MOTION FOR SUMMARY RELIEF GRANTED IN PART:  March 11, 2010 
CBCA 1312 
TOLANO ANDERSON CONTRACTING, 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Tolano D. Anderson, owner of Tolano Anderson Contracting, Dover, DE, appearing 
for Appellant. 
Kate Gorney, Office of the Regional Counsel, Department of Veterans Affairs, 
Philadelphia, PA, counsel for Respondent. 
Before Board Judges SOMERS , GILMORE , and STEEL . 
GILMORE , Board Judge. 
This appeal was filed by Tolano Anderson Contracting (Anderson or appellant) from 
a final decision of a contracting officer of the Department of Veterans Affairs (VA or 
respondent) denying Anderson’s two claims for costs allegedly incurred under two lease 
agreements with the VA.  The VA has moved for summary relief on both claims, contending 
that the material facts are not in dispute and respondent is entitled to relief as a matter of law. 
In the first claim, appellant alleges that the VA wrongfully terminated a lease 
agreement between appellant and the VA for building space in Dover, Delaware, to house 
an outpatient clinic.  Appellant alleges that it proceeded to perform renovations to a building 
to prepare the site for occupancy and encountered delays that were beyond its control which 

      
  
    
 
  
         
 
      
 
  
  
        
 
  
     
 
      
 
   
      
 
 
 
2 CBCA 1312 
entitled it to a time extension. Appellant alleges that the VA accepted the reasons it provided 
for the delay as justifiable, but then decided to terminate the lease anyway and refused to pay 
$96,554 allegedly expended by appellant to prepare the space for occupancy.  In its motion 
for summary relief, respondent contends that there are no material facts in dispute, that the 
facts show that appellant did not timely proceed with preparing the site for occupancy by the 
July 2007 occupancy date stated in the lease, and that appellant did not respond to 
respondent’s show cause notice with an acceptable reason for the delay. Respondent, thus, 
contends that the termination was proper and asks the Board to decide appellant’s first claim 
in its favor.  Appellant contends that the facts show that it was proceeding timely and that the 
delays encountered were due to delays associated with the Dover Planning Department and 
were beyond appellant’s control. Appellant asserts that it met with VA representatives and 
local authorities who were concerned about the issues involved in the project and, in that 
meeting, the VA agreed to an extension of time. Appellant contends that the facts show that 
the Dover lease was wrongfully terminated and that respondent’s motion for summary relief 
should be denied. 
In the second claim, appellant alleges that it entered into an oral agreement with a VA 
contracting officer for the lease of building space for an outpatient clinic in Georgetown, 
Delaware, with the understanding that it could proceed with the planning and construction 
build-out of the site while the written lease was being prepared.  Appellant contends that 
before it received the written lease, the VA terminated its earlier agreement with appellant 
and refused to pay the $93,800 appellant expended on preparing the site prior to the 
termination.  In its motion for summary relief, respondent contends that there are no material 
facts in dispute and that the material facts show that the VA did not enter into a lease 
agreement, either oral or written, with appellant for the lease of space in Georgetown, 
Delaware, and that appellant did not have the legal capacity to enter into a lease because it 
did not own the building in question.  Respondent, thus, asks the Board to decide appellant’s 
second claim in its favor. Appellant contends that the facts show that the VA entered into an 
oral lease agreement under which appellant and the VA agreed that appellant would proceed 
with preparation work while the written lease was being prepared and that the Board should 
deny respondent’s motion for summary relief. 
For reasons set forth below, we deny respondent’s motion for summary relief on the 
first claim involving the lease in Dover, Delaware, and grant respondent’s motion for 
summary relief on the second claim involving the alleged lease in Georgetown, Delaware. 
Summary relief is properly granted when there is no genuine issue of material fact and 
the moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc ., 
477 U.S. 242, 248 (1986).  “Only disputes over facts that might affect the outcome of the suit 
under the governing law will properly preclude the entry of summary judgment.”  Id. In 

  
  
 
  
 
 
    
    
 
     
 
 
  
 
   
   
  
 
   
   
3 CBCA 1312 
considering a motion for summary relief, it is not the judge’s function “to weigh the evidence 
and determine the truth of the matter.”  Id. at 249.  All reasonable inferences are to be 
resolved in favor of the non-moving party.  Id . at 255.  The moving party has the initial 
responsibility of stating the basis for its motion and “identifying those portions of the 
‘pleadings, depositions, answers to interrogatories, and admissions in the file, together with 
affidavits, if any,’ which it believes demonstrates the absence of a genuine material fact.” 
Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).  The non-moving party is then required 
to “go beyond the pleadings and . . . designate ‘specific facts showing that there is a genuine 
issue for trial.’”  Id. at 324. 
Dover Lease 
We will first address respondent’s motion for summary relief as to appellant’s first 
claim alleging wrongful termination by the VA of a lease for building space in Dover, 
Delaware. 
In support of its motion, respondent relies upon the lease agreement for the Dover 
property that sets forth an occupancy date of July 2007 and the declaration of Toni Wilson, 
the VA contracting officer, that the building was not ready for occupancy by July 31, 2007, 
and that Anderson had not yet obtained the necessary permits from the city of Dover at the 
time the lease was terminated.  Ms. Wilson further stated in her declaration that she 
terminated the lease in accordance with the terms of the lease, giving thirty days notice, and 
that she determined it was in the best interest of the Government to terminate the lease. 
In response to the motion, appellant disputed the facts presented by respondent and 
provided sufficient evidence to show that there are material facts in dispute that bear upon 
the propriety of the VA’s termination of the Dover lease and refusal to pay appellant any 
costs incurred in preparing the site for occupancy.  The evidence presented by appellant 
shows that the original lease was signed on April 19, 2007, and that a second lease was 
signed on May 10, 2007, with appellant agreeing to the same occupancy date.  The lease 
provided that the “[l]essor shall provide a valid Occupancy Permit within forty-five (45) 
calendar days after Government Inspection and Acceptance of the Space for the intended use 
of the Government” and that the “[l]essor shall complete any necessary alterations within 60 
to 120 calendar days after receipt of approved layout drawings from the Government.”  It is 
not clear from the present record when the Government gave approval of the layout drawings 
which, in turn, would determine when the 60 to 120 days in which to complete renovations 
would begin to run.  The record also shows that appellant had a valid dispute with the local 
planning authorities that it was attempting to resolve and that VA representatives were 
involved in the dispute resolution process. Also, respondent’s exhibit 7 to its motion is an 
e-mail message sent by the VA contracting officer on September 24, 2007, stating that the 

