CBCA 5720

DISMISSED FOR LACK OF JURISDICTION OR, IN THE ALTERNATIVE, FOR FAILURE TO PROSECUTE: July 13, 2017 CBCA 5720 M.I.T. INTERNATIONAL COMMERCIAL LENDING, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Patrick J. McEvoy, President of M.I.T. International Commercial Lending, LLC, New York, NY, appearing for Appellant. John S. Tobey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LESTER, O’ROURKE, and RUSSELL. LESTER, Board Judge. On May 4, 2017, the Board issued a show cause order asking the parties to address what the Board, from its review of appellant’s notice of appeal, viewed as a possible jurisdictional problem that would preclude the Board from entertaining the appeal. Respondent, the General Services Administration (GSA), argues in response to the show cause order that, in fact, the Board lacks jurisdiction to entertain this appeal. Appellant, CBCA 5720 2 M.I.T. International Commercial Lending, LLC (MIT), has never responded to the show cause order or to any of the Board’s repeated inquiries about its failure to respond. For the reasons set forth below, we dismiss this appeal for lack of jurisdiction or, in the alternative, for failure to prosecute. Background I. MIT’s Breach Allegations On February 9, 2016, GSA commenced an on-line auction for the sale of real property, sale/lot no. 4-N-WV-0560, called Sugar Grove Station. The property, a 122.85-acre former United States Navy facility located in Sugar Grove, West Virginia, included approximately 105 buildings totaling more than 445,000 gross square feet. According to on-line invitation for bids (IFB) no. PEACH416004001, the Navy used the site from 1955 until the Navy Information Operations Command vacated the facility on September 30, 2015. Bids for Sugar Grove Station were received and posted on a government website, RealEstateSales.gov. As required by the “Instructions to Bidders” in the IFB, see IFB at 12, MIT paid the Government a registration deposit of $100,000 to participate in the auction. For the winning bidder, the deposit would “become Earnest Money to the benefit, custody, accountability and control of the Government.” IFB at 7.1 Further, a clause in the IFB’s “General Terms of Sale,” titled “Revocation of Bid and Default,” provided that, if the winning bidder defaulted on its performance obligations or failed to consummate the transaction, GSA could, at its option, retain the $100,000 earnest money deposit as liquidated damages. The IFB’s “General Terms of Sale” also contained a “Condition of Property” provision expressly stating that any sale of the property was “as is,” without any warranty or representation by the Government as to its size, quality, or state of repair. MIT appraised the property as being worth approximately $103 million before placing a bid of $11.2 million to purchase it. MIT planned to develop the property as a senior living facility. 1 The IFB defined “Earnest Money” as “the Bidder’s deposit of money demonstrating the Purchaser’s good faith offer to the Government to fully execute and comply with all terms, conditions, covenants and agreements contained in any contract resulting from the Government’s acceptance of the Bidder’s offered price.” IFB at 7. CBCA 5720 3 GSA accepted MIT’s bid on either July 26 or 28, 2016.2 In accordance with various payment provisions in the IFB’s “Instructions to Bidders,” which were incorporated into the contract, MIT was required to make an additional deposit of $1,020,000 (beyond the $100,000 deposit that it had previously made) to GSA by August 9, 2016. MIT alleges that, during a telephone call on August 2, 2016, it requested and GSA denied access to the property for an environmental site assessment (ESA) that would have allowed MIT’s consultant to inspect a pipeline. MIT also alleges that GSA and the Navy failed to provide MIT with essential inspection reports that would have provided information about that pipeline.