CROSS-MOTIONS FOR SUMMARY RELIEF IN CBCA 5220 AND 5313 DENIED;
APPELLANT’S MOTION FOR SUMMARY RELIEF IN CBCA 5260 GRANTED IN
PART; RESPONDENT’S MOTION FOR SUMMARY RELIEF IN CBCA 5260
DENIED: July 14, 2017
CBCA 5220, 5260, 5313
COMMERCE PLAZA OFFICE PARTNERS, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Ralph E. Avery of Avery Law Firm, Washington, DC, counsel for Appellant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
Before Board Judges SOMERS, GOODMAN, and DRUMMOND. 
GOODMAN, Board Judge.
Appellant, Commerce Plaza Partners, LLC, has filed these consolidated appeals with
regard to claims arising from two leases between it and respondent, Department of Veterans
Affairs (VA).  The parties have filed cross-motions for summary relief.
Background
The Leases
Respondent entered into two leases of premises at 755 Commerce Drive, Decatur,
Georgia, a building owned by appellant.  Lease V247R-0056–the clinic lease–was for the


CBCA 5220, 5260, 5313 2
second floor and a small portion of the first floor.  The parties entered into the clinic lease
on May 1, 2006, for a term of five years.  The start date of the clinic lease was amended to
October 13, 2006, and the term was amended for one year, with yearly options thereafter. 
As a provision of the clinic lease, respondent received the use of an information technology
(IT) closet on the second floor to support respondent’s telecommunications and data
processing needs for the clinic.  During the course of administering the clinic lease, the
parties agreed that the lease would terminate on October 12, 2015.  Respondent vacated the
clinic, except for the IT closet, shortly before that date. 
Lease V247R-0586–the admin II lease–was for the third and seventh floors.  The
parties entered into the admin II lease on July 1, 2008, for a term of five years, later amended
to be an annual lease with one-year options.  The admin II lease also provided for appropriate
IT closet space to support respondent’s telecommunications and data processing needs on the
third and seventh floors.  During the course of the admin II lease, the parties agreed that it
would terminate on February 29, 2016.  Respondent vacated the premises held under the
admin II lease in mid-January 2016.
The Claims and Resulting Appeals
CBCA 5220
After the clinic lease expired, respondent continued to use the IT closet on the second
floor to support the admin II lease.  Respondent’s contracting officer issued a final decision
dated December 1, 2015, which found appellant entitled to an additional $2124.12 per month
for use of the IT closet, based on a rental rate of $22.84 per square foot for the ninety-three
square feet of the closet.  Appellant submitted a claim to respondent dated December 4, 2015,
asserting that respondent’s continued occupancy of the second floor IT closet made it a
holdover tenant for the space leased under the clinic lease for the remainder of the admin II
lease – from October 12, 2015, to February 29, 2016.  Respondent informed appellant by
letter dated January 12, 2016, that the contracting officer’s final decision of December 1,
2015, had disposed of its claim.  Appellant appealed the final decision of December 1, 2015,
on February 28, 2016, and the appeal was docketed as CBCA 5220. 
CBCA 5260
After respondent vacated the clinic, but for the IT closet, the contracting officer’s
representative, Ms. Jennifer Bonds, walked through the second floor space on behalf of
respondent and Mr. Timothy McKibans walked through the clinic space on behalf of
appellant.  Ms. Bonds presented her report of the walk-through to Mr. McKibans, and it was

CBCA 5220, 5260, 5313 3
signed by both.  Mr. McKibans noted his observations of damage on the report before he
signed it.  The report reads in relevant part:
The suites on the first and second floors are generally in good condition. 
There is damage to the walls where door numbers, soap dispensers, and hand
sanitizer dispensers were removed throughout the clinic.  Signs were removed
from doors leaving tape/film.  The damage throughout the clinic is considered
normal wear and tear except for the following areas:
[The following was handwritten, apparently by Mr. McKibans]
Mirrors remaining in place on one wall since removing them would be more
damage than letting them stay in place.
Major sheet rock damage thru out suite.  Almost all doors have screws in them 
and lobby floor scrach [sic] and gouged when moving out.
On November 5, 2015, appellant submitted a claim in the amount of $109,172 to
repair the damage to the second floor.  The contracting officer issued a final decision
allowing the claim, but only to the extent of $15,913.40, based on an independent
government estimate of the repair costs he received from the VA Engineering Department. 
Appellant appealed the final decision on March 24, 2016, and the appeal was docketed as
CBCA 5260.
CBCA 5313
On March 1, 2016, appellant filed a claim for constructive occupancy of the second
floor based on the theory that the second floor was not suitable for occupancy by another
tenant in the damaged state that respondent had left it.  This claim for was initially filed in
the amount of $94,187.70, and was continuing in nature, calculated using the rental rate of 
the recently expired clinic lease for a reasonable time in which repairs could be made.  The
contracting officer did not respond to the claim within sixty days as required by the Contract
Disputes Act, 41 U.S.C. § 7103 (f)(1) (2012).  Appellant treated its claim as denied and
appealed from the deemed denial on May 5, 2016.  The appeal was docketed as CBCA 5313. 
Discussion
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

