MOTION TO AMEND COMPLAINT GRANTED: December 17, 2010

MOTION TO AMEND COMPLAINT GRANTED: December 17, 2010

CBCA 1804

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.

Lesley M. Busch, Office of General Counsel, General Services Administration,

Washington, DC, counsel for Respondent.

SOMERS, Board Judge.

ORDER

Appellant has filed a motion for leave to file an amended complaint pursuant to

CBCA Rule 6(e). 48 CFR 6101.6(e) (2010). Appellant wishes to amend the complaint to

reference a lease that had not been included in the original complaint. Respondent opposes

the motion, contending that, by adding reference to a lease, appellant is presenting a claim

that had not been presented to the contracting officer. Because appellant did not present a

claim under this lease agreement to the contracting officer, respondent asserts that appellant

could not meet the jurisdictional prerequisites of the Contract Disputes Act,

41 U.S.C. § 605(a) (2006). We grant the motion to amend the complaint, for the reasons set

forth below.

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Background

The General Services Administration (GSA, the Government, or respondent) leased

office space from 6th and E Associates, LLC (6th and E or appellant). The parties entered

into the first lease agreement, GS-11B-20687 (Lease 20687), on December 28, 1992. Under

this lease, the Government leased the first two floors in the Bicentennial Building, located

at 600 E Street in Washington, D.C. Under the second lease agreement, GS-11B-20769

(Lease 20769), dated April 28, 1993, the Government leased the remaining floors of the

building, with the exception of a portion of the 6th floor.

It appears that the two lease agreements, Lease 20687 and Lease 20769, ended when

the Government leased the entire building through lease agreement GS-11B-01864 (Lease

01864). Although the lease is dated March 3, 2006, the terms of the lease began on

February 22, 2004, and will end on February 21, 2014.

On June 6, 2008, 6th and E filed a claim with the contracting officer. The claim

identified (inaccurately) Lease 01864 as the “prior lease” and Lease 20687 as the “existing

lease.” The claim did not reference Lease 20769.

The claim identified several invoices that had been submitted but not paid. At issue

here is the first invoice, identified as Invoice 529. The invoice seeks overtime heating,

ventilating, and air conditioning (HVAC) charges that occurred from August 18, 2003,

through September 17, 2003. It categorizes the charges in two columns. One column

identifies charges for floors 3-10. The second column identifies charges for floors 1-2. The

invoice itself does not connect the charges to the lease agreements. However, the lease

agreements in existence during the time period were the two separate lease agreements,

Lease 20687 and Lease 20769. The consolidated lease did not commence until after these

charges occurred.

When the contracting officer failed to issue a decision within the time period required,

appellant filed its appeal with this Board on November 20, 2009. After the filing of the

appeal, by letter dated December 16, 2009, the contracting officer wrote a formal response

to the claim. As to Invoice 529, the contracting officer stated that “[t]he Government never

received notification of this charge and it never went through the proper approval procedure.

The Government cannot reimburse expenses that were not authorized.”

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3

Discussion

Appellant wishes to amend the complaint to reference Lease 20769 in its claim for

payment of Invoice 529. It asserts that CBCA Rule 6(e) allows the Board to permit

amendments to pleadings on conditions fair to both parties. Appellant contends that

respondent is not prejudiced by the amendment because (1) respondent was a party to Lease

20769 and has knowledge of its key terms; (2) inclusion of Lease 20769 does not add any

new claims or causes of action; (3) the claim for payment of Invoice 529 arose under

Lease 20687 and Lease 20769; and (4) the amended complaint provides more accurate data

regarding the operative facts and circumstances underlying the claim for payment of

Invoice 529.

Respondent opposes, contending that the contracting officer’s response was premised

upon the fact that appellant’s claim only referenced Lease 20687 for support. Amending the

claim to include an additional lease, says respondent, is a jurisdictional issue. In order for

the Board to have jurisdiction over the claim, the claim must be submitted to the contracting

officer first. Because the claim did not reference Lease 20769, respondent contends that the

contracting officer did not have an opportunity to evaluate and determine the merits of the

claim in the context of the second lease.

Respondent’s position is curious. First, the contracting officer did not issue a final

decision – this case came before the Board on a “deemed denial” basis. Second, Invoice 529

does not reference either lease. However, the costs claimed in the first column, identified

as overtime HVAC for floors 3-10, could not have arisen from Lease 20687, which only

governed floors 1-2. Lease 20769 covered the costs identified in the first column. The other

lease referenced in the actual claim letter, i.e.., Lease 01864, did not exist at the time the

alleged additional costs arose.

Appellant’s claim that the Government had failed to pay for services identified in

Invoice 529 provided enough information to place the contracting officer on notice that

appellant sought payment for costs arising under Lease 20769, as well as costs arising under

Lease 20687. Thus, the contracting officer had sufficient information concerning the

contractor’s claim, the leases involved (based upon the information contained on the actual

invoice which identified the floors covered by the claim), and the sum certain amounts at

issue, notwithstanding the omission of proper citation to Lease 20769. Accordingly, the

Board possesses jurisdiction to entertain appellant’s claim. See, e.g., Holmes & Narver, Inc.,

ASBCA 51430, 99-1 BCA ¶ 30,131 (1998); Systems & Electronics, Inc., ASBCA 47811,

96-2 BCA ¶ 28,501; Bath Iron Works, ASBCA 32770, 88-1 BCA ¶ 20,438 (1987).

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Decision

We GRANT appellant’s motion for leave to file an amended complaint. Appellant’s

amended complaint, identified as Exhibit A to appellant’s motion, is hereby filed.

Respondent may file an amended answer in accordance with CBCA Rule 6(f) no later than

thirty calendar days from today.

___________________________

JERI KAYLENE SOMERS

Board Judge