APPELLANT’S MOTION TO CONSOLIDATE GRANTED;
RESPONDENT’S MOTION FOR PARTIAL SUMMARY RELIEF GRANTED;
APPELLANT’S MOTION FOR SUMMARY RELIEF GRANTED-IN-PART: 
March 30, 2018
CBCA 5506, 5715, 5849
JBG/FEDERAL CENTER, L.L.C.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent in CBCA 5506, 5849
and
DEPARTMENT OF TRANSPORTATION,
Respondent in CBCA 5715.
Vincent Mark J. Policy of Greenstein DeLorme & Luchs, P.C., Washington, DC,
counsel for Appellant.
Lesley Busch Uhr and Bradley Boettcher, Office of General Counsel, General
Services Administration, Washington, DC, counsel for Respondent in CBCA 5506, 5849.
Lynn M. Deavers and Michael A. Smith, Office of the General Counsel, Department
of Transportation, Washington, DC, counsel for Respondent in CBCA 5715. 


CBCA 5506, 5715, 5849 2
Before Board Judges DRUMMOND, SULLIVAN, and CHADWICK.
SULLIVAN, Board Judge. 
JBG/Federal Center, L.L.C. (JBG), leases to the General Services Administration
(GSA) the buildings that house the headquarters of the Department of Transportation (DOT). 
Under the lease, JBG provides 145 parking spaces for government vehicles.  Pursuant to a
follow-on agreement between JBG and DOT, DOT restricts the use of the remainder of the
parking spaces on the property to its employees and contractors and pays JBG directly for the
use of these spaces.  For the first eight years of the lease, GSA reimbursed JBG for the entire
real estate tax bill assessed against the property, including the parking garage.  Beginning in
2015, GSA withheld a portion of its tax reimbursement based upon a lease provision that
limits GSA’s payment obligation to only the taxes assessed against the 145 parking spaces
included in the lease.  
In September 2016, in response to JBG’s claim for the amount withheld, GSA
demanded repayment of taxes it alleges it improperly paid since the inception of the lease. 
On October 3, 2016, JBG timely appealed this decision and the Board docketed the appeal
as CBCA 5506.  In response to GSA’s demand, JBG asserted a claim for the amount sought
by GSA against DOT under the follow-on contract.  On April 24, 2017, JBG timely appealed
the decision denying this claim and the Board docketed the appeal as CBCA 5715. 
Subsequently, JBG claimed repayment of additional amounts from GSA based upon its
interpretation of the lease.  On September 12, 2017, JBG appealed GSA’s denial of its second
claim and the Board docketed this appeal as CBCA 5849 and consolidated it with CBCA
5506.  
We decide three motions herein.  First, we grant JBG’s motion to consolidate CBCA
5506 and 5715, finding that there are common issues of fact and law.  Second, we grant
GSA’s motion for partial summary relief, holding that the plain language of the lease limits
the reimbursement of real estate taxes.  Third, we grant in part JBG’s motion for summary
relief, holding that GSA’s claim for repayment of taxes paid before September 2010 is barred
by the statute of limitations.  
Background
I. GSA’s Lease and Applicable Provisions
In February 2002, GSA, on behalf of DOT, awarded to JBG a contract for the
construction and lease of two buildings and an underground parking garage on lot 802 in
square 770 at 1200 New Jersey Avenue, S.E., Washington, D.C.  Appeal File, Exhibit 2 at

CBCA 5506, 5715, 5849 3
13, 38, 317.1  In 2004, the parties executed an amended and restated lease for real property
(lease).  Id. at 1, 13.  The lease commenced in October 2006, for an initial term of fifteen
years.  Exhibit 5 at 2, 3.  
Pursuant to the lease, JBG was to “furnish to the Government, as part of the rental
consideration . . . 145 reserved parking spaces in the parking structures to be constructed by
Lessor as part of the Facility.”  Exhibit 2 at 2.  The lease defined “Facility” as:
[T]he collective reference to the Site, the Leased Premises (including but not
limited to, all Fit-Out), all portions of the Buildings, all parking areas on the
Site, all landscaping, site roadways, pedestrian passageways and other portions
of the Site, together with utilities (to the extent not owned by any public utility
company), mechanical systems, fixtures and equipment located on the Site
(only if capitalized).
Id. at 21.  “Leased Premises” was defined in the lease as “the meaning set forth in Section
2.1,” which in turn described the property as “the entire rentable and occupiable area (the
‘Premises’ or the ‘Leased Premises’) of the Building(s) to be constructed in accordance with
the terms and conditions of this Lease.”  Id. at 25, 38
Tax Reimbursement Provisions.  Lease section 2.6.1, as amended by SLA no. 5,
provided that, “[f]rom the Lease Commencement Date, throughout the Lease Term, the
Government will reimburse Lessor as additional Rent 100% of the real estate taxes
(excluding any notary fees, penalties, or interest on a late payment by the Lessor) applicable
to the Leased Premises.”  Exhibit 5 at 4.  Under this provision, JBG was permitted to claim
reimbursement of payments it made in lieu of taxes that were assessed by the District of
Columbia to fund neighborhood improvements:
(I) any payments due to the District of Columbia pursuant to a Payment in Lieu
of Taxes (“PILOT”) agreement[2] between Lessor and the District of Columbia,
1 All exhibits are found in the CBCA 5506 appeal file, unless otherwise noted.
The original lessor was JBG/SEFC Venture, L.L.C.  The parties executed supplemental lease
agreement (SLA) no. 2, to reflect JBG/Federal Center, L.L.C. as the succeeding lessor. 
Exhibit 5.    
2 Pursuant to the Payments in Lieu of Taxes (PILOT) Act of 2004, the District
of Columbia  established a program whereby payments made pursuant to a PILOT agreement
would be pledged in connection with the bonds authorized under the PILOT Act or to
facilitate the development of projects that are deemed to contribute to the health, education,

