RESPONDENT'S MOTION FOR SUMMARY RELIEF DENIED: July 19, 1996 GSBCA 13559 6TH & E STREET ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Brett D. Orlove of Grossberg, Yochelson, Fox & Beyda, Washington, DC, counsel for Appellant. William T. K. Dolan, Office of Regional Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and DeGRAFF. DANIELS, Board Judge. 6th & E Street Associates (6th & E) leases to the General Services Administration (GSA) office and related space in the Bicentennial Building, which is located at 600 E Street, N.W., in Washington, D.C. On July 24, 1995, 6th & E claimed that under the contract which governs this lease, GSA owes it $44,997.28 for two years' provision of energy and preventive maintenance for "special" heating, ventilation, and air conditioning (HVAC) equipment at the premises. The contracting officer granted the claim in part, agreeing to pay 6th & E $6,410.92 per year for energy consumption. 6th & E appealed this decision. After the contracting officer issued his decision, the Board decided another case, 9th & D Joint Venture v. General Services Administration, GSBCA 13418, 96-2 BCA 28,304, which also involved a claim for energy and preventive maintenance costs associated with "special" HVAC equipment under a GSA lease contract. We denied that appeal; based on our reading of the provisions of that contract, the established rental rate included those costs, so GSA was not obligated to pay separately for them.[foot #] 1 GSA moves for summary relief against 6th & E, maintaining that "[b]ecause the instant case is basically the same case recently decided . . . against an affiliate of the instant Landlord, the Board should be consistent by summarily [denying] the instant case too." Motion at 6 (June 7, 1996). We agree with the appellant that the motion should be denied. Findings of Fact The contract provides that "[t]he Lessor shall furnish to the Government, as part of the rental consideration, . . . [a]ll services, improvements, alterations, repairs, and utilities as defined and required in [the Lease], including all attachments and riders." Appeal File, Exhibit 1 at 2. The contract contains the following provisions which relate specifically to 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. . . . The lessor shall provide separate meters for utilities to be paid for by GSA. . . . ----------- FOOTNOTE BEGINS --------- [foot #] 1 The decision has been appealed to the Court of Appeals for the Federal Circuit. The case was docketed by that Court as No. 96-1372 on June 10, 1996. ----------- FOOTNOTE ENDS ----------- 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 27 of Solicitation for Offers (SFO).3 As set out in the preceding finding, section 7.5 of the SFO references GSA form 1364. 6th & E admits that it left blank block 19 of this form in submitting its proposal in response to GSA's solicitation. Appellant's Statement of Genuine Issues at 1 (July 8, 1996). Appellant calls to our attention, however, another aspect of this form. 6th & E supplied two separate copies of the form with its proposal; the square foot rate per year is shown on one as "$28.20 NUSF [per net usable square foot] without special improvements," and on the other as "$31.34/NUSF with special improvements." Id. at 1-2, Attachment 1; see also GSA's Response to Order (July 17, 1996) at 3-4. The contract's rental rate is $28.20 per net usable square foot. Appeal File, Exhibit 1 at 1. This rate was later referred to as a "full service rental rate." Id. at 1 of Supplemental Lease Agreement (SLA) 3, SLA 4. The "special improvements" are discussed in Rider No. 1, which is a part of the contract. This rider provides: The Lessor agrees to provide the scope of work as contained in the "Special Requirements" Section of the SFO at a cost to be determined. Upon the Lessor's completion of the work or rental commencement, whichever is later, the Government may, at its option, pay for all or a portion of this amount as a onetime [sic] lump sum reimbursement, or amortize all or a portion of this amount as additional rental during the initial firm term of this Lease. Appeal File, Exhibit 1 at 2, 2 of Rider No. 1. The Special Requirements Section establishes particular specifications, including some for HVAC systems, for four copy rooms, four conference rooms, a controlled file room, a coffee room, two ____________________ 2 GSA form 3517 is also part of the contract. Appeal File, Exhibit 1. 