[00:00:00] Speaker 02:
i don't think so

[00:00:10] Speaker 01:
It's correct, Your Honor.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the court.

[00:00:14] Speaker 01:
My name is Wilhelm Dingler.

[00:00:16] Speaker 01:
I'm in the Seattle office of Bullvenhouser Bailey, and we represent the appellants in this matter, GC Columbia.

[00:00:22] Speaker 01:
I will, throughout this argument, probably refer to my client as the Columbia Center, which is what it is commonly known, and that it's a building which is located in downtown Seattle.

[00:00:31] Speaker 01:
I would also like to reserve six minutes for a rebuttal.

[00:00:35] Speaker 01:
primarily because I believe your questions will be more important in my argument.

[00:00:41] Speaker 01:
But this case is relatively straightforward.

[00:00:44] Speaker 01:
My client oversees the Columbia Center.

[00:00:47] Speaker 01:
The Columbia Center is the fourth largest building west of the Mississippi.

[00:00:51] Speaker 01:
It has 1,538,000 square feet.

[00:01:00] Speaker 01:
Well the first one of course is that they said that even if they found that the provision of force majeure and all of the delay clauses that are in the contracts did apply to the real estate tax adjustments

[00:01:26] Speaker 01:
we made no showing that COVID actually affected the ability to provide documentation for the real estate tax adjustments.

[00:01:33] Speaker 01:
That finding was made by Judge Sheridan, and it's wrong.

[00:01:37] Speaker 01:
It's wrong when you're at the 12b6 level.

[00:01:40] Speaker 01:
That engrafts, we believe, a requirement that is found in Rule 56.

[00:01:46] Speaker 01:
At the 12b6 phase,

[00:01:49] Speaker 01:
And I'm not going to belabor the case law that's in the briefing.

[00:01:53] Speaker 01:
It's all there, and it is very, very clear.

[00:01:56] Speaker 01:
Even if the court were to disagree with whether or not, sorry, I want to find the exact.

[00:02:05] Speaker 02:
Well, if we agree with the board that the provision for exclusion of the ladies doesn't cover this tax adjustment, that's the end of the case, right?

[00:02:13] Speaker 01:
Oh, I agree with you.

[00:02:15] Speaker 04:
Can I just ask one question?

[00:02:17] Speaker 04:
Absolutely.

[00:02:18] Speaker 04:
Can I look at the leases and the leases have a certain number of square feet in the property being given over to the government under the lease, right?

[00:02:27] Speaker 04:
Correct.

[00:02:28] Speaker 04:
Wouldn't the liability for the real estate and the tax on the building depend on square footage?

[00:02:36] Speaker 01:
The square footage that GSA is leasing, Your Honor?

[00:02:38] Speaker 04:
Well, I mean, so it's what you're trying to say is, well, there's in these tax increases or what came.

[00:02:45] Speaker 04:
Or decreases.

[00:02:46] Speaker 04:
Decreases applied to the whole building.

[00:02:48] Speaker 04:
Right.

[00:02:49] Speaker 01:
The whole rentable building.

[00:02:51] Speaker 04:
Well, the whole rental.

[00:02:53] Speaker 01:
And may I interrupt, Your Honor?

[00:02:55] Speaker 04:
Once you calculate the government share by the number of square feet they had on the base.

[00:03:01] Speaker 01:
And that's exactly my point, Your Honor.

[00:03:04] Speaker 01:
That's not the analysis.

[00:03:05] Speaker 01:
The analysis is a comparison pro rata of that which is then leased.

[00:03:12] Speaker 01:
So it was what is leased in 2020 by the GSA versus the gross overall amount of leasing of the rest of the building.

[00:03:20] Speaker 01:
If there are 17 empty floors, for example, of square footage, we are not going to charge the GSA for those.

[00:03:26] Speaker 01:
We actually calculate.

[00:03:29] Speaker 04:
But you're going to charge them every penny for every penny square foot they leased from you.