CBCA 5506, 5715, 5849 4
provided that such payments shall not exceed the real estate taxes applicable
to the Leased Premises that the Government would have paid absent a PILOT
agreement, based on assessments conducted in accordance with Chapter 8 of
Title 47 of the District of Columbia Code and (II) assessments, taxes, fees or
the like (“Bid Assessments”) imposed on the Facility by a Business
Improvement District in which the Facility is located (“BID”) through the BID
directly or through the District of Columbia.
Id.  Section 2.6.1 further provided that the Government would reimburse JBG for real estate
taxes on no more than 145 leased spaces in the parking garage:
No portion of the Government’s tax payments shall reflect tax assessments
attributable (i) to any Site Improvements not directly benefitting the
Government, or (ii) to parking areas or structures, except for the 145 parking
spaces directly leased by the Government.
Exhibit 2 at 67.  This limitation was not altered by SLA no. 5.  Exhibit 5 at 4.      
When seeking reimbursement, JBG was to submit “a proper invoice, . . .  a calculation
demonstrating Lessor’s entitlement to the amount claimed, and evidence of payment by
Lessor of real estate taxes related to the Facility and/or Site within which the Leased
Premises is located.”  Exhibit 2 at 67.   JBG also was required to provide to the contracting
officer copies of “all notices that may affect the valuation of the Facility and/or the Site upon
which the Facility is located, as well as all notices of tax credits (or refunds or abatements),
all tax bills, and all paid tax receipts.”  Id.  If JBG received any tax credits, refunds, or
abatements, the Government retained the right to receive “100% of the tax credit attributable
to the Government’s occupancy of the Leased Premises.”  Id. at 67-68.  
Parking Requirements.  JBG was obligated to construct a parking lot with the number
of spaces required by District of Columbia zoning requirements, but no less than 936 total
spaces, and to “provide, without additional charge to the Government, [145] reserved and
safety, or welfare of, or the creation or preservation of jobs for residents of the District, or
for the economic development of the District.  Exhibit 6 at 2.  On February 1, 2007, pursuant
to the PILOT agreement, the District granted JBG an exemption from real property taxes in
exchange for which JBG would make PILOT payments for the property that is the subject
of the lease.  GSA is not a party to the agreement between the District of Columbia and JBG
but it did authorize reimbursement of the PILOT payments instead of real estate taxes
pursuant to the terms of the lease.  Exhibit 5 at 4.  

CBCA 5506, 5715, 5849 5
unstacked parking spaces.” Exhibit 2 at 83.  JBG was to make the remaining 791 spaces
available to “the Government and the Government’s agents, employees and contractors on
a daily or month-to-month basis for use by Government employees and contractors.”  Id.3 
In exchange, JBG could collect from government employees or contractors a monthly or
daily fee not to exceed $130 per month and not to increase more than 2% per year.  The lease
further provided, “At no time during the Lease Term shall the monthly or daily parking rates
charged Tenant or its employees or contractors exceed the prevailing market rates in the
immediate vicinity.”  Id.  
The lease permitted the Government to impose additional security restrictions upon 
the use of the parking garage:     
The Government will have the right to impose security restrictions on use of
and access to the garage during the term of its occupancy.  Consistent with the
security requirements described in Section 8.7, no parking of third party
vehicles will be allowed in the garage during the term of the Government’s
lease (other than vehicles of government agency employees which have been
approved by Department of Transportation and/or other applicable
Government security screening procedures) . . . .
Exhibit 2 at 83.   Section 8.2.2.2, titled “Parking Requirements,” reiterated the requirement
that JBG provide “a minimum of 145 ‘unstacked’ automobile parking spaces reserved for
exclusive use by the Government.”  Id. at 175.  JBG could provide “stacked” parking spaces
for the other spaces not reserved for the Government’s use.  Id.  Finally, the parking
entrances and exits were to be “Government controlled and meet all DOT security
requirements.”  Id. at 176.
II. Parking Management Services Agreement
In December 2007, DOT and JBG executed a fixed price commercial items parking
management services agreement (PMSA) for the use of the parking garage.  Exhibit 132 at
29.  This further agreement was executed pursuant to the parking security provisions of the
lease because DOT wanted to restrict access to the parking lot to DOT employees only, rather
3 The lease does not define “employee” or “government employee,” but it does
define “Government” as the United States of America.  Exhibit 2 at 1, 22.  

