______________________________________________ COUNTS 3 AND 4 AND A PORTION OF COUNTS 1 AND 2 ARE DISMISSED FOR LACK OF JURISDICTION: November 9, 1994 ______________________________________________ GSBCA 12879 RUSSELL & ASSOCIATES, FRESNO, LTD., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Randall L. Mason and Jessica A. Amgwerd of Lewis, D'Amato, Brisbois & Bisgaard, San Diego, CA, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, WILLIAMS, and DeGRAFF. DeGRAFF, Board Judge. Findings of Fact On May 28, 1970, Russell & Associates - Fresno, Ltd. (Russell) entered into lease number GS-09B-6334 with the General Services Administration (GSA). Russell constructed five buildings and leased them to GSA for a term of twenty years (November 1971 through November 1991) plus two five-year options. Paragraphs 5 and 10 of the lease provide that the annual rent was $2,659,644.73 for the base years and the option years. Appeal File, Exhibit 1. The parties amended the lease on March 3, 1980, when they entered into Supplemental Lease Agreement Number 6 (SLA 6). SLA 6 states that it was signed "to reduce rental payments and show the Government as responsible for services and utilities." Paragraphs 5 and 10 of the lease were amended to provide that the annual rent for January 1980 through July 1991 was $2,362,169.60, and that the annual rent for the two five-year option terms was $2,370,547.25. SLA 6 also provides: The Lessor agrees to be responsible for the operation, maintenance and repair of the demised premises to the extent of, but only to the extent of: (1) defective conditions, either presently existing (latent or patent) or developing in the future, of the roof, foundation, or exterior walls, exclusive of windows and doors; and (2) any presently existing latent defective conditions of any and all other systems on the premises. The Government agrees to be responsible for all other operation, maintenance and repair of the premises. Any and all other provisions of this lease, to any extent inconsistent with the above, are hereby deleted to the extent, but only to the extent, of any such inconsistency. It is agreed and understood that effective January 1, 1980 neither the Government nor the lessor are aware of any presently existing latent defects and that the Government accepts the premises in an "as is" condition except as stated above. Appeal File, Exhibit 1. On February 18, 1992, the parties signed SLA 10, in which GSA exercised the two five-year options (November 1991 through November 2001), at an annual rent of $2,370,547.25. Appeal File, Exhibit 1. On May 21, 1993, an attorney for Russell sent a letter to a GSA realty specialist, requesting payment of $15,856.69 for expenses incurred by Russell from May 1988 through March 1993, for repairs to the roofs of the buildings. Appeal File, Exhibit 17; Supplemental Appeal File, Exhibit 9. On June 1, 1993, the attorney sent another letter to GSA's realty specialist, stating that Russell had paid an additional $1,750 for roof repairs, and requesting payment of that amount. In the June 1 letter, Russell's attorney asked GSA to explain why it interpreted the lease to require Russell to perform any maintenance. GSA's Motion to Dismiss, Attachment 1. Apparently, between June 1993 and March 1994, the parties discussed their interpretations of the lease.[foot #] 1 On March 14, 1994, the contracting officer responded to Russell's letters. The contracting officer stated that, according to his reading of SLA 6, Russell was responsible for maintaining the building's structure. For this reason, the contracting officer ----------- FOOTNOTE BEGINS --------- [foot #] 1 Exhibit 16 of the Supplemental Appeal File contains a list that mentions letters exchanged by the parties during this time. Neither party included these letters in the appeal file. ----------- FOOTNOTE ENDS ----------- denied Russell's claim for reimbursement for roof repair expenses. Appeal File, Exhibit 18. On June 20, 1994, Russell filed this appeal. In its notice of appeal, Russell states that it "seeks reimbursement of all sums it has paid for maintaining the roofs of the leased buildings within four years from its first request for reimbursement to the GSA as well as an adjudication that GSA is obligated and responsible for all current roof repairs, plus all future obligations and responsibilities which are not the result of defective design or construction pursuant to the Supplemental Lease Agreement No. 6." On July 21, 1994, Russell filed its complaint, containing five counts. In its response to GSA's Motion to Dismiss, Russell withdraws Count 5. In Counts 1 and 2, Russell asserts that GSA incorrectly interprets SLA 6, and that GSA breached the terms of SLA 6. In Counts 1 and 2, Russell requests: 1. That the Board determine the proper interpretation of SLA 6. 2. That the Board order GSA to reimburse Russell for all of the expenses it incurred in repairing the roofs of the leased buildings during the last seven years. 3. That GSA be directed to pay unspecified consequential damages. In Counts 3 and 4, Russell asserts that it is entitled to rescission and reformation of SLAs 6 and 10, and that GSA has been unjustly enriched at Russell's expense. In Counts 3 and 4, Russell requests: 1. That SLA 6 be rescinded. 2. That GSA be required to pay the difference between the original annual rent payment ($2,659,644.73) and the annual rent established in SLA 6 ($2,362,169.60) from January 1980 through November 1991. Although the total amount requested is not stated in the complaint, it is approximately $3.5 million. 