CBCA 6689

CBCA 6689 DISMISSED FOR LACK OF JURISDICTION; CBCA 6784 DENIED: November 12, 2020 CBCA 6689, 6784 MIAMI-DADE AVIATION DEPARTMENT, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Altanese Phenelus, Assistant County Attorney, Aviation Division, Miami-Dade County Attorney’s Office, Miami, FL, counsel for Appellant. James F. H. Scott, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, SULLIVAN, and CHADWICK. SULLIVAN, Board Judge. The Miami-Dade Aviation Department (MDAD) twice appealed the denial of its claim for underpayment of rent for space occupied by federal agency tenants under a lease with the General Services Administration (GSA). MDAD alleged that, in 2011, one agency vacated less space than GSA indicated in its notice of termination and, therefore, MDAD is owed rent for the space that remained occupied between 2012 and 2017. The Board dismisses for lack of jurisdiction MDAD’s first appeal, docketed as CBCA 6689, which was of the contracting officer’s decision on an uncertified claim. The Board cannot review the second claim, docketed as 6784, because MDAD submitted it more than six years after the claim accrued CBCA 6689, 6784 2 and, thus, the claim is barred by the six-year statute of limitations in the Contract Disputes Act (CDA). 41 U.S.C. § 7103(a)(4) (2018). We grant GSA’s motion for summary judgment and deny MDAD’s second appeal. Background I. Relevant Contract Terms In August 2005, GSA executed a lease for office space to be occupied by three federal agency tenants, including the Food and Drug Administration (FDA), near the Miami International Airport. Exhibit 1 at 1.1 GSA leased from MDAD 56,597 rentable square feet in exchange for the payment of annual rent of more than $1 million. Id. (paragraph 3). The lease also stated the amount of space that each of the three federal agencies would occupy, including 14,103 rentable square feet by FDA. Id. GSA had the right to measure the square footage to ensure that all of the space offered was delivered by the lessor: 5. Rental is subject to the Government’s measurement of plans submitted by the Lessor or a mutual on-site measurement of the space and will be based on the rate, per [Building Owners and Managers Association (BOMA)] useable square foot (PUSF) as noted in paragraph 3 above, in accordance with Clause 26 (PAYMENT), GSA form 3517, General Clauses. The lease contract and the amount of rent will be adjusted accordingly, but not to exceed the maximum BOMA useable square footage requested in Solicitation for Offers (SFO) [], Paragraph 1.1, (Amount and Type of Space). Rent for a lesser period shall be prorated. Exhibit 1 at 2. The lease incorporated the terms of the solicitation for offers (SFO), which contained paragraph 26, clause 552.270-20 PAYMENT (SEP 1999) (VARIATION), which provided for measurement of the space at the beginning of the lease. Id. (SFO, General Clauses). Paragraph 4 of the lease provided that, “except as provided for in paragraph 17,” GSA could terminate the lease, in whole or in part, after five years with 120 days notice. Exhibit 1 at 1. Paragraph 17 of the lease further provided that GSA could terminate increments of 1 “Exhibit X” refers to the exhibits submitted by the parties in support of their briefs and joint statement of facts, unless otherwise noted. CBCA 6689, 6784 3 10,578 rentable square feet of space at any time after the first twelve months of the lease. Id. at 3. The lease also contained a Disputes clause, FAR 52.233-1, which required, in part, that “[a] claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within [six] years after accrual of the claim to the Contracting Officer for a written decision.” Exhibit 1 (SFO, General Clauses). II. Events Leading To Dispute In November 2011, GSA notified MDAD that the FDA would be vacating its portion of the space under lease; 10,578 rentable square feet would be vacated immediately and 3525 rentable square feet would be vacated the following March.2 In March 2012, MDAD notified GSA that the amount of space vacated by FDA was less than the amount set forth in GSA’s notice. Notice of Appeal (CBCA 6784), Claim at 2, Exhibit C).