MOTION FOR SUMMARY RELIEF GRANTED IN PART: April 6, 1993 GSBCA 11869 BEAUMONT REALTY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Mark A. Herndon, Tulsa, OK, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, HYATT, and WILLIAMS. PARKER, Board Judge. In late 1990, the General Services Administration, respondent, awarded Beaumont Realty, Inc., appellant, a contract to remodel and lease back an office building in downtown Beaumont, Texas. After several disputes arose, appellant on December 21, 1991, filed a properly certified claim for $81,884.80. The contracting officer denied the claim in full, and appellant timely appealed to the Board. Respondent now moves for summary relief, pursuant to Rule 8(g), on the entire claim. Since we find no dispute of fact concerning one issue, the amount of credit due respondent for a reduction in the quantity of interior doors, we grant respondent's motion for summary relief on that issue. As to the remaining issues, we find that material facts remain in dispute. Thus, we deny summary relief as to those issues. Background To obtain office space for two law enforcement agencies in Beaumont, Texas, respondent issued Solicitation for Offers (SFO) R7122-89 on October 27, 1989. On November 30, 1990, respondent awarded appellant Lease No. GS-07B-13520 to remodel and then lease back an office building for ten years. Appeal File, Exhibit 5 at 2. The Drug Enforcement Agency (DEA) was to occupy 3,249 square feet of the building, and the U.S. Attorney's Office was to occupy another 29,091 square feet. Id. On December 20, 1991, appellant submitted a properly certified claim to the contracting officer for $81,884.80. In the claim, appellant requested $62,395 for deductions improperly taken for interior door changes, $2,200 for installation of a third antiballistic door, $2,655.80 for installation of soundproofing, and $14,634 for installation of partitioning. Id., Exhibits 9, 10. On March 9, 1992, the contracting officer denied the claim, and appellant timely appealed to the Board on June 4, 1992. Id., Exhibits 11, 13. Claim A: Interior Doors Although appellant was to amortize the cost of most building features over the lease term, respondent agreed to reimburse appellant for some items on a "lump sum" basis. The clause concerning these "lump sum" items stated that: 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 is 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 up a lump sum payment or rental increase if the amount of material required by the layout is more than specified or take credit from the initial rental payment if the amount is less than specified. Appeal File, Exhibit 1 at 67th unnumbered page. During construction, respondent changed the number of interior doors required from 323 to 118, and also reduced their height from nine to seven feet. Id., Exhibits 2, 7. Appellant had bid $385 each for the nine-foot doors. Id. On June 10, 1991, appellant wrote to GSA regarding, among other things, the change in the size of the doors: To reflect the change in cost that occurred from changing the doors from a nine (9) foot height to a seven (7) foot height, the total cost allocated as a credit to the government for item 18 [listing the contract price for one door] will be calculated as follows: Cost in item 18 minus this cost multiplied by the number of doors or ($385 - $195) = $190 multiplied by number of doors. Id., Exhibit 2 at 2. On July 17, 1991, the parties executed Supplemental Lease Amendment 4 (SLA4), which provided that: G. The total cost allocated to the Government as a credit for changing the doors from a nine foot door to a seven foot door is calculated at the rate of $190.00 per door. Id. at 9th unnumbered page. Respondent calculated that it was due a credit of $101,345. However, appellant claimed to the contracting officer that the $190 figure "replaced the use of $385 per door for any further calculation of credit to either the contractor or GSA," so that the Government should collect a credit of only $38,950. Id., Exhibit 9. The contracting officer disagreed with appellant: The unit cost for doors specified in the lease was $385 for nine foot doors. The lease was awarded November 29, 1990. Therefore, the doors were included in the rent at $385.00 each. The impact of Paragraph 19, page 6 of the SFO is that any adjustment in the cost of the material after award will be balanced or offset with an equal change in rent. Id., Exhibit 11 at 2. Appellant now argues that the lease amendment "was intended to effect, and in fact effected, an amendment of Item 18 by deleting $385.00 and substituting therefor $190.00." Complaint 7. In other words, appellant maintains that respondent should receive a credit of $190, rather than $385, for each door that was not purchased or installed. Since respondent's credit would total only $38,950, rather than $101,345, appellant asked for an adjustment of $62,395. Id. Claim B: Anti-Ballistic Doors The parties agree that appellant was to install two anti- ballistic