General Warehouse Two, Inc. v. United States

• Decision Date: 13 October 1967
• Docket Number: No. 268-64.,268-64.
• Citation: General Warehouse Two, Inc. v. United States, 389 F.2d 1016, 181 Ct.Cl. 180 (Fed. Cl. 1967)
• Parties: GENERAL WAREHOUSE TWO, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

181 Ct. Cl. 180, 389 F.2d 1016 (1967)

GENERAL WAREHOUSE TWO, INC. v.The UNITED STATES.

No. 268-64.

United States Court of Claims.

October 13, 1967.

Warner S. Currie and Edward H. Wasson, Jr., Atlanta, Ga., for plaintiff.Warner S. Currie, Atlanta, Ga., attorney of record.Overton A. Currie, and Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., of counsel.

Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, JONES, Senior Judge, and LARAMORE, DURFEE, DAVIS, SKELTON, and NICHOLS, Judges.

OPINION

MARVIN JONES, Senior Judge.

Plaintiff, a Georgia corporation, sues to recover additional rental money for office space in a building constructed by plaintiff and leased to the Government.Two questions are presented: Does the Government owe the rental money; if so, in what amount?

Plaintiff was the successful bidder on an invitation to purchase land on which the Government had an option and to construct an office building to be leased to the Government.The invitation called for the lessor to provide "a minimum of 100,000 net usable square feet of office and related space in a seven-story building, with a basement."The invitation stated further:

The area leased shall be the net usable space as defined in Paragraph 10 and shall not include any wall, corridor, rest room, mechanical, lobby or other similar areas not exclusively available for use by the Government for office purposes.(Emphasis supplied.)

Paragraph 10 provided:

"Net usable square feet" as used in this proposal means clear usable space, not including walls, corridors which it is necessary to construct in order to provide access to rooms which are specified * * *.

The invitation also included drawings of typical floor plans which described a building 280 feet long and 60 feet wide.Each floor plan showed a corridor running the length of the building equidistant from the side walls.Computations accompanying the drawings indicated that the Government excluded the corridors when determining net usable space.Plaintiff used reproductions of the Government's drawings in its bid and stated that the total net usable area offered for lease was 100,000 square feet.The rentals proposed by plaintiff were $260,000 per year for an initial 10-year period and $256,000 per year for an optional 10-year renewal period.The Government accepted plaintiff's bid in January 1962.

In July 1962, the parties executed a 10-year lease agreement providing for an annual rental of $260,000, with an option available to the Government to renew for an additional 10 years, on a year-to-year basis, at $256,000 per year.Paragraph 2 of the agreement described the leased premises as a building to be constructed with "a minimum of 100,000 net usable square feet of office and related space."The covenants of the invitation, bid, and acceptance were incorporated into the agreement.

The invitation to bid contained a change order paragraph which gave the Government the right to issue change orders during construction and a provision calling for compensation to plaintiff either by a lump sum payment or by an increase in the annual rental if a record of the changes indicated increased costs to plaintiff.Before and during construction the Government issued 28 formal change orders.The more important of these were for floor ducts to facilitate the placement of electrical outlets, for which plaintiff was credited with a lump sum payment of $22,500; a change in lamp fixtures for which plaintiff received the lump sum of $16,858; and the installation of a sound system for the lump sum of $32,676.52.All compensation under the 28 change orders was through lump sum payment with no adjustment in rental rates, and none of the change orders concerned an increase or decrease in the amount of net usable space available to the Government.

In February 1962, before construction had begun, plaintiff complied with the Government's request to increase both the length and width of the building by 4 inches, resulting in an additional 792 square feet of net usable space throughout the building.No change order was issued, and no discussion was held of compensation to plaintiff for the change.At later dates the Government requested and received two blocks of net usable space in the basement which plaintiff had reserved to itself in its bid: 1,432 square feet and 500 square feet.Plaintiff received no lump sum payment for these three changes, but, as will be discussed subsequently, was compensated through increased rentals.

