GRANTED IN PART:  August 27, 2009 
CBCA 1196 
BOWERS INVESTMENT CO., LLC, 
Appellant, 
v.
 
DEPARTMENT OF TRANSPORTATION, 
Respondent. 
Brian W. Craver of Person & Craver LLP, Washington, DC, counsel for Appellant. 
Glenn H. Brown, Office of the Regional Counsel, Federal Aviation Administration, 
Department of Transportation, Anchorage, AK, counsel for Respondent.
 
Before Board Judges SOMERS , GILMORE, and STERN.
 
STERN, Board Judge.
 
This is an appeal by Bowers Investment Co., LLC (Bowers or appellant) from the 
decision of a contracting officer for the Federal Aviation Administration (FAA or 
respondent) denying appellant’s claims arising out of a lease between the parties. 
At the parties’ request, the Board did not conduct a trial in this proceeding.  Evidence 
is composed solely of the documents submitted by the parties.  In numerous instances the 
Board needed to weigh contradictory declarations of witnesses. 

                    
 
    
 
          
     
  
    
 
   
      
         
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The Contract 
Bowers and the FAA entered into a lease agreement for 693 square feet of office 
space and 12,587 square feet of warehouse space in a building owned by Bowers in 
Fairbanks, Alaska. The lease began on October 1, 1993. The lease was renewable year to 
year at the option of the FAA, through September 30, 2004.  Appeal File, Exhibit 10.  The 
parties extended the term of the lease on several occasions.  The lease, with extensions, was 
in effect from October 1, 1993, to September 30, 2006.  
The agreement provided: “The Government shall pay the lessor annual rent of 
$256,291.20 . . .  at the rate of $21,357.60 . . . per month in arrears.” Beginning in the sixth 
year the monthly rate was to increase to $22,021.60.  Appeal File, Exhibit 10. 
The FAA paid for numerous build-outs or changes that were made to the premises 
prior to occupancy.  The payment for build-out costs was made separate from the rental 
payments due under the lease.  Rental payments were to be made by the FAA from the date 
of occupancy.  Appeal File, Exhibit 35. 
Modification 3 to the lease provided for payment of certain of the build-out costs and 
adjusted the amount of the monthly rent.  Modification 3 stated: 
Occupancy of the office space described in the above cited lease 
agreement took place on January 3, 1994.  Lease payments shall commence 
beginning on that date and shall continue in arrears throughout the life of the 
lease agreement on a recurring basis and in accordance with Article 5 of the 
basic agreement. . . . 
Each monthly payment shall be in the amount of $19,509.60 fully 
serviced as provided for in Modification 1 of the above cited agreement. 
Appeal File, Exhibit 36. 
Modification 7 to the lease, effective October 1, 2004, extended the lease through 
September 30, 2005, at the monthly rental of $20,982.50. This modification also granted 
the FAA the option to extend the lease through September 30, 2006, at the same monthly 
rent.  Appeal File, Exhibit 72. 
In addition, the lease contained the following payment provisions: 

                                                                                                      
   
 
   
  
 
   
     
  
 
  
             3 CBCA 1196 
PROMPT PAYMENT (APR 1989) 
The Government will make payments under the terms and conditions 
specified in this clause.  Payment shall be considered as being made on the 
day a check is dated or an electronic funds transfer is made.  All days referred 
to in this clause are calendar days, unless otherwise specified. 
(a) Payment due date. 
(1) Rental payments. Rent shall be paid monthly in arrears 
and will be due on the first workday of each month, and only as provided for 
by the lease. 
(I) When the date for commencement of rent falls on 
the 15th day of the month or earlier, the initial monthly rental payment under 
this contract shall become due on the first workday of the month following the 
month in which the commencement of the rent is effective. 
(II) When the date for commencement of rent falls 
after the 15th day of the month, the initial monthly rental payment under this 
contract shall become due on the first workday of the second month following 
the month in which the commencement of the rent is effective. 
. . . . 
(c) Interest Penalty. 
(1) An interest penalty shall be paid automatically by the 
Government, without request from the Contractor, if payment is not made by 
the due date. 
(2) The interest penalty shall be at the rate established by the 
Secretary of the Treasury under Section 12 of the Contract Disputes Act of 
1978 (41 U.S.C. 611) that is in effect on the day after the due date.  This rate 
is referred to as the “Renegotiation Board Interest Rate,” and it is published 
in the Federal Register  semiannually on or about January 1 and July 1.  The 
interest penalty shall accrue daily on the payment amount approved by the 
Government and be compounded in 30-day increments inclusive from the first 
day after the due date through the payment date. 
. . . . 

                                                                                                      
    
      
 
  
    
  
  
   
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PAYMENT 
Rent shall be paid monthly, in arrears, and only as provided for in the 
lease; and provided further, that adequate appropriations are available from 
year to year for the payment of rent. 
Appeal File, Exhibit 10. 
The lease also permitted the FAA to make minor alterations to the leased space: 
ALTERATIONS. 
. . . . 
(c) The Government may choose to make minor alterations and/or 
additions to the lease area. The Government will [submit] plans to the lessor 
for approval.  Approval will not be unreasonably withheld by lessor. 
Appeal File, Exhibit 10.  Alterations were also permitted under the following clause: 
ALTERATIONS (JUNE 1985) 
The Government shall have the right during the existence of this lease 
to make alterations, attach fixtures, and erect structures or signs in or upon the 
premises hereby leased, which fixtures, additions or structures so placed in, 
on, upon, or attached to the said premises shall be and remain the property of 
the Government and may be removed or otherwise disposed of by the 
Government. If the lease contemplates that the Government is the sole 
occupant of the building, for purposes of this clause, the leased premises 
include the land on which the building is sited and the building itself. 
Otherwise, the Government shall have the right to tie into or make any 
physical connection with any structure located on the property as is reasonably 
necessary for appropriate utilization of the leased space. 
Id. 
The lease also contained a “restoration” provision, providing: 

