B-163932, MAY 9, 1968

B-163932: May 9, 1968

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POSTMASTER GENERAL: REFERENCE IS MADE TO A LETTER DATED APRIL 2. IT IS STATED THAT IN EARLY 1966. IT ALSO IS STATED THAT THE POORVU DRAWINGS OFFERED A FIVE- STORY BUILDING RATHER THAN A TWO STORY FACILITY AS SHOWN IN THE POST OFFICE DEPARTMENT TENTATIVE DRAWINGS. IT IS REPORTED THAT AFTER EVALUATING COMPARABLE FACTORS SUCH AS LOCATION. POORVU'S PROPOSAL WAS MORE ADVANTAGEOUS TO THE GOVERNMENT AND. THAT HE WAS REDUCING THE ANNUAL RENTAL RATE FOR THE BASIC TERM OF 20 YEARS FROM $208. 260 PER ANNUM AND THAT HE ALSO WAS OFFERING SIMILAR REDUCTIONS FOR THE RENEWAL OPTION TERMS. 496 SQUARE FEET OF SPACE IN THE BASEMENT AREA AND THAT SUCH PLANS HAD NOW BEEN DEVELOPED IN MORE DETAIL BY HIS ARCHITECT AND THAT HE HAD NOW BEEN ADVISED BY THE ARCHITECT THAT THERE ARE 2.

B-163932, MAY 9, 1968

TO MR. POSTMASTER GENERAL:

REFERENCE IS MADE TO A LETTER DATED APRIL 2, 1968, WITH ENCLOSURES, FROM THE ASSISTANT POSTMASTER GENERAL, BUREAU OF FACILITIES, REQUESTING TO BE ADVISED WHETHER OUR OFFICE WOULD OBJECT TO THE PROPOSED AMENDMENT OF AN AGREEMENT TO LEASE WITH MR. SAMUEL W. POORVU FOR THE RENTAL OF THE GOVERNMENT CENTER STATION POST OFFICE, NEW CHARDON STREET, BOSTON, MASSACHUSETTS. THE AMENDMENT WOULD INCREASE THE ANNUAL RENTAL RATE BY $4,137.94.

IT IS STATED THAT IN EARLY 1966, THE POST OFFICE DEPARTMENT, BOSTON REGIONAL OFFICE, REQUESTED BIDS FOR THE CONSTRUCTION AND LEASE OF A POSTAL FACILITY AT THE GOVERNMENT CENTER STATION IN BOSTON, MASSACHUSETTS; THAT TWO BIDDERS OFFERED PROPERTY IN RESPONSE TO THE INVITATION; AND THAT THE PROPOSAL SUBMITTED BY MR. SAMUEL W. POORVU OFFERED TO BUILD AND LEASE A FACILITY CONSTRUCTED IN ACCORDANCE WITH CERTAIN TENTATIVE DRAWINGS PREPARED BY AND FOR HIM AS WELL AS POST OFFICE DEPARTMENT DRAWINGS BOS-68, -69 AND -70. IT ALSO IS STATED THAT THE POORVU DRAWINGS OFFERED A FIVE- STORY BUILDING RATHER THAN A TWO STORY FACILITY AS SHOWN IN THE POST OFFICE DEPARTMENT TENTATIVE DRAWINGS.

IT IS REPORTED THAT AFTER EVALUATING COMPARABLE FACTORS SUCH AS LOCATION, RENT, CONVENIENCE, OPERATIONAL COSTS, DEVELOPMENT TRENDS IN THE GENERAL AREA AND OTHER ADJUSTMENT FACTORS, THE DEPARTMENT DETERMINED THAT MR. POORVU'S PROPOSAL WAS MORE ADVANTAGEOUS TO THE GOVERNMENT AND, THEREFORE, THE DEPARTMENT ENTERED INTO NEGOTIATIONS WITH MR. POORVU. AFTER COMPLETION OF THE NEGOTIATIONS, MR. POORVU ADVISED THE DEPARTMENT BY LETTER DATED AUGUST 16, 1966, THAT HE WAS REDUCING THE ANNUAL RENTAL RATE FOR THE BASIC TERM OF 20 YEARS FROM $208,880 TO $198,260 PER ANNUM AND THAT HE ALSO WAS OFFERING SIMILAR REDUCTIONS FOR THE RENEWAL OPTION TERMS. ON AUGUST 24, 1966, THE DEPARTMENT ACCEPTED MR. POORVU'S PROPOSAL, AS AMENDED, AND HE ENTERED INTO PERFORMANCE.

