B-143881, OCT. 20, 1960

B-143881: Oct 20, 1960

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INDICATES THAT THE RECORDS OF THE DEPARTMENT OF AGRICULTURE SHOW THAT THE EDPM ROOM WAS USED 14. THE MACHINE IS HIGHLY SENSITIVE AND REQUIRES SPECIFIED AND CONSTANT HUMIDITY AND TEMPERATURE CONTROL IN ORDER TO FUNCTION PROPERLY. ON NONWORKING DAYS IS NOT SUBJECT TO THE PAYMENT FOR OVERTIME USE OF THE BUILDING UNDER THE TERMS OF PARAGRAPH 22 OF THE LEASE. WILL BE FURNISHED BY THE LESSOR UPON SIX (6) HOURS' PRIOR WRITTEN NOTICE. ADDITIONAL CLEANING OR JANITORIAL SERVICES FOR THIS OVERTIME HEATING AND AIR CONDITIONING SERVICES DESCRIBED IN THIS PARAGRAPH 22 ARE NOT APPLICABLE TO THE SPACE DESCRIBED AS THE EDPM ROOM.'. THAT: "AIR CONDITIONING REQUIREMENTS AS DESCRIBED ARE TO MEET THE NEEDS DURING NORMAL PERIODS OF EMPLOYMENT.

B-143881, OCT. 20, 1960

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

YOUR LETTER OF SEPTEMBER 1, 1960, CONCERNS A CLAIM AGAINST THE GOVERNMENT BY THE CANAL-MARAIS IMPROVEMENT CORPORATION UNDER LEASE NO. GS-07-B-1562, FOR THE WIRTH BUILDING IN NEW ORLEANS, LOUISIANA, IN THE AMOUNT OF $243,290. THIS AMOUNT REPRESENTS SUMS ALLEGED TO BE DUE FOR AIR CONDITIONING AND OTHER SERVICES FURNISHED BY THE LESSOR TO THE GOVERNMENT IN CONNECTION WITH THE GOVERNMENT'S USE OF THE ELECTRONIC DATA PROCESSING MACHINE (EDPM) ROOM "AT HOURS OTHER THAN 8 A.M. TO 5 P.M., MONDAYS THROUGH FRIDAYS--- AT THE RATE OF $30.00 PER HOUR FOR 8,109 HOURS AND 40 MINUTES DURING THE PERIOD FROM APPROXIMATELY NOVEMBER 1, 1957 TO SEPTEMBER 30, 1959.' YOU ADVISE THAT MORE RECENT INFORMATION FROM YOUR REGIONAL OFFICE IN DALLAS, TEXAS, INDICATES THAT THE RECORDS OF THE DEPARTMENT OF AGRICULTURE SHOW THAT THE EDPM ROOM WAS USED 14,953 OVERTIME HOURS FOR THE PERIOD NOVEMBER 1, 1957, THROUGH JUNE 30, 1960. THE EDPM ROOM HOUSES AN ELECTRONIC DATA PROCESSING MACHINE USED BY THE COMMODITY STABILIZATION SERVICE, DEPARTMENT OF AGRICULTURE. THE MACHINE IS HIGHLY SENSITIVE AND REQUIRES SPECIFIED AND CONSTANT HUMIDITY AND TEMPERATURE CONTROL IN ORDER TO FUNCTION PROPERLY.

YOU STATE THAT THE MATTER HAS BEEN CONSIDERED AT VARIOUS TIMES BY THE GENERAL SERVICES ADMINISTRATION AND THERE HAS BEEN NO FINAL DENIAL OF THE CLAIM BY THE GOVERNMENT. HOWEVER, YOUR REGIONAL COUNSEL IN DALLAS HAS TAKEN THE POSITION, CONCURRED IN BY YOUR GENERAL COUNSEL, THAT STRICTLY AS A MATTER OF LAW UNDER THE TERMS OF THE LEASE AGREEMENT, THE USE OF THE EDPM ROOM AFTER 5 P.M. AND ON NONWORKING DAYS IS NOT SUBJECT TO THE PAYMENT FOR OVERTIME USE OF THE BUILDING UNDER THE TERMS OF PARAGRAPH 22 OF THE LEASE. THIS PARAGRAPH PROVIDES AS FOLLOWS:

