DENIED: May 2, 1996
                                                
 
 
                              GSBCA 13418
 
 
                         9TH & D JOINT VENTURE,
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Brett  D. Orlove  of  Grossberg,  Yochelson,  Fox  &  Beyda,
   Washington, DC, counsel for Appellant.
 
        Jeffrey  H.  Dunn,  Office  of   Regional  Counsel,  General
   Services Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), PARKER, and HYATT.
 
   DANIELS, Board Judge.
 
        9th &  D Joint  Venture,  appellant, claims  that under  the
   terms of  a contract for the  lease of office space,  the General
   Services   Administration  (GSA),   respondent,  owes   appellant
   $156,656.75 for  providing utilities  and preventive  maintenance
   for "special"  heating, ventilation, and  air conditioning (HVAC)
   equipment.   GSA's contracting  officer denied the  claim on  the
   ground that the  contract's established rental rate  includes the
   cost of these  utilities and preventive maintenance  efforts.  We
   agree with the contracting officer and therefore  deny the appeal
   of his decision.
 
                            Findings of Fact
 
        1.   On  October 30, 1992, GSA contracted  to lease from 9th
   & D 116,206 net usable square feet of office and related space in
   the building located at 1441  L Street, N.W., in Washington, D.C.
   The lease was  for a ten-year term, which could be renewed by the
   Government  for  an  additional ten-year  period.    Appeal File,
   Exhibit 1 at 1.
 
        2.   The contract  requires that "[t]he Lessor shall furnish
   to the Government,  as part  of the  rental consideration,  . . .
   [a]ll  services, maintenance,  repairs and  utilities as  further
   defined  in Solicitation for Offers (SFO) #91-158."  Appeal File,
   Exhibit 1 at  2.  That SFO is a part of the  lease.  Id.  The SFO
   states that  it "is for  a 'Full Service' lease,  i.e., including
   all services and utilities."  Id. at 47.
 
        3.   The following provisions of the SFO deal with utilities
   and maintenance:
 
        7.4  Utilities.
 
             The lessor shall  ensure that utilities  necessary
        for operation are provided and all associated costs are
        included as a part of the established rental rate.
 
        7.5  Utilities: Separate from Rental
 
             If the cost of  utilities is not included  as part
        of the rental  consideration, the requirements of  this
        paragraph apply.
 
             The  offeror  must  specify  which  utilities  are
        excluded     on     block     19    of     GSA     form
        1364.[[foot #] 1] . . .
 
             The  lessor  shall  provide  separate  meters  for
        utilities to be paid for by GSA. . . .
 
        7.6  Maintenance & Testing of Systems
 
             The  lessor   is   responsible   for   the   total
        maintenance  and  repair  of  the  leased  premises  in
        accordance with paragraph 16, GSA form 3517.[2]  . . .
 
   Appeal File, Exhibit 1 at 33.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     The  lessor submitted  a GSA  form 1364  with
   block  19  blank.   Declaration  of Robert  G.  Roop, contracting
   officer (Mar. 12, 1996) at 3 & Attachment 1.
 
        2    GSA form  3517 is  also part of  the contract.   Appeal
   File, Exhibit 1 at 2.  Paragraph 16 of this form, "Maintenance of
   Premises  (Jun 1985),"  states: "The  Lessor  shall maintain  the
   demised  premises,  including  the building  and  all  equipment,
   fixtures,  and appurtenances furnished  by the Lessor  under this
   lease in good repair and  tenantable condition, except in case of
   damage arising from the act or the negligence of the Government's
   agents or employees."  Id. at  156.  The term "demised  premises"
                          ___
   is defined in Rider Number 2 to the contract to mean  "the office
   and  related  space demised  and  leased  by  the Lessor  to  the
   Government pursuant to the Lease."  Id. at 70.
                                       ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        4.   Another  portion  of  the  contract,  Rider  Number  2,
   provides  that "[t]he  Government shall  be  responsible for  the
   development of  Space Requirements"  for tenant  improvements and
   that  "[t]he  Lessor shall  be  responsible  for  the design  and
   construction"  of those improvements.   Appeal File, Exhibit 1 at
   2, 49-50.  The  Government also reserved the right  to review and
   approve  or  reject documents,  plans,  schedules,  and proposals
   involved with this  design and construction.  Id. at  53-59.  The
   term "tenant improvements" means --
 
        all improvements to  the building of which  the demised
        premises   are  a   part  beyond   the  base   building
        construction.  The tenant improvements shall consist of
        the building standard tenant improvements which include
        all  tenant improvement work required to be provided by
        the Lessor pursuant to the terms and  provisions of the
        base  SFO, and the  "specials" which shall  include any
        and all above building standard tenant improvements  in
        addition to or in lieu  of the improvements required by
        the base SFO.
 