                                                                                                      
      
  
   
  
 
 
  
 
  
     
 
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RESTORATION 
The lessor will waive all rights to restoration, except for Government 
installed fixtures that materially change the premises (other than ordinary wear 
and tear) and permanently injure the lessor’s interest. 
Appeal File, Exhibit 10. 
A default by the lessor was addressed as follows: 
DEFAULT BY LESSOR DURING THE TERM (AUG 1992) 
(a) 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 a default 
notwithstanding that one or all such failures shall have been timely cured 
pursuant to this clause. 
(b) If a default occurs, the Government may, by notice to Lessor, 
terminate this lease for default and if so terminated, the Government shall be 
entitled to the damages specified in the Default in Delivery-Time Extensions 
clause. 
Appeal File, Exhibit 10. 
Finally, the lease addressed a potential holdover by the FAA.  
HOLDOVER 
If, after expiration of the lease, the Government shall retain possession 
of the premises, the lease shall continue in force and effect on a month-to­
month basis.  Rent shall be paid monthly in arrears on a prorated basis at the 

                                                                                                      
 
  
  
 
 
 
 
 
  
  
   
 
 
 
          
             6 CBCA 1196 
rate paid during the lease term.  At no time will this period exceed six (6) 
months. 
Appeal File, Exhibit 10. 
Unpaid Rent 
Findings of Fact 
As set forth above, the FAA’s occupancy of the property began on January 3, 1994. 
Under the terms of the lease, payments for rent, in arrears, were due commencing 
February 1, 1994.  Neither party maintained complete records of payments under the lease. 
The FAA’s records exist only with regard to lease payments commencing May 2, 1994. 
Bowers’ payment records do not begin until 1998. 
The FAA introduced a document from its accounting department listing payments to 
Bowers from May 2, 1994, to April 26, 1996.  Appeal File, Exhibit 143.  This document 
contains a cover sheet dated May 2, 1996, indicating that it was a printout of the schedule 
of payments to Bowers.  FAA witnesses who were familiar with FAA accounting procedures 
testified that this schedule appeared to be one produced by the FAA’s accounting system. 
Declaration of Claudia Hoversten (Jan. 22, 2009) ¶ 4; Declaration of Amber L. Lawson 
(Jan. 22, 2009) ¶ 2.
1 
One of the columns on the schedule is labeled “sch-date.”  Another column is entitled 
“confirm date.”  A third column is called “Document-ID.” The first entry on the schedule 
is a payment to Bowers in the amount of $19,509.60.  The “sch-date” for this payment is 
May 28, 1994, the “confirm date” is May 2, 1994, and the “document-ID” is “007.”  Appeal 
File, Exhibit 143.  Claudia Hoversten, whose responsibilities included operation of the 
national accounting system, including the administration of accounts payable, was very 
familiar with the process of making monthly payments on FAA leases.  Hoversten 
Declaration ¶ 3.  Ms. Hoversten testified that the first entry on this schedule of payments 
showed that payment to Bowers was initiated on April 28, 1994.  Ms. Hoversten also 
testified that the document-ID entry indicates the month of the fiscal year that was covered 
by the entry. Here, “007” indicates that the payment made on May 2, 1994, was to pay for 
the month of April 1994 (the seventh month of the fiscal year).  Id. ¶ 5. 
1 Ms. Hoversten is the FAA’s deputy manager of its Western Logistics Service. 
Ms. Lawson was the FAA’s accounting technician. 

 
 
 
                                                                                                      
    
      
  
     
         
  
 
 
 
 
 
             7 CBCA 1196 
Ms. Lawson testified that she had reviewed other FAA records that showed monthly 
payments for every month of the lease from the first payment shown on May 2, 1994, on the 
aforementioned printout and concluding with the September 13, 2006, payment that is the 
subject of this dispute.  There is no record regarding payments for occupancy during January 
1994 through March 1994. 
Appellant did not keep records of payments made by the FAA over the course of the 
lease.  Records from the Denali State Bank, of Fairbanks, Alaska, in which some of the rent 
deposits were made over the course of the lease, reflect payments made from June 1998 to 
September 2006.  Appellant’s Supplemental Appeal File, Exhibit 1.  The payments reflected 
in the Denali State Bank statements are consistent with the FAA’s records.  Along with rent, 
some payments included additional amounts for interest for late payment.  Declaration of 
2Jerry L. Bowers (Dec. 2, 2008) ¶ 11 .  Other payments on the bank statements included 
amounts for past rent, where the FAA had failed to make a prior rent payment.  Id. ¶ 9.  The 
bank and FAA records reflect the following rent payments over the last two years of the 
lease: 
09/28/04 19,509.60 + 7.32 interest 
10/28/04 20,982.50 + 7.87 interest    
11/29/04 20,982.50 +10.49 interest 
12/27/04 20,982.50 + 5.25 interest 
01/27/05 20,982.50 +  4.95 interest (Not listed by the FAA) 
02/22/05 20,982.50 
03/25/05 20,982.50 
04/27/05 20,982.50 
05/24/05 20.982.50 
06/15/05 20,982.50 (Two separate rent payments in June.) 
06/15/05 20,982.50 
08/29/05 20,982.50 + 10.49 interest 
09/23/05 20,982.50 
11/02/05 20,982.50 + 5.25 interest 
12/15/05 20,982.50 + 52.48 interest 
12/27/05 20,982.50 + 5.25 interest 
01/25/06 20,982.50 
02/15/06 20,982.50 
03/15/06 18,632.50 
03/17/06   2,350.00 
04/13/06   8,153.20* + 1.16 interest 
2 Mr. Bowers is the managing member of appellant. 

