CBCA 7330

MOTION TO DISMISS DENIED: January 17, 2023 CBCA 7330, 7348 MATHER ENTERPRISES, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John M. Duggan and David L. Ballew of Duggan Shadwick Doerr & Kurlbaum LLC, Overland Park, KS, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA; and Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), GOODMAN, and CHADWICK. GOODMAN, Board Judge. Appellant, Mather Enterprises, appealed from a decision of a contracting officer of respondent, Department of Veterans Affairs, dated January 28, 2022, and that appeal was docketed as CBCA 7330. Respondent has filed a motion to dismiss CBCA 7330 for failure to state a claim for which relief can be granted.1 We deny the motion. 1 Although CBCA 7330 is consolidated with CBCA 7348, this motion only addresses CBCA 7330. CBCA 7330, 7348 2 Background This appeal concerns the lease of a building in Leavenworth, Kansas, that appellant leases to respondent as a facility to supply prescription medications to veterans. The lease commenced in 2001. In 2013, the parties entered into an agreement entitled “Stipulation of Settlement” (the stipulation) to resolve a previous appeal concerning the lease. Portions of the stipulation were included in supplemental lease agreement (SLA) 57, which was executed simultaneously with the stipulation. The current appeals involve a dispute as to the scope of maintenance that each party is obligated to perform as agreed in the stipulation and SLA 57. The Relevant Lease Provisions The lease contained the following provisions to which the parties refer in their briefing of the motion to dismiss: 7.2 MAINTENANCE BY LESSOR: Building equipment and maintenance requirements are to be met by the lessor. The lessor must have a building superintendent or a local, designated representative available to promptly correct deficiencies or attempt to correct deficiencies within three (3) hours after written or oral notice of such condition from the VA. If no substantial attempt has been made to correct the deficiencies within the specified time, action will be taken by VA to correct such deficiencies and the cost of repairs will be deducted from the next month’s rental payment. The lessor is responsible for total maintenance of the leased premises in accordance with paragraph 14, GSA Form 3517. Such maintenance and repairs includes, but is not limited to, exterior care of the building and the site: all sidewalks, parking areas, driveways, private access roads, lawns and shrubbery, including all repair and replacements. All equipment and systems shall be maintained to provide reliable service without unusual interruption, disturbing noises, exposure to fire or safety hazards, or unusual emissions of dirt. The lessor’s maintenance responsibility includes initial supplies of all items, materials, and equipment necessary for such maintenance. All maintenance work will be done in accordance with applicable codes, and inspection certificates will be displayed as appropriate. The lessor shall provide the labor, material and supervision to adequately maintain the structure, the roof, the exterior walls, windows, doors and any other necessary building appurtenances to provide watertight integrity, structural soundness, and acceptable appearance. CBCA 7330, 7348 3 Without any additional charge, the Government has the right to require the lessor or his representative to test once a year, with proper notice, such systems as fire alarm, sprinkler, [deleted by parties] etc., to ensure proper operation. Upon request, appropriate operations and maintenance manuals shall be made available for the Government’s review during these tests. A representative of the Contracting Officer shall witness these tests. 14.