[00:03:34] Speaker 01:
Correct.

[00:03:34] Speaker 01:
But the tax bill, as sent to Columbia Center, is one gross number.

[00:03:41] Speaker 04:
And it's a gross number that applies to what?

[00:03:44] Speaker 01:
The entire building.

[00:03:45] Speaker 01:
To the building.

[00:03:46] Speaker 01:
Correct.

[00:03:47] Speaker 01:
And so if there are, in addition to the... But that begs the question, because we would never do a tax adjustment.

[00:04:05] Speaker 01:
The tax adjustment wouldn't have to be done in the lease every year if it were always the same.

[00:04:13] Speaker 02:
I guess what I think Judge Clevenger is getting at is, I mean, you filed your tax return 10 days early during COVID, which is very impressive.

[00:04:23] Speaker 02:
But what is it?

[00:04:24] Speaker 01:
May I interrupt, Your Honor?

[00:04:25] Speaker 01:
Yes.

[00:04:25] Speaker 01:
We paid a tax bill.

[00:04:27] Speaker 01:
We did not file a return.

[00:04:29] Speaker 01:
OK.

[00:04:29] Speaker 01:
OK.

[00:04:29] Speaker 02:
Paid the tax bill.

[00:04:30] Speaker 01:
I apologize.

[00:04:31] Speaker 02:
I guess I'm just not hearing in your analysis of what you had to provide the government in order to make this thing.

[00:04:40] Speaker 02:
The problem was, I mean, you have 60 days.

[00:04:42] Speaker 02:
I mean, and you say, well, it's just a 12 v 6.

[00:04:46] Speaker 02:
Well, you've got to report something under Iqbal Twamli.

[00:04:50] Speaker 02:
You've got to say something.

[00:04:52] Speaker 02:
And I'm not seeing where that something is.

[00:04:54] Speaker 01:
And what I think that something is, Your Honor, is that there is a qualitative difference between receiving a bill that says, pay me X millions of dollars for your taxes for 2020, and writing a check, versus doing an audit of the available rentable space, finding out what the square footage is attributable to each person,

[00:05:15] Speaker 01:
and each tenant.

[00:05:16] Speaker 02:
Well, you already have the square footage of each parcel in this building.

[00:05:21] Speaker 02:
I've got to assume it's somewhere where you've used it before for other purposes, like the prior year or whatever.

[00:05:27] Speaker 02:
So what's the big deal about finding out what GSA rented and what they didn't rent?

[00:05:35] Speaker 01:
No, it's not what GSA rented.

[00:05:36] Speaker 01:
It's what the other tenants in the building, because I can't charge GSA a pro rata share against

[00:05:45] Speaker 01:
Tenants that aren't there.

[00:05:46] Speaker 01:
They only pay their pro rata share.

[00:05:50] Speaker 01:
And that's why the tax is adjusted every year based upon the amount of tenants.

[00:05:55] Speaker 04:
And they don't have their share?

[00:05:56] Speaker 04:
Their share relates to other people's?

[00:05:58] Speaker 01:
Right.

[00:05:59] Speaker 01:
Because the tax bill that comes to the Columbia Center is X. And then X gets parsed into GSA's share for theirs.

[00:06:11] Speaker 04:
What's the motivational?

[00:06:12] Speaker 01:
Pardon?

[00:06:12] Speaker 04:
What's the motivational?

[00:06:13] Speaker 04:
The numbers quarter feet in the building?

[00:06:16] Speaker 01:
You know, I'm not certain what the tax assessments are in King County, but I believe it is based upon the number of square feet in the building and its location so that it's a C3 zone or a C1 zone.

[00:06:25] Speaker 02:
You just started to differentiate between what the GSA space is and what the non-GSA space is, right?

[00:06:31] Speaker 02:
Correct.

[00:06:33] Speaker 02:
And those records aren't readily available?

