DENIED: April 14, 1993 GSBCA 11662 DAVISTER, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Terry L. Salazar of Winstead, Sechrest & Minick, Dallas, TX, counsel for Appellant. Gerald L. Schrader, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, NEILL, and GOODMAN. GOODMAN, Board Judge. This appeal arises from a lease awarded to appellant, Davister, Inc. (Davister or appellant), by the General Services Administration (GSA or respondent) for the construction and leasing of office, special purpose, and storage space in Lubbock, Texas, for use by the Department of Veterans Affairs (VA). A dispute arose as to the calculation of net usable space for which GSA was to pay rent. Appellant submitted a claim dated May 15, 1991, pursuant to the Contract Disputes Act of 1978 disputing the contracting officer's determination of the net usable space, and the contracting officer issued a final decision dated October 8, 1991, denying the claim. Appellant appealed the contracting officer's final decision by notice of appeal dated January 3, 1992. A hearing on the merits was held on August 26, 1992, in Fort Worth, Texas.[foot #] 1 We deny appellant's appeal, for the reasons set forth below. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Judge Devine conducted the hearing. The case was reassigned to Judge Goodman on February 3, 1993. ----------- FOOTNOTE ENDS ----------- Findings of Fact 1. On August 15, 1990, appellant was awarded lease no. GS-07B-13499 (the lease) by GSA pursuant to solicitation for offers (SFO) R7-07-90, dated November 15, 1989, for the construction and leasing of approximately 34,200 net usable square feet of office, special purpose, and storage space at the Terrace Shopping Center located in Lubbock, Texas, for use by the VA. Appeal File, Exhibit 1. 2. The lease term was for a period of ten years beginning on January 14, 1991, through January 13, 2001 (subject to renewal and termination rights as stated therein) with GSA obligated to pay an annual rental rate of $436,050 at the rate of $36,337.50 per month in arrears. Based upon 34,200 net usable square feet, the annual rental rate is $12.75 per net usable square foot. Appeal File, Exhibit 1. 3. Section 22 of the SFO incorporated into the lease reads, in pertinent part: NET USABLE SPACE IS THE METHOD OF MEASUREMENT FOR THE AREA FOR WHICH GSA WILL PAY A SQUARE FOOT RATE. IT IS DETERMINED AS FOLLOWS: IF THE SPACE IS ON A SINGLE TENANCY FLOOR, COMPUTE THE INSIDE GROSS AREA BY MEASURING BETWEEN THE INSIDE FINISH OF THE PERMANENT EXTERIOR BUILDING WALLS FROM THE FACE OF THE CONVECTORS (PIPES OR OTHER WALL-HUNG FIXTURES) IF THE CONVECTOR OCCUPIES AT LEAST 50 PERCENT OF THE LENGTH OF THE EXTERIOR WALLS. . . . . IN ALL MEASUREMENTS, MAKE NO DEDUCTIONS FOR COLUMNS AND PROJECTIONS ENCLOSING THE STRUCTURAL ELEMENTS OF THE BUILDING AND DEDUCT THE FOLLOWING FROM THE GROSS AREA INCLUDING THEIR ENCLOSING WALLS: TOILETS AND LOUNGES, STAIRWELLS, ELEVATORS AND ESCALATOR SHAFTS, BUILDING EQUIPMENT AND SERVICE AREAS, ENTRANCE AND ELEVATOR LOBBIES, STACKS AND SHAFTS, AND CORRIDORS IN PLACE OR REQUIRED BY LOCAL CODES AND ORDINANCES. Appeal File, Exhibit 1 at 8. 4. GSA Form 3517, General Clauses, pages 1-2 (REV 10/89), was attached to the lease and made a part thereof, and provided, in pertinent part, as follows: 7. MEASUREMENT FOR PAYMENT (APR 1984) When space is offered and accepted, the space will be mutually measured upon delivery. Payment will be made on the basis of actual measurement; however, payment will not be made for delivered space which is in excess of the maximum square footage solicited. Appeal File, Exhibit 1, Lease at 3; GSA Form 3517 at 1-2. 5. Clause no. 17, 552.270-21-CHANGES (JUN 1985), contained in the lease reads, in pertinent part: (a) The Contracting Officer may at any time, by written order, make changes within the general scope of this lease in any one or more of the following: (1) Specifications. (2) Work or services. (3) Amount of Space. (4) Facilities or space layout. (b) If any such change causes an increase or decrease in the Lessor's cost of, or the time required for, performance under this contract, whether or not changed by the order, the Contracting Officer shall modify the lease by (1) making an equitable adjustment in the rental rate, (2) making a lump sum price adjustment, or (3) revising the delivery schedule. Appeal File, Exhibit 1, GSA Form 3517 at 3. 6. The SFO and the lease provided, in pertinent part, as follows: 13 FIRE PROT. OCCUP. HEALTH AND ENVIRONMENTAL SAFETY BUILDINGS IN WHICH SPACE IS OFFERED FOR LEASE SHALL COMPLY WITH THE REQUIREMENTS OF THE GSA FIRE PROTECTION, OCCUPATIONAL HEALTH, AND ENVIRONMENTAL SAFETY STANDARDS AS DESCRIBED IN THIS SOLICITATION AND THE AGENCY HANDBOOK NUMBERED PBS P 5900.2B. EQUIVALENT PROTECTION, AS REQUIRED BY THE APPLICABLE STANDARDS, SHALL BE APPROVED BY THE CONTRACTING OFFICER. . . . . 