MOTION TO DISMISS DENIED:  January 17, 2023
CBCA 7330, 7348
MATHER ENTERPRISES,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
John M. Duggan and David L. Ballew of Duggan Shadwick Doerr & Kurlbaum LLC,
Overland Park, KS, counsel for Appellant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA; and Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs,
Arlington, TX, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), GOODMAN, and CHADWICK.
GOODMAN, Board Judge.
Appellant, Mather Enterprises, appealed from a decision of a contracting officer of
respondent, Department of Veterans Affairs, dated January 28, 2022, and that appeal was
docketed as CBCA 7330.  Respondent has filed a motion to dismiss CBCA 7330 for failure
to state a claim for which relief can be granted.1  We deny the motion.
1 Although CBCA 7330 is consolidated with CBCA 7348, this motion only
addresses CBCA 7330.

CBCA 7330, 7348 2
Background
This appeal concerns the lease of a building in Leavenworth, Kansas, that appellant
leases to respondent as a facility to supply prescription medications to veterans.  The lease
commenced in 2001.  In 2013, the parties entered into an agreement entitled “Stipulation of
Settlement” (the stipulation) to resolve a previous appeal concerning the lease.  Portions of
the stipulation were included in supplemental lease agreement (SLA) 57, which was executed
simultaneously with the stipulation.  The current appeals involve a dispute as to the scope of
maintenance that each party is obligated to perform as agreed in the stipulation and SLA 57.
The Relevant Lease Provisions
The lease contained the following provisions to which the parties refer in their
briefing of the motion to dismiss:
7.2  MAINTENANCE BY LESSOR:
Building equipment and maintenance requirements are to be met by the lessor.
The lessor must have a building superintendent or a local, designated
representative available to promptly correct deficiencies or attempt to correct
deficiencies within three (3) hours after written or oral notice of such condition
from the VA.  If no substantial attempt has been made to correct the
deficiencies within the specified time, action will be taken by VA to correct
such deficiencies and the cost of repairs will be deducted from the next
month’s rental payment.
The lessor is responsible for total maintenance of the leased premises in
accordance with paragraph 14, GSA Form 3517.  Such maintenance and
repairs includes, but is not limited to, exterior care of the building and the site:
all sidewalks, parking areas, driveways, private access roads, lawns and
shrubbery, including all repair and replacements.  All equipment and systems
shall be maintained to provide reliable service without unusual interruption,
disturbing noises, exposure to fire or safety hazards, or unusual emissions of
dirt.  The lessor’s maintenance responsibility includes initial supplies of all
items, materials, and equipment necessary for such maintenance.  All
maintenance work will be done in accordance with applicable codes, and
inspection certificates will be displayed as appropriate.  The lessor shall
provide the labor, material and supervision to adequately maintain the
structure, the roof, the exterior walls, windows, doors and any other necessary
building appurtenances to provide watertight integrity, structural soundness,
and acceptable appearance.

CBCA 7330, 7348 3
Without any additional charge, the Government has the right to require the
lessor or his representative to test once a year, with proper notice, such
systems as fire alarm, sprinkler, [deleted by parties] etc., to ensure proper
operation.  Upon request, appropriate operations and maintenance manuals
shall be made available for the Government’s review during these tests.  A
representative of the Contracting Officer shall witness these tests.
14. 552.270-6 – MAINTENANCE OF BUILDING AND PREMISES –
RIGHT OF ENTRY (SEP 1999)
Except in case of damage arising out of the willful act or negligence of a
Government employee, Lessor shall maintain the premises, including the
building, building systems, and all equipment, fixtures, and appurtenances
furnished by the lessor under this lease, in good repair and condition so that
they are suitable in appearance and capable of supplying such heat, air
conditioning, light, ventilation, safety systems, access and other things to the
premises, without reasonably preventable or recurring disruption, as is
required for the Government’s access to, occupancy, possession, use and
enjoyment of the premises as provided in the lease.  For the purpose of so
maintaining the premises, the Lessor may at reasonable times, enter the
premises with the approval of the authorized Government representative.
The Stipulation
On October 3, 2013, the parties entered into the stipulation.  The stipulation contained
the following provisions relevant to the current appeals and the provisions of the lease quoted
above. 
4. Beginning August 1, 2013 through November 30, 2013, Lessor shall
continue to perform routine maintenance, which shall include all manufacturer
recommended and industry accepted preventative maintenance, on the
premises (excepting and excluding improvements added by SLA 40 on or
about 2/16/10).  Specifically excluded from the Lessor’s obligation to perform
routine maintenance under the Lease during this period is that Lessee will take
immediate action to maintain, repair or make any necessary changes to the fire
alarm system to insure that the fire alarm system is tested, inspected and
operational in accordance with local and national code and requirements.
5. . . . Effective December 1, 2013 until the end of the Lease term and
vacating of the leased premises the Lessee is solely responsible for all