[00:06:37] Speaker 01:
They are, Your Honor, but we're talking about the overlay and the reason for the appeal of COVID-19 and the incredible amounts of closures and the inability of people to even get into the office to do a lot of that work.

[00:06:54] Speaker 03:
But they couldn't have done some of that remotely?

[00:06:56] Speaker 01:
Oh, yes, they could, ultimately, and they did.

[00:06:58] Speaker 01:
And it took them an extra 30-ish days.

[00:07:01] Speaker 01:
And that's the issue here.

[00:07:03] Speaker 01:
That is the entire issue.

[00:07:06] Speaker 01:
They were hamstrung by their ability.

[00:07:08] Speaker 01:
And in fact, I re-polled.

[00:07:13] Speaker 03:
Looking at some of the leases themselves, and I'm just going to tell you some of the last numbers.

[00:07:17] Speaker 03:
It looks like it's 6680, 7135, and 7198.

[00:07:22] Speaker 03:
The only place where I saw the excusable delay is invoked is in the default delivery clause.

[00:07:28] Speaker 01:
Do you agree with that?

[00:07:29] Speaker 01:
In 6680, I would agree with you.

[00:07:31] Speaker 01:
And that's in Appendix 78 for the other two judges.

[00:07:35] Speaker 01:
And I would agree with you that that particular lease only has that provision, but that provision is, in our opinion, sufficient for our purposes and for our argument that there was, through no fault of the lessor, there was this delay.

[00:07:55] Speaker 01:
in the ability to issue the tax adjustment bill.

[00:08:01] Speaker 01:
Go ahead.

[00:08:01] Speaker 03:
I thought that the tax adjustment clause was very specific and said waive or write if the relevant documents are not received on time.

[00:08:08] Speaker 01:
I agree with that.

[00:08:09] Speaker 01:
It is cut and dried that but for an excuse

[00:08:14] Speaker 01:
in some other part of the contract.

[00:08:16] Speaker 01:
And what we're arguing is that excusable delay in Appendix 78, 6680, and then the force majeure clauses in the other contracts read in para materia tell us there is an avenue for Columbia Center to say that we are excused from the strict 60-day requirement by virtue of those clauses.

[00:08:40] Speaker 01:
And the excuse, and it's not as though we didn't send that $750,000 tax bill years later.

[00:08:48] Speaker 01:
We sent it 35 days later, 60 days later.

[00:08:52] Speaker 01:
I believe it was in March.

[00:08:54] Speaker 01:
So it was 60 days late, essentially.

[00:08:56] Speaker 01:
And while I agree, the clause is specific.

[00:08:59] Speaker 01:
It says if you're 61 days, you're out.

[00:09:02] Speaker 01:
But why are those clauses in those contracts, if not for the ability of the lessor to be able to take advantage in certain circumstances when it is beyond their control?

[00:09:17] Speaker 01:
Which is clearly, this is the case.

[00:09:19] Speaker 01:
It was beyond their control that Governor Inslee issued orders to the state of Washington

[00:09:26] Speaker 01:
called Stay Home and Stay Healthy.

[00:09:29] Speaker 01:
It's an appendix.

[00:09:30] Speaker 01:
One second.

[00:09:32] Speaker 02:
Well, this one doesn't mean mostly.

[00:09:34] Speaker 02:
We're talking about paper trail.

[00:09:35] Speaker 02:
We're talking about examining documents.

[00:09:38] Speaker 01:
Your Honor, I have no argument with that at all.

[00:09:40] Speaker 02:
You are correct.

[00:09:41] Speaker 02:
So whether people, as in this court, whether people were forced to work remotely has, depending on what you're talking about, has great impact or has very

[00:09:57] Speaker 02:
presentation would presumably They were collecting the rents.

[00:10:01] Speaker 02:
They were probably doing repairs all this time.

[00:10:03] Speaker 02:
I mean the world was going on

[00:10:14] Speaker 01:
Aren't these questions exactly why 12b6 should not have been granted?