3. That SLA 10 be reformed to increase the annual rent to $2,659,644.73. 4. That GSA be required to pay the difference between the original annual rent payment ($2,659,644.73) and the annual rent established in SLA 10 ($2,370,547.25) from November 1991 (when SLA 10 became effective) to present. Although the total amount requested is not stated in the complaint, it is approximately $870,000. 5. That GSA be directed to pay unspecified consequential damages. Discussion GSA asserts that the claims contained in Counts 3 and 4 have never been presented to the contracting officer for decision, and therefore moves to dismiss these counts for lack of jurisdiction. GSA also notes that the amounts requested in Counts 3 and 4 exceed $50,000, and therefore are required to be certified but that Russell has never presented a certified claim to the contracting officer. Russell opposes GSA's motion. Russell asserts that the claims contained in Counts 3 and 4 are not distinct from the claims presented to the contracting officer. Russell explains that it is entitled to the relief that it requests in Counts 3 and 4 because GSA failed to perform maintenance and repairs to the five leased buildings. Russell also argues that, because it was not required to certify its "original claim," it is not required to certify the claims contained in Counts 3 and 4. The Contract Disputes Act requires that, in order for us to consider the claims contained in the complaint, Russell must have submitted those claims, in writing, to the contracting officer for decision. 41 U.S.C. 605-607 (1988). The claims presented in Counts 1 and 2, except for the claim for consequential damages which we address below, were properly presented to the contracting officer on May 21 and June 1, 1993. If Counts 3 and 4 simply contain additional facts or arguments in support of the claims contained in Counts 1 and 2 that were presented to the contracting officer, then we may consider Counts 3 and 4. Tecom, Inc. v. United States, 732 F.2d 935, 938 (Fed. Cir. 1984). If, however, Counts 3 and 4 present claims that arise from operative facts other than those which form the basis of the claims presented to the contracting officer, or if the claims contained in Counts 3 and 4 are not included within the scope of the claims presented to the contracting officer, we must dismiss Counts 3 and 4. Santa Fe Engineers, Inc. v. United States, 818 F.2d 856 (Fed. Cir. 1987). In deciding whether the claims presented in Counts 3 and 4 are distinct from the claims presented to the contracting officer, it is appropriate to consider the evidence which we will need to examine in order to resolve the claims. Placeway Construction Corp. v. United States, 920 F.2d 903 (Fed. Cir. 1990). On May 21 and June 1, 1993, Russell requested that GSA pay $17,606.69 for the expense of roof repairs, and also requested that GSA provide an interpretation of the terms of the lease. In order to resolve these claims, we will have to consider evidence which bears upon the parties' interpretations of the terms of the lease, and then decide which party was responsible for performing roof repairs. If we agree with Russell's interpretation, we will have to consider the evidence establishing Russell's expenses for roof repairs, and determine the amount which Russell is entitled to recover. Counts 3 and 4 do not present additional facts or arguments in support of the claims that were presented to the contracting officer. Instead, the claims contained in Counts 3 and 4 are significantly different than the claims presented to the contracting officer. The claims presented to the contracting officer requested a modest amount of money based upon the fact that Russell incurred expenses in performing roof repairs. Counts 3 and 4 request approximately $4.3 million based upon Russell's assertion that GSA did not perform maintenance and repairs to the leased buildings. The claims presented to the contracting officer ask GSA to provide Russell with an interpretation of the lease. In Counts 3 and 4, Russell requests that we rescind and reform the lease. In order to resolve the issues presented by Counts 3 and 4, we will need to consider evidence different than that needed to resolve the issues presented to the contracting officer. For example, in resolving Counts 3 and 4, we will have to decide whether there are facts which establish that rescission and reformation are warranted and, if so, we will have to determine the terms of the reformed lease. In order to resolve Counts 3 and 4, we will also have to decide whether GSA failed to perform maintenance and repairs to the leased buildings. The claims contained in Counts 3 and 4 are, therefore, not the same as the claims presented to the contracting officer. Because the claims contained in Counts 3 and 4 were never presented to the contracting officer, we lack jurisdiction to consider them. Russell never requested payment of a sum certain as consequential damages from the contracting officer. For this reason, we lack jurisdiction to consider the request for consequential damages contained in Counts 1 and 2. Decision GSA's motion is GRANTED. Counts 3 and 4 of the complaint are dismissed. In addition, the claim for consequential damages contained in Counts 1 and 2 is dismissed. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ _______________________________ DONALD W. DEVINE MARY ELLEN COSTER WILLIAMS Board Judge Board Judge