CBCA 5506, 5715, 5849 6
than all federal employees as permitted by the lease.  Appellant’s Statement of Genuine
Issues, Exhibit 6 at 6.4  
Pursuant to the PMSA, JBG provided a minimum of 1060 parking spaces, with cars
parked in a stacked or tandem manner, for vehicles with a DOT parking permit.  Exhibit 132
at 22.  Although not explicitly stated in the PMSA, it appears that DOT issued these parking
permits, eliminating the need for JBG to issue permits or daily tickets and collect parking
fees from individuals.  These 1060 spaces were in addition to the 145 spaces that JBG
provided under the lease.  Id.  JBG also provided parking lot attendants who parked the cars
in a stacked manner.  Id. at 23.  For the use of these spaces and parking attendant services,
DOT paid JBG $116,667 per month ($110.06 per space per month).  Id. at 1.5  The PMSA
contained the Commercial Items clause, FAR 52.212-4, which provides in part that “[t]he
contract price includes all applicable Federal, State, and local taxes and duties.”  Id. at 12. 
In an opening bid for the negotiation that led to the PMSA, in December 2006, JBG
offered the garage spaces to DOT for a yearly price of $1.25 million, assuming that DOT
provided all maintenance, facility operators, and security for the garage.  Appellant’s
Statement of Genuine Issues, Exhibit 6 at 3.    
Also as part of the negotiations, DOT hired a former GSA appraiser to perform a
parking study to determine the “monthly garage rent to be paid by DOT union members” in
the building.  Appellant’s Statement of Genuine Issues, Exhibit 5F.  Prior to issuing the
study, the appraiser asked the GSA contracting officer whether GSA paid the real estate taxes
and utilities for the garage as part of the lease, noting that if the Government were paying
these costs he would make an adjustment for them.  Id., Exhibit 5D.  The contracting officer
responded that the Government was paying the real estate taxes and utilities for the parking
garage:
4 GSA and DOT also executed an occupancy agreement, which provided that 
“all of the parking spaces in the facilities will be made available to DOT on a priority basis
for allocation pursuant to the terms of the lease agreement,” despite the lease provision that
only requires that the spaces be made available to “Government employees.”  Appellant’s
Statement of Genuine Issues, Exhibit 17 at 6.  This agreement further provided that GSA
would pass on all real estate tax expenses through the rent bill to DOT, but GSA would not
assess its fee on those costs.  Id.    
5 The extended line item cost was $466,668, which would be the cost for four
months.  The base year of the agreement was nine months.  This discrepancy is unexplained
in the record.  

CBCA 5506, 5715, 5849 7
[T]he Government is responsible for paying 100% of the real estate taxes for
the building.  Also, we are required to pay 100% of the utilities for the
Government leased space which is basically everything except the Starbucks
(retail) and the parking that is not under lease.  The lessor has indicated that it
is not possible to separately meter the parking garage.  We were looking at
negotiating a credit for the electric costs for the portion of the garage not under
the base lease.  However, if we end up leasing the whole garage we should
receive a credit in the amount of the garage rent to take in to account the fact
that we are paying the electricity for the entire garage.
Id., Exhibit 5E.6  Based upon this information, the appraiser determined a monthly rate per
parking space ($97.80 per space) that did not include the costs for real estate taxes or
electricity attributable to the garage because GSA was paying those expenses through the
lease.7  Id., Exhibit 5F.  DOT acknowledged, after review of the appraisal, that GSA was
paying real estate taxes on the entire parking garage.  Id., Exhibit 5H at 1-2.    
In September 2010, DOT and JBG executed a new PMSA (PMSA 2010) for the
parking garage for a period of performance from October 1, 2010, through September 30,
2015.  Exhibit 20 at 1-2.  For the same number of spaces and parking attendant services, the
annual price was $1.448 million (approximately $114 per month per space).  Id.8   
6 The original contracting officer reiterated the Government’s responsibility for
100% of the real estate taxes again in 2010, in an email to his successor.  Appellant’s
Statement of Genuine Issues, Exhibit 6 at 8.  GSA has offered a declaration from the original
contracting officer in which he states that he “mistakenly described the terms of the lease
regarding the taxes related to the parking garage.  My understanding of the Lease is that GSA
would pay for 100% of real estate taxes for the Lease Premises, which did not include the
additional parking areas.”  Declaration of Joel Berelson (undated) ¶ 2.  The declaration is
silent as to this 2010 assertion and the fact that GSA paid 100% of the real estate taxes on
lot 802 and then lot 809 from 2007 through 2015.   
7 The appraiser also noted that the rate did not include the District of Columbia
parking tax that a private operator would have to pay and pass on in a monthly rate because
the Federal Government does not pay that tax.  Appellant’s Statement of Genuine Issues,
Exhibit 5F at 2.  
8 The record also contains an unsigned, undated document titled, “DOT HQ
Parking Garage Parking Management Transition Plan,” which provides for JBG to assume
responsibility for parking management services on October 15, 2015, including the collection
of fees to be calculated in accordance with section 4.1.2 of the lease.  CBCA 5715, Exhibit

