DENIED: June 7, 2024
CBCA 7980, 7981, 7982
HELF INVESTMENTS,
Appellant in CBCA 7980, 7981,
and
LOS PORTALES ASSOCIATES, LP,
Appellant in CBCA 7982,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Daniel A. Kaplan of Law Offices of Daniel A. Kaplan, San Diego, CA, counsel for
Appellants.
Jay Bernstein, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges RUSSELL and KANG.
KANG, Board Judge.
Appellants, HELF Investments (HELF) and Los Portales Associates, LP (LPA), seek
reimbursement for property tax payments in connection with three leases into which they
entered with the General Services Administration (GSA). HELF and LPA argue that ,


CBCA 7980, 7981, 7982 2
although their requests for reimbursement did not comply with the express terms of the
leases, GSA nonetheless improperly denied the requests. We deny the appeals. 1
Background
1. The Three Leases
In July 2018, GSA and HELF entered into lease no. GS-09P-LCA004969 for real
property in El Cajon, California (El Cajon lease). Appeal File, Exhibit 1 at 0001. 2 In
October 2017, GSA and Redding Imperial, LLC entered into lease no. GS-09P-LCA00304
for real property in Riverside, California (Riverside lease). Exhibit 4 at 0102. The Riverside
lease was novated to HELF in September 2020. Respondent’s Initial Brief, Attachment.
The El Cajon and Riverside leases contained nearly identical provisions concerning
the reimbursement of annual property tax increases. Subsection 2.07 of each lease set forth
the process for reimbursing the lessor for increases in the current year taxes over the base
year taxes, as follows:
In the event of an increase in Current Year Taxes over the Real Estate Tax
Base, the Lessor shall submit a proper invoice of the tax adjustment including
the calculation thereof together with all tax bills and evidence of payment to
the [lease contracting officer (LCO)]. The Government shall be responsible
for payment of any tax increase over the Real Estate Tax Base only if the
proper invoice and evidence of payment is submitted by the Lessor on or
before June 15 of the current year.
Exhibits 1 at 0010, 4 at 0112 (emphasis added). The leases also stated that “[f]ailure to
submit the proper invoice and evidence of payment within such time frame shall be a waiver
1 HELF filed the appeals docketed as CBCA 7980 and CBCA 7981, and LPA
filed the appeal docketed as CBCA 7982. The appeals were consolidated per the parties’
joint request. Appellants elected accelerated disposition of the appeals, as permitted by
section 7106(a) of the Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2018), and Board
Rule 53 (48 CFR 6101.53 (2023)). Accordingly, this decision is being issued by a panel of
two judges. The parties submitted the cases on the written record, which consists of the
following documents: the notices of appeal (which were designated as a consolidated
complaint), the answer, the consolidated appeal file, and the parties’ initial and reply briefs
with attachments.
2 All exhibits are found in the consolidated appeal file, unless otherwise noted.

CBCA 7980, 7981, 7982 3
of the right to receive payment resulting from an increased tax adjustment under this clause.”
Exhibits 1 at 0010, 4 at 0112 (emphasis added).
In November 2008, GSA and Victorina LLC entered into lease no. GS-09B-02291 for
real property in Phoenix, Arizona (Phoenix lease). Exhibit 8 at 0300-01. This lease was
novated to LPA in September 2018. Exhibit 10 at 0395.
The Phoenix lease contained provisions concerning the reimbursement of annual
property tax increases similar to those in the El Cajon and Riverside leases. Subsection 3.19
of the Phoenix lease set forth the process for reimbursing the lessor for increases in the
current year taxes over the base year taxes, as follows:
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 within 60 calendar days after the date the tax payment is due from
the lessor to the taxing authority.
Exhibit 8 at 0380 (emphasis added). The 2022 property tax payments were due no later than
May 1, 2023, which set the end date of the sixty-day notice in the lease as June 30, 2023.
Exhibit 12 at 0433.
As with the El Cajon and Riverside leases, the Phoenix lease stated: “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.” Exhibit 8 at 0380 (emphasis added).
2. Requests for Property Tax Increase Reimbursements
On July 27, 2023, HELF requested reimbursement of $1253.20 and $18,893.74 for
2022 property tax increases for the El Cajon and Riverside leases, respectively. Exhibits 2
at 0069, 6 at 0264. Also on July 27, 2023, LPA requested reimbursement of $49,057.65 for
2022 property tax increases for the Phoenix lease. Exhibit 12 at 0430. Each request included
invoices and evidence of payment of the property taxes. On July 28, 2023, GSA denied the
requests for the El Cajon and Riverside leases because they had not been made by the

