MOTIONS FOR SUMMARY RELIEF DENIED:  November 12, 2008
 
CBCA 803
 
FIRST FLIGHT LIMITED PARTNERSHIP,
 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Edward V. Gregorowicz, Jr. of The Law Offices of Edward V. Gregorowicz, Jr., 
Fairfax, VA, counsel for Appellant. 
Heather R. Cameron and Dalton F. Phillips, Office of General Counsel, General 
Services Administration, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), SOMERS , and GOODMAN. 
SOMERS, Board Judge. 
This appeal involves a dispute arising out of a lease for warehouse storage space 
between appellant, First Flight Limited Partnership (First Flight), and the General Services 
Administration (GSA or the Government).  The leased space at issue was used by the 
Department of State (State Department) primarily for the long-term storage of household 
effects and related items.  Over the course of approximately twelve months, GSA withheld 
$481,398.60 in rent based upon its determination that First Flight had failed to prevent roof 
leaks within a portion of the warehouse area of the leased premises. First Flight contends 
that GSA breached the lease agreement by withholding the rent.  Both parties have filed 
motions for summary relief.  We deny the motions for the reasons set forth below.  

 
     
 
    
 
 
  
         
   
 
 
  
       
    
  
    
 
 
  
 
       
  
     
       
  
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Background 
GSA and First Flight entered into lease no. GS-03B-40113 on August 19, 1994. 
Under the terms of the lease, the Government obtained the use of 195,500 net usable square 
feet (NUSF) 1  of warehouse space, 1500 net usable square feet of office space, and 
fifteen outside parking spaces at the complex known as the Topflight Airpark, with 
occupancy by the State Department. 
2 The Airpark is located in Hagerstown, Maryland. 
Appeal File, Exhibit 3. The lease term ran from February 16, 1995, through February 15, 
2005.  Id., Exhibit 5.  The lease provided for annual rent in the amount of $906,200 at a rate 
of $75,516.66 per month, plus annual operating cost and real estate tax adjustments.  Id. Per 
the lease, the Government had the option to renew the lease for two five-year terms, at a rate 
of $5.80 per NUSF, for an annual rent of $1,142,600, plus annual operating cost and real 
estate tax adjustments.  Id., Exhibit 3, ¶ 5.  The Government used the leased premises for 
storage of household goods.  Appellant’s Statement of Uncontested Facts (ASUF) ¶ 2; 
Respondent’s Statement of Genuine Issues and Statement of Uncontested Facts (RSGI) ¶ 2. 
The leased premises are part of a complex featuring over one million square feet of 
multiple connected buildings built in the 1950’s. AUSF ¶ 6.  The roof has apparently leaked 
from the beginning of this lease.  Appeal File, Exhibit 4.  From the start of the lease, when 
the roof would leak, the Government would notify First Flight of the leaks, and First Flight 
would repair the leaks.  ASUF ¶ 24; RSGI ¶ 24.  The parties disagree about the extent of the 
roof leaks.  Appellant characterizes the roof leaks as “occasional” while respondent 
describes them as “continuous and unabated.”  Since the commencement of the lease in 
1995, the State Department has received four claims for water-damaged goods, totaling 
$2405.  ASUF ¶ 44; RSGI ¶ 44. The Government contends, however, that the Government 
limited greater potential damages by moving crates from under roof leaks or by unpacking 
and repacking boxes.  RSGI ¶ 44.  
Early in the initial lease term, in February 1996, GSA informed First Flight that, due 
to the age of the roof and the numerous roof leaks that were occurring, the roof should be 
replaced.  Appeal File, Exhibit 21. First Flight acknowledged that the roof should be 
1 “Net usable space” is the method of measurement for the area for which GSA 
pays a square foot rate.  Appeal File, Exhibit 3, ¶ 3.8.  
2 Under a separate lease, GSA leased an additional 171,950 usable square feet 
of adjacent warehouse space and 3,560 usable square feet of mezzanine space at Topflight 
Airpark.  ASUF ¶ 1, n. 1.  