33 EXITS AND ACCESS ALL EXITS, STAIRS, CORRIDORS, AISLES, AND PASSAGEWAYS THAT MAY BE USED BY THE GOVERNMENT SHALL COMPLY WITH NFPA STANDARD NO. 101, . . . . Appeal File, Exhibit 1 at 5, 10. 7. The Life Safety Code, NFPA 101, Section 5-5, Arrangement of Means of Egress, states in 5-5.1.2: Where exits are not immediately accessible from an open floor area, safe and continuous passageways, aisles, or corridors shall be maintained leading directly to every exit and shall be so arranged as to provide access for each occupant to at least two exits by separate ways of travel. Appeal File, Exhibit 11. 8. Under the provisions of the lease, appellant was required to construct improvements to the lease space. Section 6 of the lease provided that "GSA shall deliver layout drawings and necessary finish out selections to the successful offeror within 14 days after award." Appeal File, Exhibit 1 at 2. 9. Before the award of the lease, the space in the Terrace Shopping Center which was offered for lease to GSA consisted of several differently configured tenant spaces. Transcript at 19. 10. After the lease was awarded, appellant hired RG General Contractors, owned and operated by Rollo Gurss, to perform the construction required under the lease. Transcript at 12. 11. The pre-existing tenant space was to be demolished after lease award as part of the construction services furnished under the lease, in order to construct the leased space to the configuration required by the VA. Appellant's contractor testified that the "existing lease spaces throughout the entire proposed project [were] gutted down to the concrete and to the bare ceiling." Transcript at 19, 76-77. 12. As a part of the interior construction performed for the Government, a T-shaped corridor measuring approximately 2,392 square feet was constructed by appellant within the confines of the lease space obtained under the lease. Appellant contends that the T-shaped corridor did not exist before it performed the construction of the leased space. Transcript at 5-6. 13. There is conflicting testimony by appellant's witnesses as to which party originated the concept of the T-shaped corridor. Mr. Robby Tompkins, an architect-consultant to appellant's management company, Terra Group, Inc., testified that the T-shaped corridor was originally requested by the VA in preliminary design meetings with appellant's contractor prior to submission of appellant's proposal to GSA. Transcript at 9. He testified further that the design concept of the T-shaped corridor was proposed by either the VA or GSA in one of its preliminary drawings (admitted as Appellant's Exhibit A-1), which appellant's contractor Rollo Gurss incorporated into the final layout drawings transmitted by GSA to appellant after award of the lease. Id. at 25-26. 14. Mr. Rollo Gurss of RG General Contractors testified that he "was hired to design and build space for the Veteran's Administration. . . . [T]o lay out the space, do the architectural drawings, get an architectural engineer stamp and then construct the space." Transcript at 72. He testified further that he took the solicitation's performance specification guidelines, which called for a certain number of rooms of a certain size, and prepared a preliminary layout in which he arranged the rooms within the physical configuration of the space to be leased. Id. at 72-74; Appellant's Exhibit A-6. The preliminary layout was prepared in order to furnish appellant with a construction cost estimate. Transcript at 73. The preliminary layout, as prepared by Mr. Gurss, included a T-shaped corridor which was 8 feet in width. Id. at 84-85. 15. When cross-examined as to the inclusion of the T-shaped corridor in his preliminary layout, see Appellant's Exhibit A-6, Mr. Gurss responded as follows: Q. When you were doing this layout for your own purposes and before the Government had told you specifically how it wanted the layout grouped together, you had yourself put in a T-shaped corridor? A. Yes, sir. Transcript at 84-85. Thus, according to appellant's contractor, it was not the Government's decision to include a T-shaped corridor in the preliminary layout for the leased space. 16. The Government's contracting officer also testified that it was not the Government's decision to include a T-shaped corridor in the preliminary layout for the leased space. Transcript at 125-26. 