"HEATING, AIR CONDITIONING, ESCALATOR AND LIFT SERVICES AT HOURS OTHER THAN 8:00 A.M., TO 5:00 P.M., DAILY, MONDAY THROUGH FRIDAYS,WILL BE FURNISHED BY THE LESSOR UPON SIX (6) HOURS' PRIOR WRITTEN NOTICE, EXCEPT FOR SATURDAY OR SUNDAY SERVICE, FOR WHICH NOTICE MUST BE SERVED BY FRIDAY NOON, PRIOR, AT THE RATE OF $30.00 PER HOUR, FRACTIONAL HOURS TO BE PRORATED. ADDITIONAL CLEANING OR JANITORIAL SERVICES FOR THIS OVERTIME HEATING AND AIR CONDITIONING SERVICES DESCRIBED IN THIS PARAGRAPH 22 ARE NOT APPLICABLE TO THE SPACE DESCRIBED AS THE EDPM ROOM.'

ALSO, IN CONNECTION WITH AIR CONDITIONING SERVICES, PARAGRAPH 6 OF THE LEASE PROVIDES, IN PART, THAT:

"AIR CONDITIONING REQUIREMENTS AS DESCRIBED ARE TO MEET THE NEEDS DURING NORMAL PERIODS OF EMPLOYMENT, THUS MEETING MINIMUM REQUIREMENTS. DURING SEASONAL PERIODS OF INCREASED EMPLOYMENT, LESSOR WILL PROVIDE MAXIMUM AIR CONDITIONING SERVICE FROM THE EQUIPMENT PRESENTLY INSTALLED IN THE BUILDING. FOR AIR CONDITIONING REQUIREMENTS FOR EDPM ROOM, SEE PARAGRAPH 6 (O).

"O EDPM (ELECTRONICS DATA PROCESSING MACHINE) ROOM TO BE AIR CONDITIONED TWENTY-FOUR (24) HOURS EACH DAY, SEVEN (7) DAYS PER WEEK, YEAR-ROUND, SO AS TO PROVIDE TEMPERATURE CONTROL AND RELATIVE HUMIDITY CONTROL AS SPECIFIED IN SECTIONS 5.01 THROUGH 5.10 OF EXHIBIT "A" ATTACHED HERETO.'

EXHIBIT "A" IS ENTITLED "PRE-INSTALLATION MANUAL ELECTRONIC DATA PROCESSING MACHINES," AND CONTAINS IBM SPECIFICATIONS FOR AIR CONDITIONING REQUIREMENTS.

YOU STATE THAT THE LEASE WOULD APPEAR TO REQUIRE THE LESSOR TO FURNISH 24 HOUR AIR CONDITIONING SERVICE IN THE EDPM ROOM WITHOUT THE PAYMENT OF ANY ADDITIONAL RENT FOR OVERTIME USE. HOWEVER, IT IS THE CONTENTION OF THE ATTORNEY FOR THE LESSOR THAT THE PAYMENT OF $30 PER HOUR IS DUE WHENEVER THE GOVERNMENT USES THE RENTED SPACE, OR ANY PORTION THEREOF, FOR OPERATING PURPOSES AT TIMES OTHER THAN 8 A.M. TO 5 P.M., MONDAYS THROUGH FRIDAYS. YOU ADVISE THAT THE DISAGREEMENT APPEARS TO ARISE FROM THE FACT THAT THE IBM SPECIFICATIONS (EXHIBIT A) AS INCORPORATED IN THE LEASE, CONTEMPLATED THAT SOME AIR CONDITIONING WOULD BE NECESSARY IN THE EDPM ROOM 24 HOURS A DAY, EVEN WHEN THE IBM EQUIPMENT WAS NOT IN OPERATION.