CBCA 5506, 5715, 5849 8
III. Reimbursement of Real Estate Taxes
In April 2007, JBG submitted its first request to GSA for reimbursement of real estate
taxes for October 20, 2006, to March 31, 2007.  Exhibit 9 at 4.  JBG attached the property
tax bill issued by the District of Columbia for lot 802.  Id.  
GSA has provided with its reply an exchange of emails between the GSA project
executive and the GSA contracting officer from March 2007, regarding JBG’s first real estate
tax reimbursement request.  GSA’s Reply Brief at Prod 400-02.9  In the exchange, the project
executive stated that JBG should split the tax bill to reflect what portions it was responsible
for:
I think that we need to respond by asking JBG to split the bill into 2 pieces,
that which JBG is responsible for and that which the Government is
responsible for.  Since the lease did not start until 10/19/2006, JBG is
responsible for [real estate] taxes prior to that point in time.  They have funds
in the project budget to cover this.  Also, as we discussed this morning, we
don’t pay taxes on the parking revenue which is not part of the lease.  To the
degree that parking revenue is assumed in the tax calculation it must be
allocated to JBG.  I used a 4% figure to represent this in my attached
spreadsheet.
Id.  There is no evidence in the record regarding whether this message was communicated
to JBG.  Despite this exchange, GSA paid the full amount JBG sought for October 20, 2006,
through March 31, 2007.  Exhibit 9 at 1. 
In May 2007, the District of Columbia divided lot 802 into three tax lots, lots 807,
808, and 809.  Exhibit 37 at 1, 3.  The leased premises, including the entirety of the parking
garage, occupied lot 809.  GSA’s Statement of Uncontested Facts, ¶ 5.  
In October 2007, GSA issued SLA no. 8 for the payment of the real estate taxes for
the second half of 2007.  Exhibit 10 at 1.  On the first page of the SLA, GSA stated that the
SLA was “[i]ssued to reflect reimbursement for real estate taxes in accordance with
Paragraph 2.6 of the Lease Agreement.”  Id.  GSA noted that its occupancy was 100% and
113 at 1, 6-7.  This agreement also restates and relies upon the portions of the lease of the
building regarding parking and security.  Id. at 1-5.     
9 The pages attached to GSA’s reply brief are only paginated with the bates
numbers from its production in discovery.  

CBCA 5506, 5715, 5849 9
attached to the SLA the tax bill for lot 809, which showed the entire amount GSA
reimbursed.  Id. at 1, 5.  Biannually thereafter until June 2015, JBG sought and GSA paid the
full amount of the taxes levied by the District of Columbia on lot 809.  Exhibits 13, 14, 16,
17, 19, 21, 25, 26, 29, 31, 35, 38, 43, 50, 54; GSA’s Statement of Uncontested Facts
¶¶ 11, 12.    
In 2011, GSA obtained from the District of Columbia Office of Tax and Revenue the
income and expense reports for the property that JBG had submitted to that office for the
property.  Exhibits 22, 23.  JBG reported the annual income it had received from the office
and retail rentals and parking garage.  See, e.g., Exhibit 23 at 2.  These reports do not identify
the real estate tax assessed based upon this revenue or identify the portion of the real estate
tax assessment attributable to the parking garage.  Id.    
In March 2014, DOT received a report from outside counsel and a real estate
consulting company that it hired to conduct a real estate tax analysis to determine whether
DOT had overpaid real estate taxes for the parking garage.  Exhibit 37.  In the report, the
consultants concluded that DOT had overpaid for tax years 2009-2012, and partially for
2013:  
(i) PILOT payments of $2,152,720.93 because the value of the garage was
included in the value of the office building taxed to DOT, (ii) rents or parking
fees of $1,051,710.03 because the 145 parking spaces included under the
Lease were also charged to DOT under the Parking Contract, and (iii) taxes of
$299,400.50 for the 145 parking spaces because under the income and expense
reports the income from the 145 parking spaces was double counted under the
Lease and the Parking Contract.
Id. at 3.  The total of the three amounts is $3,503,831.46.  Id.
In June 2014, the GSA contracting officer advised JBG by letter that JBG’s allocation
of 100% of taxes levied on lot 809 from the inception of the lease was improper.  Exhibit 44
at 1.  To correct the perceived overcharges, the contracting officer requested that JBG submit
a statement of correction and proper accounting for all prior tax billings within sixty calendar
days.  Id. at 2.  
JBG responded that same month, disputing GSA’s contention that it had incorrectly
calculated the real estate taxes owed under the lease.  Exhibit 46.  JBG stated that it was
owed 100% of the real estate taxes on the leased premises, including parking facilities, and
that real estate taxes were only to be excluded for those portions of the facility that did not
directly benefit the Government.  Because the Government had “leased” the entirety of the

