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.  UNDERSTANDING AND NOTIFICATIONS
1. The use, disposition, export and re-export of this property is subject to
all applicable U.S. Laws and Regulations, including but not limited to the
Arms Export Control Act (22 USC [United States Code] 2751 et seq.); Export
Administration Act of 1979 (50 USC App [Appendix] 2401 et seq.) as
continued under Executive Order 12924; International Traffic in Arms
Regulations (22 CFR 120 et seq.); Export Administration Regulations (15 CFR
730 et seq.); Foreign Assets Control Regulations (31 CFR 500 et seq.) and the
Espionage Act (18 USC 793 et seq.) which, among other things, prohibit: . . .
[any] use, disposition, export or re-export of the property not permitted by
applicable statute and regulation.
. . . .
SECTION IV.  CERTIFICATION STATEMENT TO BE SIGNED BIDDER
AT TIME OF RESPONSE TO IFB [Invitation for Bids]
. . . .
I acknowledge having been advised that the USML/CCLI [United States
Munitions List/Commerce Control List Items] property I purchased is
controlled by the U.S. Government and in many cases cannot be transferred
(exported, sold or given) to a foreign country, a non-U.S. Citizen/National or
a non-Permanent US Resident without a valid State/Commerce Department
export authorization.
Three bidders participated in the auction for each vessel.  Bidder 1 submitted a bid for
each vessel which did not meet the reserve price of $75,000 and dropped out of the bidding. 
Bidder 2 submitted a bid for each vessel which did meet the reserve price.  Sea Shepherd

CBCA 5254, 5255 4
then submitted a bid of $100,000 for each vessel.  Bidder 2 and SSCS continued to bid
against each other for each vessel.  Ultimately, SSCS placed a bid of $275,800 for the Pea
Island and was determined to be the high bidder for that vessel.  Bidder 2 submitted a higher
bid than SSCS’s last bid of $155,100 for the Block Island and was determined to be the high
bidder for that vessel.
With regard to the Pea Island, on December 4, 2014, GSA informed SSCS that it was
the winning bidder and SSCS wired payment to GSA.  A representative of SSCS completed
the End-Use Certificate and on December 5 sent it to GSA by facsimile transmission.  The
GSA contracting officer issued a bill of sale to SSCS on December 10.
With regard to the Block Island, on December 5, GSA informed SSCS that Bidder 2
was not a United  States citizen and was therefore ineligible to purchase this vessel.  The
GSA contracting officer offered to sell this vessel to SSCS at the price of its last and highest
bid of $155,100.  The SSCS representative asked the contracting officer by email,
“[C]onsidering that we were only bidding against someone not permitted to purchase and the
bidding ran high, would GSA be willing to sell the Block Island to us for $100,000?”  The
contracting officer promptly responded, “We cannot do this.  You have the option to not
accept the offer.”  SSCS equally promptly replied, “We accept.”  On December 7, the SSCS
representative signed a document saying that he “wish[ed] to have my bid of $155,100 . . .
revived on [the sale of the Block Island]. . . .  By reviving my bid, this will constitute a Legal,
Binding Contract.”  In its complaint, SSCS says that it agreed to pay $155,100 “under
protest” because it was “[c]oncerned that, if it did not immediately accept the GSA’s non-
negotiable terms, SSCS would lose the opportunity to purchase the vessel.”  GSA determined
that SSCS was the winning bidder on December 8 and, after receiving SSCS’s payment and
End-Use Certificate, issued a bill of sale to SSCS on December 10.
By letter dated October 5, 2015, SSCS made a certified claim in the amount of
$175,800 plus interest with regard to the purchase of the Pea Island.  SSCS “contend[ed] that
[the] price that it paid, under protest, was unjustifiably inflated as a result of the GSA’s
failure to prevent an ineligible bidder from participating – and precipitating a bidding war
– in the auction.”  By letter dated December 29, 2015, the contracting officer denied this
claim.  She maintained that the other bidder for the vessel was an eligible bidder and that
SSCS “willing[ly] increased [its] bid.”  SSCS appealed this decision, and the Board docketed
the appeal as CBCA 5254.
By another letter dated October 5, 2015, SSCS made a certified claim in the amount
of $55,100 plus interest with regard to the purchase of the Block Island.  SSCS made the
same contention it made in its claim with regard to the Pea Island.  By letter dated
December 29, 2015, the contracting officer denied this claim, noting that SSCS had revived

