CBCA 7153

DENIED: May 12, 2023 CBCA 7153 ROCKSIDE-77 PROPERTIES LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Kenneth J. Fisher and Dennis A. Nevar of Kenneth J. Fisher Co., L.P.A., Cleveland, OH, counsel for Appellant. Kristi Singleton, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges RUSSELL, GOODMAN, and KULLBERG. GOODMAN, Board Judge. Appellant, Rockside-77 Properties LLC (Rockside), has appealed a decision of a contracting officer of respondent, the General Services Administration (GSA), pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018). The appeal is decided on the written record pursuant to Board Rule 19 (48 CFR 6101.19 (2021)).1 We deny the appeal. 1 The parties have filed briefs, reply briefs, and joint stipulations. These stipulations have been edited to remove proper names and to abbreviate some terms. In some instances, additional information from the documents cited has been added for completeness and clarity. References to exhibits are to the appeal file. CBCA 7153 2 Background GSA’s Solicitation, and Rockside’s Offers in Response Before the parties entered into the lease at issue in this appeal, Rockside was leasing commercial office space to GSA for GSA’s tenant agency at 5005 Rockside Road, Independence, Ohio, the same property which is the subject of the lease at issue in this appeal (the property). During that prior lease, the cost of electricity consumed by the tenant agency was not included in the rental rate. GSA paid Rockside directly for the cost of electricity in addition to the payment for the rental rate. Exhibit 6 at 1. GSA issued a solicitation for offer (SFO), GS-O5B-18114, dated February 8, 2008, for office space in Cleveland, Ohio. Exhibit 2 at 5, et seq. In April 2008, Rockside submitted an initial offer in response to the SFO to lease space to GSA in the property. Exhibit 1 at 9. The initial offer consisted, in part, of GSA Form 1364A (Form 1364A), which is titled “Proposal to Lease Space,” and GSA Form 1217,2 “Lessor’s Annual Cost Statement” (Form 1217). Id. at 2-4. Both forms were signed by Rockside’s Vice President of Development. In Form 1364A, Section II.a of the initial offer, the annual proposed rent was characterized as “ANNUAL RENTAL, Full Service Lease” and stated as the total annual amount $510,354. That total annual amount included total annual operating costs of $116,343 (from Form 1364A, Section II.b, and Form 1217, line 27). The total annual operating costs on Form 1217 included the category “OTHER” at line 26, in the amount of $13,393. Section III.19 of Form 1364A3 contained a handwritten statement: Landlord acknowledges that it has read through and initialed each page of the SFO, however Landlord is not committing to each and every issue outlined in the SFO. Landlord has reviewed the SFO in an effort to keep negotiations moving forward and is offering the building in its current condition. 2 Form 1217 includes two columns for each category of operating costs, one column for the entire building and the other column for the leased space in the building. Operating costs discussed in this decision are in the column for the leased space. 3 In response to the Board’s order dated April 17, 2023, the parties submitted into the record a complete copy of Form 1364A, as the second page was initially omitted. CBCA 7153 3 Joint Response to Board’s April 17, 2023 Order (Apr. 20, 2023) at 5. In June and July 2008, Rockside submitted two additional offers, noted in the abstract of offers as second and third offers. Exhibit 1 at 9-11. The record does not contain Forms 1364A and 1217 for these offers or any indication of who signed these offers. For the third offer, the abstract of offers contains a note in the category RSF [Rentable Square Foot] that states: “[I]ncludes $2.61 in parking and electricity costs which increase 3% [per] annum.” Id. at 9. In August 2009, Rockside submitted a fourth offer, characterized in the abstract of offers as a “best and final offer.” Exhibit 1 at 9.