                                                                                                      
 
 
  
 
    
    
 
  
           
   
 
    
        
 
 
 
             8 CBCA 1196 
04/17/06 22,341.37 
05/15/06 20,982.50 
05/26/06   1,358.87* +11.50 interest 
06/14/06 22,341.37 
07/17/06 22,341.37 
08/15/06 22,341.37 
09/13/06 22,341.35 
*The FAA indicated that these payments were for the underpayment of rent 
from prior months.  Appellant does not disagree. 
Appellant’s Supplemental Appeal File, Exhibit 1; Appeal File, Exhibits 134, 144. 
Linda D. Walker, a former accounting technician for the FAA, testified that she was 
familiar with the payment system being used by the FAA.  Declaration of Linda D. Walker 
(Jan. 22, 2009) ¶ 2.  Ms. Walker testified that the accounting system that the FAA began 
using for transactions in fiscal year 2004 automatically generated interest payments for 
Bowers’ rental transactions made after the twenty-fifth day of any month due to the coding 
used by the FAA.  Id. ¶ 4. Any time that the accounting technician did not manually correct 
this coding, an interest payment would be automatically generated.  The system previously 
used by the FAA did not automatically generate interest payments.  Id. According to the 
records submitted by the FAA, interest payments to Bowers were only made during and 
subsequent to 2004.  Appeal File, Exhibit 134. 
Mr. Bowers testified that in March 2006 he had a telephone conversation with the 
contracting officer regarding the March 2006 rental payment.  Mr. Bowers testified that the 
contracting officer told him that the March payment was due on April 1, 2006.  Bowers 
Declaration ¶ 11.  This testimony of Mr. Bowers is supported in a memorandum prepared 
by the contracting officer in March 2006. Appeal File, Exhibit 96.  In that memorandum, 
the contracting officer wrote that the March rent payment was due on April 1.  The 
contracting officer also stated that the rent was being paid by the FAA in arrears.  That 
March rent payment was made on April 17, 2006.  
Under the terms of the lease, the rent was to increase starting with the month of 
October 2004.   The FAA notes that it paid $19,509.60 on September 28, 2004, and 
$20,982.50 (the increased  rental amount) on October 20, 2004. The FAA submits that this 
is evidence that its payment on October 20 was for the rent due for the month of October 
2004, and that lease payments were being made before the first of each month when actually 
due.   

 
                                                                                                      
      
 
 
         
 
        
   
  
 
 
 
  
  
  
 
   
    
 
 
             9 CBCA 1196 
Discussion 
Appellant seeks the $22,341.37 rent payment due for the FAA’s occupancy during 
September 2006, the final month of the lease.  Bowers claims that the FAA’s September 13, 
2006, payment was for the rent due to the FAA’s occupancy during August 2006.  Bowers 
alleges that the September 2006 rental payment for the FAA’s occupancy has not been made. 
The FAA asserts that the September 13, 2006, payment was to pay for its occupancy for the 
month of September 2006. 
Appellant has demonstrated its right under the lease to be paid rent for the FAA’s 
occupancy through September 30, 2006.  The FAA has raised payment as an affirmative 
defense.  The party that raises the affirmative defense of payment bears the burden of proof. 
Bridgestone/Firestone Research, Inc. v. Automobile Club de L’Ouest de la France, 245 F.3d 
1359, 1361 (Fed. Cir. 2001); Desjardins v. Desjardins, 308 F.2d 111, 116 (6th Cir. 1962). 
Thus, the FAA carries the burden of proof to demonstrate that it has paid Bowers the 
September 2006 rent. 
The FAA has shown through records and testimony that it paid all of the rent due 
under the terms of the lease, subsequent to the May 2, 1994, rental payment.  The documents 
introduced by the FAA list payments for the FAA's occupancy of the property during every 
month of the lease from April 1994 to and including September 2006.  Bowers argues that 
since the records do not reflect payments for the first three months of the lease, the FAA’s 
proof is inadequate to demonstrate that all lease payments were made. 
For us to agree with Bowers’ argument would require our acceptance of a scenario 
under which one or more of the first three payments commencing January 1994 were not 
made and Bowers did not complain in writing or otherwise regarding the FAA error.  Under 
this logic, the FAA’s payment of May 2, 1994, would have been to pay the rent for its 
occupancy of January, February, or March 1994.  Further, almost all subsequent payments 
for a period of over twelve years would have been late, without the payment of interest 
penalty payments for most of those payments and without any complaints by Bowers.  In 
addition, the FAA’s payment on October 20, 2004, of the increased monthly rental payment 
due commencing in October 2004, is consistent to show that its payments were being made 
early and not “in arrears.”  Tracking each subsequent increased rental payment to the end of 
the lease is consistent with the FAA’s position.  While the FAA has not proven that it made 
every payment under the lease,  it has submitted sufficient evidence regarding the timing of 
its payments and the periods of occupancy that each payment covered. 
Bowers submits that the FAA’s payment of interest on numerous occasions supports 
its position that the payments were late and that the September 13, 2006, payment was to pay 
for the FAA’s occupancy in August 2006.  However, the FAA introduced the testimony of 

