Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405

                                                            

                     DENIED: October 20, 2005
                                                            

                           GSBCA 16705

                      DARREN R. GENTILQUORE,

                                             Appellant,

                                v.

                 GENERAL SERVICES ADMINISTRATION,

                                             Respondent.

     Darren R. Gentilquore, pro se, New Milford, PA.

     James R. Froembling, Office of Regional Counsel, General Services Administration,
Auburn, WA, counsel for Respondent.

Before Board Judges DANIELS (Chairman), PARKER, and HYATT.

DANIELS, Board Judge.

     We allow to stand as permissible, under a contract between the General Services
Administration (GSA) and Darren R. Gentilquore, GSA's determination requiring Mr.
Gentilquore to pay liquidated damages because he did not pay for and remove a truck he
agreed to buy.

                         Findings of Fact

     In May 2004, GSA made available for purchase through its GSAAuctions website a
1995 Ford F250 pickup truck which was located at the Malheur Forest Service in John Day,
Oregon.  The agency represented that the truck had gone 48,711 miles and had miscellaneous
holes in the cab, dashboard, roof, and bed, as well as miscellaneous scuffs, dings, dents, and
scratches.  No representation was made regarding the tires on the truck.  Exhibit 2.
 [Foot # 1 ] 

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[Foot # 1 ]       All exhibits are part of an appeal file submitted by GSA in this case.
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     The truck was available for bid only by persons who accepted the terms and
conditions of sale which were posted on the website.  The terms and conditions "invited,
urged and cautioned [prospective bidders] to inspect the property prior to bidding."  The
terms and conditions included a single warranty   "that the property listed in the
GSAAuctions.gov website will conform to its description."  The terms and conditions also
cautioned, "Any oral statement or representation by any representative of the Government,
changing or supplementing the offering or contract or any condition thereof, is unauthorized
and shall confer no right upon the bidder or purchaser."  Once GSA accepted an auction bid,
the terms and conditions would become part of a contract between the agency and the
successful bidder.  Exhibit 25 at 1-2, 5.

     The terms and conditions directed the attention of prospective bidders to "other
special requirements and conditions" of certain property.  Exhibit 25 at 5. Among those other
special requirements and conditions was one for vehicles.  This "special condition" informed
prospective bidders that "[t]o help protect the environment and reduce the amount of solid
waste in our landfills, Federal agencies are using retread tires on some vehicles."  Id. at 7.

     The terms and conditions provided that each successful bidder would be notified by
electronic mail and would have to pay for property he purchased within two business days
of the time and date of notification and remove that property within ten business days of that
time and date.  If a purchaser breached his contract by failing to comply with these
provisions, "the Government [would] be entitled to retain (or collect) as liquidated damages
a sum equal to the greater of (a) 20 percent of the purchase price of the item(s) as to which
the default has occurred, or (b) $200."  This amount would be "retained (or collected) by the
Government as liquidated damages."  Exhibit 25 at 3, 4.

     On May 26, 2004, GSA notified Mr. Gentilquore that his bid for the truck, in the
amount of $9050, had been accepted.  Exhibit 3.  On the same day, Mr. Gentilquore told the
contracting officer that he had spoken twice with Forest Service employees at the location
where the truck was garaged.  He said that during the previous week, one of the employees
had assured him that the truck was capable of being driven across the country to his home
on the East Coast.  On May 26, he said, another employee had told him that the truck had
recapped (retread) tires and was not safe for long-distance driving.  Mr. Gentilquore asserts
that the employee told him that in a nearby town, he could buy new tires for about $600. 
Exhibit 5; see also Exhibit 10.  According to GSA, the Government has no record that the
first conversation occurred.  Answer   4.  According to the Forest Service employee who
participated in the second conversation, he did not tell Mr. Gentilquore that the tires were
unsafe.  Exhibit 7 at 2.  A mechanic at the Forest Service facility where the truck was
garaged assured the contracting officer, within a week of the sale,  that the truck's retread
tires had considerable life remaining and were safe to use.  Exhibit 9.