[00:10:19] Speaker 01:
There are questions.

[00:10:20] Speaker 01:
There are issues about whether or not those things.

[00:10:24] Speaker 02:
Well, it's a question of who has to do how much at the beginning to establish if there are questions.

[00:10:30] Speaker 02:
And the question to examine is whether or not you're simply saying, COVID, oh my god, it disrupted the whole world.

[00:10:37] Speaker 02:
And Governor Inslee said everybody should stay home.

[00:10:40] Speaker 02:
Whether that is at all relevant or telling

[00:10:45] Speaker 02:
to the question here about excusable delay.

[00:10:49] Speaker 01:
I believe that in concert with the issuance by my client of its stay-at-home order, which you can find at APPX 684.

[00:11:06] Speaker 01:
It's part of our claim letter.

[00:11:10] Speaker 01:
in accordance with Governor Inslee's stay home, stay healthy order.

[00:11:14] Speaker 01:
And this, by the way, was dated April of 2021.

[00:11:17] Speaker 01:
So that was after this happened?

[00:11:22] Speaker 01:
Right.

[00:11:23] Speaker 01:
So by April of 2021, my client is still telling its employees

[00:11:30] Speaker 01:
Since March 23, the offices of urban renaissance groups have been closed, and all non-essential workers are asked to work remotely, including accountants.

[00:11:39] Speaker 02:
Wait a minute.

[00:11:40] Speaker 02:
I just hadn't caught this before.

[00:11:41] Speaker 02:
But you're saying that the order to work remotely came after this would have been done?

[00:11:46] Speaker 02:
What year are we in?

[00:11:48] Speaker 01:
What I'm suggesting is that a year later, when the tax bill was sent out, there were still massive restrictions on the ability to get into the office.

[00:11:57] Speaker 01:
is what I'm suggesting.

[00:11:58] Speaker 01:
This is just an extension of the original March 2020.

[00:12:03] Speaker 01:
Am I confusing you, Your Honor?

[00:12:05] Speaker 04:
No, I'm good.

[00:12:06] Speaker 04:
The stay home order from the company covered from December 20 through April 2021.

[00:12:13] Speaker 01:
Correct.

[00:12:14] Speaker 01:
That's the second one.

[00:12:15] Speaker 04:
Yes, this pages 63, 64 on the record

[00:12:19] Speaker 04:
is the only evidence, I believe, that you put in front of the board to support your argument that there was a COVID problem.

[00:12:27] Speaker 01:
Do you mean this letter?

[00:12:28] Speaker 01:
Yeah.

[00:12:28] Speaker 01:
And that's incorrect, Your Honor, as I noted.

[00:12:31] Speaker 04:
In terms of why it was that COVID stood in the way of getting this done on time?

[00:12:38] Speaker 04:
And again, I have to- Is there something other than this letter that- Well, Governor- Well, this goes to the question

[00:12:59] Speaker 01:
I would submit first, that's the cart before the horse, there is sufficient evidence to suggest that there is something to send this case down the road.

[00:13:08] Speaker 01:
That's the argument.

[00:13:10] Speaker 03:
The argument is... But can you answer Judge Claudinger's question?

[00:13:14] Speaker 03:
He asked you, is this the only thing that you presented?

[00:13:16] Speaker 01:
No, it's not.

[00:13:17] Speaker 03:
What else did you present?

[00:13:18] Speaker 01:
Get these appendix pages that you're going to give us something else.

[00:13:26] Speaker 01:
I have this written down somewhere.

[00:13:28] Speaker 01:
I apologize.

[00:13:36] Speaker 01:
683 through 962.

[00:13:39] Speaker 01:
Approximately 279 pages of evidence and information.

[00:13:45] Speaker 01:
Yes.

[00:13:46] Speaker 01:
The entire appendix from... I see the number again.

[00:13:54] Speaker 01:
683 through 962 were all submitted with part of the claim letter.