   Id. at 68.
 
        5.   Tenant  improvements are  described more  fully in  yet
   another part of the contract, the "Special Requirements Section."
   The introduction to this section states:
 
        The  base  Solicitation for  Offers  (SFO)  defines the
        tenant buildout  requirements for the space under lease
        which are considered "standard" to this  project (e.g.,
        with  no detailed  description  of individual  spaces).
        There  are  certain  areas  that  will  require special
        (above building standard) alterations which are defined
        in  these   special  requirements  and   are  contained
        herein. . . .  The intent of this Section is to provide
        all of the Government's additional minimum  performance
        specifications such that  the lessor may price  the job
        in its entirety.
 
        . . .   All requirements  of the base  Solicitation for
        Offers and  the special  requirements  of this  Section
        must  function  together (e.g.,  the  two  combined are
        minimum performance specifications) to meet the overall
        requirements  of  the   space  to  be  leased   by  the
        Government.
 
   Appeal File, Exhibit 1 at 2, 94.
 
        6.   Special  requirements  for  designated  spaces  in  the
   building include specifications  for HVAC systems.  Many of these
   requirements state  that the HVAC  for the spaces should  be "per
   SFO  standard."   However,  for  each  of  twenty spaces  --  the
   research/resources center,  the computer  facility, the  personal
   computer   support  room,   the  computer   training  room,   the
   conference/training  facility,  three  foreign  student  training
   rooms,   nine   conference  rooms,   the   publication/production
   workshop, and  two copy centers  -- the contract  mandated higher
   standards for  HVAC.   The  systems  for these  areas had  to  be
   separate, or  at least  independently controlled.   The  contract
   also  noted the square footage  of each of  these spaces and, for
   most  of the  spaces, the  number of  individuals or the  type of
   equipment which would occupy them.  Appeal File, Exhibit 1 at 97-
   153.
 
 
        7.   Generally, under the  contract, "[s]ervices, utilities,
   and maintenance will be provided daily, extending from  6:00 a.m.
   to  7:00 p.m. except  Saturdays, Sundays, and  Federal holidays."
   Appeal File, Exhibit  1 at 33.   The Government has the  right to
   order  heating or  cooling on  an overtime  basis at  established
   hourly rates.  Id.  A part of the contract designated  "Rider #1"
   creates an exception to this rule:
 
        [T]he computer facility, the  computer support room and
        the   guard  station  area  will  not  be  metered  for
        utilities  along with the remainder of  the space to be
        leased,  and will  not  be  included  in  the  overtime
        utility   calculation.      These   locations  (to   be
        specifically  determined) will be in operation on a 24-
        hour a day,  seven days per week basis.   The costs for
        24-hour  a day,  seven  days  per  week  utilities  and
        services for these areas will be included in the rental
        consideration as these  are the normal operating  hours
        for these areas.
 
   Id. at 2, 46.  The computer  facility, computer support room, and
   guard station  area are  all designated  as special  requirements
   spaces.  Id. at 97, 114-21, 126-27, 147.
 
        8.   The  contract  required  the  lessor   to  "provide  an
   allowance in the amount of $2,800,000.00, hereinafter referred to
   as the TENANT IMPROVEMENT ALLOWANCE  or T-I ALLOWANCE, to be used
   at the Government's discretion to pay for special (above building
   standard) tenant  alterations."  Appeal  File, Exhibit  1 at  61.
   The allowance was to be  available to the Government, which could
   draw against it "at any time from Lease award to final settlement
   and payment of all costs for  tenant improvements."  Id.  If  the
   Government did not  use the entire allowance, it  could apply the
   remainder to rental payments at  the beginning of the lease term.
   Id. at 62. 
 
