(dissenting):
I respectfully dissent from the opinion of the majority.
My examination of the documents in question does not reveal any ambiguity in the provisions relating to the “net usable square feet” to be leased and paid for by the Government, nor do they call for payment by the Government for the extra usable space occasioned by the change from a “central corridor” to a “central core” design. I agree with the Government’s contention that it is not bound to pay for any of this extra space. I cannot ascribe to the documents an “intelligent meaning” other than that which the Government proposes and, therefore, though the documents are said to be ambiguous, “ * * * the line of cases which holds that an ambiguous contract susceptible of several possible meanings must be construed against the party which drew it * * * has no applicability to the present situation.” Keco Industries, Inc. v. United States, 364 F.2d 838, 843, 176 Ct.Cl. 983, 991 (1966), cert. denied 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 105 (1967), quoting with approval Russell & Pugh Lumber Co. v. United States, 290 F.2d 938, 941, 154 Ct.Cl. 122, 128 (1961).
If plaintiff expected additional rental in the event that some corridor space was converted to “net usable space,” it expected a windfall, because such conversion was in no way a detriment and added nothing to its burdens. There would be no rational reason why the Government would contract for this outcome. In determining whether a contract is ambiguous because of having more than one *1022possible meaning, it appears to me to be proper to exclude interpretations which produce whimsical and capricious results, having no relation to the purpose of the contract. Bishop Engineering Co. v. United States, 180 Ct.Cl. — ; Gelco Builders & Burjay Construction Corp. v. United States, 369 F.2d 992, 177 Ct.Cl. 1025 (1966).
The Invitation to Bid made mandatory, as the inside dimensions for all seven floors and the basement, measurements of 60' x 280'. Therefore, exclusive of the lobby and mechanical rooms which jutted from the building proper (and which, in any event, were to be excluded from the area leased), the maximum square footage available would have been 134,400 square feet. From this total was to be subtracted any “ * * * areas not exclusively available for use by the Government for office purposes,” e. g., walls, stairways, janitor and other closet rooms, corridors which it was necessary to construct in order to provide access to specified rooms, etc. And, as long as the remaining square footage was enough to provide “a minimum of 100,000 net usable square feet of office and related space * * * ” the Government agreed to lease the premises from the successful bidder. The Government clearly intended to pay rent for a building as a whole and not in accordance with its actual “net usable square feet”, as long as the latter was at least 100,000. That it meant to pay for the “whole” is borne out by the fact that the Invitation also specified that the building was to “ * * * be used exclusively by the United States Government, its successors or assigns.” (Emphasis supplied.)
Except for the owner’s retention of part of the basement, which the original lease allowed, it thus must have been clear that no one but the Government was to use beneficially any of the space, “net usable” or not, and the rental was to be the same whatever it turned out to be. The sole purpose of the definition of “net usable space” was to clarify the requirement that the bidder must furnish at least 100,000 feet of such space. There was no stated purpose to measure the actual “net usable space” and mulct the Government with any excess over 100,-000. The corridors etc., excluded from the “net usable space” were no benefit to the contractor, as it had to police them, without deriving income from them, and the sole use of the corridors was for access to and among the Government offices.
Since plaintiff merely reproduced the drawings which the Government had attached to the Invitation (with one modification not important to this discussion) it knew that the rentable square footage that would result from following those plans would be not 100,000 but at least 100,893. At no time did the plaintiff inquire as to whether there would be an increase in rental if the “net usable square feet” exceeded 100,000. If, as I do not agree, there was ambiguity, it was the kind about which plaintiff had a duty to inquire. Bishop Engineering, supra. And, the Invitation provided that “Any explanation desired by bidders regarding the meaning of interpretation of the conditions and specifications of this Invitation must be requested in writing, and with sufficient time allowed for a reply to reach them before the submission of their bids.” Therefore, in light of what I deem the only intelligent meaning of this contract and in light of the “Change Orders” provision of the Invitation1 next discussed, plaintiff must have known that it would be leasing to the Government, if successful in its bid, an entire building, for a single gross rental, as long as it provided a minimum of 100,000 “net usable square feet.”
The “Change Orders” provision of the Invitation gave the Government “the right to issue change orders pertaining to the construction after approval of the plans and specifications, and prior to completion of construction * * *1023If the plaintiff’s construction costs were, as a whole, increased by any construction changes called for, the Government had the option of making either a lump sum settlement or an increase in the rental rate. Thus, after plaintiff complied with the Government’s request to increase the dimensions of the building 4 inches both in length and width, this change was provided for by an amendment to the lease which increased the annual rental. So too with plaintiff’s surrender of the basement. In both cases plaintiff gave up something of value. However, the construction change from “central corridor” to “central core” design did not give rise to an increase in plaintiff’s construction costs. In fact, as part of the debits and credits entering into the computation of the lump sum paid to plaintiff on change orders, the parties allowed defendant $56,720 on account of installation by plaintiff of a lesser quantity of interior movable partitions under the revised “central core” design than would have been required under the original “central corridor” design. Without there being a construction cost increase occasioned by a change order, such increase causing a final additional sum to be owed to plaintiff, plaintiff was not entitled to either a rental increase or a lump sum adjustment. In my opinion, the “corridor” to “core” change falls within the latter class. The handling by the parties of the building enlargement and the basement does not reflect an interpretation of the contract enlarging the scope of the Change Order clause from its plain words. (Emphasis supplied.)
For the two reasons stated above, those relating to the area the Government contracted to lease and to when an adjustment was to be made under the “Change Orders” provision, I must dissent from the majority opinion.
. General Provision #11 of the Invitation provided that the provisions of the Invitation, its component schedules (if any) and the provisions of the Bid Form were to be incorporated into the final lease as binding conditions thereof.