In February or March 1962, the Government first requested and then directed plaintiff to change the basic interior design of the building.The central, longitudinal corridor was largely eliminated on each floor except the basement, and a "central core" design was substituted, which grouped the elevators and utility rooms midway along the length of the floor, against a side wall, with corridor space in front of them.The change resulted in a substantial increase in the amount of net usable space available to the Government, located in the area formerly occupied by the central corridors.Just as in the change in the size of the building, no formal change order was issued, nor was there any discussion of compensation at the time the change was directed.

In June 1963, the parties amended Paragraph 2 of the lease agreement.The Government agreed to pay additional rental for the 792 square feet of net usable space it had acquired through the expanded dimensions of the building and for the 1,432 square feet and 500 square feet it had gained in the basement.The rental rate for these areas was $2.60 per square foot per year for the 10-year period of the lease, and $2.56 per square foot for the annual renewals.The dollar amounts were arrived at by dividing the number of square feet originally offered by plaintiff(100,000) into the annual rentals ($260,000 and $256,000).

This suit was brought to recover rent for other additional space made available by plaintiff to the Government: (a) the additional space the Government received by virtue of the change from the central corridor design to the central core design; and (b) certain areas in the basement and on the first, fifth, and seventh floors.Plaintiff seeks compensation at the rate the Government has agreed to pay for net usable space it is admittedly liable for.

The Government argues that it owes plaintiff nothing for the space in the former central corridor area.It points out that the invitation and the lease document signed by the parties called for plaintiff to provide a minimum of 100,000 square feet of space, and that plaintiff agreed to lease the space for a total annual rental of $260,000; therefore, the Government argues that it "is not liable for more than the rental specified in the lease for the space furnished even if the amount of space exceeded the minimum of 100,000 square feet of usable space."Defendant's Exceptions to Report of Commissioner and Brief, p. 15.

The Government contends that since it was the sole and exclusive tenant of the building it alone had the right to the area formerly occupied by the central corridors; that plaintiff's only access to the central corridors was to have been for cleaning and maintenance; and that therefore when the interior design of the building was altered and the Government used a portion of the former corridor space for offices, it deprived plaintiff of nothing to which monetary value could be attached.

We cannot agree with the Government's argument that the lease precludes plaintiff's right of recovery for the additional space, because we find that the lease is ambiguous with respect to this matter.We agree with the defendant, however, that any recovery by plaintiff should be limited to the amount of space actually used by defendant and should not include the cross corridors, nor what was left of the longitudinal corridors.

The invitation to bid, which was expressly incorporated into the lease, stated that the building was to be used exclusively by the Government and that the amount of space required was "a minimum of 100,000 net usable square feet of office and related space."(Emphasis added.)These provisions can be read so as to support the Government's position that the use of the entire building (except certain areas in the basement) belonged to the Government, and that if the ultimate amount of net usable space in the building happened to exceed the minimum of 100,000 net usable square feet, the Government would not thereby be obligated to pay more rental than was stipulated in the lease.On the other hand, these provisions can be read consistently with plaintiff's position by interpreting them to mean only that plaintiff would rent office space to no other tenant and that each plan submitted by a bidder to the Government had to provide for at least 100,000 square feet of office space before it would be considered for acceptance.

Paragraph 8 of the General Provisions of the invitation to bid stated that "the area leased shall be the net usable space as defined in Paragraph 10 and shall not include any * * * corridor * *."(Emphasis added.)Paragraph 10, supra, carefully defines "net usable square feet" and expressly excludes corridors from the definition.From the painstaking description of net usable space plaintiff could reasonably deduce that the amount of net usable space leased was to be a paramount consideration in determining the rental price.And since corridors were not included in the area leased, i. e., the net usable space, it was also reasonable for plaintiff to believe that when corridor space was converted into additional office space the Government would be obligated to pay increased rentals accordingly.Yet these provisions are certainly not conclusive on the issue of increased rental, and it can reasonably be contended that their sole purpose was to clarify to...