CBCA 5506, 5715, 5849 10
parking garage, through the lease and the PMSA with DOT, JBG sought reimbursement of
all of the real estate taxes.  JBG also stated that it was not charging for real estate taxes under
the PMSA.  Exhibit 46 at 3.  
In August 2014, GSA’s contracting officer responded to JBG’s letter, stated GSA’s
interpretation of section 2.6.1, and renewed its request that JBG submit a statement of
correction and proper accounting for all prior year tax billings.  Exhibit 47 at 2.  The
contracting officer also requested that JBG submit a proposal for repayment to the
Government of the overbilled amount by September 15, 2014, and stated that failure to do
so would cause the Government to take offsets against future rents until the appropriate
amount is paid back.  Id.
IV. JBG’s Claims Under the Lease
In March 2015, JBG invoiced GSA for the second half of the 2015 tax year, April 1
to September 30, 2015, in the amount of $5,910,987.04.  Exhibit 55 at 2.  In September 2015,
JBG invoiced GSA for the first half 2016 BID taxes for October 1, 2015, to March 1, 2016,
in the amount of $49,847.12.  Id.  GSA did not pay either invoice by the due date of
November 29, 2015.  Id.  
JBG filed a certified claim with GSA’s contracting officer on January 15, 2016,
seeking the amount of $5,910,987.04 for the second half 2015 real property taxes and 
$49,847.12 for the first half 2016 BID taxes, plus interest.  On March 1, 2016, GSA issued
administrative action no. 57 and paid JBG $5,454,658.84, for the second half 2015 tax year,
a reduction of $456,328.20 from the amount JBG had sought.  Exhibit 56 at 1.  
JBG supplemented its claim on March 25, 2016, asserting its entitlement to
reimbursement of 100% of the real estate taxes, BID taxes, and PILOT payments on lot 809
since the inception of the lease, and the amount of $456,328.20 withheld by GSA for the
second half 2015 tax year plus interest.  Exhibit 59 at 14.  JBG contended that GSA’s
position, based upon one sentence of section 2.6.1, ignored the agreements between the
parties since the lease was signed in 2002, including DOT’s need to limit access to the
parking garage for security reasons and GSA’s reimbursement of property taxes in full since
2007.  JBG also asserted that GSA’s demand for repayment would be barred by the six-year
statute of limitations.  
On May 23, 2016, GSA issued administrative action no. 59 and paid JBG
$5,849,618.22 for the first half 2016 tax year, a reduction of $234,860.89 from the amount
JBG had sought.  Exhibit 60.  On September 7, 2016, GSA’s contracting officer issued a
decision denying JBG’s claim and:

CBCA 5506, 5715, 5849 11
mak[ing] a demand for a corrected detailed calculation for all prior year
billings [2007-2015] to the Government, consistent with the terms of the Lease
. . . . Lessor shall respond with its detailed accounting, no later than 30
calendar days after the date of issuance of this Decision . . . . Failure by Lessor
to provide a proper accounting of the tax years at issue will result in withholds
from the Service Agreement Rent of $3,506,456.03.
Exhibit 62 at 1.  JBG timely appealed, and the Board docketed the appeal as CBCA 5506.
On April 20, 2017, JBG filed another certified claim with GSA, asserting that, if
GSA’s interpretation of the tax provision is upheld by the Board, JBG is entitled to a refund
of (1) $66,751.60, the portion of any real estate tax refunds paid to GSA over the course of
the lease, attributable to the parking garage, and (2) $1,661,419 for the Government’s
financing savings share attributable to the real estate tax payments for the parking garage. 
CBCA 5849, Exhibit 144 at 2-3.10  The GSA contracting officer denied the claim, and JBG
timely appealed on September 12, 2017.  The Board docketed the new appeal as CBCA 5849
and consolidated it with CBCA 5506.    
V. JBG’s Claim Under the Parking Management Services Agreement
On February 9, 2017, JBG submitted a certified claim to DOT’s contracting officer
for the (1) $3,506,456.03 demanded by GSA, (2) $456,328 withheld by GSA from the second
half of 2015 tax year, (3) $234,860.80 withheld by GSA for the first half of the 2016 tax
year, (4) $222,669.42 withheld by GSA for the second half of the 2016 tax year, and (5) the
sum certain amount of real estate taxes withheld by GSA for the remainder of the lease. 
CBCA 5715, Exhibit 7 at 4.  JBG asserted that, if it is determined that GSA has overpaid for
real estate taxes under the lease, JBG is entitled to receive those same amounts under the
PMSA because of DOT’s breach of the duty of good faith and fair dealing and superior
knowledge in the negotiation of the PMSA.  Id. at 3-4.  The DOT contracting officer denied
JBG’s claim, stating that, pursuant to clause (k) in the PMSA, JBG should have accounted
for the real estate taxes attributable to the parking garage, and, “[i]f JBG did not consider
10 GSA originally sought dismissal of counts five and eight of JBG’s complaint
in CBCA 5506 for lack of jurisdiction because JBG had not included these allegations in its
original claim to the contracting officer.  GSA’s Motion for Partial Summary Relief and
Partial Dismissal (GSA’s Brief) at 7-8.  GSA acknowledged that the submission of the claim
that is now before the Board in CBCA 5849 renders this portion of its motion moot. 
Transcript at 6.  