        9.   The lessor's general  partner, who was involved  in the
   negotiation of this contract, has declared:
 
        There  would be  no way  for us  to determine  what the
        costs for  maintenance  and utilities  were before  the
        tenant improvement work  was engineered and designed[;]
        it is impossible  to cost-out the  entire scope of  the
        specials  until  they  are   designed.    Therefore  we
 
        reasonably expected  the maintenance and  utilities for
        the specials to be paid from the Allowance.
 
   Declaration  of Sylvan  C. Herman  (undated,  but submitted  with
   Appellant's  Reply Brief on  Mar. 29, 1996)  (Herman Declaration)
     7.
 
        10.  The GSA realty  specialist who was responsible  for the
   procurement that led to this contract has declared, however:
 
        I  never discussed nor agreed with any potential Lessor
        that  the  cost  of  [electricity  and  maintenance  of
        equipment in special requirement spaces] would be borne
        by the Government.  Had I  agreed to this, I would have
        indicated same on  the SF2 [the first two  pages of the
        contract].   In  order to  have been  able to  agree to
        these changes, I would have been required to obtain the
        consent of my  supervisor, Robert G. Roop.   As I never
        discussed  these potential  changes  with  Mr. Roop,  I
        certainly did not agree to these changes.
 
   Declaration  of Michael M.  O'Brien (Feb. 9,  1996) at 3-4.   Mr.
   Roop corroborates that  the realty specialist did not indicate to
   him any agreement with the lessor that the Government would cover
   these costs.  Declaration of Robert G. Roop (Mar. 12, 1996) at 3.
   The  declaration of  the  lessor's  general  partner,  which  was
   submitted  in response  to some  of  the statements  made in  the
   O'Brien and  Roop Declarations,  does not  take issue  with these
   particular statements.  Herman Declaration.
 
                               Discussion
 
        The parties present us with a straightforward question: Does
   the  contract's  established  rental rate  include  the  costs of
   utilities and preventive maintenance associated with HVAC systems
   that are  mandated by  the instrument's  special (above  building
   standard) requirements,  or is  the Government  obligated to  pay
   these costs  separately?   The Court of  Appeals for  the Federal
   Circuit has explained how to approach such a question:
 
        Contract interpretation begins with  the plain language
        of the  agreement.  See  Fort Vancouver Plywood  Co. v.
        United  States, 860  F.2d 409,  413  (Fed. Cir.  1988).
        "[P]rovisions of a contract must be so construed as  to
        effectuate   its   spirit   and   purpose   . . .    an
        interpretation which gives a reasonable meaning to  all
        of its  parts will be  preferred to one which  leaves a
        portion of it useless, inexplicable, inoperative, void,
        insignificant, meaningless, superfluous,  or achieves a
        weird and whimsical result."  Arizona v. United States,
        216 Ct. Cl. 221, 575 F.2d 855, 863 (1978).
 
   Gould,  Inc. v.  United States,  935 F.2d  1271, 1274  (Fed. Cir.
   1991); see  also Foley Co.  v. United States, 11  F.3d 1032, 1034
   (Fed.  Cir. 1993);  7 World  Trade Co.  v. Securities  & Exchange
   Commission, GSBCA 13284-SEC,  slip op. at 9 (Mar.  11, 1996), and
   cases cited therein.
 
 
        The plain language  of this contract mandates that the costs
   in  question be  incorporated in  the rental  rate.   The "rental
   consideration"  includes  "[a]ll   . . .  maintenance  . . .  and
   utilities  as further defined  in [the] Solicitation  for Offers"
   which is a  part of the  contract.   Finding 2 (emphasis  added).
   The  SFO "is  for a  'Full  Service' lease,  i.e., including  all
   services  and  utilities."   Id.  (emphasis added).    It further
   provides,  in paragraph  7.4, that  "all"  costs associated  with
   utilities "are  included  as a  part  of the  established  rental
   rate."  Finding 3 (emphasis added).  Additionally, the SFO states
   in paragraph  7.6 that "the  lessor is responsible for  the total
   maintenance  . . . of the  leased premises in  accordance with" a
   boilerplate  paragraph  which  says   that  "[t]he  Lessor  shall
   maintain the  demised premises,  including the  building and  all
   equipment, fixtures,  and appurtenances  furnished by  the Lessor
   under  this  lease."   Id.  (emphasis added).   In  all  of these
   regards, by  including all utility  and maintenance costs  in the
   rental rate, the contract does not allow separate charges for any
   such costs.
 
