__________________________ DENIED: September 30, 1994 __________________________ GSBCA 12675 WHOLESALE AUTO CENTER, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David D. Caslavka, Owner, Wholesale Auto Center, Pacheco, CA, appearing for Appellant. Thomas Y. Hawkins, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Board Judges DEVINE, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On November 15, 1993, the Board received a notice of appeal from Wholesale Auto Center involving vehicle sales by the respondent, the General Services Administration. Underlying the appeal is a contracting officer decision denying Wholesale's claim for relief related to two sales. Wholesale has attempted to expand this appeal beyond the jurisdiction of the Board, as it also seeks relief based on agency actions under other vehicles sales, although Wholesale has submitted no related claim to a contracting officer. Wholesale has established that the agency breached the terms of one of the contracts when it failed to issue valid certificates of release for vehicles Wholesale purchased and removed. However, Wholesale has not established its entitlement to any of its requested relief. The record does not demonstrate that any of the alleged expenditures were made as a result of improper agency actions. Moreover, even if entitlement is assumed, the record does not support the award of any money as relief. Wholesale's claimed hourly rate is not supported by the evidence; the alleged expenditures, on their face vastly inflated, are not tied to the issues of this appeal. Accordingly, the Board denies the appeal. Findings of Fact June 2 sale 1. On June 2, 1993, the agency conducted a vehicle (spot bid) sale; inspection of the vehicles was permitted preceding the sale. Appeal File, Exhibit 1 at 5. One of the general sale terms and conditions and one of the special terms and conditions provide that the "Government reserves the right to reject any or all bids." Standard Form 114C (JUNE 1986) at 1 ( 3(b)); Appeal File, Exhibit 1 at 5. 2. One of the general sale terms and conditions specifies that "title to the property sold hereunder shall vest in the Purchaser as and when removal is effected." Standard Form 114C (JUNE 1986) at 1 ( 7). 3. Another of the general sale terms and conditions addresses risk of loss, stating in part: With respect to losses only, in the event the property is offered for sale by the "lot," no adjustment will be authorized under this provision unless the Government is notified of the loss prior to removal from the installation of any portion of the lot with respect to which the loss is claimed. Standard Form 114C (JUNE 1986) at 2 ( 14). 4. Another such provision is captioned "limitation on Government liability": Except for reasonable packing, loading, and transportation costs (such packing, loading, and transportation costs being recoverable only when a return of property at Government cost is specifically authorized in writing by the Contracting Officer) the measure of the Government's liability in any case where liability of the Government to the Purchaser has been established shall not exceed refund of such portion of the purchase price as the Government may have received. Standard Form 114C (JUNE 1986) at 2 ( 15). 5. A special term and condition relates to title: Standard Form 97 (The United States Government Certificate of Release of a Motor Vehicle) and a GSA Form 27 (Notice of Award) will be issued to the buyer of each motor vehicle sold. . . . SF-97 is not a motor vehicle registration. It is evidence of title only, to be used by the purchaser to obtain a proper state motor vehicle registration. Appeal File, Exhibit 1 at 5. The relevant Standard Form 97 (Rev 4-91) notes in two places: "ANY ALTERATION OR ERASURE VOIDS THIS CERTIFICATE." On the form, the agency enters, among various items, the vehicle identification number (vin), the year, make of vehicle, series or model, body style and purchase price. Also on the form, the agency enters the odometer reading on the odometer disclosure statement. A representative of the buyer is required to sign, print his/her name and title, and date the form as well. E.g., id., Exhibit 15. 6. The "description warranty" provision of the special terms and conditions of the sale specifies: The Government warrants to the original purchaser that the property listed in the invitation for bids will conform to its description. If a misdescription is determined before removal of the property, the Government will keep the property and refund any money paid. If a misdescription is determined after removal, the Government will refund any money paid if the purchaser takes the property at his or her expense to a location specified by the contracting officer. No refund will be made unless the purchaser submits a written notice to the contracting officer within 15 calendar days of the date of removal that the property is misdescribed and maintains the property in the same condition as when removed. After property has been removed, no refund will be made for shortages of property sold by the "lot." This warranty is in place of all other guarantees and warranties, express or implied. The Government does not warrant the merchantability of the property or its fitness for any use or purpose. The amount of recovery under this provision is limited to the purchase price of the misdescribed property. The purchaser is not entitled to any payment for loss of profit or any other money damages, special, direct, indirect, or consequential. Appeal File, Exhibit 1 at 5. 