THE LESSOR CONTENDS, AND A LETTER DATED SEPTEMBER 17, 1957, ADDRESSED TO WARREN G. MOSES OF DE LAUREAL AND MOSES, AIR CONDITIONING ENGINEER FOR THE LESSOR, FROM R. RILEY OF THE ENGINEERING DEPARTMENT, IBM, INDICATES THAT THE IBM ENGINEER ADVISED LESSOR'S ARCHITECTS BEFORE THE LEASE WAS EXECUTED THAT IT WOULD BE NECESSARY TO PROVIDE AIR CONDITIONING WHEN THE EQUIPMENT WAS NOT IN OPERATION. YOU STATE THAT THIS CHANGE IN REQUIREMENTS DOES NOT APPEAR TO HAVE BEEN COMMUNICATED TO EITHER THE DEPARTMENT OF AGRICULTURE OR GENERAL SERVICES ADMINISTRATION REPRESENTATIVES WHO WERE CONCERNED WITH THE PROPOSED SUPPLEMENTAL LEASE. HENCE, THE REFERENCE TO EXHIBIT "A" WAS NOT CHANGED, ALTHOUGH AS A RESULT OF IBM'S LETTER THE LESSOR INSTALLED FOR AIR CONDITIONING THE EDPM ROOM, A 75-TON COMPRESSOR INSTEAD OF A 60-TON AND A 15-TON UNIT AS HAD BEEN ORIGINALLY PLANNED TO PERMIT OPERATION OF THE SMALLER UNIT ONLY DURING NONWORKING HOURS.

THUS THE LESSOR FURTHER CONTENDS THAT THE LAST SENTENCE OF PARAGRAPH 22 THAT "THE PROVISIONS REGARDING HEATING AND AIR CONDITIONING SERVICES DESCRIBED IN THIS PARAGRAPH 22 ARE NOT APPLICABLE TO THE SPACE DESCRIBED AS THE EDPM ROOM," WAS INTENDED TO MAKE THE $30 PER HOUR CHARGE FOR OVERTIME SERVICES INAPPLICABLE ONLY TO THE FURNISHING OF THE LIMITED AMOUNT OF AIR CONDITIONING REQUIRED UNDER EXHIBIT "A" WHEN THE EQUIPMENT WAS IDLE, AND THAT IT WAS NOT MADE KNOWN TO LESSOR'S REPRESENTATIVES THAT THE IBM EQUIPMENT WOULD BE EXTENSIVELY USED OUTSIDE OF NORMAL WORKING HOURS AT TIMES WHEN NO OTHER PORTION OF THE LEASED PREMISES WOULD BE IN USE SO AS TO BRING THE OVERTIME CHARGES INTO EFFECT.

THE LESSOR ALLEGES, IN EFFECT, THAT IF THE LEASE IS TO BE INTERPRETED AS THE GENERAL SERVICES ADMINISTRATION HAS INTERPRETED IT, SUCH WAS NOT THE INTENT OF THE PARTIES AT THE TIME OF THE RENEGOTIATION OF THE LEASE IN 1957 WHEN A THIRD FLOOR WAS ADDED TO THE BUILDING AND THE ELECTRONIC DATA PROCESSING MACHINE INSTALLED; THAT THE LEASE SHOULD BE AMENDED OR REFORMED TO REQUIRE PAYMENT BY THE GOVERNMENT FOR ALL PERIODS OF TIME THE EDPM ROOM IS ACTUALLY USED AFTER NORMAL WORKING HOURS.

YOU ADVISE THAT STATEMENTS FROM HUGH H. BRISTER, FORMER DISTRICT DIRECTOR OF GSA'S OFFICE IN NEW ORLEANS AND H. W. CALLOWAY, FORMER REAL PROPERTY OFFICER FOR GSA WHO PARTICIPATED IN THE NEGOTIATIONS FOR THE LEASE TEND TO SUPPORT THE LESSOR'S UNDERSTANDING OF THE LEASE REQUIREMENTS.