CBCA 5254, 5255 5
its bid and that it had done so despite knowing that the other bidder was not a United States
citizen and despite having “the option to decline the offer and have the item be re-listed on
another sale.”  SSCS appealed this decision, and the Board docketed the appeal as CBCA
5255.
Discussion
Motion to Dismiss for Lack of Jurisdiction
 
GSA cites DekaTron Corp. v. Department of Labor, CBCA 4428, 16-1 BCA ¶ 36,259,
for the proposition that “the Board ‘lack[s] jurisdiction over allegations of irregularities in
the selection process.’”  Id. at 176,892 (quoting IMS Engineers-Architects, P.C., ASBCA
53471, 06-1 BCA ¶ 33,231, at 164,672).  GSA maintains that because “[t]he entire basis for
SSCS’s claim relies on GSA’s actions prior to the award of the contract,” redress of SSCS’s
grievances would have been possible only through the filing of a protest with the
Government Accountability Office, per 31 U.S.C. §§ 3551-3557.
We agree with SSCS that this theory is not valid.  The Board’s jurisdiction under the
Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (2012), is “to decide any appeal from a
decision of a contracting officer of any executive agency (other than [those specifically
named, none of which includes GSA]) relative to a contract made by that agency.”  Id.
§ 7105(e)(1)(B).  A contractor’s claim that reformation of a contract is appropriate, due to
alleged illegal government conduct in the award of the contract, relates to the contract.  The
Board consequently has jurisdiction over appeals from contracting officer decisions
regarding such claims – even if those claims are brought after contract performance is
complete.  LaBarge Products, Inc. v. West, 46 F.3d 1547, 1550-52 (Fed. Cir. 1995).  We
have jurisdiction over these appeals, and therefore deny GSA’s motion to dismiss the cases
for lack of jurisdiction.
Motions for Summary Relief
Each party has moved for summary relief in these cases.  Resolving a dispute on such
a motion is appropriate when the moving party is entitled to judgment as a matter of law,
based on undisputed material facts.  The moving party bears the burden of demonstrating the
absence of genuine issues of material fact.  All justifiable inferences must be drawn in favor
of the nonmovant.  Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986).  When both parties move for summary relief, the Board
must “evaluate each motion on its own merits, resolving all reasonable inferences against the
party whose motion is under consideration.”  Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39

CBCA 5254, 5255 6
(Fed. Cir. 2001) (citing McKay v. United States, 199 F.3d 1376, 1380 (Fed. Cir. 1999)). 
There are no disputed facts here, so the appeals may be resolved on the cross-motions.
SSCS contends that but for the intervening bids of an ineligible bidder, SSCS would
have been the winning bidder for each vessel at the price of its original bid, $100,000.  GSA
violated regulations, the organization maintains, by refusing to accept those bids and instead
permitting an ineligible bidder – a nonresponsive entity – to drive up the prices.  
SSCS notes that pursuant to 40 U.S.C. § 545(a)(4), GSA may dispose of surplus
government property by making an award “to the responsible bidder whose bid, conforming
to the invitation for bids, is most advantageous to the Federal Government, price and other
factors considered.”  A “bid,” in the context of sales of such property, is “a response to an
offer to sell that, if accepted, would bind the bidder to the terms and conditions of the
contract (including the bid price).”  41 CFR 102-38.35 (2014).  A “responsive bid” is “a bid
that complies with the terms and conditions of the sales offering . . . .  Only responsive bids
may be considered for award.”  Id.102-38.190.  An agency “must award the sales contract
to the bidder with the highest responsive bid, unless a determination is made to reject the
bid.”  Id. 102-38.275.  An agency “may reject any or all bids when such action is
advantageous to the Government, or when it is in the public interest to do so.”  Id.
102-38.205.
SSCS notes further that pursuant to 41 CFR 102-38.45(a), an agency in selling
personal property is to “[e]nsure the sale complies with the provisions of Title 40 of the U.S.
Code, the regulations of this part [102-38], and any other applicable laws.”  Those “other
applicable laws” for the sale of these Coast Guard vessels, SSCS continues, include the
various laws cited on the End-Use Certificate which the successful bidder had to complete. 
Those laws include the International Traffic in Arms Regulations, 22 CFR subch. M, which
provide, at 22 CFR 121.15, that Coast Guard cutters with the designation “WPB” are
included on the United States Munitions List.  Such property may not be transferred to
ineligible parties.  Department of Defense Instruction 2030.08, ¶ 4.3 (May 23, 2006).  
Neither GSA nor we take exception to these summaries of relevant statute and
regulations.  But how do they relate to SSCS’s claims?  The contractor notes that pursuant
to 41 CFR 102-38.75(a), an agency must “sell personal property upon such terms and
conditions as the head of [the] agency or designee deems proper to promote the fairness,
openness, and timeliness necessary for the sale to be conducted in a manner most
advantageous to the Government.”  And, says SSCS, allowing a nonresponsive bidder to
participate in an auction does not promote fairness or openness.  This regulation is said by
SSCS to be principally for the benefit of the contractor – a factor which is necessary for

