurate
   (if  inartful)  statement, notwithstanding  the  pricing approach
   taken by ROI.  The  following sentence, which begins, "Should any
   changes be  made to  this layout, the  adjustment for  unit costs
   shall be made on the basis of the following rates: . . ," Finding
   11, is the  critical enunciation of the parties'  agreement as to
   payment for outlets, partitions, and doors on a unit cost basis.
 
 
        ROI's  claim  for  $27,273.40 in  unit  cost  adjustments is
   denied.
 
   Does  the agency  owe additional  money  in rent  for the  period
   between May 1, 1993 (the effective date of SLA 7) and February 1,
   1994 (when the Government began occupying the additional space)? 
 
        To  answer  this question,  in  all  the  ways it  has  been
   presented, we must consider two separate issues: first, when rent
   payments should have begun under SLA 7 (and  how much they should
   have been), and  second, whether the deductions made  by GSA from
   rent payments were appropriate.
 
        A.   ROI believes that  because SLA 7 has  an effective date
   of May 1, 1993, and fixed rent for the entire space leased by GSA
   in the building  at $13,130.55 per month, Findings  10, 11 (   1,
   3), the agency owes rent at the prescribed rate beginning on  May
   1, regardless of when it  began occupying Block B.   According to
   the lessor,  the only lease  clause which limits  rental payments
   due to  a lack  of occupancy is  paragraph 28  of the  SFO, which
   reads:
 
        If the  Government fails to  occupy any portion  of the
        leased premises or vacates the premises  in whole or in
        part prior to expiration of the firm term of the lease,
        the rental rate shall be  reduced as follows:  The rate
        shall  be  reduced by  that  portion of  the  costs per
        square  foot  of  operating expenses  not  required  to
        maintain the space.   Said reduction shall  occur after
        the  Government gives  30  days  prior  notice  to  the
        lessor,  and  shall  continue   in  effect  until   the
        Government  occupies the premises  or the lease expires
        or is terminated.
 
   Appellant's Brief at 9; see Finding 4.  ROI maintains that if any
   deduction for lack of occupancy is permitted, it must, consistent
   with this clause, be  calculated in this way:  SLA  7 establishes
   an  operating expenses  rate  of  $1.06 per  square  foot.   (See
   Finding  11 (  10).)   Block  B consisted  of 3,197  square feet.
   (See id. (  1).)  Thus,  the operating expenses rate for  Block B
   was $3,388.82 per year or $282.40 per month.  The rent  should be
   reduced  by $282.40  for every  month Block  B was  not occupied.
   Appellant's Brief at 8-9.
 
        GSA maintains that it was  not obligated to pay that portion
   of  the rent  specified in SLA  7 which  pertains to the  Block B
   space -- the amount by which the SLA 7 rent exceeded the previous
   rent -- until it actually occupied that space.  The agency relies
   on the lease's general clause 26, which reads:
 
        The initial monthly rental payment under this contract shall
        become due on  the first workday of the  month following the
        month  in   which  the   lease  or   supplemental  agreement
        establishing  commencement of the lease term is executed, or
        the first workday of the  month following the month in which
        the occupancy of space is effective, whichever is later.
 
   Respondent's Brief at  19-20; see Finding 4.   GSA maintains that
   Block B was not ready for  occupancy even as late as February  1,
   1994, but  that because  the Government moved  into the  space on
   that date, rent for  that area should have been paid,  as it was,
   from then.
 
        In our view, neither party's position is correct.  Paragraph
   28  of the SFO,  which ROI sees  as critical,  pertains to rental
   payments  in the  event space  is  ready for  occupancy, but  the
   Government chooses  not to occupy  it.  General clause  26, which
   GSA cites  as pivotal,  pertains to  the  initial monthly  rental
   payment under the  lease, and that was made in  1986, long before
   the events that concern us here.  
 
        The  lease provision of  importance to the  question of when
   rental payments should have begun,  and how much they should have
   been, is general clause  24:  "The Government shall pay rent only
   when  the  entire  premises  or  suitable  units  are  ready  for
   occupancy.    If  the  agency  occupies  the  space  in   partial
   increments, rent will  accrue or be  paid on a  pro rata  basis."
   See Finding 4.  SLA 7 replaced the original lease's provision (as
   adjusted by SLA 6A) setting rent for Block A's 11,670 square feet
   at $8,529.23 per month with a statement that the Government would
   pay $13,130.55 per month to rent the entire area of 14,867 square
   feet in both Block A and Block  B.  See Findings 1, 9, 11  (   1,
   3).   SLA 7 does not say that any  part of that rent is to be for
   one block  or the other; it simply sets  a single amount for both
   blocks.  Because the  Government was already using Block A on the
   effective  date of  SLA  7,  May 1,  1993,  the  space there  was
   obviously ready for occupancy on  that date.  Under the terms  of
   general clause 24,  after May 1,  rent should have been  paid for
   the Block A space at the SLA 7 rate, on a "pro rata basis."  "Pro
   rata"  means  "proportionately;  according  to  a  certain  rate,
   percentage, or proportion."  Black's Law Dictionary 1220 (6th ed.
   1990).  SLA 7 does not contain any specific instruction as to how
   the term "pro  rata" should be applied  here.  In the  absence of
   any  instruction, because SLA 7's only measure of proportionality
   between Block A and Block  B is square footage, we  conclude that
   the  only reasonable application of "pro rata  basis" is on a per
   square foot  basis.  GSA's  theory that  rent for Block  A should
   have been paid at the rate prescribed in the original lease (with
   adjustments)  is  inconsistent   with  this   provision,  as   we
   understand it.  Since Block A contained 78.5 percent of the area,
   GSA  should  have paid  78.5  percent  of  the  SLA  7  rent,  or
   $10,306.96  per month, from  May 1, 1993,  until additional space
   covered by SLA 7 was ready for occupancy.
 