  
 
 
  
 
 
    
 
  
  
  
 
    
      
 
 
     
  
3 CBCA 803 
replaced at that time.  Id., Exhibit 24.  Over the years, GSA would notify First Flight that if 
the roof was not repaired, it would enforce paragraph 15 of the lease and would begin 
deducting costs for roof repair from the rental payments.  Respondent’s Statement of 
Uncontroverted Facts (RSUF) ¶¶ 4, 9, 10-13; Appellant’s Reply and Opposition to 
Respondent’s Opposition to Appellant’s Motion for Summary Relief, or, in the Alternative 
Motion for Partial Summary Relief (Respondent’s Opposition) at 8. Paragraph 15, entitled 
“Failure in Performance,” states:   
The covenant to pay rent and the covenant to provide any 
service, utility, maintenance, or repair required under this lease 
are interdependent.  In the event of any failure by the Lessor to 
provide any service, utility, maintenance, repair or replacement 
required under this lease the Government may, by contract or 
otherwise, perform the requirement and deduct from any 
payment or payments under this lease, then or thereafter due, the 
resulting cost to the Government, including all administrative 
costs.  If the Government elects to perform any such 
requirement, the Government and each of its contractors shall 
be entitled to access to any and all areas of the building, access 
to which is necessary to perform any such requirement, and the 
Lessor shall afford and facilitate such access.  Alternatively, the 
Government may deduct from any payments under this lease, 
then or thereafter due, an amount which reflects the reduced 
value of the contract requirement not performed.  No deduction 
from rent pursuant to this clause shall constitute a default by the 
Government under this lease. These remedies are not exclusive 
and are in addition to any other remedies which may be 
available under this lease or at law. 
Appeal File, Exhibit 3.      
The roof continued to leak even in the parts of the warehouse where First Flight 
completely replaced the roof, although not as much.  ASUF ¶ 25; RSGI ¶ 25.  Thus, on 
November 29, 2004, representatives from GSA and the State Department met to discuss the 
roof leaks.  The meeting focused upon an 81,344 square-foot area of the building where the 
roof had not yet been replaced and which respondent contends leaked more than the other 
areas in the warehouse. ASUF ¶¶ 28, 29; RSGI ¶ 29.  GSA decided that for every building 
systems failure, disrepair, and/or negligence of the landlord, GSA would “issue a resulting 
cure-letter [sic] with a suspense date for each occurrence.  Failure of the landlord to affect 
[sic] a cure by the due date will result in GSA withholding funds from the rent for the 

   
 
  
  
    
 
    
 
      
   
      
      
    
 
 
 
 
         
4 CBCA 803 
Government to use in implementing the cure.” Appeal File, Exhibit 175.  The memorandum 
stated, in part, as follows:  
If the “1st block” of space continues to be the source of 
problematic roof leaks, the Program Manager will relocate 
existing household effects storage from the affected area to the 
“2nd block” of space where roof leaks are not a problem.  
Id. 
The Government exercised the first of its renewal options on January 7, 2005, 
extending the lease term for five years beginning on February 16, 2005, and ending on 
February 15, 2010.  Appeal File, Exhibit 176. On February 3, 2005, after exercising the first 
renewal option, the contracting officer wrote a letter to First Flight, requesting First Flight 
to perform “corrections” to the roof and to provide GSA with a “certification by a registered 
Professional Engineer that the roof has been repaired or replaced . . . by February 23, 2005.” 
Id., Exhibit 179.  First Flight responded on February 11, 2005, and stated that it would 
continue remedial patching and repairs to the roof during the winter, and indicated that it 
planned to re-roof the section in the spring, as soon as weather would permit.  Id., Exhibit 
180.  
After receiving the letter, the contracting officer decided to vacate the 81,244 square 
feet of space, and advised the State Department of this decision by electronic mail dated 
February 14, 2005.  Appeal File, Exhibit 181. On February 28, 2005, the contracting officer 
informed First Flight that the 81,344 square-foot section was “being vacated,” that the 
Government would not pay rent on the 81,344 square-foot section, and that the Government 
would further deduct $14,621 in “administrative costs” from the rent.  Id., Exhibit 184.  The 
Government moved the goods stored in storage crates from the 81,344 square-foot area to 
other areas within the building.  Appellant asserts that after the Government removed the 
goods, it continued to use the space until May 18, 2005, “for trucking operations.” 
Appellant’s Exhibit 2 at 181-82.  GSA does not dispute that the Government used at least 
some portion of the 81,344 square-foot area from March 23, 2005, until the contracting 
officer placed tape around the area on May 18, 2005, but asserts that it could not use the area 
to store household goods during that time period.  RSGI ¶¶ 59, 61.  
GSA did not pay rent on 81,344 square feet of the leased premises from March 23, 
2005, to March 10, 2006, a total of $481,398.60. ASUF ¶ 4; RSGI ¶¶ 4, 31. Included in the 
total was $7976.52 for administrative costs, which GSA contends represents the 
administrative costs associated with moving the stored goods from the 81,344 square-foot 

 
      
  
     
      
         
      
 
 
       
 
   
       
        
