PSBCA Nos. 6852, 6899

OPINION OF THE BOARD

Before us is a request to consolidate two appeals involving a Postal Service lease. PSBCA No. 6852 was filed and based on a claim submitted by TC Port Ybor LLC,¹ the former lessor. PSBCA No. 6899 was filed and based on a claim submitted by LIT Finance III LLC, the current lessor.
We questioned our jurisdiction over PSBCA No. 6852. Also, because some appeal file exhibits referred to the current lessor as Lion Industrial Partnership LP DBA LIT Finance III LLC, we questioned LIT Finance III LLC’s capacity to sue.

FINDINGS OF FACT

In September 2005, the Postal Service and TC Port Ybor LLC entered into a lease of a facility located at 1801 North Grant Street, Tampa, Florida. Based on the Postal Service’s written exercise of three renewal options, the lease term currently runs through April 2026. (Appeal File, Exhibits 1, 5–6, 11–12, 36–37). ²
The lease, as amended by Lease Amendment No. 1, includes the following clauses, in pertinent part: 

A.4. ASSIGNMENT OF CLAIMS
. . .
c. Nothing contained herein shall be construed so as to prohibit transfer of ownership of the demised premises so long as such transfer is subject to this agreement.
. . .
A.7. CLAIMS AND DISPUTES
a. This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613) (“the Act”). ³
b. Except as provided in the Act, all disputes arising under or relating to this contract must be resolved under this clause.
c. “Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. . . .
d. 1. A claim by the contractor must be made in writing and submitted to the contracting officer for a written decision. . . .

(Exhibit 2 at 41–42). 

On July 6, 2009, just before the exercise of the first renewal option, the Postal Service was sent a letter notifying it that the leased premises had been assigned to a new lessor, LIT Finance III LLC, and payments should be directed to that entity. At some point, the Postal Service was also sent a notice of change of ownership with an effective date of August 1, 2009 (notice) and a Certificate of Transfer of Title to Leased Property and Lease Assignment and Assumption dated July 27, 2009 (certificate of transfer). The certificate of transfer stated that the new owner was LIT Finance III LLC. For reasons unknown even to the attorney who prepared and filed the formation documents for LIT Finance III LLC, the notice stated that the new owner was Lion Industrial Partnership LP DBA LIT Finance III LLC. LIT Finance III LLC was not, however, a trade name or alias for another entity. (Exhibit 7 at 83–87; Exhibit 62 at 474-78; Appellants’ Notice Regarding Structure of LIT Finance III LLC).
Over the course of the lease, the current lessor was often mistakenly called Lion Industrial Partnership LP DBA LIT Finance III LLC, including in documents relating to the renewal options and records from the Postal Service’s payment system (Exhibits 5–6, 8, 11–12, 22, 24, 27–28, 30, 32–37, 40–45, 60). 
Adding another level of complexity is the fact that the former and current lessors, TC Port Ybor LLC and LIT Finance III LLC, respectively, are affiliated entities with common ownership. LIT Industrial Limited Partnership is the sole member of TC Port Ybor LLC and it owns 100% of LIT Finance III LLC. TC Port Ybor LLC and LIT Finance III LLC also share common management and use the services of the same property management company, which has handled billing for lease expenses. (Appellants’ Memorandum of Law Regarding Jurisdiction as to Appeal No. 6852 (Appellants’ Jurisdiction Memorandum), Exhibit A).
The purported claim underlying PSBCA No. 6852 was sent to a contracting officer for a final decision in December 2020 by an attorney who stated that he represented the “Purchaser.” He did not, however, define that term. He did define “Lessor,” which he stated was TC Port Ybor LLC. The amount claimed was $275,484.47. Therefore, he included a certification, which was signed by David Trent on behalf of TC Port Ybor LLC. The letter contained no mention of LIT Finance III LLC. (Exhibit 39).
On February 16, 2021, a contracting officer sent a final decision to the attorney and TC Port Ybor LLC. The contracting officer granted $64,869.16 of the amount claimed and denied the remainder. (Exhibit 47).
A notice of appeal of this decision was filed on March 16, 2021, by one of the attorneys representing TC Port Ybor LLC and LIT Finance III LLC in this litigation. She defined “Appellant” as TC Port Ybor LLC. We docketed the appeal as PSBCA No. 6852 and designated TC Port Ybor LLC as Appellant. 
In February 2022, TC Port Ybor LLC filed an unopposed motion requesting that LIT Finance III LLC be substituted as Appellant. TC Port Ybor LLC explained that while it was at one time the landlord, the property subject to the lease was assigned to LIT Finance III LLC in 2009.
After we questioned our jurisdiction over the appeal, TC Port Ybor LLC moved to stay proceedings so that LIT Finance III LLC could submit what was called a protective claim. We granted that motion (Order, Mar. 14, 2022). ⁴
The protective claim was submitted by counsel for LIT Finance III LLC on March 25, 2022. It defined LIT Finance III, LLC as the “Landlord” and included a certification signed by Neal F. Konker on behalf of LIT Finance III LLC. The claim amount was $152,080.85. (Exhibit 62).
On May 20, 2022, a contracting officer issued a final decision denying the claim (Exhibit 67).
LIT Finance III LLC then filed a notice of appeal and request to consolidate. We docketed the appeal on June 28, 2022, as PSBCA No. 6899, and designated LIT Finance III LLC as Appellant.