7. Wholesale submitted winning bids (totalling $30,306) for lots 1, 15, 19, and 44. Appeal File, Exhibits 7-10. 8. The sales documentation describes lot 1 as follows: STATION WAGON, 1990 CHEVROLET CELEBRITY,6 CYL, AT, PS,PB,AC S/N 2G1AW84T7L2112666 TAG:G21-29041, ODO:59,448 (4791863131#3963) Appeal File, Exhibit 1 at 2. For lot 1, the agency initially issued a Standard Form 97 which identifies the vehicle as a 1990 Chevrolet S10 station wagon. A representative of Wholesale signed and dated the form June 16, 1993 (a Wednesday), the date Wholesale maintains it removed the vehicle. Id., Exhibits 14, 15, 26 at 1. The agency issued a Standard Form 97, with signatures for the agency and Wholesale dated June 21, 1993 (a Monday), which identifies the vehicle as a 1990 Chevrolet Celebrity station wagon. Id., Exhibit 22. 9. For lot 15, the agency initially issued a Standard Form 97 with the odometer reading entry containing an alteration/ erasure. Appeal File, Exhibits 17, 26 at 9. A representative of Wholesale signed and dated the form June 23, 1993 (a Wednesday), the date Wholesale maintains it removed the vehicle. Id., Exhibits 16, 17, 26 at 1. The agency issued a Standard Form 97 without alteration or erasure, with a signature date of June 2, 1993, for the agency, and a signature date of June 25, 1993 (a Friday), for Wholesale. Id., Exhibit 23. 10. For lot 19, the agency initially issued a Standard Form 97 with the odometer reading entry containing an alteration/ erasure. Appeal File, Exhibit 26 at 4. A representative of Wholesale signed and dated the form June 16, 1993, the date Wholesale maintains it removed the vehicle. Id., Exhibits 18, 26 at 1. The agency issued a Standard Form 97 without alteration or erasure, with signature dates of June 21, 1993, for the agency and Wholesale. Id., Exhibit 24. 11. The sales documentation describes lots 44 and 45 as follows, with the page break in the documentation indicated: LOT DESCRIPTION QTY 044 BRONCO, 1990 FORD, 8 CYL, AT, 4WD, PS, PB, AC, RA 1 LT S/N 1FMEU15N7LLA88497 TAG:G62-14650 ODO:50,306 (4791863116#3258) [PAGE BREAK] BLAZER, 1987 CHEVROLET,8 CYL,4SPDMT,4WD,PS,PB,AC, S/N 1GNEV18H4HF156422 TAG:G62-13306 ODO:53,820 (47918163125#3767) 045 BLAZER, 1987 CHEVROLET,8 CYL, AT,4WD,PS,PB,AC, 1 LT S/N 1GNEV18H4HF156422 TAG:G62-13306 ODO:53,820 (47918163125#3767) NEEDS REPAIRS Appeal File, Exhibit 1 at 3-4. For each lot, the stated quantity (QTY) is one lot (1 LT). For lot 44, the notice of award, signed by the contracting officer and dated June 2, 1993, describes the property as including one (quantity) each (unit) of the Bronco and Blazer. Id., Exhibit 10. Also for lot 44, another form, the purchaser's receipt and authority to release property, which similarly identifies the two vehicles, is signed by a representative of Wholesale and dated June 16, 1993, the date Wholesale maintains it removed only the Bronco. Id., Exhibits 20, 26 at 1. The agency initially issued a Standard Form 97 for the Bronco with the odometer reading entry containing an alteration/erasure. Id., Exhibit 21. A representative of Wholesale signed and dated the form June 16, 1993, the date Wholesale maintains it removed the vehicle. Id., Exhibits 21, 26 at 1. The agency issued a Standard Form 97 for the Bronco without alteration or erasure, with signature dates of June 21, 1993, for the agency and Wholesale. Id., Exhibit 22. Wholesale did not obtain the Blazer. The record does not demonstrate that Wholesale brought to the attention of the agency the lack of the Blazer in lot 44 at the time it removed the Bronco. 12. Wholesale does not take issue with the assertion of the agency that, at the June 2 sale, placards in the windows of vehicles identified vehicles by lot number. Lot 44 was represented as consisting only of the Bronco. The Blazer with the indicated license plate was identified as the sole vehicle in lot 45. Wholesale's owner, who did the inspections, states in response to agency requests for admissions: "I do not refer to the numbered placards placed on the windshields of the vehicles because they are not one of the contractual documents binding a sale." Wholesale Response (Feb. 7, 1994). June 9 sale 13. On June 9, 1993, the agency conducted a vehicle (sealed bid) sale. Appeal File, Exhibit 2. The general information to bidders specifies that the "Government reserves the right to reject any or all bids." Id. at 3. 