[00:13:59] Speaker 04:
All of this goes to the fact that there was COVID going on.

[00:14:03] Speaker 04:
I'm talking about information as to why COVID was preventing your client from getting the calculations.

[00:14:11] Speaker 01:
Departments that experienced the highest difficulties included accounting, property management, and leasing.

[00:14:16] Speaker 04:
That's in the letter?

[00:14:18] Speaker 01:
That's in the letter in what my client stated

[00:14:23] Speaker 01:
in their admissive to their employees.

[00:14:27] Speaker 01:
Appendix 684, it's the last, the indented sentence.

[00:14:35] Speaker 01:
Yes.

[00:14:42] Speaker 01:
We're not asking this court to dispense with any typical, usual, or customary legal procedures or inquiries.

[00:14:51] Speaker 01:
We're asking this court to, in fact, enforce that at a 12b6 phase, everything is considered and construed in favor of my client.

[00:15:01] Speaker 01:
And any inferences therein should also be construed in their favor.

[00:15:07] Speaker 01:
And at this point, it is our position that the Civilian Board of Contract Appeals essentially engrafted a standard which far exceeds the 12b6 standard.

[00:15:19] Speaker 01:
And we have provided sufficient information to move this case one step further down the road.

[00:15:25] Speaker 02:
OK, thank you.

[00:15:38] Speaker 00:
Good morning, Your Honors.

[00:15:39] Speaker 00:
May it please the Court.

[00:15:41] Speaker 00:
The Court should affirm the decision of the Board because the Board correctly determined that GC Columbia failed to state a claim for which relief can be granted.

[00:15:50] Speaker 00:
It is uncontroverted that each of the five leasing contracts contain clear, expressed language that in order to obtain a tax adjustment,

[00:15:59] Speaker 00:
The lessor here at DC Columbia was required to submit to the contracting officer evidence of the payment of the taxes and an invoice for the request of tax adjustment within 60 days, 60 calendar days, I should say, of when the tax payment was due to the tax majority.

[00:16:15] Speaker 02:
Can you just switch to where we ended with your friend here, which is let's assume we're talking about whether or not

[00:16:27] Speaker 02:
for the case to go forward.

[00:16:29] Speaker 02:
So what's your answer to, I guess, is best evidence, which is the letter from the governor talking about the difficulties of COVID and departments that experienced the highest difficulties, including accounting, property management, and leasing.

[00:16:43] Speaker 02:
Why isn't that sufficient under it all?

[00:16:46] Speaker 00:
I have several responses to that, Your Honor.

[00:16:49] Speaker 00:
First, pursuant to Twombly and Iqbal, allegations that are merely conclusory are not entitled to be assumed to be true.

[00:16:57] Speaker 00:
And that is what GC Columbia is requesting here.

[00:16:59] Speaker 00:
Rather than engaging in the summary judgment analysis, the board correctly stated that near general reference to COVID is not enough.

[00:17:11] Speaker 00:
Here, first, I would like to correct the record because

[00:17:15] Speaker 00:
the leasing contract specifically demonstrate how the tax adjustment is required to be made.

[00:17:25] Speaker 00:
And as an example, on appendix page 41,

[00:17:29] Speaker 00:
on paragraph F, it states that the government shall pay its share of taxes, tax increases, based on the ratio of the percentage of occupancy.

[00:17:42] Speaker 04:
And then, page 41, your honor.

[00:17:47] Speaker 00:
Yes, section F. So it's section 3.4 F, paragraph F. And that's the first sentence.

[00:18:01] Speaker 00:
And then section 3.5 states that the percentage occupancy will be established during negotiations.

[00:18:13] Speaker 00:
So this part is the solicitation, which was made part of the contract.

[00:18:19] Speaker 00:
If we look in the actual contract document, it specifically states what the percentage of occupancy was, and that is on page

[00:18:31] Speaker 00:
That is on page 22, Your Honor.

