ASBCA 62964

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) GLJ, Inc. ) ASBCA No. 62964 ) Under Lease No. DACA45-5-16-00059 ) APPEARANCE FOR THE APPELLANT: Gary L. James Secretary/Treasurer APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Melissa M. Head, Esq. Engineer Trial Attorney U.S. Army Engineer District, Omaha OPINION BY ADMINISTRATIVE JUDGE STINSON ON APPELLANT’S MOTION FOR SUMMARY JUDGMENT Appellant GLJ, Inc. (GLJ), appeals a contracting officer’s denial of its May 8, 2021, claim, in the amount of $18,810, alleging damages to GLJ’s property arising out of the subject land lease with the government (R4, tabs 004-005). We have jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. GLJ submitted a motion for summary judgment, 1 and the government submitted a response in 0F opposition. GLJ did not submit a reply brief. For the reasons stated below, the Board denies GLJ’s motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On September 20, 2016, appellant entered into Land Lease No. DACA45-5-16- 00059 with the U.S. Army Engineer District, Omaha (R4, tab 001 at 000001). Pursuant to the agreement, GLJ agreed to lease to the government land located in the Cottonwood Hills Addition to LaGrange Township, Missouri Valley, Harrison County, Iowa (id.). The purpose of the lease was stated as “Monitoring Wells,” which apparently included 1 Appellant submitted two, one-page documents in support of its motion. The first, dated October 11, 2021, and entitled “MEMORANDUM IN SUPPORT OF (c) Summary Judgment Motion,” set forth appellant’s Statement of Undisputed Material Facts (app. mem.). The second, dated October 28, 2021, and entitled “Rule 56. Summary Judgment,” set forth appellant’s position regarding the government’s submission of certain pleadings to the Board (app. mot.). the “placement and maintenance of environmental monitoring wells” (R4, tabs 001 at 000001, 005 at 000013). Section 3 of the lease stated that the term commenced May 1, 2016, and ran through April 30, 2017, but was to remain in force thereafter from year to year, until April 30, 2021 (R4, tab 001 at 000001). 2 The yearly rent paid by the 1F government to GLJ for the land lease was $3,120 (id.). 2. Section 8 of the lease, entitled “Alterations/Restoration,” provided the government the right “to attach fixtures and erect structures or signs” on the leased property, which the government also had the right to remove (id. at 000002). Section 8 of the lease granted GLJ the right, prior to termination of the lease, to “require restoration of the leased premises” (id.). Upon such proper notice, “prior to the expiration or termination of [the] lease, or prior to relinquishment of possession, whichever first occurs,” the government, “at its sole election,” had the right to: “either (1) restore the premises to the same condition as that existing at the time of entering into lease or; (2) make appropriate settlement to the Lessor representing either the diminution in the fair market value of the property due to the failure to restore, or the actual cost of restoration, whichever is the lesser amount” (id.). 3. Section 8 of the lease also provided that the government: shall not restore the premises, either physically or by payment in lieu thereof, for damages as a result of reasonable and ordinary wear and tear, the elements or circumstances over which the Government has no control, or for alterations, or damage thereto, which the Government installed at its expense or the Lessor installed and was reimbursed by the Government through payment thereof . . . . (Id.) (bold in original) 4. Section 9 of the lease, entitled “Damages,” provided: The Government shall be liable only for damage resulting from negligence or misconduct of Government personnel or its agents, contractors, or assigns.