CBCA 6199

DISMISSED FOR LACK OF JURISDICTION: February 25, 2019 CBCA 6199, 6200, 6201 444 BRICKELL PARTNERS, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Seamus Curley of Stroock & Stroock & Lavan LLP, Washington, DC, counsel for Appellant. Catherine Crow, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY, DRUMMOND, and KULLBERG. BEARDSLEY, Board Judge. Respondent, the General Services Administration (GSA), has moved to dismiss this appeal for lack of subject matter jurisdiction. For the reasons set forth below, the motion is granted. Statement of Facts This appeal arises from three contracts between 444 Brickell Partners, LLC (Brickell) and GSA to lease office spaces in Miami, Florida. The contracts were originally awarded CBCA 6199, 6200, 6201 2 to Rivergate Investors, LLC (Rivergate). Brickell later became the lessor under each of the leases. All three of the leased spaces are located in one of the two buildings found at the property. On December 11, 2017, Dion Reid, identifying himself as the contracting officer, issued a letter to Brickell under each of the three leases demanding payment of alleged overpayments billed by Brickell and Rivergate for real estate tax reimbursements between 2010 and 2016. Mr. Reid asserted that the amount due for lease LFL42861 was $365,368.50, for lease LFL 43832 was $763,007.84, and for lease LFL43833 was $713,126.07. Attached to each letter was a tax reconciliation which described the reason for the miscalculation and overpayment and provided three different ways to “correctly calculate the tax adjustments.” Mr. Reid asked that Brickell “[p]lease help us resolve this account by sending payment in full within 30 days.” The letter also stated that “if payment is not received within 30 days, the General Services Administration will pursue collecting the amount owed by offsetting any future payments that are due to your company.” The letters, however, were not labeled as final decisions and did not apprise Brickell of its appeal rights. In three near-identical letters dated February 5, 2018, Brickell responded to GSA, acknowledging that it had miscalculated the tax reimbursement amounts owed by GSA. Brickell alleged that rather than overbilling GSA, it had actually underbilled GSA for tax reimbursement in the amounts of $2905.12, $61,719.09, and $50,093.78, respectively. Brickell argued also that neither party could make claims regarding the tax reimbursements for 2010 or 2011, as such claims would be past the statutory six-year limit. The letter concluded by stating, “We look forward to working with you to resolve this matter in a timely fashion.” Brickell also indicated that it had not received the December 11 letters “until recently” because the letters were “not sent according to the definition of ‘Notice’ under GSA Form 3517 which is part of the Lease.” Additional discussions followed, and the parties scheduled a conference call with the lease contracting officer (LCO) for April 18, 2018. On the day of the meeting, GSA cancelled the meeting, and Mr. Reid advised Brickell by email that a GSA auditor “will contact you with the [LCO’s] final determination.”1 The next day, Chase England of PRGX USA, Inc., GSA’s auditor, advised Brickell in an email that it still owed GSA for overpayments in the amounts of $212,200.59 for lease LFL 42861, $638,872.42 for lease LFL 43832, and $596,738.19 for lease LFL 43833. Mr. England, however, stated that he 1 In the April 18 email, Mr. Reid’s signature block no longer identified him as the contracting officer but instead identified him as “Lead Lease Transaction Analyst.” Mr. Reid also indicated in this email that he was not the LCO, but he would be talking to the LCO about the issues before any meeting with appellant. CBCA 6199, 6200, 6201 3 agreed to drop the 2010 and 2011 tax adjustment claims from the debt owed and that “[t]his analysis has been discussed with and agreed upon by the LCO and it is their decision.” The revised claim amount in the April 19 email from Mr. England reflected the deduction for the years 2010 and 2011, and the amount previously withheld for January and February 2018 rent ($92,577.40) for lease LFL 42861. Mr.