                                               
 
 
  
  
    
 
   
       
 
             10 CBCA 1196 
a former accounting technician who was familiar with the FAA payment system.  Ms. 
Walker testified that the FAA’s payment system, during the period that interest payments 
were made to Bowers, automatically generated interest for payments not made before the 
twenty-fifth of the month.  This witness testified that this was the reason for each interest 
payment made under this lease.  We accept the FAA’s argument that most of the interest 
payments were erroneous. 
Bowers also refers to the terms of the lease, calling for rental payments to be made 
in arrears, and to the statement made by the contracting officer that payments were being 
made in arrears.  While this evidence bolsters Bowers’ argument that the payments under 
the lease were in arrears, we find that it cannot overcome the actual payment records that 
have been placed in evidence. 
The FAA has met its burden.  The September 13, 2006, lease payment was to pay for 
the FAA’s occupancy of September 2006.  Bowers’ claim is denied. 
Holdover Rent 
Findings of Fact 
The lease expired on September 30, 2006. In late September, the FAA vacated the 
premises.  However, certain materials and equipment were left behind. The FAA abandoned 
the following property in the leased space: 
- Built-in shelving in eight of the twenty-five leased rooms. 
- Wood shelving. 
- The raised floor (twelve inches above the original floor) in the computer room, 
which had a dimension of approximately twenty-three by twenty-eight feet. 
- Entrance ramps for the handicapped leading to the computer room. 
- Doors raised to the level of the computer floor. 
- A telephone rack and wiring in the communications room. 
- Twenty-five linear feet of large mirrors in the fitness room. 
- Eighteen large power poles (twelve-foot long conduit). 

                                               
 
 
      
  
 
      
 
 
 
     
 
 
     
       
   
 
 
  
  
  
   
             11 CBCA 1196 
Bowers Declaration ¶¶ 16-20, 22.  Some of the leased space was damaged.  See “Restoration 
Costs,” infra. In addition, Mr. Bowers testified that when the raised floor and ramps were 
removed, it was discovered that the vinyl floor beneath them had been damaged.  Bowers 
Declaration ¶¶ 19, 21.  Further, Mr. Bowers testified that the FAA simply cut the electrical 
and data wiring when it removed its computer equipment. This wiring was left hanging at 
the time the FAA moved the computer equipment in September 2006.  Id. ¶ 24. 
Additionally, Mr. Bowers testified that he observed the FAA removing material and 
equipment from the premises between October 1 and 13, 2006.  Bowers Declaration ¶ 23. 
The owner of Perfection Painting, a company hired by appellant in September 2006 to 
prepare the space occupied by the FAA for future tenants, stated in his declaration: 
When I first entered the former FAA lease space during the first few days of 
October 2006, there was a substantial amount of abandoned furniture, 
shattered and broken furniture, trash, garbage and abandoned foodstuffs that 
had been left behind throughout the FAA space.  The space was left in a filthy 
and disgusting condition.  I have seen many dozens of leaseholds turned back 
to landlords in the Fairbanks area, but this was by far the most unclean tenant 
space I have ever seen. 
Declaration of Denny Melson (Dec. 1, 2008) ¶ 4. 
FAA witnesses testified that Mr. Bowers gave them permission, orally, to leave many 
of the fixtures in place, that the premises were not left in a filthy condition, and that after 
September 30, 2006, the FAA no longer had access to the building as the locks on the doors 
were replaced.  Declaration of Doneva Cheeseman (Jan. 21, 2009) ¶ 4; Declaration of 
Shirley M. Finnesey (Jan. 22, 2009) ¶¶ 3, 7. 
By letter of October 18, 2006, Mr. Bowers wrote to the contracting officer regarding 
the wooden shelving, the elevated floor, the entrance ramps, the power poles, and the raised 
doors which remained a problem after the FAA vacated the premises.  Bowers also 
complained that some shelving was left in disrepair and other shelving remained stacked in 
a portion of the building.  Appeal File, Exhibit 124. On October 19, 2006, the contracting 
officer, by letter, offered to remove the raised wooden floor, the wooden shelving, and the 
entrance ramps.  Id., Exhibit 125.  The contracting officer also offered to lower the doors 
back to floor level.  Ultimately, Bowers performed this work at its expense.  See 
“Restoration Costs,” infra. 

                                               
  
 
 
 
 
       
 
    
     
   
 
 
 
  
 
             12 CBCA 1196 
Discussion 
Bowers seeks $22,341.37 in additional rent for the month of October 2006, due to 
the FAA’s alleged holdover, based on the FAA’s leaving numerous large items and fixtures 
at the premises, leaving the premises in a filthy condition, and accessing the building several 
times during that month.  The FAA counters that it was given permission to leave numerous 
items behind, that the premises were left in a clean condition, and that it had no access to the 
premises.  The FAA also alleges that under the “Restoration” provision, the FAA had no 
duty to restore the premises and thus it cannot be liable for additional rent. 
The “Holdover” provision of the lease provides that if the FAA retains possession 
of the premises after the lease expires, the lease will continue in full force and effect on a 
month-to-month basis.  The validity of such provisions has been previously upheld.  See 
Cafritz Co. v. General Services Administration, GSBCA 13525, 97-1 BCA ¶ 28,680, at 
143,271 (1996). 
While we have conflicting testimony regarding access to the building and the reason 
that the equipment was left behind, the weight of the evidence is that the premises could not 
be occupied by another tenant in October 2006, because of fixtures left by the FAA.  Part 
of this evidence is an October 19, 2006, letter from the contracting officer offering to 
remove some of the equipment and fixtures. Nowhere in that letter did the FAA state that 
it had been authorized by Mr. Bowers to leave the equipment and fixtures in place when it 
vacated the premises.  We find that the FAA was not so authorized.  Fixtures are defined as 
“something that is fixed or attached as a permanent appendage or a structural part.” 
Webster’s Third New International Dictionary (3d ed. 1986).  The attached shelving, 
entrance ramps, and raised wooden floor were fixtures.  The FAA is incorrect that the 
“Restoration” provision excuses the FAA from its duty to remove these items.  The FAA had 
an obligation under the lease to remove these fixtures. 
Bowers has carried its burden.  The FAA held onto the premises beyond the 
conclusion of its lease.  Bowers is entitled to payment of rent for the month of October 2006 
at the monthly rate in effect at the conclusion of the lease, $22,341.37. 
Late Receipt of Operating Expenses 
The lease provided for additional payments by the FAA for certain operating 
expenses.  On November 9, 2006, Bowers requested a payment of $8849.90 for 2005 to 
2006 rent year operating expenses.  Appeal File, Exhibit 128.  The contracting officer 
approved payment for these expenses on April 19, 2007.  Id., Exhibit 137.  The amount due 
Bowers was not in dispute.  With this approval, the contracting officer sent appellant a 
modification to sign.  Appellant did not object or respond to the contracting officer 

                                               
     
  
     
   
         
   
  
   
   
 
 
   
   
   
           
 
     
  
    
  
     
   
             13 CBCA 1196 
regarding the modification.  Appellant signed the modification on April 18, 2008, and 
payment was made. Id., Exhibit 150. 
Appellant seeks interest from October 2006 to April 18, 2008.  Under the Prompt 
Payment Act, the required payment date is the date the payment is due under the contract for 
the item of property or service provided by a contractor, or thirty days after a proper invoice 
for the amount due is received, if a date is not established by the contract.  31 U.S.C. 
§ 3903(a)(1) (2006). If the payment is not timely, the Government must pay interest to the 
contractor for its tardiness. There is an exception for payment of this interest only if there 
is a dispute between the agency head and the contractor over the amount of the payment or 
if there is a dispute regarding compliance with the contract.  Id. § 3907(c).  “Interest begins 
to run on the date after the required payment date; it ceases to run when the first of the 
following events occurs:  payment is made, a claim for interest is filed under the Contract 
Disputes Act (CDA), or one year passes from the required payment date.   Delta Airlines,Inc. 
v. General Services Administration, CBCA 1306, 09-1 BCA ¶ 34,052, at 168,407; 31U.S.C. 
§§ 3902(a), 3907(b). 
 Appellant has not explained why Prompt Payment Act interest is sought from 
October 2006, since Bowers did not request payment until November 9, 2006.  The 
$8849.90 requested by appellant was approved by the FAA on April 19, 2007.  At no point 
did the FAA dispute the amount of the payment or appellant’s compliance with the contract. 
The FAA simply failed to make the payment due in a timely manner.  Thus, appellant is 
entitled to Prompt Payment Act interest commencing thirty-one days after the FAA received 
the invoice for payment.  31 U.S.C. § 3903(a)(1).  Interest begins to run on December 10, 
2006.  We find the Prompt Payment Act interest stopped on April 19, 2007, at the time the 
FAA approved payment and forwarded a modification to Bowers to be executed.  Appellant 
did not object to signing the modification or contact the contracting officer regarding the 
payment.  Bowers executed the modification about one year later.  Appellant is not entitled 
to interest during the time period of its own delay. 
Insect Infestation 
In 2005,  the FAA deducted $2350 from amounts otherwise due Bowers to cover the 
costs of extracting insects from the heating, ventilation, and air conditioning system.  Appeal 
File, Exhibit 102. Both live and dead insects invaded the FAA work space.  At the time of 
this problem, each party hired a company to attempt to determine the source of the insect 
infestation.  On the initial inspection by the firm hired by the FAA, it concluded that the live 
insect problem was caused by plants brought in by FAA employees.  Appeal File, Exhibit 
76 at 7. It also concluded that dead insects had probably accumulated in the HVAC system 
and that parts of these insects were being blown into the leased space.  Id. at 10. 

                                               
 
 
 
  
 
 
     
   
 
        
  
  
 
  
    
    
 
  
             14 CBCA 1196 
A firm hired by appellant reported no infestation related to the HVAC system. 
Appeal File, Exhibit 80.  The FAA’s firm then conducted a second inspection and 
determined that there was a large quantity of dead bugs on the duct system that had 
accumulated over the thirty-year life of the building.  Id., Exhibit 89 at 3.  These dead bugs 
were being blown into the work area. 
Bowers claims that the insect infestation was created by FAA employees who brought 
plants to the workplace.  Bowers speculates that the same FAA employees who allegedly 
vandalized the building planted the dead bugs to injure appellant’s relationship with the 
FAA.  See “FAA Vandalism,” infra. 
The evidence in the record is contradictory.  Appellant’s inspection firm indicated 
that there was no buildup of insects in the duct system. The FAA’s inspection firm indicated 
that there was a significant buildup of insects. Since the FAA withheld $2350 from amounts 
that it owed Bowers, it shouldered the burden of proving that the bug problem was 
appellant’s responsibility and that these funds were rightfully withheld.  The FAA failed to 
carry this burden. The FAA also failed to address whether it was authorized to withhold the 
payment of $2350 from Bowers.  Finally, the FAA has not introduced any evidence 
justifying that the amount of $2350 was an appropriate amount to assess against Bowers. 
Bowers is entitled to be paid the $2350 that it was otherwise due, but that was 
withheld by the FAA. 
Cleanup Cost 
Appellant  seeks $405.32 for the cost of cleaning after the FAA vacated the premises. 
Appellant paid this amount to a vendor for the cleanup of the rented space.  Mr. Bowers 
testified that the premises were left in a filthy condition.  In addition, Mr. Melson testified 
that the premises were left in “a filthy and disgusting condition.”  Melson Declaration ¶ 4 
Mr. Melson also testified that based on his experience, it was the most unclean tenant space 
he had ever seen.  Id.  An FAA witness at the site on September 30, 2006, testified that the 
premises were not left in a filthy condition by the FAA.  However, this employee admitted 
that the dumpsters were full and that the FAA had no place to dispose of its items. 
Appellant’s Supplemental Appeal File, Exhibit 3-5; Bowers Declaration ¶ 43; Finnesey 
Declaration ¶ 7. 
The record contains contradictory testimony regarding the cleanliness of the vacated 
premises.  We find Bowers carried its burden of proving the premises were left in a 
condition out of the ordinary.  Bowers introduced evidence that it paid $405.32 in cleanup 
expenses.  However, there was no attempt by Bowers to separate the costs of a normal 

                                               
      
 
  
    
    
      
 
 
 
 
 
 
   
             15 CBCA 1196 
cleanup of a space as large as that rented by the FAA.  We can only speculate as to what the 
normal cost would be.  The claim is denied. 
Cost of Changing the Building Locks 
Bowers seeks $388.30 for the cost of replacing the cores of locks that the FAA 
allegedly removed from the doors. 
Bowers claims that during the term of the lease, the FAA removed all the locks on 
the doors of the space that the FAA rented, and replaced the locks with the FAA’s own 
locks.  Bowers’ principal testified that when the lease ended, the FAA removed its locks but 
did not replace them.  Bowers Declaration ¶ 44. 
The FAA counters that it did not remove the locks, but, rather, Bowers removed the 
locks at commencement of the lease. An FAA employee testified that she was present when 
appellant’s contractor removed Bowers’ locks at the beginning of the lease and replaced 
them at the end of the lease.  Finnesey Declaration ¶ 3. 
The record contains contradictory testimony between the FAA’s and Bowers’ 
witnesses. The evidence from Bowers is that the FAA did not replace the lock cylinders that 
it had removed.  The FAA’s witness to the events testified that it was Bowers and not the 
FAA that removed the locks.  Bowers has the burden of proof and has failed to carry that 
burden.  The claim is denied. 
FAA Vandalism 
In March 2006, the brine lines in the mechanical room of the leased space were cut. 
In addition, it was discovered in June 2006 that a four-inch drain pipe in the mechanical 
room was clogged with a grease-like substance.  Bowers alleges that there was a series of 
floods from January to June 2006 resulting from these incidents. 
Bowers paid a contractor $556 to repair the brine lines.  Appellant’s Supplemental 
Appeal File, Exhibits 7, 9.  Mr. Bowers testified that he also paid two other contractors 
$2490 to repair damage and clear the clogged pipes.  Id., Exhibits 10, 11, 13. 
Bowers attempts to place responsibility for these two incidents on the FAA on the 
basis that the contracting officer’s technical representative (COTR) had a key to the 
mechanical room.  Bowers claims that the COTR lost the key and that two other FAA 
employees were seen by an employee of Bowers leaving the mechanical room late one night. 
Bowers also speculates that these two FAA employees caused the damage based on a voice 
mail message left by one of the employees that the FAA is “going to take care of business.” 

                                               
  
 
 
 
  
 
 
   
 
   
 
    
 
 
    
      
   
 
  
             
    
    
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This claim is based on unsubstantiated circumstantial evidence and speculation.  Appellant 
has failed to carry its burden on this issue.  The claim is denied. 
FAA Vandalism to Doors 
During the term of the lease, on four occasions, doors and door jams within, or 
adjacent to, the leased premises were damaged.  Bowers Declaration ¶ 57.  One damaged 
door was near the communications room in the FAA space.  This door had a crack about one 
foot long.  Id. ¶ 59.  Mr. Bowers testified that the door was bent and had a shoe print on it. 
Mr. Bowers replaced this door.  There is no invoice or other documentary support for the 
cost of the door replacement.  The main door to the  computer room in the FAA space was 
also damaged.  Id. ¶ 61. FAA employees informed Mr. Bowers that another employee had 
kicked the door, causing the damage.  Id. The jam on this door assembly was broken and 
needed to be replaced.  An invoice in the record lists an amount for the repair of the door 
jam along with other items.  The bill does not clearly separate the cost of this repair from 
other work. On line one it states, “New hardware on three bathrooms.”  The amount of 
$1200 is on this same line. The next line states, “New door and jam FAA computer room.” 
That line has no dollar amount listed. The third line states, “Hang, stain, & finish door & 
jam.”  That line has a $300 amount listed next to it. 
Bowers also claims entitlement to the cost of repair of two doors in a bathroom 
outside the FAA space.  The entrance door to this bathroom and a door on a stall in this 
bathroom were damaged. Bowers Declaration ¶¶ 57-62. Appellant presents this claim 
regarding these doors on the basis that Mr. Bowers saw an FAA employee vandalize the stall 
door by hanging on it.  Bowers Declaration ¶ 58.  Bowers speculates that the same FAA 
employee damaged the entrance door. The FAA employee accused by Bowers denies the 
charge.  Declaration of Kevin O’Connor (Jan. 16, 2009) ¶¶ 2-3.  In addition, the FAA 
submits that the accusation against the employee is not credible as it was not made until two 
years after the incident. 
Bowers claims entitlement to the cost of repairing the four doors.  Bowers submits 
that it spent $3200, or $800 for each of the four doors.  We find that the FAA has no 
responsibility for damage to the two doors outside its space.  There is no evidence that any 
damage to those doors was the responsibility of or was sanctioned by the FAA.  Bowers has 
carried its burden of proving that there was damage to the two doors within the leased space, 
the door outside the mechanical room and the computer room door. The damage is not 
ordinary wear and tear which would not be the FAA’s responsibility to repair.  The FAA is 
responsible for the cost of repairing this type of damage to the leased space. 
No evidence was submitted regarding the costs of repair of the door outside the 
mechanical room.  There is no way for us to estimate the cost of repairing this door.  An 

                                               
   
    
     
        
    
 
     
 
     
 
  
 
 
     
    
 
  
             17 CBCA 1196 
invoice was submitted for the repair of the door jam in the computer room.  However, the 
cost directly associated with the repair of that door is not clear.  We can only speculate 
whether part of the $1200 damage on line one of the invoice, which is on the same line as 
the statement regarding new hardware on three bathroom doors, also includes a charge for 
the computer room door.  We, therefore, deny entitlement to this claim item. 
The $300 charge which is set forth on line three, following the description of the 
repair to the computer room door, is clearly associated with the repair of that door. We find 
that Bowers has proven that it spent this amount in repair of that door.  Bowers is entitled 
to be paid $300 on this claim item. 
Restoration Costs 
Findings of Fact 
Bowers claims entitlement to $20,110
3  for the costs of restoration of the leased 
premises.  Bowers alleges that it spent $5500 to remove the raised computer room floor and 
ramps, readjust the doors to the proper height, and repair holes and dents in the walls it 
claims were caused by FAA movers. Bowers has submitted an invoice from a contractor, 
Perfection Painting, which lists the charges of $2000 for the removal of the computer room 
floor and ramps. 
The FAA also gouged the vinyl floor in the computer and communications rooms. 
Appellant’s Supplemental Appeal File, Exhibits 2A-2C, 2AA. Bowers claims that it paid 
$5360 for repairs to the floor and the installation of carpeting over the repairs.  Mr. Bowers 
testified that appellant paid $1510 to repair the floor and “approximately” $3850 for the 
carpeting for the rooms.  Bowers Declaration ¶ 70.  The only evidence of costs submitted 
in support of this claim is an invoice for $1510 from Perfection Painting for preparation of 
floors for carpet installation.  Appellant’s Supplemental Appeal File, Exhibit 17. 
During the term of the lease, the FAA removed doors in the leased space and replaced 
them with arched entryways.  Bowers claims the costs of rebuilding doorways and 
recovering walls.  Bowers also claims that the FAA damaged walls and new wall coverings. 
Bowers claims that it had to rebuild the walls in the areas where the archways were installed, 
replace the wall covering, and replace the doors.  Bowers Declaration ¶¶ 71-73.  Bowers 
claims that the total cost for this work was $5500.  The evidence submitted in support of 
these costs is an invoice from Perfection Painting, which states:  “Remove Wall covering ­
3 Bowers claims this amount though the individual expenses claimed by it add 
up to only $20,060. 

                                               
  
      
  
     
  
   
 
    
   
    
 
 
    
  
 
     
 
    
             18 CBCA 1196 
$600 . . . Patch Holes where Elec. was cut in walls - $800 . . . Finish seven (7) doors and 
jams - $2100 . . . and Insulate Walls - $800 . . . .”  Appellant’s Supplemental Appeal File, 
Exhibit 18.  Another invoice stating, “Remove Wall covering - $600” and “Patch holes in 
walls where elec. was cut in walls - $800,” was placed in the record.  Id., Exhibit 19. 
Bowers further seeks an additional $2700, which it alleges that it spent to repair the 
ceiling in the area where the FAA cut the wires coming from the ceiling chases and poles. 
An FAA witness who inspected the premises on September 30, 2006, testified that the FAA 
had not cut the wires. Finnesey Declaration ¶ 7.  Bowers removed these items and replaced 
the ceiling tiles and support frames in these areas.  Bowers submitted an invoice stating: 
“Patch in where Power Comm. outlets were - $700 Finish Painting of Exc. Walls - $2000.” 
Appellant’s Supplemental Appeal File, Exhibit 20. 
Bowers also claims entitlement to $300 that it alleges it will have to spend to remove 
some twenty-five feet of mirrors in the exercise room.  Bowers alleges that it requested that 
the FAA remove these mirrors, but the agency has not done so. No invoice was submitted 
in support of this claim. 
Bowers seeks an additional $700 to remove trash and garbage and restore damaged 
walls in the dock and storage room.  In support of this item, Bowers submitted an invoice 
from Perfection Painting stating, “Clean Out Deck area - $500. . . . Clean out shelving in 
two storage rooms - $200.”  Appellant’s Supplemental Appeal File, Exhibit 21. 
Discussion 
Generally, leases contain an implied provision that a tenant will not damage the 
property and that when it vacates the leased space, the tenant will return that space to the 
landlord in the same condition as when it received the space, reasonable wear and tear 
excepted.  A&B Limited Partnership v. General Services Administration, GSBCA 15208, 
04-1 BCA ¶ 32,439 (2003).  However, here the contract permitted the FAA to make minor 
alterations to the leased space, with the approval of Bowers. Indeed, before occupancy, the 
FAA made alterations to the space and paid appellant for these buildouts.  The lease also 
permitted the FAA to install fixtures, which would remain FAA property.  Under the 
Restoration clause of the lease, Bowers waived any rights to restoration “except for 
Government installed fixtures that materially change the premises . . . and permanently injure 
the lessor’s interest.”  The FAA is therefore responsible for the cost of removing any fixture 
it failed to remove from the leased premises. It is also responsible for the cost of repair of 
any damage caused by the installation and removal of its fixtures.  Otherwise, however, 
under these provisions, we find that the FAA is not responsible for alterations and damage, 
unless intentional or of an unusual nature. 

                                               
       
         
  
 
      
   
  
 
    
 
 
    
  
   
              
   
       
  
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The installed computer floor and ramps were fixtures that the FAA had a 
responsibility to remove. We find that Bowers is entitled to payment of the $2000 that it 
paid its contractor for removal of the computer floor and ramp.  Bowers also claims 
entitlement to be paid for the cost of adjusting doors affected by the raised flooring. 
Appellant has failed to present any separate costs associated with that adjustment. The claim 
is denied due to appellant’s failure to establish the costs of the adjustment. 
Bowers also seeks the costs of repairing holes and dents in the walls caused by the 
movers.  We recognize that this damage is beyond reasonable wear and tear.  Yet, Bowers 
specifically waived restoration costs and we find that the costs of this type of damage would 
be covered by that waiver.  Cost of repair for this damage is denied. 
Bowers seeks the cost of vinyl floor removal and carpet installation in the computer 
and communications rooms.  Though some photographs showing damaged vinyl tiles were 
placed into the record, we find the evidence insufficient in several respects.  The record does 
not contain evidence of the extent of damage to the rooms, nor does it permit an analysis of 
whether the tile could have been repaired or replaced.  Without evidence of the condition 
or the age of the floors prior to commencement of the lease, we cannot determine whether 
appellant’s claim is reasonable.  The only evidence submitted is the invoice of $1510 to 
prepare the floors for carpet installation.  This does not demonstrate that the cost had been 
incurred as a result of the damage caused by the FAA.  Given these deficiencies in 
appellant’s case, we need not decide whether the costs of repair of this damage was waived 
by the Restoration clause.  This claim is denied. 
Bowers seeks reimbursement for the cost of rebuilding the walls in areas where the 
FAA replaced doors with archways.  Appellant also seeks the cost of replacing doors and 
wall covering damaged by the FAA.  Prior to occupancy, the FAA was permitted to make 
substantial revisions to the space it was to occupy. The FAA paid Bowers for this buildout. 
Absent other evidence, we find that the change to the doorways was part of this buildout. 
The Restoration clause specifically precludes recovery for the costs of restoring the 
premises. We find that the doorway change falls under the provision of this clause.  The 
claim for rebuilding the doorways is denied. 
We find the cost of replacing wall covering was an item that was also covered by the 
Restoration clause.  Bowers has waived reimbursement for this item.  In addition, the 
invoice submitted in support of these costs is not clear.  This invoice refers to patching holes 
and insulating walls. 
Bowers also submits a claim for the cost of repairing the ceiling areas where the FAA 
cut wiring. There is insufficient evidence in the record regarding the damage, if any, caused 
by the FAA to the ceilings.  In addition, computers that were attached to the wiring at the 

                                               
 
 
      
   
 
    
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             20 CBCA 1196 
leased premises were not fixtures.  Thus, any costs associated with this repair have been 
waived by appellant under the Restoration clause. 
Similarly, appellant has waived its right under the Restoration clause to 
reimbursement for the removal of the mirrors in the exercise room, and for the removal of 
trash and restoration of walls in the dock and storage room. These claims are denied under 
the terms of the lease.  
Conclusion 
Appellant is entitled to payment for the following items: 
•	 Rent for October 2006 - $22,341.37. 
•	 Improper deduction for insect infestation - $2350. 
•	 FAA damage to computer room door - $300. 
•	 Removal of computer floor ramp - $2000. 
•	 Prompt Payment Act interest on the $8849.90 payment for late operating expenses 
for the period from December 10, 2006, to April 19, 2007. 
The total amount due appellant is $26,991.37, plus Prompt Payment Act interest as 
set forth above, and any interest in accordance with the Contract Disputes Act from the date 
on which the contracting officer received Bowers’ claim until the date of payment. 
Decision 
The appeal is GRANTED IN PART . 
JAMES L. STERN 
Board Judge 
We concur: 
JERI KAYLENE SOMERS BERYL S. GILMORE 
Board Judge Board Judge