MR. MARDEN D. KIMBALL, DIRECTOR, ADMINISTRATIVE SERVICES DIVISION, COMMODITY STABILIZATION SERVICE, DEPARTMENT OF AGRICULTURE, WHO, YOU SAY, ALSO PARTICIPATED IN THE NEGOTIATIONS FOR THE LEASE, HAS STATED IN A LETTER DATED MAY 2, 1960, TO AN ACTING ASSISTANT GENERAL COUNSEL OF THE GENERAL SERVICES ADMINISTRATION, THAT IN THE MEETINGS WHICH HE ATTENDED IN NEW ORLEANS DURING THE TIME HIS AGENCY WAS DEVELOPING ITS SPECIAL REQUIREMENTS FOR THE DATA PROCESSING CENTER, THE DIRECTOR OF THEIR NEW ORLEANS OFFICE (C.S.S.) STATED REPEATEDLY THAT HE PLANNED TO OPERATE THE COMPUTER 24 HOURS A DAY, AND HE WANTED A PHYSICAL PLANT CAPABLE OF SUSTAINING SUCH AN OPERATION. MR. KIMBALL SAYS THEREIN THAT THIS IS THE REASON THE LANGUAGE IN THE LEASE IS SO PRECISE IN THIS REGARD. HE STATES THAT THE LEASE IS QUITE CLEAR IN THIS RESPECT AND SPECIFICALLY EXCLUDES THE PAYMENT OF OVERTIME FOR AIR CONDITIONING; THAT THIS PROVISION WAS WRITTEN IN THE LEASE AS IT WAS PLANNED TO OPERATE THIS INSTALLATION 24 HOURS A DAY, AND THE ADDITIONAL COSTS WERE INCLUDED IN THE RENTAL RATE.

IN VIEW OF THE FOREGOING, YOU HAVE REFERRED THE MATTER TOGETHER WITH ALL DOCUMENTS AND CORRESPONDENCE FOR OUR CONSIDERATION AND DETERMINATION AS TO WHETHER, UNDER THE TERMS OF THE LEASE, GENERAL SERVICES ADMINISTRATION IS OBLIGATED TO PAY $30 FOR EVERY HOUR OF USE OF THE EDPM ROOM AFTER NORMAL WORKING HOURS, OR IN VIEW OF THE MATERIAL SUBMITTED BY THE ATTORNEY FOR THE LESSOR AND BY YOUR REGIONAL OFFICE, A REFORMATION OF THE CONTRACT IS IN ORDER TO PERMIT SUCH PAYMENT.

YOU STATE THAT THE LESSOR HAS ADMITTED THAT THE CHARGE OF $30 PER HOUR IS HIGH WHERE THE GOVERNMENT USES ONLY THE EDPM ROOM AND NOT THE REST OF THE BUILDING, AND HAS NOW OFFERED TO SETTLE THE CONTROVERSY BY REDUCING THE PAYMENT OF $30 PER HOUR PROVIDED FOR IN PARAGRAPH 22 OF THE LEASE TO $25 PER HOUR, RETROACTIVE TO NOVEMBER 1, 1957, PROVIDED GSA WILL AGREE TO AMEND THE LEASE TO PROVIDE FOR PAYMENT FOR AIR CONDITIONING THE EDPM ROOM, WHEN USED ALONE, AT THE RATE OF $8 PER HOUR FOR AIR CONDITIONING IN EXCESS OF 8 HOURS PER DAY, ALSO RETROACTIVE TO NOVEMBER 1, 1957.

YOU ADVISE THAT YOU ARE PRESENTLY NEGOTIATING A FURTHER AMENDMENT TO THE LEASE WHICH WILL PROVIDE ADDITIONAL SPACE FOR COMMODITY STABILIZATION SERVICE FOR WHICH IT HAS AN URGENT NEED. THIS AMENDMENT WILL PROVIDE FOR THE CONVERSION OF THE PRESENT STORAGE SPACE IN THE WIRTH BUILDING TO AIR CONDITIONED OFFICE SPACE. COMMODITY STABILIZATION SERVICE'S STORAGE REQUIREMENTS WILL BE PROVIDED FOR BY GSA IN THE OLD CUSTOMS HOUSE, THEREFORE UPON CONVERSION OF THE PRESENT STORAGE SPACE IN THE WIRTH BUILDING, THEIR ENTIRE SPACE REQUIREMENTS IN THE NEW ORLEANS AREA WILL BE MET FOR THE FORESEEABLE FUTURE. THE NEW AMENDMENT WILL MAKE THE LEASE BINDING FOR A FIRM TERM ENDING WITH OCTOBER 31, 1967, AND THE RENTAL RATE WILL BE INCREASED FROM $402,349.75 PER ANNUM TO $431,851.19 BEGINNING WITH THE DATE THE LESSOR CONVERTS 17.152 SQUARE FEET OF STORAGE SPACE INTO OFFICE SPACE AND ENDING WITH OCTOBER 31, 1962. THE RENTAL RATE AFTER OCTOBER 31, 1962, SHALL THEN BE REDUCED TO $414,972.06 FOR THE PERIOD NOVEMBER 1, 1962, THROUGH OCTOBER 31, 1967. THE LEASE COVERS 116,441 SQUARE FEET OF OFFICE SPACE.

