Hpi/gsa-3c, LLC v. Stephen A. Perry, Administrator, General Services Administration

364 F.3d 1327, 2004 U.S. App. LEXIS 7034
CourtCourt of Appeals for the Federal Circuit
DecidedApril 12, 2004
Docket03-1252
StatusPublished
Cited by63 cases

This text of 364 F.3d 1327 (Hpi/gsa-3c, LLC v. Stephen A. Perry, Administrator, General Services Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hpi/gsa-3c, LLC v. Stephen A. Perry, Administrator, General Services Administration, 364 F.3d 1327, 2004 U.S. App. LEXIS 7034 (Fed. Cir. 2004).

Opinions

Opinion of the court filed by Circuit Judge GAJARSA. Opinion concurring-in-part and dissenting-in-part .filed by Circuit Judge LINN.

Opinion for the court filed by Circuit Judge GAJARSA.

HPI/GSA-3C, LLC (“HPI”), appeals from the decision of the General Services Administration Board of Contract Appeals (“Board”) finding: (1) that the term “zone” in the contract between HPI and the General Services Administration (“GSA”) was ambiguous; (2) that HPI’s interpretation of the term was unreasonable; and (3) that GSA’s interpretation of the provision was reasonable and therefore controlling. HPI/GSA-3C, LLC v. Gen. Servs. Admin., 03-1 B.C.A. (CCH) 32,101, 2002 WL 31608249 (GSBCA Nov. 20, 2002). Because we are unable to uphold the Board’s decision on the reasoning provided, we vacate-in-part the Board’s decision and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Lease Negotiations Between GSA and Golub

GSA issued a solicitation for offers (“SFO”) in July of 1996, seeking to lease 348,660 square feet of building space in Kansas City, Missouri, for a period of 10 years. Pursuant to the SFO, all utilities were to be included in any offered rental [1330]*1330rates except for overtime heating and cooling costs, which were to be billed separately at an hourly rate to be negotiated. Paragraph 6.6(e), which was included in the SFO as originally issued, is at the center of the parties’ disagreement and provides:

Zone Control: Individual thermostat control shall be provided for office space with control areas not to exceed 2000 occupiable square feet. Areas which routinely have extended hours of operation shall be environmentally controlled through dedicated heating and air conditioning equipment. Special purpose areas ... with internal cooling load in excess of 5 tons shall be independently controlled.

This paragraph is standard in all GSA leases.

Golub and Company (“Golub”) submitted its initial offer to GSA on October 10, 1996.1 Golub proposed to construct a new six-story building for the lease, with a flat hourly overtime heating and cooling rate of $45 per hour. Golub’s lease negotiator on the project was Mr. James Wieger (“Wieger”). Prior to entering private industry as a lease negotiator, Wieger worked for GSA as a special assistant to the Commissioner of GSA’s Public Building Service.

During negotiations, Wieger and Ms. Cindy Jackson-Kiley (“Jackson-Kiley”), GSA’s negotiator, discussed various requirements of the SFO, including the Government’s goals regarding overtime heating and cooling. Jackson-Kiley explained to Wieger that the Government required an efficient heating, ventilation, and air conditioning (“HVAC”) system that could be operated during overtime hours to provide heating and cooling only to those areas where needed, rather than servicing the entire facility. Based on a comparison of overtime heating and cooling costs for other leases in the Kansas City area, GSA had a target rate for overtime services for the entire building of between $40 and $75 per hour. At $45, Golub’s rate was within GSA’s target zone.

Following her initial meeting with Wieger, Jackson-Kiley issued an amendment to the SFO (“SFO Amendment”). In the SFO Amendment, Jackson-Kiley requested offerors to provide an additional breakdown of overtime heating and cooling costs, based on the cost per “zone.” The amendment stated:

Provide an hourly overtime rate for the following:
Base or Minimum Hourly Charge
Cost per Zone-
Hourly calculation: Number of zones needed by tenant, times hourly charge per zone, plus base or minimum hourly charge = total hourly charge.

At the time Jackson-Kiley issued the amendment, the HVAC system had not yet been designed. Consequently, she did not have a clear concept of the square footage covered by a “zone,” but associated the term with the central HVAC equipment that would run to provide overtime services. HPI/GSA-SC, 03-1 B.C.A. (CCH) at 158,676. Wieger, however, recognized the amendment as an opportunity to increase Golub’s profits on the lease without reducing the chances of winning the contract.2 Id. His response to the SFO Amendment proposed a $120 base rate and a $40 hourly cost per zone for overtime heating and cooling. Wieger did not ex[1331]*1331plain to GSA that his quoted rates equated a “zone” with the thermostat-controlled 2,000 square foot area described in paragraph 6.6(e) of the SFO. Based on the square footage in the building, Wieger estimated to himself that the final HVAC design for the building would contain approximately 175 “zones.”3 Id.

During a second round of negotiations, Jackson-Kiley repeated to Wieger that the purpose and intent of the zone formula was to enable the Government to pay for only the equipment required to be turned on during any overtime heating or cooling period. Wieger informed her that such a system was possible, but again avoided clearly explaining his interpretation of “zone” under the formula contained in the SFO Amendment. Upon completing negotiations, Golub submitted its final offer with an annual rental rate of $5,495,017 and a revised overtime heating and cooling rate of $80 per hour base cost and a cost per zone of $40. The Government accepted Golub’s offer on May 29,1997.

The parties signed the final lease documents in April of 1998. The signed documents included paragraph 6.6(e) of the original SFO and incorporated the formula for overtime heating and cooling services contained in the SFO Amendment. Since the building was not designed at the time the parties entered into the lease, the parties agreed to establish the actual lease dates by supplemental lease agreement upon delivery of the space, which was to be within 810 days following the Government’s approval of final construction drawings.

B. The Final HVAC Design

The final HVAC design for the Kansas City building utilizes three water-cooled centrifugal chillers of 350 tons each. Each chiller is independently sufficient to service the building at the reduced levels of projected overtime loads. Two air-handling units, each consisting of two supply fans, deliver cooled air from the chillers into the building. The HVAC system delivers air into the individual areas of the building through the use of variable air volume (“VAV”) boxes, which, as their name suggests, vary the volume of undelivered into a space through the use of dampers that open and close in response to a computer-generated temperature signal. A building automated control (“BAC”) system generates the VAV-box control signal in response to inputs from a total of 366 thermostats (up from the 175 thermostats originally estimated by Wieger) throughout the building, and also controls the operation of the chillers and the air-handling units. Although the BAC controls each VAV box independently, if overtime heating or cooling is requested for any amount of space in the building, the BAC system must operate the chillers and air-handling units at a level sufficient to cool at least one-half of one floor (approximately 25,000 square feet).

C. The Disputed Lease Term

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Bluebook (online)
364 F.3d 1327, 2004 U.S. App. LEXIS 7034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hpigsa-3c-llc-v-stephen-a-perry-administrator-general-services-cafc-2004.