   
5 CBCA 803 
area to other areas within the warehouse.  Id.  GSA did not incur additional storage costs for 
the goods removed from the 81,344 square-foot area.  ASUF ¶¶ 35, 36; RSGI ¶¶ 36.  
The contracting officer informed the State Department that it should not move into 
any portion of the 81,344 square-foot space until the entire roof was repaired and certified. 
Appeal File, Exhibit 196. On December 28, 2005, First Flight notified the contracting 
officer that the roofing project was complete.  Id., Exhibit 247.  In a letter dated January 9, 
2006, the contracting officer responded to First Flight and stated that “rent will not be paid 
. . . until . . . receipt of Certification by a Registered Professional Engineer that the roof has 
been repaired or replaced.”  Id., Exhibit 203.  First Flight provided a letter from a roof 
manufacturer confirming that the roof replacement would keep the building in a dry, 
watertight condition.  Id., Exhibit 249. After extensive correspondence and conversations 
between First Flight and the contracting officer, the contracting officer agreed to reinstate 
the rent after First Flight purchased a warranty in lieu of providing a certification by a 
registered professional engineer.  Appellant’s Motion for Summary Relief, or, in the 
Alternative Motion for Partial Summary Relief, Exhibit 2 (Deposition of the Contracting 
Officer (May 21, 2008) at 170, 174-75); Appeal File, Exhibits 249, 251, 253; ASUF ¶ 80; 
RSGI ¶ 80. First Flight provided the warranty on March 10, 2006.  ASUF ¶¶ 81, 82, 83; 
RSGI ¶¶ 82, 83. At that point, the Government reinstated rent payments.  ASUF ¶ 82; RSGI 
¶ 82.  In sum, GSA withheld a total of $481,398.60 from First Flight.  
In addition to paragraph 15, detailed above, the lease included the following relevant 
clauses:  
Miscellaneous Clause ¶ 3.12 - Adjustment for Vacant Premises 
If the Government fails to occupy any portion of the leased 
premises or vacates the premises in whole or in part prior to 
expiration of the firm term of the lease, the rental rate shall be 
reduced.  
The rate shall be reduced by that portion of the costs per square 
foot of operating expenses not required to maintain the space. 
Said reduction shall occur after the Government gives 30 days 
prior notice to the Lessor, and shall continue in effect until the 
Government occupies the premises or the lease expires or is 
terminated.  
Appeal File, Exhibit 3.  An identical clause is located at general clause ¶ 34. 

  
  
  
 
 
 
 
    
 
 
  
6 CBCA 803 
General Clause ¶ 7 - No Waiver: 
No failure by either party to insist upon the strict performance 
of any provision of this lease or to exercise any right or remedy 
consequent upon a breach thereof, and no acceptance of full or 
partial rent or other performance by either party during the 
continuance of any such breach shall constitute a waiver of any 
such breach of such provision.  
. . . . 
General Clause ¶ 9 - Mutuality of Obligation: 
The obligations and covenants of the Lessor, and the 
Government’s obligation to pay rent and other Government 
obligations and covenants, arising under or related to this Lease, 
are interdependent.  The Government may, upon issuance of 
and delivery to Lessor of a final decision asserting a claim 
against Lessor, set off such claim, in whole or in part, as against 
any payment or payments then or thereafter due to the Lessor 
under this lease. No setoff pursuant to this clause shall 
constitute a breach by the Government of this lease.  
General Clause ¶ 10, Delivery and Condition: 
(a) Unless the Government elects to have the space occupied in 
increments, the space must be delivered ready for occupancy as 
a complete unit.  The Government reserves the right to 
determine when the space is substantially complete.  
(b)  If the premises do not in every respect comply with the 
provisions of this lease the Contracting Officer may, in 
accordance with the Failure in Performance clause of this lease, 
elect to reduce the rent payments.  
. . . . 
General Clause ¶ 13, Effect of Acceptance and Occupancy: 

 
       
 
  
 
 
  
  
 
  
    
 
  
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Neither the Government’s acceptance of the premises for 
occupancy, nor the Government occupancy thereof, shall be 
construed as a waiver of any requirement of or right of the 
Government under this Lease, or as otherwise prejudicing the 
Government with respect to any such requirement or right.  
. . . . 
General Clause ¶ 16, Default by Lessor during the Term: 
Each of the following shall constitute a default by Lessor under 
this lease:  
(1) Failure to maintain, repair, operate or 
service the premises as and when specified in this 
lease, or failure to perform any other requirement 
of this lease as and when required provided any 
such failure shall remain uncured for a period of 
thirty (30) days next following Lessor’s receipt of 
notice thereof from the Contracting Officer or an 
authorized representative.  
(2) Repeated and unexcused failure by Lessor 
to comply with one or more requirements of this 
lease shall constitute default not withstanding that 
one or all such failures shall have been timely 
cured pursuant to this clause.  
. . . . 
General Architectural Clause § 4.3 - Building Systems 
Certification: 
Whenever requested, the Lessor shall furnish at no cost to GSA 
a certification by a registered Professional Engineer(s) that the 
building and its systems as designed and constructed will satisfy 
the requirements of this lease.  
Id. 