IN CONNECTION WITH THE PROPOSED AMENDMENT YOU REQUEST THAT WE ADVISE YOU WHETHER WE CONSIDERED THAT:

1. THE PRESENT LEASE REQUIRES THE PAYMENT OF $30 PER HOUR FOR PROVIDING AIR CONDITIONING FOR THE EDPM ROOM ONLY OUTSIDE OF NORMAL WORKING HOURS;

2. THERE IS ADEQUATE CONSIDERATION TO PROVIDE IN THE PROPOSED AMENDMENT FOR ADJUSTMENT, RETROACTIVELY TO NOVEMBER 1, 1957, AND PROSPECTIVELY, OF THE OVERTIME CHARGE IN ACCORDANCE WITH THE LESSOR'S OFFER TO SETTLE THE CONTROVERSY OR ON SUCH OTHER BASIS AS YOU OR WE MAY DETERMINE TO BE EQUITABLE IN THE CIRCUMSTANCES; OR

3. THERE IS ADEQUATE JUSTIFICATION FOR REFORMING THE LEASE (AS PART OF, OR INDEPENDENT OF, THE PROPOSED AMENDMENT) TO PROVIDE FOR SUCH A RETROACTIVE AND PROSPECTIVE ADJUSTMENT OF THE OVERTIME CHARGE ON ANY OF THE BASIS SPECIFIED IN 2, ABOVE.

IN LIGHT OF THE SPECIFIC PROVISIONS IN PARAGRAPH 22 OF THE LEASE EXCEPTING THE EDPM ROOM FROM THE AIR CONDITIONING SERVICE DESCRIBED IN THE PARAGRAPH, IT IS OUR VIEW THAT UNDER THE LEASE THE GOVERNMENT IS NOT REQUIRED TO PAY $30 PER HOUR TO THE LESSOR FOR AIR CONDITIONING FURNISHED THE EDPM ROOM ALONE OUTSIDE OF NORMAL WORKING HOURS WHETHER THE EQUIPMENT THEREIN IS IN OPERATION OR IDLE.

WHILE THE LEASE PROVIDES THAT THE $30 PER HOUR CHARGE FOR AIR CONDITIONING OUTSIDE OF NORMAL WORKING HOURS IS NOT APPLICABLE TO THE EDPM ROOM, IT DOES NOT SPECIFICALLY PROVIDE THAT AIR CONDITIONING FOR THE EDPM ROOM ALONE SHALL BE FURNISHED WITHOUT COST TO THE LESSEE. IT IS OBVIOUS FROM THE RECORD BEFORE US THAT THE COSTS WHICH WOULD BE INCURRED BY THE LESSOR IN FURNISHING AIR CONDITIONING FOR THE EDPM ROOM OUTSIDE OF NORMAL WORKING HOURS WOULD BE SUBSTANTIALLY GREATER FOR PERIODS THE MACHINE THEREIN IS IN OPERATION THAN FOR PERIODS THE MACHINE IS IDLE. FOR EXAMPLE, THE RECORD DISCLOSES THAT AN AIR CONDITIONING ENGINEER OR REFRIGERATION MECHANIC IS REQUIRED TO BE ON DUTY WHEN THE MACHINE IN THE EDPM ROOM IS IN OPERATION. MOREOVER,THE RECORD ALSO DISCLOSES THAT THE DATA PROCESSING MACHINE WHEN IN OPERATION GENERATES APPROXIMATELY 500,000 BTU'S OF HEAT HOURLY DURING NORMAL OPERATION. THESE FACTS GIVE SOME SUBSTANCE TO THE CONTENTION OF THE LESSOR TO THE EFFECT THAT THE LAST SENTENCE OF PARAGRAPH 22 WAS INTENDED (AT LEAST BY HIM) TO MAKE THE $30 AN HOUR CHARGE INAPPLICABLE ONLY TO FURNISHING THE LIMITED AMOUNT OF AIR CONDITIONING REQUIRED WHEN THE IBM EQUIPMENT WAS IDLE; AND ALSO GIVE SUBSTANCE TO THE CONTENTION THAT HE DID NO KNOW THAT THE EDPM ROOM WOULD BE USED OUTSIDE OF NORMAL WORKING HOURS WITHOUT USING SOME OTHER PORTION OF THE LEASED PREMISES SO AS TO BRING THE OVERTIME CHARGE INTO EFFECT. THIS WOULD TEND TO EXPLAIN THE ABSENCE OF A SPECIFIC PROVISION IN THE LEASE COVERING AIR CONDITIONING OF THE EDPM ROOM ALONE WHEN THE IBM EQUIPMENT WAS IN OPERATION OUTSIDE OF NORMAL WORKING HOURS. IT IS UNLIKELY THAT THE LESSOR INTENDED TO FURNISH THE AMOUNT OF AIR CONDITIONING REQUIRED UNDER SUCH CIRCUMSTANCES WITHOUT AN ADDITIONAL CHARGE.