CBCA 7980, 7981, 7982 4
June 15, 2023, date specified in the leases. Exhibit 5 at 0260-61.3 On August 28, 2023, GSA
denied the request for the Phoenix lease because it had not been made by the June 30, 2023,
date specified in the lease. Exhibit 11 at 0428.
On October 16, 2023, HELF and LPA submitted claims to the contracting officers
seeking reimbursement of property tax increases for the El Cajon, Riverside, and Phoenix
leases. Exhibits 3, 7, 14. The contracting officers did not issue final decisions on the claims.
On January 8, 2024, HELF and LPA appealed the deemed denials of the three claims to this
Board.
Discussion
The three leases each provided that increases in annual property taxes would be
reimbursed by respondent, provided that appellants submitted invoices and evidence of
payment of the taxes within the specified times. For the 2022 tax increases, appellants did
not submit the required documents by the required dates. Notwithstanding the express
language of the leases regarding the submission of requests for reimbursement of property
tax increases, and the failure of HELF and LPA to make timely submissions, appellants argue
that the contracting officers improperly denied the claims for four primary reasons: (1) the
leases did not expressly authorize GSA to deny reimbursement of the property tax payment
increases; (2) the denials of reimbursement were improper assessments of damages or
impositions of penalties; (3) the Government’s delay in reimbursing the 2021 property tax
payment for the Phoenix lease shows that the Government was not harmed by appellants’ late
submissions of requests for the 2022 taxes; and (4) the denials of reimbursement result in
unjust windfalls for the Government. For the reasons discussed below, we find that none of
appellants’ arguments has merit.
3 The record provided by respondent contains an email from GSA rejecting
reimbursement for the Riverside lease, Exhibit 5, but does not contain a corresponding email
concerning the El Cajon lease. The parties agree, however, that the agency rejected
reimbursement for the El Cajon lease for the same reasons set forth in the email concerning
the Riverside lease. See Appellants’ Initial Brief at 9; Respondent’s Initial Brief at 3.
Additionally, the record contains two different versions of the email concerning the Riverside
lease: the version provided in the appeal file, which incorrectly states the due date as June 5,
2023, and a version attached to the claim for the Riverside lease, which correctly states the
due date as June 15, 2023. Exhibits 5 at 0260-61, 7 at 0289. None of these inconsistencies
in the record affects either the party’s arguments or the resolution of these appeals.

CBCA 7980, 7981, 7982 5
1. Breach of Contract
Although the leases required the lessors to submit invoices and evidence of payment
of the property taxes by a specific date, appellants argue that the leases did not expressly
authorize the Government to refuse to reimburse in the event the deadlines were missed.See
Appellants’ Initial Brief at 20 (“None of the leases provided that, upon late submission, the
GSA could completely deny the reimbursement.”). Appellants therefore assert that
respondent’s refusal to reimburse the property tax increases was a breach of the lease.
When interpreting a contract, the document must be considered as a whole and
interpreted to harmonize and give reasonable meaning to all of its parts. 4 Jowett, Inc. v.
United States, 234 F.3d 1365, 1368 (Fed. Cir. 2000). Where a contract’s provisions are
“clear and unambiguous, they must be given their plain and ordinary meaning,” and we “may
not resort to extrinsic evidence to interpret them.”McAbee Construction, Inc. v. United
States, 97 F.3d 1431, 1435 (Fed. Cir. 1996) (citations omitted). “An interpretation that gives
meaning to all parts of the contract is to be preferred over one that leaves a portion of the
contract useless, inexplicable, void, or superfluous.”NVT Technologies, Inc. v. United
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004).
A claim for breach of contract contains four elements: “(1) a valid contract between
the parties, (2) an obligation or duty arising out of the contract, (3) a breach of that duty, and
(4) damages caused by the breach.”San Carlos Irrigation & Drainage District v. United
States, 877 F.2d 957, 959 (Fed. Cir. 1989). There is no question here that there are valid
leases between the parties. The relevant questions here concern the second and third
elements of the breach claims—the Government’s obligation to reimburse property tax
increases and whether it breached that obligation.
As discussed above, each lease provides that if the lessor submits an invoice and
evidence of payment of the property taxes by a specific date, the Government must reimburse
the lessor for increases to the property taxes over the base year taxes. Each lease also
contains two provisions stating consequences for the lessor’s failure to make the submissions
by the deadlines. The first states that “[t]he Government shall be responsible for payment
of any tax increase . . . only if the proper invoice and evidence of payment is submitted” by
the specified date. Exhibits 1 at 0010, 4 at 0112, 8 at 0380. The second states that the failure
4 Although a lease concerns property interests, a lease is a contract. 1125 15th
Street, LLC v. General Services Administration , CBCA 6012, 21-1 BCA ¶ 37,828, at
183,708 (citing Prudential Insurance Co. of America v. United States, 801 F.2d 1295, 1298
(Fed. Cir. 1986)).