17. The contracting officer also testified as to her understanding of the term "corridor(s) in place" in section 22 of the lease: Q. What is your understanding of the meaning of the term "corridor in place" or "corridors in place"? A. It would be exactly what it said, a corridor that is in place, actually, you know, at the site. Q. What is your opinion as to the correctness of his interpretation that it applies to only corridors which were existing prior to lease execution? A. That's not what it says in paragraph 22. It just says corridors in place; it doesn't say when the corridors have to be in place. . . . . Q. Did you review Section 22. A. Yes. Q. At the time the solicitation was issued, what was your understanding as a representative of GSA as to what that provision means with respect to corridors in place? A. That when the lease is built out, as it obviously was, that the main corridor would be deducted, or any fire exit, any means of egress. Transcript at 127-28, 136-37. 18. The preliminary layout drawing was submitted to GSA and was forwarded to GSA's fire/life safety section for review and approval. Transcript at 128. The Government revised the preliminary layout and returned it to appellant. Id. at 26. The Government changed the T-shaped corridor designed by Mr. Gurss by reducing its width from 8 feet to 6 feet. Consequently, the corridor which the Government approved takes up less space than the one Mr. Gurss had originally designed. Id. at 84-85; Appellant's Exhibit A-1. 19. Mr. Gurss thereafter took those approved preliminary drawings and added the electrical circuits, heating, ventilation and air conditioning (HVAC), and other items required to get a local building permit. Transcript at 26. Appellant then awarded the building contract, obtained a building permit, and RG General Contractors proceeded to demolish and reconstruct the space according to the approved plans. Id. at 26, 76-78. 20. During construction of the space, the contracting officer informed appellant that based upon her interpretation of the lease, the area of the T-shaped corridor would be deducted from the gross area and that no rent would be paid for that area. Appeal File, Exhibit 2. 21. On or about March 5, 1991, after the construction of the VA clinic space was completed, but before acceptance by GSA, the space was jointly measured by Rollo Gurss and George McCarty, representing appellant and GSA respectively. Transcript at 58- 59, 83-84; Appeal File, Exhibit 4. According to appellant's architect, Mr. Tompkins, this measurement was for the purposes of GSA Form 3517, page 1, paragraph 7, "Measurement for Payment," which was part of the lease. Transcript at 59. The leased space was accepted on March 8, 1991. Id. at 58. 22. GSA, relying upon Section 22 of the lease, deducted the area of the T-shaped corridor from the net usable space for which GSA is obligated to pay an annual square foot rate of $12.75. Appeal File, Exhibit 2. 23. For several months thereafter, appellant made repeated written requests to the contracting officer that the Government include the T-shaped corridor in the net usable space and pay rental on the square footage of the T-shaped corridor. Appeal File, Exhibits 5, 7. By letter dated May 15, 1991, appellant's agent submitted to the contracting officer, on behalf of appellant, an uncertified claim pursuant to the Contract Disputes Act requesting the reversal of the prior decision to deduct the T-shaped corridor from the net usable space for payment purposes.[foot #] 2 Id., Exhibit 9. 24. The lease was amended by supplemental lease agreement (SLA) 1 (undated) which established March 1, 1991, as the acceptance date of the lease space and provided for the Govern- ment to pay appellant annual rent of $396,601.50 at the rate of $33,050.13 per month in arrears for 31,106 usable square feet of space. SLA 1 amended the term of the lease to begin on March 1, 1991, through February 28, 2001, and also contained an express reservation by appellant of its dispute over the calculation of the net usable square footage. Appeal File, Exhibit 15. 