doors in the U.S. Attorney's Office, and that appellant also installed a third door in the DEA area. Appeal File, Exhibit 5 at 1. They dispute only whether respondent ordered installation of that third door. Through an affidavit, appellant claims that respondent ordered installation of the door: Claim B: An authorized representative of Respondent requested that 3 ballistic doors be installed in the Project rather than the 2 ballistic doors originally contemplated in the Lease. Affidavit of Gregory Austin, dated Nov. 16, 1992, 2. Respondent has countered with a declaration: The lease only required the installation of ballistic resistant doors on the exterior doors of the U.S. Attorney's space. The DEA's space did not require a ballistic resistant door. The Government never requested the installation of a ballistic resistant door in the DEA's space. Appellant inquired about whether or not the government wanted a ballistic resistant door in the DEA's space. Respondent [sic] was informed that a ballistic resistant door was not required. Declaration of Dee Graham (Graham Declaration), dated Aug. 6, 1992, 8-9. Claim C: Soundproofing Claim C concerns whether appellant was required to install soundproofing on the exterior walls of the building. The contract required soundproofing of certain rooms to assure privacy. Appellant bid $4.90 per linear foot to install material yielding a sound transmission coefficient (STC) of 45. Appeal File, Exhibit 1 at 70th unnumbered page. Appellant claims that the specifications required it to install 542 linear feet more of this material than respondent believes was necessary. Id., Exhibit 5 at 2, Exhibit 6 at 2. The Government contends that appellant erred in soundproofing both interior, or "partitioned," areas and exterior walls: Industry practice and standards address STC rating for subdividing partitions. It would appear obvious that sound conditioning is not required for exterior masonry walls. Id., Exhibit 11 at 4. Similarly, respondent in its affidavit stated that appellant wrongly asked for costs connected with: the finishing out of the wall surfaces along the inside of the exterior walls of the building in the leased space. The inside of the exterior walls of the building are not interior perimeter partitions because they are part of the envelope or structure of the building. Partitions are interior walls that divide one space from another . . . The exterior walls in the leased space were not included in the measurement of the ceiling high partition that was installed because the exterior walls are part of the envelope or structure of the building. Graham Declaration, 14-17. The pertinent contract provisions are set forth below in connection with Claim D. Claim D: Partitions In Claim D, appellant argues that "[t]he Project contains 542 more linear feet of `partitions' than recognized by the GSA." Complaint 9. The dispute again concerns whether appellant was required to install partitioning on the exterior walls of the building. The contract called for installation of five different types of partitions, ranging from the "office subdividing ceiling high partitioning," to "slab-to-slab office subdividing partitioning with 9 gauge diamond mesh expanded metal securely fastened to studs" and sound condition to an STC 45 rating, to "office subdividing partitioning with anti-ballistic material." Appeal File, Exhibit 1 at 67th unnumbered page. The contract defined "perimeter demising partitions" as: slab-to-slab construction, either solid-core 6" masonry or conventional drywall construction cored and extended from true slab to true slab with No. 9 gauge expanded steel mesh. Conventional drywall construction is defined as 2 by 4 inch wooden studs on 16 inch centers faced on both sides with 1/2 inch gypsumboard or, alternatively, unitized metal partitions affixed to steel studs. In either case, interior perimeter walls will be insulated or otherwise acoustically treated to provide a Sound Transmission Classification (STC) of 45. Id. at 55th-56th unnumbered pages. Likewise, the contract required that "office subdividing partitions" comply with the fire code, extend from the finished floor to the finished ceiling, and have a flamespread rating of 25 or less and a smoke development rating of 50 or less (ASTM E- 84-test). Id. The contract's "acoustical" provision required that the conference rooms have a noise-isolation class (NIC) rating of NIC 40, and that the offices have an NIC 35 rating. Id. at 40th unnumbered page 53. The contracting officer offered a detailed analysis of the contract provisions referring to the word "partition." Id., Exhibit 11 at 5. She noted that the solicitation at Paragraph 50 required installation of "permanent partitions" to "surround stairs, corridors, elevator shafts, toilet rooms and janitor closets," and "clearly defines those partitions that separate common areas and building support areas from tenant space as permanent." Id. She also cited the contract's definition of office subdividing