CBCA 6867

DISMISSED: September 23, 2021 CBCA 6867 3 CRESCENT DRIVE OWNER I LLC, 3 CRESCENT DRIVE OWNER II LLC, 3 CRESCENT DRIVE OWNER III LLC, 3 CRESCENT DRIVE OWNER IV LLC, 3 CRESCENT DRIVE OWNER V LLC, 3 CRESCENT DRIVE OWNER VI LLC, and 3 CRESCENT DRIVE OWNER VII LLC, Appellants, v. DEPARTMENT OF AGRICULTURE, Respondent. Brett D. Orlove and Kumail Mirza of Grossberg, Yochelson, Fox & Beyda, LLP, Washington, DC, counsel for Appellant. Elin M. Dugan, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. Before Board Judges VERGILIO, KULLBERG, and DRUMMOND. DRUMMOND, Board Judge. This case, between seven 3 Crescent Drive companies (appellants) and the Department of Agriculture (agency), concerns what the parties describe as a dispute over the fair market value of property that the agency has not vacated at the end of a lease, as the parties view this to be a holdover tenancy. The parties have submitted the case on the written record with the appellants asking the Board to compel the agency to vacate immediately and surrender the premises in the condition required under the lease and to remit payment for the CBCA 6867 2 holdover rental period commencing February 23, 2020, and continuing each month thereafter until the premises are vacated. Of significance to the resolution of this case, although not addressed by the parties, are the underlying alleged claim and a contract amendment postdating both the end of the prior lease and the claim. First is the lack of a claim. At the time the appellants submitted their purported claim to the contracting officer, they were not contractors. Therefore, under regulation (which specifies that a claim is made by a contractor), there is no claim, such that the Board lacks authority to resolve the dispute. Further, the appellants seek relief the Board cannot provide under these facts and the law. Not only did the original lessor and appellants waive and release all claims existing prior to a novation, but also, the agency was not a holdover tenant (a lease amendment and novation with the appellants established a lease and price). The Board cannot compel the agency to vacate the space. In summary, the lease terms and pricing on the effective date of the amendment control; the parties entered into the agreement making the agency a tenant under the lease. The agency is not a holdover tenant, and the fair market value is not applicable. The Board dismisses the appeal. Findings of Fact 1. The agency and L/S Three Crescent Drive, LP, entered into a lease for a fixed term of ten years, amended to reflect the actual lessor, acceptance, and start and completion dates, with a final day of February 22, 2020. Appeal File, Exhibit 1 at 1-6, 9, 12.1 2. The agency did not vacate the premises by February 22, 2020. It has occupied the premises at least through the submission of briefs. For this period, the agency has paid rent at the rate in effect in February 2020. 3. On March 18, 2020, the appellants submitted to the contracting officer what they style as a claim stating that the lease expired on February 22, 2020, and the agency has failed to vacate the premises. The appellants demanded that the agency immediately vacate the premises and pay a stated monthly amount for the holdover period. Exhibit 2. At that time, the appellants were not the lessors or a party to the lease. 4. With an effective date of April 14, 2020, a lease amendment formally recognized the appellants as the contractor/lessor under the lease, with all terms and conditions of the lease remaining in full force and effect, and the original lessor releasing the Government from any claims and rights against the Government.