MOTION TO DISMISS DENIED:  November 3, 2009 
CBCA 1680 
SAGE WESTERN INVESTMENTS, 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Clayton E. Bailey and Alexander M. Brauer of Baker & McKenzie LLP, Dallas, TX, 
counsel for Appellant. 
Jay N. Bernstein, Office of General Counsel, General Services Administration, 
Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), POLLACK , and GOODMAN . 
GOODMAN , Board Judge. 
Respondent, the General Services Administration (respondent or GSA), moves the 
Board to dismiss the complaint filed in this appeal by appellant, Sage Western Investments 
(appellant), on the grounds that the causes of action pled by appellant in its complaint fail to 
state claims upon which relief can be granted by this Board, or state claims over which this 
Board lacks jurisdiction.  Appellant has filed a response to the motion, and respondent has 
filed a reply.  We deny the motion. 

 
 
    
 
   
      
    
   
 
       
 
 
    
 
    
 
 
   
2 CBCA 1680 
Background 
Appellant leases a building to respondent.  In its complaint, appellant alleges that it 
performed its contractual obligations under the lease by providing overtime heating, 
ventilation, and air conditioning (HVAC) services requested by respondent at the rate set 
forth in the lease, but that respondent breached its contractual obligations by refusing to pay 
for the overtime HVAC services it ordered, thereby causing appellant actual damages.  In 
addition to seeking recovery for breach of contract, appellant alternatively seeks recovery 
based upon quantum meruit, unjust enrichment, and promissory estoppel.  While appellant 
did not plead a specific cause of action for contractual relief in its complaint, it does allege 
the existence of the clause of the lease that it believes entitles it to payment of its claim 
(Appeal File, Exhibit 1, page 5) and bases the quantum of its claim on that clause.  Complaint 
¶ 4. The certified claim relies upon this clause and calculates the claim accordingly. 
Complaint, Exhibit 2. 
Respondent asserts in its motion that the cause of action for breach of contract cannot 
be maintained because there is a clause in the lease which authorizes changes by the 
contracting officer and thereby affords a remedy of contractual relief.  Consequently, even 
if the contracting officer directed appellant to operate the HVAC on a 24/7 basis (which GSA 
disputes), such directive did not constitute a breach of contract as claimed in the complaint, 
but rather a change that could be directed by the contracting officer under specific clauses 
in the lease.  Respondent further asserts that appellant cannot maintain its causes of action 
for quantum meruit, unjust enrichment, and promissory estoppel because pursuit of these 
equitable remedies is precluded by the existence of an express contract between the parties, 
which deals with the subject matter that forms the basis for these claims, and which therefore 
establishes the remedies, if any, recoverable by appellant should it be so entitled. 
Appellant counters respondent’s arguments as to breach of contract by acknowledging 
that the lease contained a clause which allowed the contracting officer to order the services 
that were in fact ordered, but emphasizing that the breach was respondent’s alleged refusal 
to pay for such services, a remedy for which is not provided for in the contract.  Additionally, 
with regard to the other causes of action for quantum meruit, unjust enrichment, and 
promissory estoppel, appellant asserts, inter alia , that a party is entitled to plead alternative 
and even inconsistent theories of recovery. 
Discussion 
Respondent’s motion seeks to dismiss the four causes of action in the complaint. 
Respondent relies in part upon pre-Contract Disputes Act case law for the assertion that we 
must dismiss causes of action pled upon breach of contract if there are applicable contractual 

 
 
 
 
 
  
      
 
   
  
  
 
   
     
3CBCA 1680 
relief clauses in the contract. 1   In GEM Engineering Co. v. Department of Commerce , 
GSBCA 13566-COM, 97-1 BCA ¶ 28,637 (1996), a decision of one of our predecessor 
boards, GSA made a similar motion to dismiss, relying upon pre-Contract Disputes Act case 
law,  Edward R. Marden Corp. v. United States , 194 Ct. Cl. 799 (1971).  The General 
Services Administration Board of Contract Appeals (GSBCA) held: 
The Marden decision is not applicable. At the time that decision was written, 
boards of contract appeals could grant contractual relief pursuant to specific 
contract provisions, but claims for breach of contract damages were within the 
jurisdiction of the Court of Claims.  The Contract Disputes Act of 1978, 41 
U.S.C. §§ 601-613, broadened the scope of the boards' jurisdiction to “all 
claims . . . relating to a contract,” id. § 605, and appellants may therefore plead 
both contractual relief and breach of contract as alternative theories at this 
board, as well as other boards.  See, e.g. , Tefft, Kelly and Motley, Inc. , GSBCA 
6562, 83-1 BCA ¶16,177 (1982).  That we might ultimately find that the claim 
may be redressable under the Changes clause does not bar appellant from 
pleading an alternative theory of recovery and is not grounds to dismiss the 
claim for breach of implied warranty.  The motion to dismiss the claim for 
breach of implied warranty of sufficiency of the plans and specifications is 
denied. 
97-1 BCA at 142,980. 
 In GEM Engineering, the GSBCA also set forth the standard for evaluating the merits 
of a motions to dismiss before the Board: 
In addressing respondent’s contention that appellant has failed to state a claim 
upon which relief may be granted, we are mindful of the presumptions 
applicable to this motion. The standard for measuring whether dismissal of an 
action on this basis is appropriate has been stated as follows: 
1   Respondent cites Hoel-Steffen Construction Co. v. United States. , 197 Ct. Cl. 561 
(1972) and Utley-James, Inc. v. United States , 14 Cl. Ct. 804 (1988), which bar breach claims 
if an administrative remedy is available under the contract. Both decisions involve pre-
Contract Disputes Act contracts and the jurisdictional scheme which existed before the 
passage of the Contract Disputes Act.  Other court and board cases cited by respondent 
simply hold that if recovery pursuant to a contractual clause is available, recovery will be 
allowed as contractual relief rather than as a breach of contract. 

    
 
     
  
               
  
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4 CBCA 1680 
As a general rule, a motion to dismiss for failure to state a claim 
is viewed with disfavor and should rarely be granted.  Therefore, 
the question is whether in the light most favorable to plaintiff 
and with every doubt resolved in plaintiff’s behalf, the 
complaint states any claim for relief. [It] . . . should be denied 
“unless it appears beyond a doubt that the plaintiff can prove no 
set of facts in support of his claim which would entitle him to 
relief.” 
Balboa Insurance Co. v. United States , 3 Cl. Ct. 543, 545 (1983) 
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)),  accord 
Embarcadero Center Ltd. , GSBCA 8526, 89-1 BCA ¶ 21,362. 
97-1 BCA at 142,980-81. 
Appellant is therefore free to plead alternative and even inconsistent theories of 
recovery, as it has done in the instant case. Appellant’s cause of action for breach is not 
barred by the fact that there are contractual clauses which may afford relief, nor is appellant 
barred from seeking recovery pursuant to alternative, inconsistent theories.  It does not 
appear beyond doubt that appellant can prove no set of facts in support of its claim.  The 
pleadings are sufficient to permit appellant to pursue recovery of its claim. 
Decision 
Respondent’s motion to dismiss the complaint is DENIED . 
ALLAN H. GOODMAN 
Board Judge 
We concur: 
STEPHEN M. DANIELS HOWARD A. POLLACK 
Board Judge Board Judge