DECISION

PSBCA No. 6852
Our jurisdiction is based on the Contract Disputes Act (CDA), which must be strictly construed because it waives sovereign immunity. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982). The CDA requires that a claim be submitted by a contractor to the contracting officer for a decision before the contractor may appeal to an agency Board of Contract Appeals. 41 U.S.C. §§ 7103–04. It defines “contractor” as “a party to a Federal Government contract other than the Federal Government.” Id. § 7101. If an entity does not meet the definition of “contractor,” it is not in privity and cannot avail itself of the CDA’s appeal provisions. Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009). In addition, while the CDA does not define “claim,” the lease does. To meet that definition, the submission must be by “one of the contracting parties.” ⁵ (Exhibit 2 at 42).
When TC Port Ybor LLC ceased being a party to the lease in 2009, it was no longer a contractor as defined by the CDA. It therefore could no longer submit a claim as defined by the lease, and it could no longer file an appeal with the Board. Accordingly, we lack jurisdiction over TC Port Ybor LLC’s appeal (PSBCA No. 6852).
While the contracting officer treated TC Port Ybor LLC’s submission as a claim and issued a final decision, he could not waive the statutory requirement that only a contractor can submit a claim and appeal the final decision. Paul E. Lehman, Inc. v. United States, 230 Ct. Cl. 11, 17 (1982) (holding that a contracting officer did not have authority to waive a requirement that Congress imposed); see also 41 U.S.C. §§ 7101, 7103–04; Summit Commerce Pointe, LLC v. General Services Administration, CBCA Nos. 2652, 2845, 13 BCA ¶ 35,370.
Appellants recognized that TC Port Ybor LLC lacked privity with the Postal Service when it submitted its purported claim. But they argued that the “CDA’s privity requirement does not prevent amendment of a claim to correct the name of a contractor where the amendment relates back, and the government would not be prejudiced” (Appellants’ Jurisdiction Memorandum at 4). In making this argument, Appellants disregarded the CDA’s requirements. 41 U.S.C. §§ 7101, 7103–04.
We reviewed the cases cited by Appellants: Cross Constr. Co., Inc. v. United States, 225 Ct. Cl. 616 (1980); Redmond City Center, L.L.C. Lease Agreement, PSBCA No. 6498, 13 BCA ¶ 35,347; Triad Realty Trust, GSBCA No. 10568, 92-1 BCA ¶ 24,413; and Forster Co. of Greenville, Inc. and Finesilver Mfg. Co., ASBCA Nos. 29132, 28955, 84-2 BCA ¶ 17,481. We also considered two decisions in which a sister Board of Contract Appeals applied Federal Rule of Civil Procedure 17 to substitute an improperly captioned party: Alares LLC v. Department of Veterans Affairs, CBCA Nos. 6149 et al., 21-1 BCA ¶ 37,906, and Eastco Building Services v. General Services Administration CBCA No. 5272, 17-1 BCA ¶ 36,670. ⁶ In all these cases, there was a cognizable claim because it was submitted by a party to the contract other than the Federal Government. In addition, the contracting officer’s final decision was issued to that entity. The errors in party name did not occur until the appeals of the final decisions. Without a cognizable claim, we cannot reach a relation back analysis under Federal Rule of Civil Procedure 17.
Our holding is supported by Dual, Inc., ASBCA No. 53827, 06-1 BCA ¶ 33,243. In that case, a contractor had forfeited its corporate charter before it submitted a purported termination for convenience settlement proposal (TFCSP), claim, and notice of appeal. It did, however, revive its corporate charter before the filing of its complaint. In granting the government’s motion to dismiss the contractor’s appeal for lack of jurisdiction, the Armed Services Board of Contract Appeals found that the contractor was not authorized to take corporate action until its corporate charter was revived. It therefore was not authorized to submit the TFSCP and, absent an authoritative TFSCP, there could not be a contractor claim, a valid contracting officer’s final decision, or an appeal under the CDA.    
The Postal Service also challenged the Board’s jurisdiction on the basis that Mr. Trent lacked authority to certify TC Port Ybor LLC’s purported claim, despite a declaration from Mr. Trent that he had that authority. (Appellants’ Jurisdiction Memorandum, Exhibit A; Respondent’s Response to Appellants’ Jurisdiction Memorandum). But we need not address this issue. Whether or not Mr. Trent could sign for TC Port Ybor LLC, it was not the proper entity to submit the claim.

PSBCA No. 6899
We also questioned whether PSBCA No. 6899 was filed by the proper party because some appeal file exhibits referred to the current lessor as Lion Industrial Partnership LP DBA LIT Finance III LLC. Appellants responded by providing information from the Delaware Division of Corporations and an affidavit from an attorney who prepared and filed the formation documents for LIT Finance III LLC. ⁷ These documents proved that LIT Finance III LLC is not a trade name or alias for another entity. Further, the certificate of transfer stated that the new owner was LIT Finance III LLC. Accordingly, the Board finds that LIT Finance III LLC is the proper party for PSBCA No. 6899. 

ORDER

For the reasons above, LIT Finance III LLC’s request to consolidate PSBCA Nos. 6852 and 6899 is denied, and PSBCA No. 6852 is dismissed for lack of jurisdiction.