CBCA 5220, 5260, 5313 4
fact.  P.J. Dick Inc. v. Department of Veterans Affairs, CBCA 3927, et al., 16-1 BCA
¶ 36,239 at 176,814.
CBCA 5220
Respondent’s contracting officer’s final decision in response to this claim
acknowledges that respondent continued to use the IT closet on the second floor after the
clinic lease expired and determined that respondent was obligated to pay appellant the fair
market value for the use of the IT closet–ninety-three square feet at $22.84 per square foot,
totaling $2124.12 per month for the remainder of the admin II lease–but not rental for the
entire second floor.  Appellant believes it is entitled to receive total rent for the second floor
for the remainder of the admin II lease because respondent’s use of the IT closet rendered
the entire second floor un-tenantable.
While respondent is willing to compensate appellant for the use of the IT closet, there
remains a question of material fact as to whether its continued use by respondent rendered
the entire second  floor un-tenantable, i.e, whether another tenant could not use the IT closet
concurrently with respondent, or whether another IT closet could be constructed on the
second floor for use by another tenant.  See, e.g., Cafritz Co. v. General Services
Administration, GSBCA 13525-REM, 98-2 BCA ¶ 29,936 (where lessor fails to prove that
the lessee’s actions affected the lessor’s use and occupancy).  Accordingly, we deny the
parties’ cross-motions for summary relief in this appeal.
CBCA 5260
There is no dispute that during inspection of the vacated premises of the clinic lease,
the party representatives jointly inspected the premises and documented damage in various
areas.  Appellant asserts that the parties agreed that there was damage to the premises that
exceeded ordinary wear and tear.  Appellant further asserts that because the contracting
officer ultimately determined that damage had value–although less than appellant’s
evaluation–respondent is responsible for all the damage noted and appellant should be
granted summary relief on the issue of liability, with the determination of damages reserved
for a hearing on the merits.  
Respondent asserts that while the contracting officer rendered a decision valuing the
damage, that decision did not obligate respondent to pay for any damage,1 and further asserts
1  “Because the findings of fact in the contracting officer’s final decision are not
binding on the parties, the contractor bears the burden of proving by preponderant evidence
‘the fundamental facts of liability and damages de novo.’”  Bay Shipbuilding Co. v.

CBCA 5220, 5260, 5313 5
that since the damage was to tenant improvements initially paid for by respondent,
respondent owned the tenant improvements and was not responsible for the damage, as it
could have removed the tenant improvements if it wished to do so.
While there is no explicit restoration clause in the lease, “[e]very lease contains a
provision, implied if not expressed, that a tenant will not commit waste by damaging the
property, and therefore will, when it vacates leased space, return the space to the landlord in
the same condition in which it received that space, reasonable wear and tear excepted.” 
A & B Limited Partnership v. General Services Administration, GSBCA 15208, 04-1 BCA
¶ 32,439, at 160,504-05 (2003) (citing United States v. Bostwick, 94 U.S. 53, 65-66 (1876)). 
Thus, respondent had an obligation to repair the tenant improvements to the extent that any
damage exceeded reasonable wear and tear, even though the payment for the tenant
improvements was included in the rent.
Accordingly, in this appeal we grant appellant’s motion for summary relief as to
respondent’s liability for damage that exceeds reasonable wear and tear, and deny
respondent’s motion for summary relief.  Appellant’s motion addressed the issue of
respondent’s liability, and did not address quantum.  Questions of material fact remain as to
whether the alleged damage to each item exceeded reasonable wear and tear, and therefore
the amount of damages, if any, remains to be determined.
CBCA 5313
Appellant’s continuing claim for rent for constructive occupancy of the second floor
is based on the theory that the second floor was not suitable for occupancy by another tenant
in the alleged damaged state that respondent had left it, and will remain so until respondent
pays for repairs.  As stated above with regard to CBCA 5260, questions of material fact
remain as to whether the alleged damage was beyond reasonable wear and tear.  If so,
additional questions of material fact exist as to whether the cumulative effect of such damage
rendered the premises un-tenantable, and whether appellant attempted to market the premises
for lease to mitigate damages.  Accordingly, we deny the parties’ cross-motions for summary
relief in this appeal.
Department of Homeland Security, CBCA 54, et al., 07-2 BCA ¶ 33,678, at 166,743 
(quoting Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc). 

CBCA 5220, 5260, 5313 6
Decision
In CBCA 5220 and 5313, the parties’ cross-motions for summary relief are DENIED. 
In CBCA 5260, appellant’s motion for summary relief is GRANTED IN PART as to
liability, with damages, if any, to be ascertained in further proceedings, and respondent’s
motion for summary relief is DENIED. 
____________________
ALLAN H. GOODMAN
Board Judge
We concur:
______________________ _______________________
JERI KAYLENE SOMERS JEROME M. DRUMMOND
Board Judge Board Judge