  
    
 
 
 
 
     
    
  
 
    
   
      
  
  
    
 
  
  
 
 
8 CBCA 803 
Discussion 
Each party has asked the Board to resolve this appeal by granting its own motion for 
summary relief and denying the opposing party’s motion. Resolving a dispute on a motion 
for summary relief is appropriate when the moving party is entitled to judgment as a matter 
of law, based on undisputed material facts.  The moving party bears the burden of 
demonstrating the absence of genuine issues of material fact.  All justifiable inferences must 
be drawn in favor of the nonmovant.  Celotex Corp. v. Catrett, 477 U.S. 317 (1986); 
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242 (1986).  When both parties move for 
summary relief, each party’s motion must be evaluated on its own merits and all reasonable 
inferences must be resolved against the party whose motion is under consideration. First 
Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); DeMarini Sports, 
Inc. v. Worth, Inc ., 239 F.3d 1314, 1322 (Fed. Cir. 2001).  The mere fact that the parties 
have cross-moved for summary relief does not impel a grant of one of the motions. 
California v. United States, 271 F.3d 1377, 1380 (Fed. Cir. 2001).  Once the non-moving 
party offers enough evidence to establish that its position could prevail, summary relief must 
be denied.  Second Street Holdings LLC v. Securities and Exchange Commission, 
CBCA 1056, 08-2 BCA ¶ 33,913; Chanhassen Venture, Ltd. v. Department of Commerce, 
CBCA 789, 08-1 BCA ¶ 33,826.  
First Flight asserts that GSA improperly relied upon paragraph 15 of the general 
clauses of the lease to withhold rent.  Appellant’s Memorandum of Points and Authorities 
in Support of Its Motion at 20.  First Flight argues, in pertinent part, that “the Lease does not 
permit the Government to withhold rent . . . without using that money to remedy the lease 
requirement allegedly not performed”; that “the Lease does not permit the Government to 
withhold 100% of the rent without any reasonable relationship between the amount withheld 
and the value of the alleged failure in performance by the lessor”; that “the Lease does not 
permit the Government to terminate the Lease to remedy a Lease requirement allegedly not 
performed” or “fail to pay rent for a portion of the 81,344 square feet” if a portion of the 
space is tenantable; and that “the Lease does not permit the Government to withhold 100% 
of rent . . . pending submission of a ‘certification’ or warranty” as may be requested by the 
Government under section 4.3 of the SFO contained in the lease.  Id. 
The Government contends that First Flight had a duty to maintain the leased premises 
in good repair and condition per paragraph 14 of the lease. It argues that, contrary to First 
Flight’s assertions, paragraph 15 of the lease did not require GSA to repair and then deduct 
the cost of repairs from the lease in the event that the lessor fails to maintain the premises 
properly.  Respondent’s Opposition at 9-10. Rather, the Government states that because 
First Flight failed to prevent roof leaks from occurring over that area, which impaired the 

    
 
  
    
       
 
    
 
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9 CBCA 803 
State Department’s ability to use the leased premises for their intended purpose, i.e., the 
storage of household goods, the Government was “constructively evicted” from the 
81,344 square-foot area.  Id. at 11.  GSA claims that it relies upon the section of 
paragraph 15 which permits the Government to “deduct from any payments under this lease, 
then or thereafter due, an amount which reflects the reduced value of the contract 
requirement not performed.” Id. at 10. As to the contracting officer’s requirement that First 
Flight provide a certification before resuming rent payments, the Government claims that 
it required the certification as assurance that the roof had been properly repaired or replaced 
prior to reoccupying the space.  Id. at 12.  
Both parties agree that the lease agreement requires First Flight to maintain the roof 
and the roof structure so that the premises would be in good repair and condition.  The issue, 
however, of whether or not the roof leaks caused the leased premises to be untenantable, 
which might be a cause for default by the lessor under general clause ¶ 16 of the lease, needs 
to be resolved on a more fully developed record. Default by the lessor could result in the 
Government’s entitlement to reduce rent payments under various lease provisions in the 
contract, including general clause ¶¶ 10, 13, and 15.  Because of the disagreement as to 
material facts, the ultimate responsibility of the parties arising therefrom cannot be resolved 
on summary relief.  
Decision 
The motions for summary relief are DENIED. 
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
STEPHEN M. DANIELS ALLAN H. GOODMAN 
Board Judge Board Judge