CBCA 7126

DENIED: August 27, 2021 CBCA 7126 13151 W. ALAMEDA PARKWAY, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. R. Scott Fitzke of Shortridge & Fitzke, P.C., Englewood, CO, counsel for Appellant. Kristi Singleton, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. KULLBERG, Board Judge. Appellant, 13151 W. Alameda Parkway, LLC, appeals the contracting officer’s (CO’s) final decision (COFD) that denied its claim in the amount of $22,305.68 for increased real estate taxes which it incurred on property leased to the General Services Administration (GSA). GSA contends that appellant failed to submit a timely claim as required under the lease. Appellant has elected to have this appeal heard under the Board’s small claims procedure. Rule 52 (48 CFR 6101.52 (2020)). Accordingly, this decision “is final and conclusive, shall not be set aside except for fraud, and is not precedential.” Rule 52(c). For the reasons stated below, the claim is denied. CBCA 7126 2 Background On May 4, 2000, GSA and appellant’s predecessor in interest, Green Mountain Office Complex, Inc. (GMOC), executed lease number GS-08P-13649 (lease) for the property located at 13151 W. Alameda Parkway, Jefferson County (county), Colorado.1 Appeal File, Exhibit 2 at 2, 73.2 Section 4.8 of the lease stated, in pertinent part, the following: (d) The lessor shall furnish the Contracting Officer with copies of all notices which may affect the valuation of said land and buildings for real estate taxes thereon, as well as all notices of a tax credit, all tax bills and all paid tax receipts, or where tax receipts are not given, other similar evidence of payment acceptable to the Contracting Officer (hereinafter, evidence of payment), and a calculation thereof, for each year that real estate taxes are incurred during the lease term or any extension thereof. All such documents are due with[in] ten (10) calendar days of receipt except that the proper invoice and evidence of payment shall be submitted within sixty (60) calendar days after the date the tax payment is due from the Lessor to the taxing authority. 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 clause. (e) The Government shall make a single annual lump sum payment to the Lessor for its share of any increase in real estate taxes during the lease term over the amount established as the base year taxes, or receive a rental credit or lump sum payment for its share of any decreases in real estate taxes during the lease term below the amount established as the base year taxes. The amount of lump sum payment or rental credit shall be based upon evidence of valuation and payment submitted by the Lessor to the Contracting Officer in accordance with paragraph (d). (i) 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. The Government shall be responsible for payment of any tax increase over the base year taxes only if the proper invoice and evidence of payment is submitted by the Lessor 1 Appellant acquired the property by purchase on February 1, 2007, subject to the lease. Appellant’s Record Submission Brief at 2 n.1. 2 All exhibits are in the appeal file, unless otherwise noted. CBCA 7126 3 within sixty calendar days after the tax payment is due from the Lessor to the taxing authority. Id. at 17. The monthly rate for rent on the building was $43,996.88. Id. at 3. On November 15, 2004, GSA issued a supplemental agreement to the lease that stated, “In accordance with the provisions of the Real Estate Tax Adjustment Clause, the tax base is hereby established at $53,251.86 . . . for base year 2003.” Exhibit 4 at 1.