CBCA 6158

DISMISSED FOR LACK OF JURISDICTION: July 25, 2018 CBCA 6158 ELKTON UCCC, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Aaron J. Turner of Levin & Gann, P.A., Towson, MD, counsel for Appellant. Michael Converse, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges SHERIDAN, LESTER, and CHADWICK. CHADWICK, Board Judge. This appeal resembles Duke University v. Department of Health & Human Services, CBCA 5992, 18-1 BCA ¶ 37,023, in that, in both cases, the parties agreed to dismissal without prejudice (but not for lack of jurisdiction) after the Board raised questions about its jurisdiction. As in Duke, we take the clearer and cleaner step of dismissing the appeal based on an obvious jurisdictional defect, namely, that the letter that the appellant characterized as its claim to the contracting officer lacked a sum certain. We also find that the contracting officer did not assert a government claim that could form the basis of this appeal. CBCA 6158 2 Background Elkton UCCC, LCC (Elkton), the appellant, owns a building in Maryland in which it leases space to the General Services Administration (GSA) for a Social Security Administration office. In early 2017, the parties began to dispute whether Elkton was fulfilling its duties as the landlord. In approximately November 2017, GSA began partially withholding rent. On February 16, 2018, an attorney for Elkton wrote a letter to the GSA contracting officer about the disagreement. Because both parties at least initially advised us that this letter was Elkton’s “claim,” we quote it in full. I have been retained by the landlord of the above referenced property with respect to your unilateral reductions to rent obligations of Social Security Administration. My clients advised that they agreed to test the property for mold at your cost with the understanding that if no mold was found, there would be no remediation. I am further advised that the test for mold was negative and no remediation was required. There was never an agreement by the landlord to pay for any of the costs for asbestos. In fact, SSA agreed to pay for the testing cost. Please deliver a copy of any and all tests you have conducted whether showing a positive or negative finding for mold. Please also advise if you believe this has been delivered previously to the landlord. Please provide copies of the invoices for that test and any remediation you claim was done. In addition to the above charges, you have taken reductions for rents for other bills such as cleaning, water, etc. that were never raised with the landlord and for which you had no authority to make payment. If you made payment, you did so at your cost and expense. Please provide copies of all invoices, as well as all correspondence with landlord in which you raised the issue that the services were required and evidence of payment. You are advised that you are not authorized to make any further payments on behalf of landlord without prior written approval. CBCA 6158 3 Please reimburse landlord for all withheld rent. The landlord’s cash flow is very tenuous as a result of your actions and you will be held liable for all costs and expenses incurred. Your prompt response is appreciated. The GSA contracting officer responded to Elkton’s February 2018 letter by letter dated March 13, 2018. In her letter (which did not refer to Elkton’s letter as a “claim”), the contracting officer itemized deficiencies and lease violations that GSA had allegedly encountered at the building since April 2017, and stated that GSA had repeatedly advised the landlord of those issues. The sole mention of a dollar amount in the contracting officer’s letter was in a bullet point that stated, “On July 28, 2017, a non-compliance Letter was sent to Avrahom Sauer listing all deficiencies and advising Mr. Sauer that the Government would invoke its right to remedy the issues and deduct rent in the amount of $21,000.00. . . .