BY LETTER DATED JANUARY 23, 1967, MR. POORVU ADVISED THAT IN HIS NEGOTIATIONS WITH POST OFFICE OFFICIALS HE HAD FAILED TO CONSIDER APPROXIMATELY 2,832 SQUARE FEET OF SPACE IN THE BASEMENT AREA. MR. POORVU STATED THAT THE PLANS SUBMITTED WITH HIS ORIGINAL PROPOSAL PROVIDED FOR 15,496 SQUARE FEET OF SPACE IN THE BASEMENT AREA AND THAT SUCH PLANS HAD NOW BEEN DEVELOPED IN MORE DETAIL BY HIS ARCHITECT AND THAT HE HAD NOW BEEN ADVISED BY THE ARCHITECT THAT THERE ARE 2,832 MORE SQUARE FEET OF SPACE IN THE BASEMENT AREA THAN AS ORIGINALLY COMPUTED. IT ALSO WAS STATED THAT THE RENTAL REDUCTION WAS BASED ON FURNISHING ONLY 15,496 SQUARE FEET OF BASEMENT AREA. IT IS REPORTED THAT IT NOW APPEARS THAT THE OMITTED SPACE IS APPROXIMATELY 2,414 SQUARE FEET (NET) OF RAMP SPACE DEPICTED ON MR. POORVU'S TENTATIVE DRAWING NO. 2. MR. POORVU REQUESTED THAT THE LEASE BE AMENDED TO PROVIDE FOR AN INCREASE OF $4,137.94 IN THE ANNUAL RENTAL RATE TO COVER THE OMITTED RAMP SPACE.

MR. POORVU HAS STATED THAT DURING THE PERIOD OF NEGOTIATIONS, THE FIGURE OF 15,496 SQUARE FEET OF SPACE IN THE BASEMENT AREA WAS PART OF THE OVERALL NEGOTIATIONS WITH POST OFFICE OFFICIALS WITH REGARD TO THE REDUCTION OF THE ANNUAL RENTAL RATE. IT IS REPORTED THAT AN ANALYSIS OF MR. POORVU'S FINAL OFFER HAD BEEN MADE BY THE POST OFFICE DEPARTMENT LEASE ANALYST WHO, AS THE CONTRACTING OFFICER'S REPRESENTATIVE, HAD OBTAINED THE FINAL REDUCED RENTAL BID FROM MR. POORVU AND THAT THIS ANALYSIS DID CONSIDER AND INCLUDE THE 2,414 SQUARE FEET OF RAMP SPACE IN THE PROCESS OF ANALYZING THE FINAL POORVU OFFER AND RECOMMENDING ITS ACCEPTANCE. ALTHOUGH GOVERNMENT NEGOTIATORS HAD IN MIND THE INCLUSION OF THE RAMP SPACE AT THE TIME OF NEGOTIATIONS, THE RECORD SUBSTANTIATES THAT THE RAMP SPACE WAS NOT CONSIDERED BY MR. POORVU IN COMPUTING HIS RENT DEDUCTION. ALSO, THE RECORD INDICATES THAT THE RAMP SPACE WAS NOT SPECIFICALLY LISTED IN THE AGREEMENT TO LEASE AS ULTIMATELY EXECUTED BY BOTH PARTIES.

IT IS ELEMENTARY THAT PRIOR NEGOTIATIONS, IN THE ABSENCE OF FRAUD OR MUTUAL MISTAKE, FORM NO PART OF THE WRITTEN LEASE UNLESS INCORPORATED THEREIN. GOLDSTEIN V UNITED STATES, 79 CT. CL. 477; 32 AM. JUR., LANDLORD AND TENANT SECTION 134. THE WRITTEN LEASE, ALONE, FIXES THE OBLIGATIONS OF THE PARTIES AND THE TERMS AND CONDITIONS OF THE TENANCY. HOWEVER, THIS GENERAL PRINCIPLE IS NOT APPLICABLE HERE WHERE BOTH PARTIES TO THE AGREEMENT TO LEASE CONTEMPLATED A RENTAL FOR THE PARTICULAR AREA WHICH IS THE SUBJECT OF THE REQUEST FOR RELIEF. THE AGREEMENT TO LEASE PROVIDES THAT THE GOVERNMENT SHALL PAY AN ANNUAL RENT OF $198,260 PER ANNUM FOR THE USE OF 13,051 SQUARE FEET OF FIRST-FLOOR SPACE, 15,158 SQUARE FEET OF SECOND-FLOOR SPACE, AND 15,496 SQUARE FEET OF BASEMENT SPACE. IT DOES NOT PROVIDE THAT THE ENTIRE BASEMENT AREA IS TO BE RENTED TO THE GOVERNMENT. THE PRESENT RECORD INDICATES THAT THE ENTIRE BASEMENT AREA IS APPROXIMATELY 17,910 SQUARE FEET -- 2,414 SQUARE FEET LESS THAN THE AREA CITED IN THE LEASE. SINCE ONLY 15,496 SQUARE FEET OF THE BASEMENT AREA WAS MENTIONED IN THE AGREEMENT TO LEASE, WE ARE OF THE OPINION THAT THE GOVERNMENT HAS NOT BARGAINED TO USE THE REMAINING 2,414 SQUARE FEET OF SPACE IN THE BASEMENT AREA FOR THE STATED CONSIDERATION. CF. B 151372, JUNE 5, 1963. ACCORDINGLY, AND SINCE WE ASSUME THAT THE POST OFFICE INTENDS TO LEASE AND HAS NEED FOR THE RAMP SPACE, THE LEASE MAY BE MODIFIED TO PROVIDE FOR AN INCREASE OF $4,137.94 IN THE ANNUAL RENTAL RATE TO INCLUDE THE 2,414 SQUARE FEET OF BASEMENT SPACE NOT SPECIFICALLY INCLUDED IN AGREEMENT TO LEASE. CF. 38 COMP. GEN. 119.

THE FILES FORWARDED WITH THE LETTER OF APRIL 2, 1968, ARE RETURNED AS REQUESTED.