[00:18:33] Speaker 04:
Exactly, Your Honor.

[00:18:44] Speaker 00:
So the allegation that the offices were closed and no one could enter the building to go measure the square footage and all of

[00:18:52] Speaker 00:
That's inaccurate, because the percentage of occupancy was already determined in the leases.

[00:18:58] Speaker 00:
And that's on pages 22, 121.

[00:19:00] Speaker 04:
I think your adversary has already been brought in on that.

[00:19:05] Speaker 04:
He's saying, look, in COVID, there are a lot of people, even if there were people working from home, a bunch of people were sick.

[00:19:10] Speaker 04:
Some people were dying.

[00:19:12] Speaker 04:
Some people were over at the funeral home grieving of other people who died.

[00:19:16] Speaker 04:
There was chaos.

[00:19:18] Speaker 04:
Your honor.

[00:19:18] Speaker 04:
And he says he's pleaded enough

[00:19:22] Speaker 04:
here, given the fact that you can take judicial notice of things like, especially in the state of Washington where these retirement homes, as I recall, were killing off people with an electric break.

[00:19:34] Speaker 04:
So he's saying he's put in enough that court can take judicial notice that these things were happening so that if he's made a case on this contract, at least he's in court to be able to argue that COVID was in the way.

[00:19:48] Speaker 00:
Your Honor, what GC Columbia has provided is a general policy stating that the accounting department has been impacted.

[00:19:57] Speaker 00:
As the panel noticed earlier, GC Columbia was able to pay its taxes on time early even.

[00:20:04] Speaker 00:
So here, and this is not included in the record, but the email that the submission for the tax adjustment is two pages.

[00:20:14] Speaker 00:
It just goes to show that the submission was two pages.

[00:20:20] Speaker 00:
It was one invoice with a single line, and the second page was a calculation.

[00:20:27] Speaker 02:
Is it the government's view that no on-site investigation or measuring, people didn't have to go into every apartment with the measuring tape?

[00:20:38] Speaker 02:
Is it the government's view that the information necessary to complete this work

[00:20:44] Speaker 02:
is a paper trail?

[00:20:46] Speaker 00:
Yes, Your Honor.

[00:20:48] Speaker 00:
It could have been done remotely.

[00:20:49] Speaker 00:
It was an email submission.

[00:20:50] Speaker 00:
As I mentioned, the percentage occupancy is on pages 22, 129, 308, and 493 of the appendix.

[00:20:59] Speaker 02:
If he had attached to his complaint an affidavit from the six people who had been in his accounting department, been doing the same thing for 20 years, or all hospitalized with COVID during the relevant period of time, would that have been sufficient?

[00:21:14] Speaker 00:
Your Honor, no, because the excusable delay here does not apply to, and this is the other part of our argument, which I think is a more important part, the excusable delay provision.

[00:21:26] Speaker 04:
We're now talking about whether he's got COVID out.

[00:21:32] Speaker 00:
Sure, Your Honor.

[00:21:34] Speaker 00:
Under that scenario, I believe that would qualify.

[00:21:38] Speaker 00:
That's a good answer.

[00:21:40] Speaker 02:
Okay, now take us to the first part, which is your more legal question.

[00:21:43] Speaker 00:
Yes, Your Honor.

[00:21:44] Speaker 00:
Regarding the excusable delay, the general clauses only define the term where it applies in the leases.

[00:21:51] Speaker 00:
The only place in the lease is where the term is used is in the default in delivery dash time extension clauses.

[00:22:00] Speaker 00:
And the default in delivery clause relates to default by DC Columbia in the delivery of the premises to the government by the delivery date.

[00:22:09] Speaker 00:
And in that circumstance, it states that the government is entitled to terminate the lease unless the exception of excusable delay applies.

[00:22:18] Speaker 00:
The excusable delay does not apply to the tax adjustment clauses.

[00:22:22] Speaker 00:
First, the term is nowhere used in the tax adjustment clauses.