25. By final decision dated June 26, 1991, the contracting officer denied appellant's claim and determined that the "'T' corridor was required to be 'in place' by NFPA 101 and Handbook PBS P 5900.2B and subsequently excluded when measurement was made for net usable square feet (NUSF)." Appeal File, Exhibit 11. Appellant refused to accept that final decision as a valid final decision on the dispute since it did not state the number of net usable square feet of space on which the Government would pay rental. In response to a request by appellant for clarification of the net usable square footage, a meeting was held on September ----------- FOOTNOTE BEGINS --------- [foot #] 2 The claim value of the square footage in dispute accrued at the rate of $2,451.50 per month ($12.75 x 2,392 square feet/12= $2,451.50/month). When the uncertified claim was submitted to the contracting officer on May 15, 1991 (during the first month of the lease, Supplemental Lease Agreement (SLA) 1; Finding 24), the dollar value of the claim did not exceed $50,000. The value of the claim exceeded $50,000 on November 21, 1992, the twenty-first month of the lease. Certification was not required when the claim amount reached $50,000. If a claim is genuinely under $50,000 when presented to the contracting officer for decision, certification is not necessary if subsequent events, such as the mere passage of time, cause the claim to accrue and exceed $50,000. EMS, Inc., GSBCA _________ 9588, et al., 90-2 BCA 22,876, citing Tecom, Inc. v. United ______________________ States, 732 F.2d 935 (Fed. Cir. 1984). ______ ----------- FOOTNOTE ENDS ----------- 16, 1991, between representatives of appellant and respondent to further discuss the matters in dispute. Id., Exhibit 16. 26. As a result of the meeting on September 16, 1991, and discussions between appellant and respondent, the parties entered into SLA 3 dated September 18, 1991, effective September 16, 1991, which further revised the net usable square footage of the lease space by providing for 32,751 net usable square feet to be leased at an annual rental of $417,575.25, payable in the amount of $34,797.94 per month in arrears.[foot #] 3 SLA 3 also contained an express reservation by appellant of its dispute with GSA over the net usable square footage calculation which is the subject of this appeal. Appeal File, Exhibit 14. 27. After the execution of SLA 3, a final decision was issued on October 8, 1991, which referenced and clarified the previous final decision dated June 26, 1991. The final decision of October 8, 1991, determined the net usable square footage for payment purposes to be 32,751 as established in SLA 3, and thereby denied appellant's claim that the area within the T-shaped corridor should be included in the net usable square footage calculation for payment purposes. Appellant received the final decision on October 9, 1991. Appeal File, Exhibit 16. 28. Appellant's appeal from that final decision was docketed by the Board on January 7, 1992. Appeal File, Exhibit 18. Appellant filed this appeal action with the General Services Administration Board of Contract Appeals seeking a determination from the Board that under the terms of the lease, GSA is not authorized to delete the square footage area of the T-shaped corridor (approximately 2,392 square feet) from the total net usable space for which GSA must pay under the terms of the lease. 29. At the hearing on this appeal, the parties stipulated that the applicable gross square foot area of the lease space is 35,843 square feet; that GSA is currently paying for 32,751 net usable square feet, exclusive of the square footage contained within a T-shaped corridor which is located within the lease space; that the area of the T-shaped corridor in question in this dispute is 2,392 square feet; and that the applicable square foot rental figure for the 2,392 square feet in question is $12.75 per square foot. Transcript at 4-5. 30. Both appellant's and respondent's witnesses testified at the hearing as to the relevance of local codes and ordinances to the T-shaped corridor at issue. Transcript at 29-30, 34-53, 55-58, 63-69, 79-84, 90-91, 95-123, 141-94. ----------- FOOTNOTE BEGINS --------- [foot #] 3 The annual rental rate for net usable square footage provided for in SLA 3 equates to an effective annual rate of $12.75 per net usable square foot, which is consistent with the rental rates provided for in the original lease contract and SLA 1. ----------- FOOTNOTE ENDS ----------- Discussion Appellant's claim is based on its interpretation of Section 22 of the lease that the T-shaped corridor which is the focus of this dispute is neither a "corridor in place" nor "required by local codes." Under appellant's interpretation, the T-shaped corridor is to be included in the net usable space for which GSA is to pay under the lease, and not excluded under the calculation required by Section 22 of the lease. Appellant argues that a "corridor in place" in Section 22 refers only to a corridor which presently exists in the leased space and which also existed before the award of the lease and the construction of the leased space. Accordingly, appellant believes that whether the corridor in question pre-existed the lease is a pivotal issue. Appellant also argues that the T-shaped