CBCA 7980, 7981, 7982 6
to submit the invoice and evidence “shall be a waiver of the right to receive payment
resulting from an increased tax adjustment.” Exhibits 1 at 0010, 4 at 0112, 8 at 0380.
This Board and one of its predecessor boards, the General Services Board of Contract
Appeals (GSBCA),5 have long held that the plain language of these types of lease provisions
“expressly warns that the contractor will lose rights if a submission is not made in the
prescribed period of time” and therefore “contain a binding notice requirement that is strictly
enforced.”GC Columbia, LLC v. General Services Administration, CBCA 7374, 22-1 BCA
¶ 38,197, at 185,502-03 (quoting Cindy Karp v. General Services Administration , CBCA
1346, 11-1 BCA ¶ 34,716, at 170,934),aff’d, No. 2023-1403, 2024 WL 1433162 (Fed. Cir.
Apr. 3, 2024); see Roger Parris v. General Services Administration, GSBCA 15512, 01-2
BCA ¶ 31,629, at 156,259-60;Riggs National Bank of Washington, D.C. v. General Services
Administration, GSBCA 14061, 97-1 BCA ¶ 28,920, at 144,179; Universal Development
Corp. v. General Services Administration, GSBCA 12138(11520)-REIN, et al., 93-3 BCA
¶ 26,100, at 129,739-40. InRiggs National Bank, the GSBCA explained that the submission
of an invoice with the required evidence of payment is a condition precedent to receiving
reimbursement; where a lessor fails to satisfy that condition, the plain language of the lease
relieves the Government of the obligation to reimburse the lessor.Riggs National Bank, 97-1
BCA at 144,178 (citing Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1019 (Fed.
Cir. 1996)).
Here, appellants’ requests for reimbursement of the 2022 property tax increases did
not comply with the clear and unambiguous lease terms, which stated that invoices and
evidence of payment were required by specified dates. To conclude that respondent was
required to reimburse appellants despite the terms of the lease would render those terms
meaningless and superfluous.
Appellants also argue that they did not waive their rights to reimbursement of property
tax increases because they did not intend to forego their contractual rights. Even if appellants
did not waive their rights to reimbursement under the second lease provision (“shall be a
waiver”), they still failed to submit the required information under the first lease provision
(“[t]he Government shall be responsible . . . only if the proper invoice and evidence of
payment is submitted”) thereby relieving the Government of the duty to reimburse.
5 The decisions of our predecessor boards of contract appeals are binding
precedent for this Board. Business Management Research Associates, Inc. v. General
Services Administration, CBCA 464, 07-1 BCA ¶ 33,486, at 165,989 (per curiam).