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 3 of GSA form 3517. ___ 3 The SFO is an attachment which is part of the contract. Appeal File, Exhibit 1 at 2. classroom training rooms, and an ADP room. Id. at Special Requirements Section. Discussion GSA's contracting officer determined that under the terms of the contract, 6th & E is entitled to be paid sums additional to the lease amount for the provision of energy and preventive maintenance for "special" HVAC equipment. On 6th & E's appeal of this decision to this Board, the agency argues that the contracting officer's reading of the contract was incorrect, and that properly understood, this contract, like the one involved in 9th & D, does not allow for recovery of any of the claimed sums. 6th & E asserts that the only issue in the instant appeal is the extent of the Government's liability. In effect, the contractor's position is that the Government may not retreat from the challenged contracting officer's decision which grants some of the money claimed; the Government is precluded from arguing now as it does. We understand the law differently. The contracting officer's concession is not binding on the Board. "[W]here an appeal is taken to a board or court, the contracting officer's award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal." Assurance Co. v. United States, 813 F.2d 1202, 1206 (Fed. Cir. 1987). "Thus, once an action is brought following a contracting officer's decision, the parties start in court or before the board with a clean slate." Wilner v. United States, 24 F.3d 1397, 1402 (Fed. Cir. 1994) (en banc). That "clean slate" applies to matters of entitlement as well as quantum. Strand Hunt Construction v. General Services Administration, GSBCA 12860, 96-1 BCA 28,185, at 140,689; Conner Brothers Construction Co., VABCA 2504, et al., 95-2 BCA 27,910, at 139,246; C. F. Electronics, Inc., ASBCA 43212, 95-1 BCA 27,394, at 136,535. Since the tribunal views the matters afresh, the parties may, too; the Government is free to present positions different from the one adopted by the contracting officer. Farmers Grain Co. of Esmond v. United States, 33 Fed. Cl. 298, 300 (1995). We consequently proceed to consider GSA's motion for summary relief. Resolving a case on motion for summary judgment (or the Board's analogous procedure, summary relief) is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of demonstrating the absence of genuine issues of material fact. All evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable factual inferences should be drawn in favor of the nonmoving party. Dairyland Power Cooperative v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Under these standards, we must deny GSA's motion. There are some similarities between the contract involved in 9th & D and the one at issue here.4 The two contracts contain identical sections 7.4 through 7.6 of their SFOs. The rental rate in each is described as "full service." Each contract also includes a "Special Requirements" section which contains specifications for particular spaces within the building, including specifications for HVAC systems for those areas. There are also differences between the two contracts, however. This instrument, unlike the one in 9th & D, does not describe "full service" as "including all services and utilities." Nor does it alert offerors that they should "price the job in its entirety," taking into account both building standard and special requirements. Most important, 6th & E's proposal in response to GSA's SFO manifests a clear intention to charge different prices, depending on whether "specials" were included or not. Although 6th & E did not follow instructions by showing utility charges for the "specials" on block 19 of GSA form 1364, it explained elsewhere on the form that it was proposing two separate rental prices, one "with special improvements" and one "without special improvements." The fact that the contract was awarded at the lower price, "without special improvements," may indicate that the parties' intention was to have the rental rate cover "full service" of everything except the special improvements; the difference between the two prices might have encompassed costs for utilities and maintenance for those improvements. On the other hand, it is also possible that as a result of negotiations on the rental rate, the agency persuaded the contractor to include utilities and maintenance for the "specials" at the lower rate. The limited facts presented raise more questions than they answer. In any event, the facts of this case are sufficiently different from those of 9th & D that we cannot grant summary relief to GSA here. ____________________ 4 Whether one of them is the relationship between the contractors is irrelevant. GSA maintains that "[t]he Landlord and 'Ninth and D Joint Venture' are affiliates because they have large amounts of common ownership with one another." Motion at 6 n.1. As we explained in 9th & D, the provisions of each ________ individual contract, read as a whole, are what govern liability as between the parties to that contract. Different contracts between identical parties, even as to similar matters, may lead to different results. 96-2 BCA at 141,329. We are concerned with the similarity between the contracts, not between the parties. Decision GSA's motion for summary relief is DENIED. The parties are directed to confer as to further proceedings in the case and jointly propose a schedule within ten working days of the date of this decision. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ CATHERINE B. HYATT MARTHA H. DeGRAFF Board Judge Board Judge