CBCA 5506, 5715, 5849 12
those taxes when determining its parking services costs that is JBG’s error, not DOT’s.” 
CBCA 5715, Exhibit 8 at 2.  
JBG timely appealed the DOT contracting officer’s decision on April 24, 2017, and
the Board docketed the appeal as CBCA 5715.  On June 1, 2017, JBG filed a motion to
consolidate CBCA 5715 with CBCA 5506.  The Board held oral argument on the pending
motions on December 4, 2017.
Discussion
I. The Appeals Are Properly Consolidated
JBG seeks consolidation of its appeals from the GSA and DOT contracting officers’
decisions because the appeals present the same issue—whether JBG may receive
reimbursement of all of the real estate taxes paid on the property, including those assessed
on the parking garage.  Appellant’s Motion to Consolidate at 2.  GSA and DOT oppose
consolidation, arguing that the contracts are entirely separate and the appeals involve the
decisions of two different contracting officers at two different agencies.  GSA and DOT
further assert that they will be prejudiced by consolidation because they will have to expend
resources to be involved in the litigation of claims not related to their respective contracts. 
Under Board Rule 2(d), “[w]hen cases involving common questions of law or fact are
filed, the Board may: (1) [o]rder the cases consolidated; or (2) [m]ake such other orders
concerning the proceedings as are needed to avoid unnecessary costs or delay.”  Rule 2(d)
(48 CFR 6101.2(d) (2016)).  The Board “has considerable discretion to consolidate cases for
discovery and for trial.”  In Re EMC Corp., 677 F.3d 1351, 1360 (Fed Cir. 2012); see, e.g.,
A-Son’s Construction, Inc. v. Department of Housing & Urban Development, CBCA 3491,
et al., 15-1 BCA ¶ 36,089, at 176,202 (consolidating appeals involving two separate
contracts).  
Here, the Board finds that the appeals share common issues of fact and law.  The
appeals involve the same claim—JBG’s entitlement to reimbursement of real estate taxes for
the parking garage.  As the tenant agency, DOT has a direct interest in the outcome of the
litigation between GSA and JBG because it reimburses GSA for any real estate taxes paid
to JBG for the property and, presumably, would receive any refund of overpayments.  Given
this position, the Board would think that DOT would favor consolidation.  Instead, it appears
that the parties would like the Board to consider their respective agreements in isolation.  But
the PMSA follows from the lease and DOT’s position as the tenant agency under the lease
must be considered when evaluating the parties’ intentions with regard to the real estate tax
and parking provisions of the lease.  

CBCA 5506, 5715, 5849 13
The agencies’ concerns about spending resources in litigation of a consolidated case
are not sufficient to prevent consolidation.  It appears from our review of the record in
considering the motions for summary relief that the Board will need to consider the same
evidence in both appeals.  To “secure the just, informal, expeditious, and inexpensive
resolution” of this case, the Board finds consolidation appropriate.  Rule 1(c). 
II. The Plain Language of the Lease Precludes Payment of Real Estate Taxes
GSA moves for partial summary relief, urging the Board to find as a matter of law that
the plain language of the lease precludes payment of real estate taxes assessed on  the parking
structure, except for the 145 spaces included in the lease.  GSA’s Brief at 3.  
The Board “must interpret the contract in a manner that gives meaning to all of its
provisions and makes sense.”  McAbee Construction, Inc. v. United States, 97 F.3d 1431,
1435 (Fed. Cir. 1996).  “[I]f the ‘provisions are clear and unambiguous, they must be given
their plain and ordinary meaning’” and the Board “may not resort to extrinsic evidence to
interpret them.”  Id. (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).    
The relevant lease provisions are clear.  JBG was obligated to build a parking
structure that contained the number of spaces required by District of Columbia zoning laws. 
JBG was to provide 145 of these spaces to the Government as part of the consideration under
the lease and make the remaining spaces available for government employees to use on a
daily or monthly basis.  JBG was allowed to sell permits for the use of these spaces at prices
not to exceed the amounts set forth in the lease.  GSA and DOT reserved the right to impose
further security restrictions on access to the garage.  GSA would reimburse JBG for the real
estate taxes assessed against the 145 spaces, but not for any other real estate taxes assessed
on the parking garage.   
JBG offers numerous reasons why the Board should reject GSA’s interpretation.  JBG
argues that section 2.6.1 is ambiguous because the real estate tax provisions were amended
with SLA no. 5 to provide that GSA would pay 100% of the real estate taxes on the leased
premises, which, according to JBG, include the parking garage.  Appellant’s Opposition to
GSA’s Brief (Appellant’s Response Brief) at 28-29.  However, SLA no. 5 did not alter the
provision at issue.  “Where specific and general terms in a contract are in conflict, those
which relate to a particular matter control over the more general language.”  Hills Materials
Co. v. Rice, 982 F.2d 514, 517 (Fed. Cir. 1992) (citing Hol-Gar Manufacturing Corp. v.
United States, 351 F.2d 972, 980 (Ct. Cl. 1965)).  To the extent these provisions conflict, the