CBCA 7330, 7348 4
maintenance, repairs, replacement, real estate taxes, and costs associated with
routine and preventative maintenance of the leased premises.
. . . .
7. Effective December 1, 2013, SFO Section 7.2 shall be amended to
replace the word “Lessor” in this clause with “Lessee”, such that the Section
7.2 shall be entitled “Maintenance by Lessee” and all other instances of the
word “Lessor” shall be replaced with “Lessee” in this clause.  The Lessee shall
maintain the building, premises, grounds and parking lot consistent with the
standards set out in the Lease.
8. Effective December 1, 2013, GSA Form 3517B Paragraph 14 shall be
amended to replace the word “Lessor” in this clause with “Lessee,” such that
the Section 7.2 shall be entitled “Maintenance by Lessee” and all other
instances of the word “Lessor” shall be replaced with “Lessee” in this clause. 
However, the last Sentence of GSA Form 3517, paragraph 14 shall be
amended to read:  “Lessor may at reasonable times enter the premises with
approval of the authorized Government representative in charge and will
observe all applicable VA security policies during these visits.”
SLA 57
SLA 57, executed on October 3, 2013, contained these same provisions from the
stipulation.
The Claim
Appellant filed a claim with respondent’s contracting officer on October 19, 2021,
alleging that respondent has failed to meet its maintenance obligations to keep the leased
premises in “good repair and condition” so that it is “suitable in appearance” and capable of
supplying “heat, air conditioning, light, ventilation, safety systems, access and other things
to the premises, without reasonably preventable or recurring disruption.”  The claim further
alleges breach of contract and the duty of good faith and fair dealing, requests declaratory
relief, and includes a monetary claim.  The contracting officer denied the claim on
January 28, 2022, and appellant appealed to this Board.
Discussion
Respondent has filed a motion to dismiss CBCA 7330 for failure to state a claim for
which relief can be granted.  The basis of respondent’s motion is that the maintenance which

CBCA 7330, 7348 5
appellant was required to perform before entering into the stipulation, and which respondent
agreed to perform as the result of the stipulation, was “as is required for the Government’s
access to, occupancy, possession, use and enjoyment of the premises as provided in the
lease,” as stated in paragraph 14.  Thus, respondent asserts that, before the stipulation,
appellant was only obligated to perform maintenance that benefitted respondent, and after
the stipulation, respondent was only required to and only performed maintenance that it
determined was necessary for its own benefit.  Therefore, respondent maintains that the
maintenance which appellant asserts was not performed was that which was required solely
for appellant’s benefit and was not respondent’s obligation.  Respondent asserts that “[t]here
is no language in the lease requiring the Government, in operating the building, to provide
specific services for the benefit of the landlord.”  Respondent’s Motion to Dismiss at 7. 
Appellant’s position is that respondent does not, as respondent claims, have the
“complete and unfettered discretion to perform whatever maintenance it desires to benefit
itself” but rather must perform the “total maintenance of the leased premises.”  Appellant’s
Opposition to the Motion at 2-3.
The Board looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance
in deciding a motion to dismiss for failure to state a claim.  Board Rule 8(e) (48 CFR
6101.8(e) (2021)).  Thus, in considering this motion, we must assume that all well-pled
factual allegations are true and indulge in all reasonable inferences in favor of the
nonmovant.  Under this standard, appellant’s claim must be plausible on its face when
drawing all reasonable inferences in favor of the appellant.  OWL, Inc. v. Department of
Veterans Affairs, CBCA 7184, 22-1 BCA ¶ 38,013, at 184,614 (2021); see ITS Group Corp
v. Department of Agriculture, CBCA 6621, 20-1 BCA ¶ 37,602, at 182,552.
We find appellant’s claim plausible on its face when drawing all reasonable inferences
in favor of appellant.  There is clear and unambiguous language in the stipulation and SLA
57 that resolves the motion.  Both documents state:  “Effective December 1, 2013 until the
end of the Lease term and vacating of the leased premises, the Lessee is solely responsible
for all maintenance, repairs, replacement, real estate taxes, and costs associated with routine
and preventative maintenance of the leased premises.”  (Emphasis added.)  Therefore, the
stipulation and SLA are clear that the lessee (respondent) is responsible for all maintenance.2 
2 Both parties cite case law in support of their positions.  In further support of
its motion, respondent also notes that appellant asserts remedies provided in paragraphs 15
and 16 of the lease.  While these paragraphs provide remedies for respondent and were not
mentioned in the stipulation, appellant argues in its claim and in response to the motion that
these paragraphs were amended to provide remedies to appellant.  We need not address the
case law or additional arguments in order to resolve the motion.  The clear and unambiguous

CBCA 7330, 7348 6
While paragraph 14 of the lease, after the stipulation and SLA, continues to state that
maintenance is to be performed “as is required for the Government’s access to, occupancy,
possession, use and enjoyment of the premises as provided in the lease,” this does not mean
that there are specific maintenance tasks that would benefit appellant and not respondent, as
respondent suggests.  Such would be an unreasonable interpretation, in light of the
amendment to the last sentence of paragraph 14.  This sentence originally read:  “For the
purpose of so maintaining the premises, the Lessor may at reasonable times, enter the
premises with the approval of the authorized Government representative.”  The amended
sentence read:  “Lessor may at reasonable times enter the premises with approval of the
authorized Government representative in charge and will observe all applicable VA security
policies during these visits.”  The deletion in the amended sentence of the phrase “for the
purpose of so maintaining the premises” is consistent with the previously quoted language
in the stipulation and SLA that “the Lessee is solely responsible for all maintenance, repairs,
replacement, real estate taxes, and costs associated with routine and preventative
maintenance of the leased premises.”  Respondent’s obligation is reiterated by the last
sentence of paragraph 7 of the stipulation, included in SLA 57, which reads:  “The Lessee
shall maintain the building, premises, grounds and parking lot consistent with the standards
set out in the Lease.”
Decision
Respondent’s motion to dismiss for failure to state a claim for which relief can be
granted is DENIED.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge
We concur:
    Erica S. Beardsley               Kyle Chadwick               
ERICA S. BEARDSLEY KYLE CHADWICK
Board Judge Board Judge
language of the stipulation and SLA 57 states respondent’s obligation to perform all
maintenance, the breach of which would provide a remedy to appellant.