DENIED: October 18, 2011 
CBCA 2520 
GEORGE HOWELL dba EARTH SENSE, INC., 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
George Howell, President of Earth Sense, Inc., Elizabethtown, KY, appearing for 
Appellant. 
Gabriel N. Steinberg, Office of Regional Counsel, General Services Administration, 
Atlanta, GA, counsel for Respondent. 
Before Board Judges HYATT , VERGILIO , and DRUMMOND . 
VERGILIO , Board Judge. 
On August 8, 2011, the Board received from George Howell dba Earth Sense, Inc. 
(purchaser) a timely-filed notice of appeal. 41 U.S.C.A. §§ 7101-7109 (West 2011)). The 
purchaser successfully competed in an auction held by the respondent, the General Services 
Administration (agency). By email, the agency provided notice of the award in accordance 
with the contract. The purchaser did not pay for the item. The contracting officer issued a 
notice of termination for default and assessed liquidated damages of $325. The purchaser 
seeks to be relieved of the debt and to be compensated for expenses. 

 
                
            
         
               
               
             
             
            
              
  
            
     
       
             
      
  
                 
   
           
             
              
              
            
  
            
          
         
2 CBCA 2520 
The purchaser knew he was the awardee and did not pay for the item. The termination 
and assessment of damages are in accordance with the terms of the contract--the purchaser 
did not pay within two business days from the date and time the email notification was sent 
or the extended period. The purchaser unsuccessfully attempts to shift blame to the agency. 
While the purchaser maintains that the agency sent notification of the award to an old, non­
working email address, the purchaser had two auction accounts. For this purchase, the 
purchaser utilized the account with the outdated email address, not the newer account. The 
purchaser’s explanations do not account for the failure to pay in accordance with the terms 
of the contract. The Board upholds the default determination and the assessment of damages. 
Findings of Fact 
1. In June 2011, the agency held an on-line auction, conducted pursuant to written 
terms and conditions, including the following: 
Registration 
A credit card is required for all registered users in our online community. . . . 
This card number is recorded but will not be automatically charged if a bidder 
is the successful bidder of an item. 
Submission of Bid 
. . . . It is the responsibility of the bidder to follow-up on the status of his/her 
bid. 
Notification of Sale Results 
Successful bidders will be notified by email and must contact the regional 
sales office within 2 business days from the date and time the award email 
notification was sent. Bid results will not be furnished via telephone or fax. 
It is the bidder’s responsibility to follow-up on the status of his/her bid and to 
ensure that his/her email address and all registration data are kept accurate and 
up-to-date. 
Forms of Payment 
Credit card payments can be made via GSA Auctions from the “My Summary” 
page utilizing the “Trades” feature. Online payments are processed through 
the Department of Treasury’s electronic payment service via GSA Auctions[.] 

 
          
         
              
               
            
             
              
             
           
            
           
              
           
       
   
          
               
              
               
            
         
              
            
             
       
            
              
               
                