corridor is not "required by local code," as the corridor was constructed based upon a design choice of GSA and the VA, and GSA retained the right to alter its configuration of the corridor. According to appellant, this ability to alter the configuration presumes that the corridor was not originally required by local code. Appellant's Post-Hearing Brief at 21-22. The Government's interpretation is that the T-shaped corridor is a "corridor in place" as referenced in Section 22 and is to be excluded from the net usable square footage. The Government contends that "corridor in place" in Section 22 refers to corridors in existence within the leased space at the time of measurement of the net usable square footage for payment purposes, i.e., after construction of the interior build-out of the leased space. Respondent's Post-Hearing Brief at 8. According to the Government's interpretation, whether or not the corridor in question existed prior to the build-out of the Government's space is irrelevant, since measurement of the net usable space occurs upon delivery of the space, i.e., after the space is configured for the use of the VA. Respondent further contends, based upon testimony of appellant's contractor, that the inclusion of the T-shaped corridor was not a design choice of GSA or the VA, but was included in the preliminary design prepared by appellant's contractor. Finding 15.[foot #] 4 Respondent therefore maintains that pursuant to Section 22 of the lease, the square footage of the T-shaped corridor was properly deducted from the gross space to arrive at the net usable square feet on which rent is paid, since the corridor was ----------- FOOTNOTE BEGINS --------- [foot #] 4 Whether appellant or respondent originated the concept of the T-shaped corridor has no bearing on the conclusions reached in this decision. ----------- FOOTNOTE ENDS ----------- a "corridor in place" at the time the parties jointly measured the space for the purpose of determining the net usable square feet.[foot #] 5 1. A "Corridor in Place" is That Which Exists Upon Delivery of the Leased Space and Need not Exist Before the Delivery of the Leased Space In interpreting a contract, one must give effect to the plain meaning of terms whenever possible. Hol-Gar Manufacturing Corp. v. United States, 169 Ct. Cl. 384, 351 F.2d 972 (1965). The language of the lease clearly and unambiguously supports the interpretation of respondent, i.e., that "corridors in place" refers to corridors which were in place at the time the space was measured for payment purposes, after construction of the space to be leased, regardless of whether they existed prior to that time. Section 22 of the lease established the method of measuring the net usable space, which is defined therein as the "AREA [for] WHICH GSA WILL PAY A SQUARE FOOT RATE." First the gross area is to be computed, and then deductions are to be made for various structures, including "corridors in place or required by local codes and ordinances." Finding 3. The contract must be read as a whole and all writings forming part of the contract must be interpreted together. Third and Pierce, Inc., GSBCA 3234, 74-1 BCA 10,452. Section 22 of the lease therefore must be read in conjunction with the "Measurement for Payment" clause contained in GSA Form 3517, General Clauses, which is included in the lease. This clause clearly states the time when the space will be measured for payment purposes - "When space is offered and accepted, the space will be mutually measured upon delivery. Payment will be made on the basis of actual measurement . . . ." Finding 4. Since the space is to be measured for payment purposes only upon delivery of the space, according to the plain meaning of the lease language, and reading the lease as a whole, a "corridor in place" is one which exists at the time the space is measured. There is no implication in the lease that a corridor in place is one which must have existed before the space was delivered for use. ----------- FOOTNOTE BEGINS --------- [foot #] 5 While the contracting officer's final decision speaks in terms of the corridor being required by certain code provisions to be in place, and testimony was offered at the hearing regarding code requirement, Finding 29, the Government, in its Post-Hearing Brief, appears to rely solely on the argument that the corridor is "in place" during the life of the lease term. ----------- FOOTNOTE ENDS ----------- Accordingly, GSA properly deducted the area of the T-shaped corridor from the gross area to arrive at the net usable space for payment purposes. 