CBCA 7374

DISMISSED FOR FAILURE TO STATE A CLAIM: September 22, 2022 CBCA 7374 GC COLUMBIA, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Wilhelm Dingler of Bullivant Houser Bailey PC, Seattle, WA, counsel for Appellant. Kelly Y. Burnell, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DRUMMOND, SHERIDAN, and KULLBERG. SHERIDAN, Board Judge. Through this appeal, GC Columbia, LLC (Columbia or appellant), seeks to recover $722,860.53, plus interest, from the General Services Administration (GSA or respondent) for real estate tax payments. GSA moves to dismiss the appeal for failure to state a claim for which relief may be granted, alleging that Columbia failed to substantiate payment of the real estate tax payments within the contractually-required sixty-day period. Background GSA awarded lease GS-10B-06680 (dated December 2, 2004) to EOP Columbia Center, LLC, and the following four leases to Columbia Center Property, LLC—GS-10B- CBCA 7374 2 07135 (dated April 27, 2010), GS-10B-07198 (dated August 6, 2010), GS-10P-LWA07471 (dated April 30, 2015), and GS-10P-LW08047 (dated August 30, 2013)—all five for space at Columbia Center, 701 Fifth Avenue, Seattle, Washington. Appeal File, Exhibits 1–5.1 The leases include clauses for payment of adjustments for changes in real estate taxes which require GSA to pay its share of increases and receive its share of decreases in real estate taxes for the Columbia Center Property. Each lease contained a tax adjustment clause that allowed the taxes to be adjusted annually, provided certain conditions were met. The Tax Adjustment clauses were set forth at section 3.4 of contract GS-10B-00680, section 4.2 of contracts GS-10B-07135 and GS-10B-07198, and section 2.07 of contracts GS-10P-LWA07471 and GS-10P-LWA08047. Each lease contained language to the effect that, in order to obtain a tax adjustment, the lessor was required to furnish the contracting officer with copies of all paid tax receipts, or other similar evidence, and a proper invoice for the requested tax adjustment. Each lease also provided that all such documents must be received by the contracting officer within sixty calendar days after the last date the real estate tax payment is due from the lessor to the taxing authority without payment of penalty or interest. Lease GS-10B-06680 warned: “FAILURE TO SUBMIT THE PROPER INVOICE AND EVIDENCE OF PAYMENT WITHIN SUCH TIME FRAME SHALL BE A WAIVER OF THE RIGHT TO RECEIVE PAYMENT RESULTING FROM AN INCREASED TAX ADJUSTMENT UNDER THIS PARAGRAPH.” Leases GS-10B-07135 and GS-10B-07198 advised: “FAILURE TO SUBMIT THE PROPER INVOICE AND EVIDENCE OF PAYMENT WITHIN SUCH TIME FRAME SHALL CONSTITUTE A WAIVER OF THE LESSOR’S RIGHT TO RECEIVE A TAX ADJUSTMENT PURSUANT TO THIS CLAUSE FOR THE TAX YEAR AFFECTED.” Leases GS-10P-LWA07471 and GS-10P- LWA08047 cautioned: “FAILURE TO SUBMIT THE PROPER INVOICE AND EVIDENCE OF PAYMENT WITHIN SUCH TIME FRAME SHALL CONSTITUTE A WAIVER OF THE LESSOR’S RIGHT TO RECEIVE A TAX ADJUSTMENT PURSUANT TO THIS PARAGRAPH FOR THE TAX YEAR AFFECTED.” Leases GS-10B-06680, GS-10B-07135, and GS-10B-07198 each contained General Services Administration Acquisition Regulation (GSAR) 552.270-4, Definitions (SEP 1999), which sets forth several definitions, including a definition for excusable delay: (g) “Excusable Delays” means delays arising without the fault or negligence of Lessor and Lessor’s subcontractors and suppliers at any tier, and shall include, without limitation: 1 All exhibits are in the appeal file unless otherwise noted. CBCA 7374 3 (1) acts of God or of the public enemy, (2) acts of the United States of America in either its sovereign or contractual capacity, (3) acts of another contractor in the performance of a contract with the Government, (4) fires, (5) floods, (6) epidemics, (7) quarantine restrictions, (8) strikes, (9) freight embargoes, (10) unusually severe weather, or (11) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligen...