MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED: January 19, 2022
CBCA 6357, 6721
MELD, LLC,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Charles Rennick and Samuel C. DeFillippo of Robles, Rael & Anaya, P.C.,
Albuquerque, NM, counsel for Appellant.
Kristi Singleton, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), DRUMMOND, and CHADWICK.
CHADWICK, Board Judge.
The respondent, General Services Administration (GSA), issued a decision purporting
to terminate a lease for default.  GSA asks the Board to rule on partial summary judgment
that (1) GSA properly terminated the lease, (2) GSA did so “as of” the date that the asserted
condition of default arose, and (3) the lessor and appellant, Meld, LLC (Meld), owes GSA
rent that GSA paid while Meld was in default.  Meld argues that GSA could not terminate
the lease for default because GSA had previously ended the lease when the tenant agency
vacated the building.  The record before us is sparse and does not support summary
judgment.  Accordingly, we deny GSA’s motion.


CBCA 6357, 6721 2
Background
These facts are undisputed except as noted.  In 1997, GSA agreed to lease a building
to be constructed in Albuquerque, New Mexico, as a Social Security Administration office. 
The lease was eventually novated to Meld.  The lease stated that the term of occupancy
would end in November 2018.
In April 2014, GSA notified Meld’s predecessor that GSA would terminate the lease
for the convenience of the Government effective in March 2015.  Negotiations followed. 
Meld states that GSA notified the original lessor in May 2015 of GSA’s intent to terminate
the lease as of August 31, 2015.  Meld cites as support for this statement, however, a letter
that is not in the appeal file and is, therefore, not part of the record.  See Board Rules 4,
9(a)(1)(i) (48 CFR 6101.4, .9(a)(1)(i) (2020)).1  In July 2015, the original lessor advised GSA
that it “intend[ed] to hold GSA responsible for damages in the amount of the remaining term
of the lease should the Social Security Administration vacate the premises prior to the
conclusion of the twenty (20) year lease agreement.”
In September 2015, a GSA contracting officer wrote in a letter to Meld that the tenant
agency had “vacated your premises . . . under” the lease and that, pursuant to an Adjustment
for Vacant Space clause, “the operating rent of this lease will be reduced by $4.00 per
rentable square foot, per annum.  The total reduction of rent will be $101,016.00 per annum
($4.00 X 25,254 RSF) and will become effective September 1, 2015.”
GSA states that “GSA continued to pay rent monthly after September 1, 2015.”  The
only document cited by GSA to support this assertion, however, is a contracting officer’s
final decision, which the Board has repeatedly held we cannot treat as evidence in a case. 
E.g., CSI Aviation, Inc. v. Department of Homeland Security, CBCA 6292, et al., 20-1 BCA
¶ 37,520 (citing cases); Regency Construction, Inc. v. Department of Agriculture, CBCA
3246, et al., 16-1 BCA ¶ 36,468.  Meld generally denies the paragraph in which GSA says
it paid the rent.  If there is evidence of the payments in the record, GSA does not cite it.2  The
1 By orders of the presiding judge, the “last day to supplement the appeal file”
was in March 2021 and “[t]he appeal file will be the documentary evidence for the case”
absent a “showing of good cause,” which Meld has not attempted to make.
2 Cf. Albrechtsen v. Board of Regents of University of Wisconsin System, 309
F.3d 433, 436 (7th Cir. 2002) (“Judges are not like pigs, hunting for truffles buried in the
record.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam))),
quoted in Olaplex, Inc. v. L’Oréal USA, Inc., 855 F. App’x 701, 712 (Fed. Cir. 2021); Trace,
Inc., ASBCA 56594, 09-1 BCA ¶ 34,128.

CBCA 6357, 6721 3
asserted fact is, therefore, not established and is genuinely in dispute for purposes of
summary judgment.  See Rule 8(f).
In March 2018, a GSA contracting officer emailed Meld that the space at issue “is
currently occupied by” a school, and that “[t]his lease is being terminated effective August 9,
2017.”  Meld admits under Rule 8(f)(2) that it entered into a lease with the new tenant
“effective as of August 9, 2017.”  Meld disputed the GSA termination, although the grounds
on which it did so are unclear in the record.
On October 22, 2018, a GSA contracting officer determined in a final decision that
Meld “materially breached the Lease terms by contracting for and consenting to the Charter
School’s occupancy and use of the Leased Premises” and “owes GSA the total amount of
$218,392.08” for rent and tax reimbursement paid to Meld “from August 9, 2017 through
February 28, 2018.”  Meld appealed from that decision in January 2019 (CBCA 6357).  In
February 2020, the Board consolidated that appeal with a related appeal by Meld regarding
a claim for damages under the lease (CBCA 6721).  Discovery in the combined case ended
in the spring of 2021.  The parties timely included forty-one exhibits in the Rule 4 appeal
file.  After engaging in mediation, the parties briefed GSA’s motion for partial summary
judgment from November 2021 to January 2022.
Discussion
We may grant summary judgment on all or part of a claim if the moving party shows
it “is entitled to judgment as a matter of law based on undisputed material facts.”  Rule 8(f). 
A party opposing summary judgment need only show that “one or more” facts on which the
moving party relies are “genuinely in dispute” and legally “material.”  Amini Innovation
Corp. v. Anthony California, Inc., 439 F.3d 1365, 1368 (Fed. Cir. 2006).  A “non-movant is
required to provide opposing evidence . . . only if the moving party has provided evidence
sufficient, if unopposed, to prevail as a matter of law.”  Saab Cars USA, Inc. v. United States,
434 F.3d 1359, 1369 (Fed. Cir. 2006).
The record evidence cited to us does not support partial summary judgment for GSA. 
GSA asks us to rule “that it properly terminated its lease with the Appellant, and that it is
entitled to a return of all rent that it paid after the Appellant leased the government’s space
to another tenant.”  The evidence summarized above, construed in Meld’s favor, presents a
genuine dispute of fact as to whether, as Meld asserts, the tenant agency vacated the space
at the end of August 2015 and GSA attempted in September 2015 to revive the already
abandoned lease with a unilateral vacant space adjustment.  We can see from the scant record
that the parties were discussing an end to the lease in mid-2015.  As Meld writes, however,
GSA “has not presented any evidence to support Meld’s acceptance of [an] offer to invoke
the vacant space provision in lieu of termination.”  Evidence that Meld continued to accept

CBCA 6357, 6721 4
rent from GSA after August 2015 would be strong and possibly decisive evidence that both
parties treated the lease as continuing and not terminated.  As noted above, however, GSA
cites no cognizable evidence that the payments continued.
Without knowing whether GSA remained a valid lessee in March 2018 or October
2018, when it sent the notices of termination, we cannot determine whether those actions
complied with the lease and are otherwise effective, as GSA bears the burden to prove. 
Evidence of GSA’s conduct might also be relevant to GSA’s burden to demonstrate damages,
as we presently lack evidence that, if GSA paid rent for the vacant space after August 2015,
it “paid the rent in reliance on the lease” rather than for some other reason.  See MLJ
Brookside, LLC v. General Services Administration, CBCA 3041, 15-1 BCA ¶ 35,935.  We
will not speculate as to what further development of the record might show.
Decision
We DENY GSA’s motion for partial summary judgment.
     Kyle Chadwick               
KYLE CHADWICK
Board Judge
We concur:
    Erica S. Beardsley            Jerome M. Drummond    
ERICA S. BEARDSLEY  JEROME M. DRUMMOND
Board Judge Board Judge