2. Respondent's Interpretation of "Corridors in Place" and "or Required by Local Codes and Ordinances" is not Redundant and is Consistent With the Changes Clause of the Lease According to appellant, respondent's interpretation would render meaningless the remaining language "or required by local codes and ordinances" contained in Section 22 of the lease. Appellant's Post-Hearing Brief at 10. This is not the case. Appellant contends that if any corridor which exists in the leased space when the net usable square footage is measured is a "corridor in place" and its area is to be deducted from the net usable square footage, there would be no need to determine whether any of the corridors existing at the time of measurement were required by local codes or ordinances. Thus, it appears that appellant is arguing that the terms "corridors in place" and "required by local codes and ordinances" would be redundant under respondent's interpretation. When reading a contract as a whole, the contract is to be construed to give effect to all of its clauses. Hol-Gar Manufacturing Corp., 169 Ct. Cl. 384, 351 F.2d 972. Parties to Government contracts "have long been on notice that in reading contract documents they should seek to find concord, rather than discord, if they properly can." Unicon Management Corp. v. United States, 179 Ct. Cl. 534, 538, 375 F.2d 804, 806 (1967). We do not find the terms "corridors in place" and "or required by local codes and ordinances" to be redundant in respondent's interpretation. Appellant is correct that under respondent's interpretation, there is no need to determine at the time the space is measured whether corridors are "required by local code or ordinances," since if they exist, they are "corridors in place" even though they may be required by local code or ordinance. However, this does not render meaningless the phrase "or required by local codes and ordinances." Section 22 of the lease must also be construed together with the Changes clause. Finding 5. This clause recognizes that events occurring after the date of occupancy may increase or decrease the amount of leased space or the facilities or space layout. The phrase "or required by local codes and ordinances" would apply to instances where corridors were not in place at the time of the original measurement, but were added thereafter, a circumstance well within the realm of possibility. The future inclusion of corridors might be the result of either changes in local codes which required additional corridors, or changes in the configuration of the space requested by the tenant after occupancy which required additional corridors by existing code. Thus, the terms "corridors in place" and "required by local code or ordinances," when read together with the Changes clause, may be reasonably construed according to respondent's interpretation, and are not redundant as suggested by appellant. 3. Appellant's Interpretation of "Corridors in Place" in Section 22 of the Lease is Unreasonable Appellant argues that the plain meaning of "in place" refers to corridors that presently exist in the space leased to GSA and which were formerly existing prior to award of the lease. As stated above, the clear and unambiguous language of the lease does not support this interpretation. Appellant has offered no rational basis for its interpretation. Appellant attempts to support this argument by reference to testimony of the contracting officer at the hearing, alleging the contracting officer stated "that the provisions of Sec. 22 in the SFO are silent with regard to when the corridors have to be in place for purposes of exclusions from the net usable square footage." Appellant's Post-Hearing Brief at 9 (referencing Transcript at 127-28). A review of the testimony shows that the contracting officer testified that it was her opinion that "corridors in place" meant actually in place at the site, and she disputed appellant's interpretation that it applies to only corridors which were existing prior to lease execution. Finding 17. Additionally, appellant argues that the interpretation urged by the Government is erroneous and contrary to the interpretation given to the "exact same language in previous decisions of this Board." Appellant's Post-Hearing Brief at 8-9. Appellant relies on this Board's previous decision in Third and Pierce, Inc., 74-1 BCA 10,452. Appellant's reliance on this decision is misplaced, as the rationale of Third and Pierce, Inc. supports respondent's position in this appeal. In Third and Pierce, Inc., we reviewed and interpreted a similar lease provision regarding deductions from the gross area of a lease space to calculate net usable square footage. The primary issue of dispute was whether main corridors connecting stairways in a multi-story building leased to the Government were considered inside the gross area of a lease. Third and Pierce, Inc. involved the construction of a lease provision which was similar to Section 22 of Davister's lease. The pertinent clause in that appeal read, in part, as follows: 10. DEFINITION OF NET USABLE SPACE. 