CBCA 7980, 7981, 7982 7
In any event, appellants clearly waived their rights to reimbursement under the leases.
A waiver is “an intentional relinquishment or abandonment of a known right or privilege.”
Lynchval Systems Worldwide, Inc. v. Pension Benefit Guaranty Corp. , CBCA 3466, 14-1
BCA ¶ 35,792, at 175,067 (citations omitted). “Waiver requires only that the party waiving
such right do so ‘voluntarily’ and ‘knowingly’ based on the facts of the case.”Seaboard
Lumber Co. v. United States , 903 F.2d 1560, 1563 (Fed. Cir. 1990) (citing Brookhart v.
Janis, 384 U.S. 1, 4, 5 (1966)).
Appellants do not contend that they did not enter into the leases knowingly or
voluntarily. Instead, they argue that their failures to submit invoices and evidence of
payment were not intended to be waivers of the right to reimbursement. Appellants’
arguments misapprehend when the waivers took place. The express terms of the leases state
that the failure to submit the required invoice and evidence of payment “shall be a waiver of
the right to receive payment resulting from an increased tax adjustment.” Exhibits 1 at
0010, 4 at 0112, 8 at 0380. Thus, the conditions establishing waiver of the right to
reimbursement were set when the parties entered into the leases.
In sum, the clear and unambiguous terms of the leases regarding reimbursement of
property tax increases required the submission of invoices and evidence of payment by
specified dates, and the record shows that appellants did not satisfy these lease terms for the
2022 taxes. Respondent was therefore not required to reimburse appellants for the 2022
property tax increases.
2. Unreasonable Damages and Penalties
Appellants argue that such decisions by this Board and the GSBCA asGC Columbia,
LLC and Riggs National Bank should not be followed here because they do not address
whether respondent’s refusal to reimburse property tax increases under the lease clauses
constitutes the imposition of unreasonable damages. Appellants’ Reply Brief at 4-5. In this
regard, appellants argue that the Government did not suffer actual damages based on HELF’s
and LPA’s failures timely to submit the invoices and evidence of payment as required by the
leases and should not be allowed to withhold reimbursement. Alternatively, appellants argue
that the withholding of tax payments was an improper assessment of liquidated damages
because the leases did not have liquidated damages clauses, and the refusal to reimburse the
property taxes therefore constituted unenforceable penalties.
As discussed above, the Government’s refusal to reimburse the 2022 property tax
increases was not a breach of the leases but was in accordance with the leases’ clear and
unambiguous terms. With regard to the arguments here, appellants appear to contend that
the Government improperly found that appellants breached the leases by failing to submit the

CBCA 7980, 7981, 7982 8
invoices and evidence of payment by the required dates and imposed damages for these
breaches by refusing to reimburse the property tax increases. See Appellants’ Initial Brief
at 21-23; Appellants’ Reply Brief at 4-5. This theory of recovery also lacks merit because
the leases did not create a duty or obligation on the part of the lessors to seek reimbursement
for property tax increases. Rather, the leases gave the lessors the right to reimbursement,
provided they satisfied the requirements to submit invoices and evidence by the specified
dates. Because appellants’ failure to satisfy the requirements of the leases for reimbursement
was not a breach of an obligation to the Government, the Government’s refusal to reimburse
appellants was not an assessment of damages for breach of contract.
With regard to appellants’ arguments regarding liquidated damages and penalties,
parties to a contract may agree in advance to a sum representing liquidated damages for
breach to save the time and expense of litigating the issue of damages, provided the amount
of damages does not constitute an unenforceable penalty.DJ Manufacturing Corp. v. United
States, 86 F.3d 1130, 1133 (Fed. Cir. 1996). Such unenforceable penalties include amounts
that are “‘so extravagant, or disproportionate to the amount of . . . loss, as to show that
compensation was not the object aimed at or as to imply fraud, mistake, circumvention or
oppression.’”Id. (quoting Wise v. United States, 249 U.S. 361, 365 (1919)). Here, again,
liquidated damages and penalties in the context of a contract are relevant only in the event
of a breach. As there were no breaches of the leases here, appellants’ arguments regarding
liquidated damages and penalties also lack merit.6
3. LPA’s 2021 Property Tax Reimbursement
Appellants contend that the late reimbursement by GSA to LPA for 2021 property tax
increases under the Phoenix lease shows that the Government did not suffer any harm as a
result of appellants’ late requests for reimbursement of the 2022 property tax increases. For
this reason, appellants contend that nothing prevented the Government from reimbursing the
2022 property taxes based on the late-submitted requests.
The Phoenix lease incorporated GSA Federal Acquisition Regulation clause
552.232-75, Prompt Payment (SEP 1999) (48 CFR 552.232-75 (2000)), which provides for
payment of interest in the event that the Government does not timely pay a contractor’s
otherwise proper invoices. Exhibit 8 at 0383. The El Cajon and Riverside leases have
6 Appellants also argue that California and Arizona state laws regarding
liquidated damages and penalties should apply to these leases. We need not address whether
state laws have any relevance here because the interpretation of these lease provisions is well
settled under federal law. See Prudential Insurance Co., 801 F.2d at 1298.