CBCA 5506, 5715, 5849 14
more specific provision about not paying taxes assessed against the parking garage controls
the more general provision regarding the leased premises. 
JBG argues that GSA construes the provision too narrowly and reads out other
portions of the parties’ agreement in the lease.  With the execution of the PMSA, wherein
DOT occupies the entire garage and sells the permits, JBG asserts it has been deprived of the
ability to recoup the real estate tax costs.  Appellant’s Response Brief at 18.  The Board
rejects GSA’s argument that the lease and PMSA are wholly separate contracts.  The PMSA
and the lease are to be construed together because the PMSA follows from and relies upon
the parking and security provisions of the lease.  However, the lease and the PMSA can be
read in harmony and still give meaning to the disputed provision.  It is the parties’ failure or
decision not to include the cost of the real estate taxes in the PMSA price, not the execution
of the agreement itself, that limits JBG’s recoupment of these taxes. 
JBG also asserts that the Government’s control of the entire parking garage through
operation of the lease and the PMSA creates a conflict within the provision itself, which
references site improvements that benefit the Government.  Since the Government enjoys the
benefit of the entire parking garage through the PMSA, JBG asserts that the rest of the
provision cannot be read to limit the tax payments.  Appellant’s Response Brief at 26.  This
argument would be a good reason why the lease should have been amended following the
determination that DOT wanted to restrict access to the garage.  But the parties did not
amend the lease, and the Board cannot interpret the lease as if they had.11     
JBG seeks to introduce extrinsic evidence that the price in the PMSA was negotiated
based upon the premise that GSA would pay the entirety of the real estate taxes under the
lease.  Appellant’s Response Brief at 23-24.  While this evidence is relevant to JBG’s claim
under the PMSA, the Board cannot resort to such evidence in interpreting the provision of
the lease that is clear on its face.  McAbee Construction, 97 F.3d at 1435.   
JBG argues that GSA altered this provision through its issuance of numerous
supplemental lease agreements with the payment of the real estate taxes.  Appellant’s
Response Brief at 20-21.  JBG focuses upon the language in the SLAs issued between 2007
and 2013, which stated the reimbursement was “in accordance with Paragraph 2.6 [tax
11 GSA asserts that JBG had “numerous opportunities” to amend the lease to
address this issue, GSA’s Brief at 5, but none of these opportunities arose after DOT decided
that it wanted to restrict further access to the parking garage.  Transcript at 40-41.  Similarly,
JBG was asked why the lease was not amended to address this issue; JBG responded that
“GSA declined” to amend it.  Id. at 65-66.     

CBCA 5506, 5715, 5849 15
reimbursement provisions] of the lease.”  See, e.g., Exhibit 35 at 1.  We do not countenance
GSA’s broad assertion that SLAs are administrative actions only and do not modify the lease
contract, an assertion belied by SLA no. 5, which on its face modified the lease.  Exhibit 5;
Woodies Holdings, LLC v. United States, 115 Fed. Cl.  204, 212 (2014).  However, none of
the SLAs issued for tax reimbursement payments changed the terms of the provision at issue. 
Again, we are left with the plain language of that provision.  
JBG also urges the Board to consider GSA’s payment of the full amount of the real
estate taxes for eight years as a course of performance that should inform the Board’s
interpretation of the provision at issue.  Appellant’s Response Brief at 21. 
“Contemporaneous interpretation, during performance and before the contract becomes the
subject of controversy, is of great, if not controlling weight, in determining the intended
responsibilities.”  John Jennings, Jr., GSBCA 7520, 87-2 BCA ¶ 19,824, at 100,303
(citations omitted).  Pre-dispute conduct can be considered, however, only if a provision is
ambiguous.  P.J. Dick, Inc. v. General Services Administration, GSBCA 12151, 96-1 BCA
¶ 27,955, at 139,641; Equitable Life Assurance Society of the United States, GSBCA 8909,
90-3 BCA ¶ 23,130, at 116,130.  Here, the provision is not ambiguous.  Therefore, while the
reasons for GSA’s payment of the full amount of the property tax for eight years remain
unexplained, that conduct cannot be relied upon to interpret this provision in a manner
contrary to its plain language.12
 
We grant GSA’s motion for partial summary relief, but leave for future proceedings
the determination of the amounts owed by the parties for real estate tax assessments.  
III. GSA’s Claim Is Barred in Part by the Statute of Limitations
JBG also moves for summary relief, asserting that GSA’s claim for repayment is
barred by the statute of limitations because it first arose in 2007 with the first reimbursement
of real estate taxes in excess of the amount permitted by the lease.  Appellant’s Motion for
Summary Relief (Appellant’s Brief) at 6. 
Under the Contracts Disputes Act (CDA), “[e]ach claim by a contractor against the
Federal Government relating to a contract . . . shall be submitted within 6 years after accrual
of the claim.”  41 U.S.C. § 7103(a)(4) (2012); see 48 CFR 33.206(a) (“Contractor claims
shall be submitted, in writing, to the contracting officer for a decision within 6 years after
accrual of a claim, unless the contracting parties agreed to a shorter time period.”).  These
12 The Board expects that GSA’s conduct may be explained as part of further
proceedings to determine any amounts owed to JBG under the PMSA.  