            
3 CBCA 2520 
Exhibit 1 at 1-2, 6 (exhibits are in the appeal file). 
2. The written terms and conditions include a provision addressing default: 
Default 
If you are awarded an item on GSA Auctions, you have a responsibility to pay 
for the item or lot that you were awarded within 2 business days from the date 
and time the award email notification was sent and promptly remove it within 
10 business days from the date and time the award email notification was sent, 
unless otherwise specified in the contract. If you fail to meet either of these 
two conditions, you will be in violation of the online sale terms and conditions 
of your contract with the Government and will be considered “in default.” 
As a defaulted bidder, you will be responsible for the payment of liquidated 
damages, an administrative fee for the processing and re-handling of the item 
for which you neglected to pay for and/or remove. A breakdown of the fee 
structure follows: [specifying the assessed fee of $325 for a purchase price 
within the inclusive range of $325 to $100,000.] 
Exhibit 1 at 5. 
3. The purchaser has two auction accounts (here called “account one” and 
“account two”) with the agency. The name, company, and email address are different for the 
two. Account one has a non-functioning email address. Account two has the purchaser’s 
current email address. The purchaser has not logged onto account two since June 2010; thus, 
the bid for this auction did not utilize account two. Exhibit 22. 
4. A computer-generated bidder report for the auction identifies this purchaser 
as the successful bidder on air conditioning equipment (lot 25) for $1411. The identifying 
information for the purchaser (name, company, and email address) is consistent with the 
information in account one but not account two; the non-functioning email address is listed 
on the bidder report. Exhibits 3, 22. 
5. The contracting officer sent an email message on June 14, 2011, to the 
purchaser, with the same identifying information as in the bidder report. The email is 
notification to the purchaser that he is the successful bidder. It specifies that the property 
must be paid for within two, and that the property must be removed within ten, business days 
from the date and time of the email notification. Exhibits 2, 3. 

 
             
           
            
             
                
    
        
         
               
                  
               
        
             
           
               
            
                
             
               
         
           
              
           
       
            
                
             
              
               
             
                
4 CBCA 2520 
6. The purchaser did not pay for the item within two business days. The 
contracting officer sent an email message, again to the non-functioning address, but 
consistent with the bid information, extending the time for payment. Exhibit 4. 
7. The purchaser did not pay within the extended period of time. The contracting 
officer sent by mail a notice of termination with an assessment of $325 to be paid within 
thirty days. Exhibit 5. 
8. The purchaser’s statements in correspondence with the contracting officer 
establish additional facts: “We were aware that we were the high bidder because we [were] 
on the site an[d] submitted the last bid at closing time. Once again we thought the payment 
was automatic. We bid on so many sites that are automatic that we can not remember all the 
rules[.]” Exhibit 19. The registration clause of the contract specifies that charges are not 
automatically made against a charge card. Finding 1. 
9. In support of the assertion that the agency is responsible for the incorrect email 
address (and non-receipt by the purchaser of the notices of award and of failure to pay), the 
purchaser references a purchase made on March 16, 2011. Exhibit 13. However, the notice 
of award for the referenced purchase utilizes information from the purchaser’s account one, 
not account two. Exhibit 15. The agency has not altered the information in the accounts. 
10. The Board finds as fact that the purchaser utilized account one to make the 
purchase. The agency sent notification of the award to the email address identified in that 
account. The purchaser did not pay for the item. 
11. By its notice of appeal, the purchaser disputes the default determination and 
assessment of damages. In an amended appeal the purchaser seeks to recoup what it 
characterizes as its expenses of $1614; however, no underlying claim or supporting 
documentation has been presented to the contracting officer. 
Discussion 
The agency provided notice of award consistent with the information provided in the 
account utilized by the purchaser for the winning bid. The triggering date for payment is the 
sending, not the receiving, of the email message. The agency satisfied its contractual 
obligations. The purchaser failed to pay (within the initial and extended periods). The 
purchaser was in default by failing to fulfill its obligations. The agency is not responsible 
for the purchaser’s inactions. The purchaser has only established its own responsibility; it 
knew it was the awardee, but did not make the payment. Its default is not excusable. 

 
             
                 
            
               
            
  
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5 CBCA 2520 
The Board upholds the default. The agency assessed damages in accordance with the 
terms of the contract. There is no basis for this Board to reach and deny the purchaser’s 
counterclaim for expenses, because there has been no underlying claim to the contracting 
officer. M. Maropakis Carpentry, Inc. v. United States , 609 F.3d 1323 (Fed. Cir. 2010). 
Decision 
The Board DENIES the appeal, thereby upholding the termination for default and the 
assessment of damages. 
JOSEPH A. VERGILIO 
Board Judge 
We concur: 
CATHERINE B. HYATT JEROME M. DRUMMOND 
Board Judge Board Judge