CBCA 6958

DENIED: March 11, 2021 CBCA 6958 DANIEL J. ETZIN, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Daniel J. Etzin, pro se, London, United Kingdom. Anthony M. Giannopoulos, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. Before Board Judges ZISCHKAU, SULLIVAN, and LESTER. LESTER, Board Judge. Appellant, Daniel J. Etzin, purchased two vessels at a General Services Administration (GSA) auction in October 2019, but failed to remove them from the Federal Government site on which they were stored within the ten-day deadline that the purchase agreements required. Months later, Mr. Etzin requested a refund of his payments, asserting that the COVID-19 pandemic had now made removal impossible. GSA eventually refunded the bulk of Mr. Etzin’s payments, but, as part of a default termination of the contracts, withheld 5% as a default fee. In response to Mr. Etzin’s notice of appeal challenging GSA’s withholding, GSA filed a motion to dismiss this appeal. Because Mr. Etzin was in default of the vessel removal obligations of his contracts, and because Mr. Etzin’s contracts authorize the 5% default fee, we deny Mr. Etzin’s appeal. CBCA 6958 2 Background The Solicitation Provisions On October 1, 2019, GSA conducted an auction, via the Internet through the “GSA Auctions” website, for the sale of Lot 31QSCI20004037 (a seventy-four-foot steel workboat, with a estimated weight of approximately 120,000 pounds) and Lot 31QSCI20004038 (an eighty-two-foot non-standard aluminum-hulled workboat with an M9161A tractor, with an eighteen-foot beam), both of which were identified as having been sitting outdoors on dry ground without maintenance at the Naval Support Fleet Logistics Center (NSFLC or Naval Yard) in Williamsburg, Virginia, for a period of between six and eight years. The online solicitation for each of the two lots provided descriptions and photographs of the vessel for sale, indicated that the bidder should inspect the vessel before bidding and that its condition was not warranted, and directed bidders to “[r]ead terms and conditions” before bidding. Appeal File, Exhibit 2 at AF004, AF008.1 The “terms and conditions” mentioned in the solicitation referred to the “GSA Online Sales Terms and Conditions” (GSA Auction T&Cs) that were available on the GSA Auctions website. They notified successful bidders “that an award constitutes a binding contract with the United States Government.” Id. at AF024. Each online solicitation also indicated that “Buyer must pack, load, and remove. Inspection/removal by appointment only,” Exhibit 2 at AF004, AF008, before explaining steps that the successful bidder would have to take and the responsibilities that the successful bidder would have to assume as part of the removal process: Please contact the custodian for inspection dates and times and for removal arrangements. PROPERTY REMOVAL: Due to security issues at property locations, successful bidders are required to contact the custodian prior to entering the facility to remove property, and at times, they are not permitted to use security phones. Therefore, successful bidders must communicate with the custodians in advance to make arrangements for removal and/or have a cell phone with them to contact them once they arrive at the secured location. Successful bidders are cautioned that they will be responsible for loading, packing and removal of any and all property awarded to them from the exact place where the property is located [at the NSFLC, Williamsburg, Virginia]. 1 All exhibits referenced in this decision are found in the appeal file, unless otherwise noted. CBCA 6958 3 Id. at AF005, AF009. The GSA Auction T&Cs referenced in the solicitations provided, under the heading “Removal,” that the successful bidder would have ten business days after being notified of award to remove the purchased property from the government site at which it was then located: Property must be removed within ten (10) business days from the date and time of award e-mail notification. Successful bidders should contact the custodian prior to removal for specific building and loading policies. Exhibit 3 at AF028.