     GSA has stated that retread tires "are, in fact, a normal and required procurement item
for Federal government agencies and have been for many years."  Exhibit 15.  On
September 14, 1998, President Clinton signed Executive Order 13,101, "Greening the
Government Through Waste Prevention, Recycling, and Federal Acquisition."  Under this
Order, each executive agency "shall incorporate waste prevention and recycling in the
agency's daily operations and work to increase and expand markets for recovered materials
through greater Federal Government preference and demand for such products."  Agencies
are to establish "affirmative procurement programs" for the purchase of items designated by
the Environmental Protection Agency (EPA).  Exhibit 23 (63 Fed. Reg. 49,643 (Sept. 16,
1998)).  Retread tires are one of those items.  Exhibit 24.  According to EPA  

     In most situations, retread tires can be driven under the same conditions and
     at the same speeds as new tires with no loss in safety or comfort.  In fact,
     retread tires have been safely used on school buses, trucks, cars, fire engines,
     and other emergency vehicles for years.  Retreading tires also helps conserve
     a valuable nonrenewable resource   oil.  Every year, retreading saves more
     than 400 million gallons of oil in North America.  Retread tires also help divert
     thousands of scrap tires from disposal each year.

Id. at 1.  EPA labels "a myth" the theory that retread tires are less safe than new ones.  Id.
at 7.

     On May 27, 2004, the contracting officer cautioned Mr. Gentilquore that if he did not
pay for the truck by June 3 and remove it by June 11, GSA would assess liquidated damages
in the amount of twenty percent of the purchase price ($1810).  Exhibit 7.  On August 25,
2004, the contracting officer terminated the contract for the sale of the truck and demanded
that Mr. Gentilquore pay GSA $1810 as liquidated damages no later than September 24. 
Exhibit 18.  By electronic mail message of July 14, 2005, GSA informed Mr. Gentilquore of
his right to appeal this decision to the Board of Contract Appeals.  Exhibit 21.  Mr.
Gentilquore filed an appeal on July 22.

                            Discussion

     On-line auctions are governed by rules prescribed by the organizations which conduct
them.  See, e.g., http://www.auctionbytes.com/cab/abu/y201/m05/abu0038/s02 (last visited
Oct. 20, 2005); http://www.auctionwisconsin.com/help/..\beginnersguide/beginner2.htm
(same).  Auctions conducted by GSA, through its GSAAuctions.gov website, follow this
general principle: they are governed by terms and conditions promulgated by the agency.  To
participate in a GSA on-line auction, a person must agree to these terms and conditions.

     As a bidder in one of these auctions, Darren R. Gentilquore was bound by the rules
published by the agency.  These rules cautioned him to inspect items prior to bidding,
warranted only that those items would conform to their description, alerted him to the fact
that vehicles listed for sale might have retread tires, and noted that oral representations of
Government representatives were "unauthorized and shall confer no right upon the bidder
or purchaser."  The rules also made clear that if Mr. Gentilquore did not pay for and remove
promptly any item for which he was the successful bidder, he would have to pay the
Government as liquidated damages a sum equal to the greater of twenty percent of the
purchase price or $200.

     Mr. Gentilquore complains that he should not have been required to pay for the truck
for which he was the high bidder   and now should not have to pay liquidated damages in
an amount equal to twenty percent of his bid   because the truck had retread tires.  We
evaluate his contention under the rules of the auction, which upon GSA's acceptance of his
bid became the terms and conditions of a contract between him and the agency.  The
argument is not persuasive.  Mr. Gentilquore should have understood, from the rules
themselves, that the truck might have retread tires.  He could have discovered that the truck
did have such tires by inspecting it prior to bidding, but he apparently did not do so.  Tires
were not mentioned in GSA's description of the vehicle, so the fact that the tires on the truck
were retreads cannot be considered a misdescription.  Even if the Forest Service employees
with whom Mr. Gentilquore says he spoke provided the information he alleges, their
statements were oral representations and therefore were unauthorized and conferred no right
on him.  Additionally, we note that there is no evidence in the record to the effect that retread
tires are unsafe for long-distance driving, as contended by Mr. Gentilquore; the only evidence
we have is to the contrary.

     The terms and conditions of the auction made plain that if Mr. Gentilquore did not pay
for and remove the truck promptly, he would have to pay the Government twenty percent of
the purchase price, or $1810, in liquidated damages.  He did not pay for and remove the
truck, as required.  Therefore, GSA is within its rights in demanding payment.

                             Decision

     The appeal is DENIED.

                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge

We concur:

_________________________               _________________________
ROBERT W. PARKER                   CATHERINE B. HYATT
Board Judge                             Board Judge