CBCA 1802

6th And E Associates, LLC

Nov 4, 2010Judge SomersGENERAL SERVICES ADMINISTRATION
Not published in the listingRuled on a motion

Key Facts

Appellant
6th And E Associates, LLC
Respondent agency
GENERAL SERVICES ADMINISTRATION
Judge
Somers
Case number
CBCA 1802
Decided
Nov 4, 2010The decision states Nov 4, 2010 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
Grossberg, Yochelson, Fox & Beyda, LLP
Outcome
Ruled on a motion
Appellant's motion for summary relief is DENIED, and respondent's cross-motion for summary relief is DENIED.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

Real property leasesContract interpretation

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions. They are ordered strongest first.

Appearances

For the appellant
Brett D. Orlove
Grossberg, Yochelson, Fox & Beyda, LLP
Washington, DC
For the respondent
Lesley M. Busch
Office of General Counsel, General Services Administration
Washington, DC
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision3 pages, 4,708 characters, read from the Board's own documentDecided Nov 4, 2010 on its own faceRespondent GENERAL SERVICES ADMINISTRATION Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

Cases cited

2 cases this decision cites, grouped by the forum that decided each, in the order it first names them. 2 of them open at a publisher.

Read from the decision's own words with no model involved: the party names and the citation are as the decision prints them. A case cited to a reporter is not held here, so where it opens was confirmed one citation at a time against an outside database and is labelled as leaving this app; a citation that database could not place, or matched to more than one case, is shown without a link rather than guessed at. A case named without a citation of any kind carries nothing to read, so it is left out rather than guessed at, and this is a floor on what the decision cites.

MOTIONS FOR SUMMARY RELIEF DENIED: November 4, 2010

CBCA 1802

6TH AND E ASSOCIATES, LLC,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Brett D. Orlove of Grossberg, Yochelson, Fox & Beyda, LLP, Washington, DC,

counsel for Appellant.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Lesley M. Busch , Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent.

Before Board Judges SOMERS, POLLACK, and WALTERS.

SOMERS, Board Judge.

On March 3, 2006, 6th and E Associates, LLC (appellant or lessor) and the General Services Administration (respondent or the Government) entered into a lease agreement for office space in the Washington, D.C., area. Under the terms of the lease, the annual rent includes the utilities and preventative maintenance (PM) cost for all government equipment installed on the premises, as adjusted annually based on actual PM and energy costs. The building is equipped with a total of six chillers, which provide chilled water to the air conditioning systems. Two of the chillers, identified as chiller number 4 and chiller number 5, provide chilled water to specific portions of the building. The dispute concerns 2 CBCA 1802

the interpretation and application of the lease agreement clauses governing repair or replacement of this equipment.

The lessor contends that the Government should pay to replace the two chillers. It states that chiller numbers 4 and 5 are only in place to serve the “supplemental tenant special system,” providing chilled water to tenant special air handling units and tenant special fan coil units, which cool the government computer rooms, training rooms, and conference rooms. The lessor points to rider number 4 of the lease, which it asserts requires the Government to pay PM and energy costs for all government equipment installed on the premises, including the cost of PM and energy for chiller numbers 4 and 5. The lessor asserts that the Government has been paid for these PM costs since the inception of the contract, and should be required to pay for repair or replacement of these items. Finally, the lessor contends that rider number 3, which the Government claims excuses it from payment in this case, was never intended to be an exhaustive list of all government equipment installed on the premises.

The Government disagrees. The Government asserts that it is only required to compensate the lessor for the actual PM and energy costs of the government equipment specifically listed in rider number 3. The Government argues that, under the terms of the lease, the lessor had the obligation to pay for the maintenance, repair, and replacement of all equipment except for that equipment identified specifically in rider number 3. The Government believes that the chillers provided service to the entire base building, and not just to the special tenant heating, ventilating, and air conditioning systems, as alleged by appellant.

It is well established that summary relief will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Walsh/Davis Joint Venture v. General Services Administration, CBCA 1460, 10-2 BCA ¶ 34,479. The fact that both parties have moved for summary relief does not mean that the Board must grant relief in favor of either party; if there are any issues of material fact, then summary relief is not proper for either one of the parties. Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed. Cir. 1987). While both parties are of the opinion that this dispute is ultimately one of contract interpretation, they have, nonetheless, supported their motions with multiple affidavits, an expert report, discovery responses, and statements identifying genuine issues of material fact. The material indicates considerable disagreement regarding the circumstances leading up to the negotiation and execution of the lease under which this dispute has arisen, as well as whether PM costs that had been previously paid were properly charged to the Government’s expense.

_______________________________

__________________________________ ________________________________

3 CBCA 1802

We find that several of the unresolved factual issues are material to the ultimate issue of how the lease provisions should be interpreted. Accordingly, we do not consider that the issue of entitlement is appropriate for disposition on motions for summary relief based upon the record before us.

Decision

Appellant’s motion for summary relief is DENIED, and respondent’s cross-motion for summary relief is DENIED.

JERI KAYLENE SOMERS

Board Judge

We concur:

HOWARD A. POLLACK

Board Judge

RICHARD C. WALTERS

Board Judge

This is a verbatim capture of the text layer of the Board's own document in 6th And E Associates, LLC, CBCA 1802. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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