[00:22:27] Speaker 00:
In fact, those clauses have their own set of definitions for the relevant terms, such as taxing authority and percentage occupancy.

[00:22:36] Speaker 00:
And those definitions do not include excusable delay.

[00:22:40] Speaker 02:
Are there cases where this has already been decided, something close to this?

[00:22:44] Speaker 00:
The board, Your Honor, the board did address a few cases in its decision.

[00:22:52] Speaker 04:
None of which involved other contract issues.

[00:22:58] Speaker 04:
All of those other cases give fair warning to people who lease to the government that you better be aware of that 60 days because it fights like a crocodile.

[00:23:07] Speaker 04:
But none of them involved allegations by the USOA that they were contract terms that gave him away.

[00:23:17] Speaker 00:
Yes, Your Honor, but case law is clear that we have to give contracts their ordinary meaning.

[00:23:24] Speaker 00:
And parties are bound by the terms to which they agree.

[00:23:28] Speaker 00:
And here, the language is clear, unequivocal, and does not provide for any exceptions.

[00:23:34] Speaker 00:
Where the exception applies, it's explicitly stated in the leasing agreement.

[00:23:42] Speaker 04:
What would happen if we disagreed with you and found

[00:23:44] Speaker 04:
perhaps on one clause, the one contract that has the enhanced dealing with COVID.

[00:23:55] Speaker 04:
If we found that one applied, there was a reference in your average or lead arguments, like there's a course of conduct here if we found on one that applies to all.

[00:24:07] Speaker 04:
Is there any way that if we ruled in favor of the contractor on one contract, that would

[00:24:12] Speaker 04:
there would be a remand for consideration of whether or not there was some type of a course of conduct that swept across all the contracts.

[00:24:22] Speaker 00:
Your Honor, that's an argument that GC Columbia had made to the board, and the board did not address it.

[00:24:30] Speaker 00:
I don't believe that that argument was raised here before the court.

[00:24:33] Speaker 04:
I wonder if it was preserved in the record, what I would be curious to know.

[00:24:37] Speaker 00:
It was preserved in the record.

[00:24:41] Speaker 00:
It was part of a supplemental argument that DC Columbia had submitted to the board in response to a board order.

[00:24:48] Speaker 00:
And the government did not, I don't believe the government responded to that because it was a supplemental argument.

[00:24:56] Speaker 00:
And it was not mentioned here.

[00:24:57] Speaker 00:
It hasn't been argued here.

[00:24:58] Speaker 00:
And therefore, we would argue that it's been waived.

[00:25:02] Speaker 04:
Well, it isn't a matter of it's waived for the purpose of it.

[00:25:04] Speaker 04:
We're not going to reach it at this level.

[00:25:07] Speaker 04:
I don't think there's certainly no basis for us to decide whether there was a course of conduct or whether all five of these contracts should be treated for this purpose the same.

[00:25:16] Speaker 04:
I was just curious to know whether the argument had been made below, and you said it was.

[00:25:21] Speaker 04:
Thank you.

[00:25:22] Speaker 00:
Yes, Your Honor, it was.

[00:25:24] Speaker 00:
I also wanted to discuss the Section 10 that appeared in only one of the leases.

[00:25:31] Speaker 00:
Similar to the excusable delay provisions, section 10 concerns default by the government, excuse me, by the lessor and gives the government the ability to terminate the lease in that situation.

[00:25:45] Speaker 00:
Failure to submit the tax adjustment request within the contractually required 60-day time limit is not a lease requirement.

[00:25:55] Speaker 00:
It is a failure to exercise a right under the lease.

[00:26:00] Speaker 00:
There's no threat of default if GC Columbia did not submit a tax adjustment request in a timely manner.

[00:26:07] Speaker 00:
The only consequence is that it waives its right to seek reimbursement.

[00:26:12] Speaker 00:
Under GC Columbia's argument, as we explained in our brief, its failure to submit the tax adjustment request within the contractually required timeframe would entitle the government to terminate the lease.