14. Wholesale submitted a bid of $5,259 on lot 17. Appeal File, Exhibit 11. The agency recorded the price as $5,229, $30 below the actual price bid. Id., Exhibit 26 at 19. The agency made no award for lot 17. Id., Exhibit 13. For that lot, the agency considered the "upset price" (the general minimum bid price which would result in an award) to be $6,300. Id., Exhibit 12. Claim 15. By an undated letter to the contracting officer, styled "misdescription claim and questionable business practices," Wholesale only focuses upon agency actions relating to lots 1, 15, 19, and 44 of the June 2 sale, and lot 17 of the June 9 sale. In the letter, Wholesale seeks (1) $35,000 for lost time, lost sales, delayed sales, lost opportunity, cost for professional counsel, costs for out of pocket expenses, and great stress; (2) either the 1987 Chevy Blazer (allegedly described in lot 44 of the June 2 sale) or $4,500; and (3) the award of the lot 17 vehicle from the June 9 sale. Appeal File, Exhibit 26. 16. In a decision dated August 13, 1993, the contracting officer denied the claims raised in the undated letter, Finding 13. Appeal File, Exhibit 27. 17. By letter dated November 10, 1993, Wholesale filed its appeal with the Board. Appeal File, Exhibit 28. In its complaint, dated January 6, 1994, Wholesale identifies as issues those raised in its claim to the contracting officer and "those documented in [the] Supplement to Rule 4 File document dated January 3, 1994." In a cover letter to the supplemental appeal file, Wholesale asserts that it continues to encounter various problems with the agency regarding vehicle sales. The documentation in the supplemental appeal file attempts to substantiate and illustrate some such actions. However, Wholesale does not maintain that it has submitted a claim to a contracting officer to obtain relief with respect to any of the matters. The record contains neither a claim nor a contracting officer decision regarding any of the items; nor has the record been developed to focus on other than the sales of June 2 and 9. 18. By letter dated February 23, 1994, Wholesale raises additional instances of alleged agency impropriety regarding other vehicle sales and increases its request for relief by $10,000. Again, Wholesale does not maintain that it has submitted a claim to a contracting officer to obtain relief with respect to any of the matters. The record contains neither a claim nor a contracting officer decision regarding any of the items. Additional proof 19. Wholesale summarizes its costs as exceeding the amount of recovery ($45,000) it requests: $5,000 (at least 50 hours spent over past 2 years discussing problems with GSA sales management); $18,000 (approximately 180 hours verifying vin's listed in catalog against vin's on vehicles during inspections); $6,700 (approximately 67 hours verifying vin's on SF 97s against vin's on vehicles after purchase): $800 (at least 10 trips to return bad SF 97s to GSA and get new ones (courier service)); $15,000 (approximately 150 hours spent to date reviewing options, consulting with colleagues and counsel, filing claims, filing appeal, etc.); $1,000 (charges for legal counsel); $100 (charges for overnight delivery services); $6,000 (lost sales to out-of- state buyers demanding good title at time of sale (would not wait for corrected SF 97s)--vehicles were later sold at dealer auctions for less money); and unspecified amounts for losses of 2 dealer customers who will no longer buy vehicles from Wholesale because of its having given them bad SF 97s, and for lost sales opportunity time (if the Region 9 GSA offices were run in a professional business manner, all the time the owner spent as listed above would have been available to better develop his company rather than to identify and correct GSA problems). Supplemental Appeal File, Exhibit 6. 20. Mr. Caslavka, the owner of Wholesale, states that his hourly rate is $100. The record, including an in camera submission from Wholesale, fails to support the $100, or any other, hourly rate. The record does not convincingly demonstrate what hours, if any, Wholesale expended as a result of the agency misconduct alleged in the claim underlying this appeal. With the exception of costs of filing and pursuing this appeal, the record does not demonstrate that Wholesale incurred any of the other alleged expenses as a result of the agency's issuance of void Standard Form 97s connected with this appeal. 