partitions. Id. Finally, she noted that the contract at paragraphs 41 and 42 described the type of vinyl wallcovering and wood panelling that appellant needed to install. Id. She then concluded that: Common usage and especially industry and trade usage of the word "partition" refers to a wall within a structure that divides space within the structure. An exterior wall of the building does not divide space within the building. It is normally considered part of the envelope of the building. Since wall finish out is standard in the rent and "partition" means subdividing of the interior space, Claim D, for an additional 542 linear feet of ceiling high partition for finish out of the interior of the exterior wall, is denied. Id. Appellant maintains that discovery is necessary to establish trade practice and to ascertain the Government's original interpretation of the contract. Although respondent claims that appellant installed approximately 150% more soundproofing and partitioning than required by the contract, there is nothing in the record to indicate that respondent ever mentioned this interpretation to appellant during the installation. Discussion The Board will grant summary relief only when all of the facts material to a particular issue are not in dispute, since it is inappropriate for us to "function as an arbiter among differing versions of every factual reality for which evidentiary support has been presented." Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 1020 (Fed. Cir. 1985). Thus, should any significant facts remain in dispute concerning a claim, the Board cannot engage in fact-finding. Id. Rather, we must resolve all significant doubts concerning facts in the nonmovant's favor and generally deny the motion. Vehicle Maintenance Services v. General Services Administration, GSBCA 11663, slip op. at 11 (Mar. 11, 1993). Here, we find no factual dispute concerning the credit due to respondent for the reduction in the number of interior doors. Both parties agree that the original unit price was $385 per nine-foot door, and that the seven-foot doors cost $195 each. Both agree that respondent reduced the number of doors to be installed from 323 to 118, a difference of 205 doors. Their only dispute is a legal one: whether respondent should have used $190 for all price adjustments concerning the doors, or just for the nine-foot doors that were changed to seven-foot doors. We hold that respondent's interpretation of the contract is correct. Appellant offered a price reduction in its letter of June 10, 1991, "[t]o reflect the change in cost that occurred from changing the doors from a nine (9) foot height to a seven (7) foot height . . . ." The subject of a reduction in the number of doors was never mentioned, either in appellant's letter, or in the contract amendment. To interpret the contract amendment as limiting respondent to a credit of $190 for each door that was neither purchased nor installed, and for which respondent had already paid appellant at the rate of $385 per door, is unreasonable. Such an interpretation is contrary to the plain wording of the contract language and would result in a windfall for appellant. Accordingly, we grant respondent's motion for summary relief on this issue. We deny summary relief as to appellant's claims involving partition and soundproofing installation. Respondent contends that the contract plainly distinguished between "partitioning" and "exterior walls." The contracting officer in her decision quoted contract sections defining "perimeter demising partitions," "office subdividing partitions," and "permanent partitions." She also relied heavily on two dictionary definitions of the word "partition" in finding it "obvious" that appellant did not need to partition nor soundproof "exterior masonry walls." Given the somewhat confusing contract provisions, the lack of evidence as to trade practice, and the puzzling fact respondent did not stop appellant from making the "obvious" error of partitioning and soundproofing 150% more wall space than the contract allegedly called for, we hold that summary relief is inappropriate at this juncture. We also deny summary relief as to the cost of installing the extra anti-ballistic door. Appellant's and respondent's affidavits are contradictory, and both are conclusory. Appellant does not state who authorized it to install the third door and, while respondent alludes to telling appellant not to install the door, it does not describe when and how that conversation took place. We believe it appropriate for the parties to produce more complete evidence on this issue. Decision For the reasons stated above, we GRANT respondent's motion for summary relief concerning the credit due for the interior doors. Respondent's motion for summary relief concerning the remaining issues is DENIED. __________________________ ROBERT W. PARKER Board Judge We concur: __________________________ __________________________ CATHERINE B. HYATT MARY ELLEN COSTER WILLIAMS Board Judge Board Judge