        B.   SLA 7 provided that ROI  would pay to GSA as liquidated
   damages $150 for  every day that "delivery is  delayed beyond the
   date  specified for  delivery  of all  the space  for occupancy,"
   which  was August 24,  1993.  Finding  11 (  15).   ROI maintains
   that GSA was not entitled  to withhold rent and assess liquidated
   damages on the same space at the same time.  Appellant's Brief at
   7;  Appellant's  Reply  Brief at  8.    We are  aware  of  no law
   prohibiting parties from  agreeing to a  lease which allows  both
   actions, however, and such leases  have been written.  See, e.g.,
   First  Interstate Bank  of  Denver, N.A.,  GSBCA  9484, 89-1  BCA
     21,453 (1988).  ROI has not explained why the lease which is at
   issue here  should not  be read  as permitting GSA  to take  both
   actions, and we are able to discern no such reason.  ROI does not
   contend  that  the liquidated  damages  specified in  SLA  7 were
   unreasonable  in  amount;   to  the  contrary,  it   accepts  the
   imposition of  these damages for  the time between August  24 and
   October 10.  Appellant's Brief at 7;  Transcript at 102.  The two
   actions served  different purposes -- the withholding of rent was
   to ensure  that the Government  paid only for space  it occupied,
   whereas  the liquidated damages  were intended to  compensate the
   Government for administrative costs incurred by GSA in inspecting
   construction progress,  communicating with ROI and local building
   inspectors, and related activities, and costs incurred by USGS as
   a result  of having  to work  in an  overcrowded Block  A and  in
   revising plans for  its move into the Block B  space.  Transcript
   at 134,  164; Exhibit 165 at 60-62.  Just  as rent in addition to
   $10,306.96 should have been paid from May 1, 1993, until the date
   on which  space additional  to Block A  was ready  for occupancy,
   liquidated damages were  properly assessed from August  24, 1993,
   until that same date.
 
        ROI contends that the office space in Block B  was ready for
   occupancy on October 10, 1993.  Appellant's Brief at 7.  We  have
   found that the slim evidence supporting this theory -- a sentence
   in an affidavit -- is not credible, and that the office space was
   not completed until some time after  that date.  Findings 14, 15.
   The lease gave GSA the right to determine when space is  ready to
   occupy.  Finding 3.   The agency exercised that right reasonably;
   it had good  reason for not accepting the office space in Block B
   until  all of  that block  (including  the laboratory  space) was
   built out completely.   Findings 13, 15,  16.  Thus, Block  B was
   not ready  for occupancy  until the laboratory  was completed.   
   The laboratory was not finished even as late as February 1, 1994,
   Finding 16, so GSA was justified in not accepting the space until
   that date.
 
        We reject both of the  theories ROI asserts in opposition to
   this conclusion.  First, the  lessor contends that its failure to
   complete the laboratory  space was excusable because  it resulted
   from   problems   which   were  beyond   the   lessor's  control.
   Appellant's  Brief at  7, 9, 12.   The  only two items  which ROI
   cites in  this regard were cabinets and an air  filter.  Id. at 9
   (referencing  Exhibit  166 at  61-83).   The  cabinet  matter was
   swiftly resolved:  ROI was unable to secure the product specified
   by GSA,  so the  agency allowed the  substitution of  an inferior
   product.  Finding 14 n.5.  The air filter  did not arrive on site
   promptly  because ROI  neglected  to monitor  the filling  of its
   order for the  item and then did  not pay the balance  due on it,
   and ROI did not install it properly.  Exhibits 63 at 9-11, 166 at
   92-97  & Deposition Exhibits 8-10,  168 at 11.   Neither of these
   difficulties can by any stretch of the  imagination be considered
   to be  beyond the lessor's  control.  Second, ROI  maintains that
   rent should be paid from the time  at which GSA actually occupied
   a portion of the Block B area,  when the agency started to use  a
   small room for  storage.  See Finding  16 n.6.  We  conclude that
   this   minor,  incidental  sort  of  usage  does  not  constitute
   occupancy, and in any  event, the record does  not show when  the
   usage began.
 