[00:26:28] Speaker 00:
because it would be considered a default on the part of GC Columbia.

[00:26:34] Speaker 00:
This is a nonsensical result.

[00:26:37] Speaker 00:
Unless the court has any other questions, thank you, Your Honor.

[00:26:40] Speaker 00:
We respectfully request that the court affirm the decision of the board.

[00:26:44] Speaker 00:
Thank you.

[00:26:47] Speaker 01:
As I said earlier, I'm a man of few words.

[00:26:52] Speaker 01:
Just some misconceptions.

[00:26:56] Speaker 01:
Why?

[00:26:59] Speaker 01:
And the question was from you, your honor.

[00:27:01] Speaker 01:
You said, isn't this just a situation where there's a paper trail and you can do some calculations?

[00:27:08] Speaker 01:
Why would there be an adjustment every year if it's always the same?

[00:27:12] Speaker 01:
The reason is because it's not always the same.

[00:27:15] Speaker 01:
It's different every year.

[00:27:16] Speaker 01:
And the percentage of occupancy, contrary to my learned counsel.

[00:27:22] Speaker 02:
It may be different every year.

[00:27:24] Speaker 02:
That doesn't mean that it's based on a paper trail that's existing.

[00:27:27] Speaker 02:
If a tenant moves out and another moves in,

[00:27:29] Speaker 02:
Sure, I'm not suggesting that this tendency to make the same for decades, but why is it still not based on a pretty simplistic paper graph?

[00:27:40] Speaker 01:
That's a good question.

[00:27:41] Speaker 01:
And I think in some respects, it is based on a paper trail.

[00:27:44] Speaker 01:
But it is a paper trail that requires a significant amount of mustering, as it were.

[00:27:50] Speaker 01:
One needs to know in April, or in June, or in July, what was the percentage occupancy of the building.

[00:27:58] Speaker 01:
We have to do all those calculations so that we can figure out.

[00:28:01] Speaker 01:
Pardon?

[00:28:02] Speaker 04:
To determine what percentage of the tax bill is attributed attributable to each let's eat Even a GSA didn't occupy one square foot of these leases.

[00:28:12] Speaker 04:
You're going to charge them for the whole breath, right?

[00:28:16] Speaker 04:
There's no excuse in the least for GSA that says, oh, well, we don't occupy it.

[00:28:21] Speaker 01:
We don't pay.

[00:28:22] Speaker 01:
No, no.

[00:28:23] Speaker 01:
Maybe I've misstated my argument.

[00:28:25] Speaker 01:
It's not that whether a GSA is physically in the building or not.

[00:28:29] Speaker 01:
I can see that they have the amount of square footage they have.

[00:28:33] Speaker 01:
And it doesn't matter if none of them ever came into work at all.

[00:28:36] Speaker 01:
They are leasing that space.

[00:28:37] Speaker 01:
I'm talking about the totality of the building, the number of lessees, and the ability of my client

[00:28:43] Speaker 01:
to do that calculation.

[00:28:45] Speaker 04:
No, the number of square feet occupied.

[00:28:50] Speaker 01:
The number of square feet rented, not occupied, because occupied would suggest physical presence.

[00:28:56] Speaker 02:
You get a rental payment presumably every month.

[00:28:59] Speaker 01:
Correct.

[00:28:59] Speaker 02:
So based on the rental payments that are accepted on a monthly basis, you should have a monthly paper trail of what's rented and what's not.

[00:29:09] Speaker 01:
And the only thing I can say in response to that, Your Honor, is by virtue of the fact that there were so many things that hamstrung my client's ability to physically check all those things and see all those documents and do all those things is why it was inappropriate to dismiss it at this stage.

[00:29:27] Speaker 01:
The court below never allowed a proper record to be made.

[00:29:32] Speaker 02:
Thank you.

[00:29:33] Speaker 02:
Thank you very much.