CBCA 5254

DENIED: November 21, 2016 CBCA 5254, 5255 SEA SHEPHERD CONSERVATION SOCIETY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. William A. Shook of The Law Offices of William A. Shook PLLC, Seattle, WA, counsel for Appellant. Stephen T. O’Neal, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), SOMERS, and KULLBERG. DANIELS, Board Judge. Sea Shepherd Conservation Society (SSCS) bought from the General Services Administration (GSA), at auction, two decommissioned United States Coast Guard vessels. Several months after consummating the transaction, SSCS claimed that it should have been permitted to buy the vessels at lower prices than those it actually paid. A GSA contracting officer denied the claims, and SSCS appealed from those decisions. GSA moves to dismiss both appeals for lack of jurisdiction. Both parties move for summary relief in each of the appeals. For the reasons expressed below, we deny the motion CBCA 5254, 5255 2 to dismiss for lack of jurisdiction, grant GSA’s motions for summary relief, deny SSCS’s motions for summary relief, and deny the appeals. Undisputed Facts In early December 2014, GSA conducted an auction through its GSAAuctions.gov website at which two former Coast Guard vessels, the USCGC Pea Island and the USCGC Block Island were offered for sale. The Pea Island was described in the auction catalog as WPB-1347 (and alternatively, as WPB-134), and the Block Island was described as WPB- 1344. As a condition of participation in the auction, each bidder was required to “recognize that [it is] subject to the Online Sale Terms and Conditions, General Sale Terms and Conditions (Standard Form 114C, April 2001) and the Special Requirements and Conditions, and that they are applicable to any item offered on the GSAAuctions.gov website.” One of the terms and conditions, entitled “Eligibility of Bidders,” stated: Bidders must be at least 18 years of age. Bidders will be required to provide their birth date at registration. A bidder’s birth date will be used only to verify bidder’s eligibility. This information is protected by the Privacy Act, 5 U.S.C. 552a. In addition, bidders must not be debarred from doing business with the Government. GSA will verify that individuals and companies are not debarred by checking their information against the bidders debarred list which identifies those parties excluded throughout the U.S. Government (unless otherwise noted) from receiving Federal contracts or certain subcontracts and from certain types of Federal financial and non financial assistance and benefits. Immediately below this paragraph is one entitled “U.S. Citizenship.” This paragraph stated, “Bidding is not limited to U.S. citizens exclusively. However due to National Security and Export restrictions, some items shall only be sold to U.S. Citizen [sic].” The General Sale Terms and Conditions (Standard Form 114C, April 2001) also included a paragraph entitled “Eligibility of Bidders.” This paragraph stated: The bidder warrants that he/she is not: (a) under 18 years of age; (b) an employee of an agency of the Federal Government (either as a civilian or as a member of the Armed Forces of the United States, including the United States Coast Guard, on active duty) prohibited by the regulations of that agency from purchasing property sold hereunder; (c) an agent or immediate member of the CBCA 5254, 5255 3 household of the employee in (b) above. For breach of this warranty, the Government shall have the right to annul this contract without liability. The auction terms and conditions also include a paragraph entitled “Export Restriction Notice” which provides, “The use, disposition, export and reexport of any property is subject to all applicable U.S. laws and regulations. These regulations include . . . . International Traffic in Arms Regulations (22 CFR [Code of Federal Regulations] Part 120 et seq.) . . . .” For each of the two vessels at issue, the auction catalog stated, “The successful bidder of this property will be required to complete an ‘End Use Certificate’ prior to removing the vessel.” The End-Use Certificate, DLA Form 1822, Jan 2013, contained the following provisions: SECTION III.