CBCA 5254, 5255 7
reformation to be appropriate due to violation of a regulation.  See Cessna Aircraft Co. v.
Dalton, 126 F.3d 1442, 1451-52 (Fed. Cir. 1997).
We do not agree with this analysis.  As GSA points out, the auction terms and
conditions did not limit bidding to United States citizens; the limitations excluded only
individuals who were under the age of eighteen, employees of certain government agencies
(or family members of such employees), and debarred individuals and companies.  The terms
and conditions warned that non-citizens would be precluded from buying certain items due
to national security concerns.  The requirement for buyers of the vessels at issue to complete
an End-Use Certificate, along with the “WPB” designation of the vessels, amplified this
warning.  GSA faithfully followed all of these provisions by allowing a non-citizen to
participate in the bidding and then, once it learned of the bidder’s citizenship, preventing that
bidder from purchasing the vessels.  The predicament in which SSCS found itself – having
to pay more for the vessels than it would have if the other bidder had not participated – is
unfortunate for the organization, but sanctioned by the rules of the auction in which it chose
to join.
A government contract may be reformed to correct errors caused by an agency’s
violation of regulations issued for the benefit of contractors.  Cessna Aircraft Co.; LaBarge
Products; Promac, Inc., VABCA 5345, 98-2 BCA ¶ 30,068, at 148,782-83, aff’d sub nom.
Promac, Inc. v. West, 203 F.3d 786 (Fed. Cir. 2000).  Nevertheless, such “contracts are [not]
readily subject to change after performance.  The law and precedent of contract and
procurement require some grave error or mutual mistake or changed circumstance, such as
would render it unconscionable for the government to require performance of the original
terms.” American Telephone & Telegraph Co. v. United States, 307 F.3d 1374, 1383 n.2
(Fed. Cir. 2002) (Newman, J., dissenting).  Compliance with auction terms and conditions,
even if detrimental to the interests of one of the bidders, is hardly the sort of “grave error or
mutual mistake or changed circumstance” which might merit reformation.
Accordingly, we grant GSA’s motions for summary relief in these appeals and deny
SSCS’s motions for summary relief.  Because we have decided the appeals in this way, we
need not consider an issue which GSA addresses fully, whether the regulations in question
were principally for the benefit of the contractor or the Government.  See Promac, Inc., 203
F.3d at 789 (because the contractor had benefited from the agency’s violation of regulations,
it had “unclean hands and [was] not entitled to the equitable remedy of contract reformation,”
so determining the intended beneficiary of those regulations was unnecessary).

CBCA 5254, 5255 8
Decision
GSA’s motion to dismiss for lack of jurisdiction is denied, and its motions for
summary relief are granted.  SSCS’s motions for summary relief are denied.  The appeals are
DENIED.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
JERI KAYLENE SOMERS H. CHUCK KULLBERG
Board Judge Board Judge