        9th &  D takes  several tacks in  attempting to  convince us
   that this conclusion  is faulty.   We  do not agree  with any  of
   these arguments.
 
        Appellant  tries to divide the contract into its constituent
   parts.    Two  of  these  parts  are  the  SFO  and  the  Special
   Requirements  Section.    Appellant asserts  that  because  it is
   responsible for all maintenance and utilities "as further defined
   in [the SFO],"  and the Special Requirements Section  is not part
   of the SFO, the SFO's reference to "all" does not include special
   requirements.    As  we  view  the  contract,  this  approach  is
   artificial; it ignores the way in which the instrument treats the
   leased  space  as  a  whole.    The  contract  considers  "tenant
   improvements,"  for whose  design and  construction appellant  is
   responsible,  to include  both  "building standard"  improvements
   mandated  by   the  SFO   and  "special"   (or  above   standard)
   requirements.  Finding 4.  The SFO and special requirements "must
   function together . . .  to meet the overall  requirements of the
   space  to be  leased."    Finding 5.    The Special  Requirements
   Section  was provided  to offerors  along  with the  SFO so  that
   offerors  could "price  the  job in  its  entirety," taking  into
   consideration   all   the    Government's   minimum   performance
   specifications.  Id.
 
        An aspect of  appellant's attempt to divide the  contract is
   the  argument that  paragraphs  7.5 and  7.6  of the  SFO  do not
   pertain to the specials.  Paragraph 7.5 by its own terms actually
   has  no relevance  to  the  issue before  us.   This  paragraph's
   requirements  apply only  "[i]f  the  cost  of utilities  is  not
   included  as  part  of the  rental  consideration."    Finding 3.
   Because paragraph 7.4 directs the  lessor to ensure that costs of
   all utilities necessary for operation  "are included as a part of
   the  established rental rate," id., any requirements contained in
   paragraph 7.5 do not apply to this contract.3
 
 
        Appellant  reads  paragraph  7.6,  regarding  the   lessor's
   maintenance  responsibility,   as  limited  by   the  boilerplate
   provision  to "the demised  premises, including the  building and
   all  equipment,  fixtures,  and  appurtenances  furnished by  the
   Lessor  under  this  lease."    See  Finding  3.    According  to
   appellant, it did not "furnish" any of the specials, so it is not
   responsible for maintaining them.  The specials were paid for out
   of  a  tenant improvement  allowance.    See  Finding 8.    While
   appellant admits that  it furnished this $2.8  million allowance,
   it asserts  that  because GSA  used  the  money to  pay  for  the
   specials, appellant neither  furnished the items nor  leased them
   to  the Government.   We  agree with GSA  that the  allowance was
   nothing more than a financing mechanism, and that the use of this
   mechanism  does  not  limit  the   scope  of  the  term  "demised
   premises," which appellant must maintain.  The term is defined by
   the contract  to mean "the  office and related space  demised and
   leased by  the Lessor to  the Government pursuant to  the Lease."
   Finding 3 n.2.   The specials are not extraordinary requirements;
   they are simply parts  of the space which  must be configured  in
   specific  ways.   These  parts of  the space  do  not lose  their
   attribute of being within the lease simply because specifications
   regarding their  buildout are included in a particular portion of
   the instrument or the financing of that buildout is structured in
   a particular way.
                       
   ____________________
 
        3    An  alternative reading  of the  contract  is that  the
   second and third portions of paragraph 7.5 qualify paragraph 7.4,
   such that  GSA must pay,  above the established rental  rate, for
   utilities which are noted on block 19  of GSA form 1364, and that
   the  lessor must  provide separate  meters  for these  utilities.
   This reading does not help appellant, either.  The second portion
   of  paragraph 7.5  directs each  offeror to  specify on  block 19
   which utility costs are excluded from the rental rate.  Appellant
   left this block  blank.  Finding 3 n.1.  Appellant's action leads
   us to conclude  that appellant did not exclude  any utility costs
   from the rent.   The remaining portion of  the paragraph requires
   the lessor  to provide separate  meters for utilities to  be paid
   for by GSA.  Id.  Appellant asserts, and GSA does  not deny, that
                ___
   appellant  installed separate  meters  to  be  connected  to  the
   "special" HVAC units, and that GSA paid for the meters as part of
   the  "specials."    Appellant posits  that  the  only conceivable
   reason GSA might have had for paying for these meters is that the
   meters  would measure  the amount  of  electricity for  which GSA
   would  pay.  We do not know why  GSA paid for the meters.  In any
   event, because  appellant did  not specify  any utility  costs as
   being excluded from  the rent, the last portion  of the paragraph
   does not obligate GSA to pay for any particular utilities.
 