 
        C.   Pursuant  to our analysis  of the two  matters at issue
   regarding rent  payments from  May 1, 1993,  through February  1,
   1994, we make the following conclusions.   (1)  Rent should  have
   been  paid at  the  rate of  $10,306.96 for  each  of the  months
   between  these  two dates.    The  total  rent should  have  been
   $92,762.64, which is $15,879.57 more than GSA actually paid.  See
   Finding 19.   (2)   GSA acted  properly in  deducting $24,000  in
   liquidated  damages for the period  from August 24, 1993, through
   February 1, 1994.  See Finding 18.
 
        D.   GSA  made  two  deductions  from  rent  payments  after
   February  1,  1994,  and for  reasons  other  than  assessment of
   liquidated damages.   Both were for work which  GSA had performed
   after ROI, which was  contractually obligated to perform  it, did
   not do  so.  One  was in the  amount of $770.06,  for maintenance
   services;   the  other  was  in  the  amount  of  $3,672.49,  for
   completion of the laboratory.  Finding 18.  These deductions were
   permissible under  general clause  15 of the  lease.   Finding 5.
   ROI does not contest the  first deduction.  Appellant's Exhibit 2
   at 2.   The lessor maintains  that the dispute  as to the  second
   "was settled prior  to the hearing.  Therefore, GSA  would not be
   entitled to  retain this rent  deduction."  Appellant's  Brief at
   10; see  also Appellant's Reply Brief at  11.  GSA disagrees with
   this  position.   Respondent's  Brief at  26-27.   The settlement
   agreement  is not  in evidence,  and ROI  has submitted  no other
   documentation showing voluntary  resolution of this matter.   The
   record is clear that GSA contracted for  the work in question and
   paid the stated  amount for it, although performance  of the work
   was  ROI's  responsibility.    Findings  11  (  15),  16.     The
   contracting officer,  as authorized by  general clause 15  of the
   lease, properly charged the lessor  for the work by deducting the
   amount from rent payments.
   Does the  agency owe rent  for the months of  September, October,
   and November,  1995?   Is the agency  obligated to  reimburse the
   lessor for attorney fees a state court required the latter to pay
   to a party in litigation with it?
 
 
        ROI  maintains  that of  the  rent  due  for the  months  of
   September,  October,  and  November,  1995,  it  is  entitled  to
   $32,596.70.  Finding 25.  The lessor says that it did not receive
   rental  payments for  these months  from GSA.   Appellant's Reply
   Brief at  11-12.  The  last assertion is apparently  based on Mr.
   Ammerman's testimony that ROI was not paid rent for those months.
   See  Transcript at  89, 92.   The record is  clear, however, that
   after  some indecision, GSA made full payment  of rent to ROI for
   the three months in question.  Findings 20, 21.
 
        ROI is currently  engaged in litigation in  Wisconsin courts
   with  Community  National  Bank,  an  institution  which  held  a
   mortgage on  the property and  later purchased the property  at a
   foreclosure sale.   Finding  23.   The relationship  between that
   litigation and the  rent payments is obscure.   At hearing, ROI's
   attorney  explained that the  state court litigation  "relates to
   other matters, not to rent," Transcript at 93, and that statement
   appears  to be  true.   Nevertheless, both  before and  after the
   hearing,  ROI has intertwined  discussion of the  litigation with
   the claim for rent.  For example, in its reply brief,  the lessor
   advises, "The Board can hold the $32,596.70 in abeyance pending a
   ruling by the State Appellate Court."  Appellant's Reply Brief at
   12.   Might ROI be arguing that in withdrawing from ROI's account
   most of the rent  payment for the last three months  of 1995, the
   bank was acting improperly?  See Finding 22. Whether it is or not
   is  immaterial to  this case,  since  we are  resolving only  the
   disputes  between ROI  and  GSA, and  we have  no doubt  that GSA
   fulfilled its  contractual obligation to  pay rent for  the three
   months in question.
 
        Similarly,  we agree  with  the agency  that  the claim  for
   recovery of attorney  fees awarded by a Wisconsin  court from ROI
   to the bank involves rights as between those two parties and does
   not involve GSA,  so we have no license to intrude in the matter.
   See  Respondent's Brief  at 37.    ROI's characterization  of the
   claim  as  seeking  "damages [ROI]  sustained  in  pursuing these
   monies [the rent payments?]," Appellant's Reply Brief at 12, does
   not suffice to create any authority for the Board  to address the
   issue.   Even if it did, because  we find that GSA  made the rent
   payments  long before the  attorney fees were  incurred, Findings
   21-23, we  could scarcely  conclude that  the fees  were "damages
   sustained in pursuing" those payments.
 
                                Decision
 
        The appeal is GRANTED IN PART.   We direct GSA to pay to ROI
   the sum of $15,879.57 in  additional rent payments for the period
   from May 1, 1993, through February 1, 1994.  This amount shall be
   paid with interest from the date on which the contracting officer
   received ROI's  claim dated  October 14, 1996.   41  U.S.C.   611
   (1994).  In all other regards, the appeal is denied.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   We concur:
   _________________________               _________________________
   EDWIN B. NEILL                     CATHERINE B. HYATT
   Board Judge                             Board Judge