CBCA 5506, 5715, 5849 16
time limits are equally applicable to claims by the Government against a contractor.  See
Fluor Corp., ASBCA 57852, 14-1 BCA ¶ 35,472, at 173,930 (2013).  “A party’s failure to
submit a claim within six years of accrual is an affirmative defense to the claim.” 
Thinkglobal, Inc. v. Department of Commerce, CBCA 4410, 16-1 BCA ¶ 36,489, at 177,793. 
JBG pled statute of limitations as a defense to GSA’s claim.  Appellant’s Amended
Complaint at 22.  JBG bears the burden of proving that GSA’s claim is untimely. 
Thinkglobal, Inc., 16-1 BCA at 177,793. 
A claim accrues on “the date when all events, that fix the alleged liability on either the
Government or the contractor and permit assertion of the claim, were known or should have
been known.”  48 CFR 33.201.  “[O]nce a party is on notice that it has a potential claim, the
limitations period begins to run.”  Thinkglobal, Inc., 16-1 BCA at 177,793 (quoting Cardinal
Maintenance Service, Inc., ASBCA 56885, 11-1 BCA ¶ 34,616, at 170,610 (2010)).  “Claim
accrual does not depend on the degree of detail provided. . . . It is enough that the
[G]overnment knows, or has reason to know, that some costs have been incurred, even if the
amount is not finalized or a fuller analysis will follow.”  Raytheon Co., Space & Airborne
Systems, ASBCA 57801, et al., 13 BCA ¶ 35,319, at 173,377.  
GSA’s claim accrued in 2007, when it reimbursed JBG for 100% of the real estate
taxes for the property, despite the lease provision that provided real estate tax
reimbursements would not include parking spaces over the 145 spaces included in the lease. 
GSA should have known of the accrual of its claim based upon JBG’s reimbursement
requests, which included the property tax bills for the property, lot 802 and then lot 809. 
GSA knew that lot 809 included the parking garage.  The amount of the bill matched the
amount JBG sought as reimbursement.  GSA knew or should have known that its
reimbursement of the full amount of the property tax bills was in excess of the requirements
of the plain language of this provision.   Its claim arose when it reimbursed JBG the full
amount despite this provision.  
GSA argues that its claim is not barred because GSA first knew of the claim when it
received the income reports that JBG submitted to the District of Columbia tax assessment
office.  Prior to this point, GSA asserts, it “had only the documents JBG had previously
submitted, which did not include a breakdown of the components of the tax assessments or
any specific language that might alert GSA to the possibility that the requests included the
entire parking garage.”  GSA’s Opposition To Appellant’s Motion for Summary Relief
(GSA’s Response Brief) at 3-4.  As the Board has already found, GSA’s contention is belied
by JBG’s submissions, which included the real estate tax bill for lot 809 and GSA’s
acknowledgment that this lot included the parking garage.  Moreover, the income reports do
not show how these reports could have informed GSA of its claim because they do not
include the amounts of the tax assessments.  While these reports may have informed GSA’s

CBCA 5506, 5715, 5849 17
determination as to how much JBG was overcharging it for the real estate tax, the fact that
JBG sought and GSA paid 100% of the taxes owing on the property is what gives rise to
GSA’s claim.  The evidence of this overpayment is the real estate bills themselves. 
GSA asserts, in the alternative, that its claim survives under the continuing claims
doctrine.  GSA’s Response Brief at 6.  We agree in part.  This doctrine applies when a claim
is “inherently susceptible to being broken down into a series of independent and distinct
events or wrongs, each having its own associated damages.”  Brown Park Estates–Fairfield
Development Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997).  If “compensation
[is] due and payable periodically, a claim [arises] each time the government allegedly [fails]
to pay the proper amount.”  Id. (citing Burich v. United States, 366 F.2d 984, 986 (Ct. Cl.
1966)).  Contrary to the cases cited by JBG, GSA’s claim runs anew from each of its
overpayments.   See Friedman v. United States, 310 F.2d 381, 385 (Ct. Cl. 1962); Fluor
Corp., 14-1 BCA at 173,930.  Thus, GSA’s claim for amounts paid since September 2010
survives the statute of limitations.  
Decision
JBG’s motion for consolidation is GRANTED.  GSA’s motion for partial summary
relief is GRANTED.  JBG’s motion for summary relief is GRANTED-IN-PART.  The
Board will issue a separate order on further proceedings in these consolidated appeals.  
   Marian E. Sullivan          
MARIAN E. SULLIVAN
Board Judge
We concur:
  Jerome M. Drummond         Kyle Chadwick               
JEROME M. DRUMMOND KYLE CHADWICK
Board Judge Board Judge