   
  
 
  
     
     
 
      
 
    
    
          
 
  
   
        
 
       
 
 
 
    
 
   
  
4 CBCA 1312 
occupancy date on the Dover project had been extended to October 1, 2007.  This contradicts 
respondent’s position that appellant did not meet the July 2007 occupancy date.  There is also 
evidence in the record supporting appellant’s argument that it was told to suspend work at 
Dover because of the urgency to finalize plans for the Georgetown clinic. Because there is 
a genuine dispute as to whether appellant’s delays were excusable, and whether the 
termination, and failure of the VA to pay for appellant’s costs incurred prior to termination, 
were proper, we deny respondent’s motion for summary relief on appellant’s first claim 
involving the Dover lease. 
Georgetown Lease 
Respondent, in support of its motion for summary relief involving appellant’s claim 
of an oral lease of space in Georgetown, Delaware, has set forth facts which establish that 
no employee from the VA with contracting authority entered into a contract with appellant, 
either oral or written, for the lease of the Georgetown property in question.  Also, respondent 
has presented evidence with its motion establishing that, at the time of the alleged oral lease 
agreement, appellant did not own the property it had allegedly leased to the VA. 
Appellant, in its response to the motion, agrees that there was no written lease 
agreement, but asserts that the VA contracting officer knew that it was attempting to 
purchase the property to lease to the VA and that it was involved with another VA 
representative in negotiating the lease terms. Mr. Anderson, the owner of Tolano Anderson 
Contracting, stated in appellant’s response to the motion that he was the “equity owner” of 
the Georgetown property and was scheduled to settle on the property upon receipt of a lease 
draft from respondent. Mr. Anderson contends that VA representatives visited the site and 
approved it for the clinic and that he was told to proceed with the renovation plans while the 
lease was being finalized. 
Once respondent presents evidence it believes supports its contention that there are 
no genuine issues in dispute, appellant is required to come forward with evidence that it 
contends refutes those facts presented by respondent.  Here, appellant has failed to put forth 
such evidence.  Appellant admits it did not have a written agreement with the VA.  Appellant 
also acknowledges that it had not yet purchased the property in question during the period 
it alleges an oral agreement came into existence. Appellant relies on a series of e-mail 
messages to establish that it had an oral agreement with the VA to lease space and manage 
a VA clinic in Georgetown, Delaware.  These e-mail messages, however, only show that 
there were on-going negotiations between the Assistant to the Director of the VA Medical 
Center in Wilmington, Delaware, and Mr. Anderson about providing space for the clinic in 
a building appellant was attempting to purchase. 

   
   
    
 
 
  
  
 
      
      
  
  
 
   
   
  
 
  
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5 CBCA 1312 
These negotiations, however, did not rise to the level of a contract. Appellant did not 
provide evidence of the terms of the alleged lease agreement, or provide a date on which the 
alleged oral agreement was entered into. It has been held that the requirements for either an 
oral express contract or an implied in fact contract are the same: 1) mutuality of intent to 
contract, 2) consideration, 3) unambiguous offer and acceptance, and 4) actual authority on 
the part of the Government’s representative to bind the Government.  Presidio County, Texas 
v. General Services Administration, CBCA 1209, 08-2 BCA ¶ 33,976, at 168,060 (citing 
Schism v. United States , 316 F.3d 1259, 1278 (Fed. Cir. 2002) ( en banc )). 
The e-mail messages provided by appellant in its response do not establish that the 
parties ever reached an agreement on the total square footage to be provided, the building 
layout, the lease costs, or the lease term. Additionally, where the Federal Government is one 
of the parties to a contract, appellant must show that the officer whose conduct is relied upon 
had actual authority to bind the Government.  H.F. Allen Orchards v. United States , 749 F.2d 
1571, 1575 (Fed. Cir. 1984).  Appellant has not provided any evidence that it entered into a 
lease agreement with a VA employee who had actual authority to bind the Government. 
Respondent, in its motion, provided evidence that established that an oral lease 
agreement did not exist between the VA and appellant. The evidence put forth by appellant 
in its response to the motion did not establish that there was a material fact in dispute bearing 
on this issue.  We conclude that a lease agreement did not exist between appellant and the 
VA, and thus grant respondent’s motion for summary relief in its favor on the second claim 
involving the Georgetown property. 
Decision 
Respondent’s MOTION FOR SUMMARY RELIEF  is GRANTED IN PART .  The 
motion is denied as to appellant’s first claim regarding a lease of the Dover, Delaware, 
property and granted as to appellant’s second claim regarding an alleged lease for property 
in Georgetown, Delaware. 
BERYL S. GILMORE 
Board Judge 

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6 CBCA 1312 
We concur: 
JERI K. SOMERS CANDIDA S. STEEL 
Board Judge Board Judge