WE UNDERSTAND THAT UNDER THE PROPOSED AMENDMENT TO THE LEASE, AFTER TAKING INTO CONSIDERATION A CREDIT OF APPROXIMATELY $10,000 IN FAVOR OF THE GOVERNMENT, THE GOVERNMENT WILL PAY THE LESSOR APPROXIMATELY $70,000. THE LEASE DOES NOT CONTAIN A SPECIFIC PROVISION COVERING THE OVERTIME USE OF THE EDPM ROOM ALONE AND SINCE UNDER THE LESSOR'S OFFER THE GOVERNMENT WILL GET THE BENEFIT OF A RETROACTIVE AND PROSPECTIVE REDUCTION IN THE OVERTIME CHARGE FOR AGREEING TO RETROACTIVELY PAY FOR OVERTIME AIR CONDITIONING OF THE EDPM ROOM ALONE, WE ARE OF THE OPINION THAT THERE IS LEGAL CONSIDERATION TO PROVIDE IN THE PROPOSED AMENDMENT FOR ADJUSTMENT OF THE OVERTIME CHARGE IN ACCORDANCE WITH THE LESSOR'S OFFER. OF COURSE, WHETHER THE OVERTIME RATES TO BE INCLUDED ON THE PROPOSED AMENDMENT RATES ARE REASONABLE IS A MATTER FOR YOUR DETERMINATION.

CONCERNING REFORMATION, WE HAVE HELD, WHERE, BY REASON OF A MUTUAL MISTAKE IN OMITTING FROM A CONTRACT A MATERIAL PROVISION ON WHICH THE PARTIES PREVIOUSLY AGREED, THE CONTRACT, AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, SUCH MISTAKE IS GROUND FOR REFORMING THE WRITTEN INSTRUMENT IF IT CAN BE ESTABLISHED WHAT THE CONTRACT ACTUALLY WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKES. 26 COMP. GEN. 899; 20 ID. 533.

WE FIND NOTHING IN THE RECORD TO INDICATE THAT BY REASON OF A MUTUAL MISTAKE THERE WAS OMITTED FROM THE LEASE A MATERIAL PROVISION ON WHICH THE PARTIES HAD PREVIOUSLY AGREED CONCERNING PAYMENT FOR AIR CONDITIONING THE EDPM ROOM ALONE OUTSIDE OF NORMAL WORKING HOURS WHEN THE EQUIPMENT THEREIN WAS IN OPERATION. FURTHER, ASSUMING THE RECORD INDICATED THAT THE PARTIES DID INTEND TO INCLUDE A SPECIFIC PROVISION IN THE LEASE CONCERNING PAYMENT FOR AIR CONDITIONING THE ROOM IN QUESTION ALONE, WE FIND NOTHING IN THE RECORD WHICH WOULD ESTABLISH WHAT RATE WAS INTENDED TO BE CHARGED FOR SUCH SERVICE IF A PROVISION HAD BEEN INCLUDED IN THE LEASE. ACCORDINGLY, IT IS OUR VIEW THERE ARE NO GROUNDS FOR REFORMING THE LEASE.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.