CBCA 7980

DENIED: June 7, 2024 CBCA 7980, 7981, 7982 HELF INVESTMENTS, Appellant in CBCA 7980, 7981, and LOS PORTALES ASSOCIATES, LP, Appellant in CBCA 7982, v. GENERAL SERVICES ADMINISTRATION, Respondent. Daniel A. Kaplan of Law Offices of Daniel A. Kaplan, San Diego, CA, counsel for Appellants. Jay Bernstein, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges RUSSELL and KANG. KANG, Board Judge. Appellants, HELF Investments (HELF) and Los Portales Associates, LP (LPA), seek reimbursement for property tax payments in connection with three leases into which they entered with the General Services Administration (GSA). HELF and LPA argue that, CBCA 7980, 7981, 7982 2 although their requests for reimbursement did not comply with the express terms of the leases, GSA nonetheless improperly denied the requests. We deny the appeals.1 Background 1. The Three Leases In July 2018, GSA and HELF entered into lease no. GS-09P-LCA004969 for real property in El Cajon, California (El Cajon lease). Appeal File, Exhibit 1 at 0001.2 In October 2017, GSA and Redding Imperial, LLC entered into lease no. GS-09P-LCA00304 for real property in Riverside, California (Riverside lease). Exhibit 4 at 0102. The Riverside lease was novated to HELF in September 2020. Respondent’s Initial Brief, Attachment. The El Cajon and Riverside leases contained nearly identical provisions concerning the reimbursement of annual property tax increases. Subsection 2.07 of each lease set forth the process for reimbursing the lessor for increases in the current year taxes over the base year taxes, as follows: In the event of an increase in Current Year Taxes over the Real Estate Tax Base, the Lessor shall submit a proper invoice of the tax adjustment including the calculation thereof together with all tax bills and evidence of payment to the [lease contracting officer (LCO)]. The Government shall be responsible for payment of any tax increase over the Real Estate Tax Base only if the proper invoice and evidence of payment is submitted by the Lessor on or before June 15 of the current year. Exhibits 1 at 0010, 4 at 0112 (emphasis added). The leases also stated that “[f]ailure to submit the proper invoice and evidence of payment within such time frame shall be a waiver 1 HELF filed the appeals docketed as CBCA 7980 and CBCA 7981, and LPA filed the appeal docketed as CBCA 7982. The appeals were consolidated per the parties’ joint request. Appellants elected accelerated disposition of the appeals, as permitted by section 7106(a) of the Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2018), and Board Rule 53 (48 CFR 6101.53 (2023)). Accordingly, this decision is being issued by a panel of two judges. The parties submitted the cases on the written record, which consists of the following documents: the notices of appeal (which were designated as a consolidated complaint), the answer, the consolidated appeal file, and the parties’ initial and reply briefs with attachments. 2 All exhibits are found in the consolidated appeal file, unless otherwise noted. CBCA 7980, 7981, 7982 3 of the right to receive payment resulting from an increased tax adjustment under this clause.” Exhibits 1 at 0010, 4 at 0112 (emphasis added). In November 2008, GSA and Victorina LLC entered into lease no. GS-09B-02291 for real property in Phoenix, Arizona (Phoenix lease). Exhibit 8 at 0300-01. This lease was novated to LPA in September 2018. Exhibit 10 at 0395. The Phoenix lease contained provisions concerning the reimbursement of annual property tax increases similar to those in the El Cajon and Riverside leases. Subsection 3.19 of the Phoenix lease set forth the process for reimbursing the lessor for increases in the current year taxes over the base year taxes, as follows: In the event of an increase in taxes over the base year, the Lessor shall submit a proper invoice of the tax adjustment including the calculation thereof together with evidence of payment to the Contracting Officer.