CBCA 7980, 7981, 7982 9
similar provisions. Exhibits 1 at 0010, 4 at 0112. LPA filed a timely request for
reimbursement of the 2021 property tax increases for the Phoenix lease, but the Government
failed to make timely payment of the invoice thereby triggering an interest penalty.
Appellants’ Initial Brief at 17-18;see Exhibit 16 at 0001.
Appellants note that respondent’s July 28, 2023, email in connection with the
Riverside lease stated that GSA was “unable to process taxes for [2022]” due to the late
submission of the invoice and evidence of payment. Exhibit 5 at 0260. Because the
Government’s reimbursement of LPA’s 2021 property tax increases under the Phoenix lease
was late, appellants contend there was no barrier to respondent’s ability to reimburse
appellants for their late submitted requests for the 2022 property taxes. Appellants’ Initial
Brief at 29.
There is no relationship between the leases’ prompt payment provisions and the
provisions requiring lessors timely to submit requests for reimbursement of property tax
increases. Appellants appear to take the word “unable” in the Government’s July 28, 2023,
email out of context, as if it were meant to express a practical or legal barrier to reimbursing
the 2022 property tax increases. The context of the email shows that the Government was
asserting its right not to reimburse HELF for the 2022 property tax increases due to its failure
to meet the lease requirements. Thus, the fact that the lease required GSA to pay the 2021
tax increases with interest penalties has no relevance to whether the lease required GSA to
reimburse appellants’ untimely requests for the 2022 property tax increases. As to whether
respondent suffered any “harm” based on appellants’ failure to comply with the terms of the
leases for reimbursement of the 2022 property tax increases, such an inquiry is irrelevant
based on the clear and unambiguous language of the leases, which plainly state that
reimbursement was not required. See GC Columbia, LLC, 22-1 BCA at 185,502-03.
4. Improper Windfall
Appellants argue that GSA’s refusal to reimburse the 2022 property tax increases
resulted in improper windfalls to the Government. Appellants contend that to avoid such a
windfall, respondent must return what they contend are the improperly withheld property tax
increases.
Under state and federal law, a party suing for breach of contract “is not entitled to a
windfall, i.e., the non-breaching party ‘[i]s not entitled to be put in a better position by the
recovery than if the [breaching party] had fully performed the contract.’”Community Health
Choice, Inc. v. United States , 970 F.3d 1364, 1375 (Fed. Cir. 2020) (quoting Miller v.
Robertson, 266 U.S. 243, 26 (1924)). Appellants’ argument about windfall therefore fails
because, as discussed above, neither respondent nor appellants breached the leases.

CBCA 7980, 7981, 7982 10
In any event, the issue of windfalls in the context of tax increase provisions in leases
with the Federal Government was specifically addressed by this Board in DCE Properties
v. General Services Administration, CBCA 2923, 13 BCA ¶ 35,242. As with the leases here,
the lease in DCE Properties stated that property tax increases would be reimbursed “[o]nly
if the proper invoice and evidence of payment is submitted by the lessor within 60 calendar
days after the date the tax payment is due from the lessor to the taxing authority.”Id. at
173,019. We found that there was no windfall to the Government because “DCE has
provided to GSA exactly what was bargained for—office area and parking spaces at a
particular building—and the lessor has not suggested that GSA has paid anything less than
the agreed-upon rent in exchange.”Id. We further noted that “DCE did have the opportunity
to receive even more money if it complied with a particular requirement in the contract, but
it did not so comply.”Id. at 173,020.
Appellants’ failures to satisfy the requirements for reimbursement set forth in the
leases did not result in unanticipated benefits to the Government. Instead, the denials of the
requests for reimbursement were the anticipated result of the clear and unambiguous lease
provisions. Appellants do not provide any reason to reach a different conclusion from that
in DCE Properties.
Decision
Under the clear and unambiguous terms of the leases, GSA was not required to
reimburse appellants for the 2022 property tax increases. The appeals are DENIED.
Jonathan L. Kang
JONATHAN L. KANG
Board Judge
I concur:
Beverly M. Russell
BEVERLY M. RUSSELL
Board Judge