21. In a declaration, the contracting officer indicates that he has held his position for twelve years as the sales contracting officer; one of his duties is as the signing official for the Standard Form 97. He declares that on the date of the sale he discovered that mileages were incorrectly indicated on the forms. With no blank forms, "I believed it appropriate to facilitate the sale of the vehicles by issuing altered SF97s." Declaration of Contracting Officer (Mar. 24, 1994). Discussion Wholesale seeks to recover $45,000; either delivery of the 1987 Chevy Blazer or $4,500; and the vehicle described in lot 17 of the June 9 sale. The agency opposes each aspect of the requested relief. June 2 sale The agency's actions regarding Standard Form 97s for the four lots in question constitute a breach of the contract. However, Wholesale has failed to demonstrate its entitlement to relief. Further, assuming entitlement, Wholesale has not met its burden of proof on quantum; that is, the record does not justify awarding Wholesale any money. With respect to the certificates of release (Standard Form 97) for the vehicles in lot 15 and lot 19, and the Bronco in lot 44, the contracting officer knowingly provided Wholesale with certificates containing an alteration/erasure in the odometer reading entry. Findings 9-11, 21. The standard form specifies that an alteration or erasure voids the form. Finding 5. Thus, at the time Wholesale removed these vehicles, it did not have a valid certificate indicating its title to each vehicle. Similarly, the agency initially failed to provide Wholesale with a certificate of release properly describing the vehicle in lot 1. Finding 8. Under the terms of the sale, title to a vehicle would vest in the Wholesale when removal of the vehicle was effected. Finding 2. Standard Form 97, the certificate of release, indicates the passage of title to a vehicle from the agency to Wholesale. Finding 5. A void certificate does not enable Wholesale to obtain proper state motor vehicle registration. Thus, for each of the four vehicles in question, initially the agency did not provide Wholesale with usable proof of the transfer of title to the purchased vehicle. These failures constitute breaches of the contract by the agency. Although agency breaches occurred, Wholesale has failed to demonstrate a basis for recovery. Despite the alteration/erasure on each certificate (for lots 15, 19 and 44) and an incorrectly completed form for the vehicle in lot 1, a representative for Wholesale signed each of the certificates. Findings 8-11. Such signatures suggest that Wholesale expended no effort in initially reviewing Standard Form 97s for accuracy. Moreover, the record does not demonstrate what efforts or expenses, if any, Wholesale expended to obtain valid certificates of release. Within three work days of Wholesale's removal of each vehicle, it obtained a valid certificate. Id. The hours Wholesale claims it spent verifying vehicle identification numbers, Finding 19, are not related to the breaches at issue. Similarly, the hours and expenses Wholesale claims it expended discussing problems with the agency and returning void certificates of release are not tied to the breaches at issue. Findings 19-20. Claimed costs for allegedly lost sales are not sufficiently supported in the record. Id. Other claimed costs relate to pursuing the appeal; Wholesale has not demonstrated its entitlement to such costs. Wholesale has also failed to establish a basis for relief regarding the Blazer (allegedly a part of lot 44). First, the placards in the windows of the vehicles should have revealed to Wholesale that lot 44 consisted of a single vehicle, the Bronco. Finding 12. Thus, at the time of the sale, Wholesale should have known of the actual size of lot 44. Second, when Wholesale removed only the Bronco as the entirety of lot 44, it did not notify the agency of a discrepancy or misdescription. Finding 10. Because lot 44 was sold as a lot, Finding 10, under the terms of the contract, "After property has been removed, no refund will be made for shortages of property sold by the 'lot.'" Findings 5, 2. Even should lot 44 not be viewed as such a sale by the lot, Wholesale has not established a basis to recover. Wholesale failed to submit a written notice of misdescription to the agency within 15 calendar days of the date of the removal. Thus, the contract provides that no refund will be made. Id. June 9 sale As to the sale held on June 9, Wholesale notes that its bid of $5259 was recorded as $5229 and that the agency made no award. The agency would not have accepted a bid of $5259, and would have made no award given Wholesale's actual bid. Finding 13. The agency reserved the right to make no award. Finding 12. The agency reasonably exercised its prerogative. Wholesale has not demonstrated a basis for relief. Other matters Wholesale's prayer for relief of $45,000 encompasses matters outside of the claim letter and decision which address particular actions relating to the sales of June 2 and 9. Findings 15-18. Wholesale has not submitted to the contracting officer a claim which raises any of these additional items. With neither a claim by Wholesale nor a contracting officer decision, this Board lacks jurisdiction to reach any such matters. 41 U.S.C. 607(d) (1988). Decision Accordingly, the Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ DONALD W. DEVINE MARTHA H. DeGRAFF Board Judge Board Judge