        Another  contention   related  to  the   tenant  improvement
   allowance is  that because the  allowance was to pay  for special
   alterations, it was intended to be used to pay for all continuing
   costs, including utilities and maintenance, associated with those
   alterations.    This  interpretation  is  inconsistent  with  the
   parties' understanding as to use  of the allowance.  The contract
   provides that  if the  Government did not  use all the  money for
   tenant  improvements,  it  could apply  the  remainder  to rental
   payments at the beginning of  the lease term.  Finding 8.  If the
   parties had  intended that the  allowance be used  throughout the
   ten-year  (or possibly twenty-year) contract life, they would not
   have arranged for the sum to be exhausted at the beginning of the
   lease term.   Evidently, the allowance was intended  to cover the
   costs of design  and construction, but  not continuing costs,  of
   the special alterations.
 
        Appellant maintains additionally  that because the  contract
   provides that  costs of utilities  and services for three  of the
   special  requirement spaces  "will  be  included  in  the  rental
   consideration," Finding 7,  the instrument  must be  read to  say
   that similar costs for the  other special spaces are not included
   in the  rent.    This  interpretation  gives  an  incomplete  and
   distorted meaning  to the clause in  question.  The  clause is an
   exception   to  the  general  mandate  that  the  lessor  provide
   utilities  and services,  without  additional cost,  only  during
   defined working  hours; it directs  the lessor to include  in the
   rent utilities  for these  areas  on a  twenty-four-hour-per-day,
   seven-day-per-week basis, since  "these are the normal  operating
   hours for these areas."  Finding 7.  This provision does not vary
   the rule that appellant is responsible for the costs of utilities
   and  maintenance in the  other special requirement  spaces during
   the defined working hours.
 
        Appellant  also  asserts  that it  could  not  possibly have
   included in the  rent the costs of utilities  and maintenance for
   the "specials,"  since it could  not have determined  those costs
   before the tenant  improvement work was engineered  and designed.
   Finding 9.   The record is clear  that even if appellant actually
   believed this,  it never communicated  its concern to  GSA during
   discussions which  led to  the signing of  the contract,  and the
   agency never agreed  to appellant's current understanding  of the
   instrument.   Finding  10.   Thus, this  understanding was  never
   incorporated  into the contract.  Furthermore, given the agency's
   instruction to offerors that contract requirements, including the
   specials,  be priced  as a  whole,  Finding 5,  and the  explicit
   instructions  regarding aspects  of  those above-standard  spaces
   (including HVAC specifications), Finding 6, appellant's assertion
   does not seem credible.
 
        Appellant's final  argument is  that on  each of nine  other
   leases  it has  or had with  GSA, the  contract was for  a "full-
   service  lease," but rent consideration did not include utilities
   or maintenance  for "specials."  Assuming that  this statement is
   true, it has  no impact on our  holding.  The provisions  of each
   contract must be read as a whole, in accordance with the guidance
   of  the Court of Appeals.  The  contract in question, standing on
   its own, does  not support the reading appellant gives  it.  None
   of the  referenced  leases has  been  submitted for  the  record.
   Thus, we are in no position even to consider whether any of these
   leases has  similar provisions  to the ones  in the  contract now
   before  us, or  whether the  provisions might  be construed  in a
   particular way, establishing a  pattern of performance  impacting
   contract interpretation.    See Universal  Development  Corp.  v.
   General Services Administration, GSBCA  11468, 93-2 BCA   25,662,
   at 127,675-76.
 
 
                                Decision
 
        The appeal is DENIED.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   We concur:
   _________________________          _________________________
   ROBERT W. PARKER                   CATHERINE B. HYATT
   Board Judge                        Board Judge