'Net usable space' is a term meaning the area to be leased for occupancy by Federal personnel and/or equipment. It is determined by: a. Computing the inside gross area of the space by measuring from the normal inside finish of exterior walls, or the room side finish of fixed corridor and shaft walls, or the center of tenant separating partitions. . . . . c. Deducting from the gross area the following, including enclosing walls when applicable: . . . . (8) Corridors in place (emphasis added). 74-1 BCA at 49,419-20. In Third and Pierce, Inc., the definition of the term "corridors in place" was not at issue. The dispute involved the definition of "fixed corridor." However, the reasoning employed by the Board in that decision is beneficial in resolving the instant appeal. Appellant, in the instant appeal, argues that the Board, in Third and Pierce, Inc., determined the correct interpretation of the clause to mean that "fixed corridors were excluded from the inside gross area only on those floors where the corridors were laid out in the same place as they existed formerly for the purpose of linking the stairwells, elevators, and mechanical rooms." Appellant's Post-Hearing Brief at 9. Appellant further argues, apparently by analogy, "[i]t is interesting to note that in Third and Pierce, Inc., that the Board was affirming the government's interpretation of 'corridors in place' as meaning those 'laid out in the same place as they existed formerly' and in this case, the government has taken a diametrically opposite position with respect to the same language." Appellant's Post-Hearing Brief at 9, n.5. Appellant uses the terms "fixed corridor" and "corridor in place" interchangeably in its argument. The Board, in Third and Pierce, Inc., held that where there was a fixed corridor which existed before the lease commenced and the corridor was left in its existing state or reconstructed (and not demolished) in the space to be leased, the corridor was properly excluded from net usable space. Also, the Board held that if fixed corridors existed before the lease commenced, but were demolished and not reconstructed in the leased space, the area formerly occupied by the fixed corridor was to be included in the net usable space. In Third and Pierce, Inc., the area where a corridor previously existed in the leased space, and remained in the reconfigured space, was excluded from net usable space. The area where a corridor previously existed, but was demolished and thereafter did not exist in the reconfigured space, was included in net usable space. The deciding factor in Third and Pierce, Inc. was whether a corridor existed at the time the space was delivered for use by the tenant, not whether a corridor existed before the tenant space was built or reconfigured. The Board did not deal with a situation such as alleged by appellant in the instant appeal, i.e., where a corridor did not previously exist before the lease and was thereafter constructed in the lease space. Under the rationale in Third and Pierce, Inc., focusing on the configuration which exists when the space is delivered for occupancy, it appears that the Board would have excluded the area from net usable space, consistent with respondent's interpretation in the instant appeal. Contrary to the assertions of appellant, the reasoning of the Third and Pierce, Inc. decision does not support its interpretation of section 22 of the lease. Rather, it supports respondent's interpretation, even though it does not deal with "corridors in place." Appellant offers no viable rationale for its interpretation. There is no dispute that the pre-existing tenant configuration in the space to be occupied by the VA was demolished before being rebuilt by appellant. Findings 9-12. Whether a corridor existed previously, or did not exist previously, has no bearing on the calculation of net usable space under the lease. Appellant's interpretation is unreasonable, is contrary to the plain meaning of the contract, and fails to construe Section 22 in harmony with the Measurement for Payment clause and Changes clause. Decision For the foregoing reasons, appellant's appeal is DENIED. ______________________ ALLAN H. GOODMAN Board Judge We concur: ______________________ ______________________ DONALD W. DEVINE EDWIN B. NEILL Board Judge Board Judge