_________________________________________________ MOTION TO DISMISS DENIED: June 28, 1995 _________________________________________________ GSBCA 12984 ALBION CORP. dba BROOKS INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James M. Lyons and Andrew P. McCallin of Rothgerber, Appel, Powers & Johnson, Denver, CO, counsel for Appellant. Nora A. Huey, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and DEGRAFF. NEILL, Board Judge. This appeal, filed by Albion Corp. (Albion), concerns a dispute between Albion and the General Services Administration (GSA) over the vacating of premises leased to GSA by Albion. Albion contends that because GSA's tenant remained on the leased premises for one day after the expiration of the lease, a holdover lease was created under which GSA is obliged to pay a monthly rental of $65,139.59. Albion has appealed the contracting officer's decision denying its claim for payment under the alleged holdover lease. In its complaint, Albion has listed two counts. The first is for holdover rent. The second count is a claim, in the alternative, for rent covering the period that the tenant remained and used the space after expiration of the lease. GSA has moved that the second count in Albion's complaint be dismissed on the ground that it represents a claim which was never presented to or decided by the contracting officer. Albion has opposed the motion, contending that Count II should remain because it is based upon the same operative facts as Count I. For the reasons set out below, we deny the motion. Findings of Fact On August 28, 1987, GSA leased approximately 29,562 square feet of office space in Denver, Colorado from appellant. The original lease term ran from September 11, 1987, through September 10, 1992. Appeal File, Exhibit 1 at 1-2. On June 30, 1992, GSA and Albion entered into a supplemental lease agreement which extended the lease through March 13, 1994. Id., Exhibit 1J. A subsequent supplemental lease agreement extended the lease for an additional three months through June 13, 1994. Id., Exhibit 1L. On June 14, 1994, Albion submitted a certified claim to the contracting officer. This claim was based on the fact that GSA's tenant, the Office of Surface Mining (OSM), had failed to vacate the office space prior to the expiration of the lease on June 13. Relying on Colorado law, Albion contended that the failure to vacate the premises gave rise to a new lease with the same terms and conditions of the lease as amended by the last supplemental lease agreement. Appeal File, Exhibit 7. On June 16, the contracting officer issued a final decision rejecting Albion's claim. Appeal File, Exhibit 8. However, on June 22, appellant wrote the contracting officer to advise that the amount sought in the original claim was incorrect. A lesser figure was sought and recertified. In addition, in this letter appellant complained that as "further evidence of OSM's failure to move from the space," certain equipment and possessions had still not been removed from the premises. Albion also asked the contracting officer to confirm that GSA did not intend to honor the alleged new holdover lease so that steps could be taken to locate a substitute lessee in mitigation of damages. Id., Exhibit 9. By letter dated June 28, the contracting officer reaffirmed the position taken in his final decision of June 16. He denied that GSA was a holdover tenant as defined by state law. He expressed a willingness to discuss the equipment and possessions left behind, but pointed out that the items identified by appellant in its prior letter were fixtures and considered part of the real property once installed. Finally, in this same letter, the contracting officer confirmed that the Government had no continuing interest in the property and that appellant could make use of it for whatever purpose it deemed appropriate. Appeal File, Exhibit 10. Following the docketing of Albion's appeal of the contracting officer's final decision, Albion filed its complaint. Count I is styled: "First Claim For Relief For Holdover Rent." Count II is styled: "Second Alternative Claim For Relief For The Use And Occupation Of Property." In seeking relief under Count II, Albion states: WHEREFORE, by virtue of the OSM's failure to vacate the office space on or before June 13, 1994 and by virtue of its leaving of many items of equipment and personal property on the second floor after June 13, 1994, Brooks Towers requests the previous rental rate under the lease for the amount of time OSM used and occupied the office space after the lease expired on June 13, 1994. Complaint at 6. Discussion It is well established that if a claim arises from operative facts different from those which form the basis of the claim presented to the contracting officer or if that claim is not contained within the scope of the claim previously presented to the contracting officer, then a separate decision is required. Santa Fe Engineers, Inc. v. United States, 818 F.2d 856 (Fed. Cir. 1987). Similarly, in deciding whether a specific claim is distinct from another already presented to a contracting officer, it is appropriate to consider the evidence which should be considered to resolve the claims. Placeway Construction Corp. v. United States, 920 F.2d 903 (Fed. Cir. 1990). In requesting that we dismiss Count II of Albion's appeal, respondent contends that the operative facts underlying both counts are essentially different -- as is the evidence required to prove the counts. Respondent's Motion to Dismiss at 5. We disagree. Respondent apparently believes that Count I is based solely on the fact that OSM remained in possession after June 13 and that Count II is based only on the fact that considerable amounts of equipment and personal property remained after OSM quit the premises. This is incorrect. Count II expressly sets out OSM's continued presence after June 13 as a basis for the alternative claim. In addition, from the time they were first mentioned in Albion's letter of June 22, the remaining equipment and personalty have been considered as "further evidence of OSM's failure to move from the space." We have no doubt that, in attempting to prove both counts of this appeal, Albion will rely on the same facts and the same evidence. Furthermore, to the extent that Count II seeks to obtain, by alternative argument, nothing more than a more restricted portion of the much larger claim for rent in Count I, we consider this second claim to be well within the scope of the first. We will not, therefore, require appellant to seek another contracting officer's decision before proceeding with Count II. Decision The Government's motion to dismiss Count II of this protest for lack of jurisdiction is DENIED. ____________________ EDWIN B. NEILL Board Judge We concur: ____________________ ____________________ ANTHONY S. BORWICK MARTHA H. DEGRAFF Board Judge Board Judge