____________________ DENIED: May 16, 1995 ____________________ GSBCA 13176 DOROTHEA BARBEE, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Dorothea Barbee, pro se, Fort Worth, TX. Jerry Ann Foster, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges DEVINE, WILLIAMS, and VERGILIO. VERGILIO, Board Judge. On February 7, 1995, the Board received this appeal from Dorothea Barbee concerning a vehicle sale conducted by the respondent, the General Services Administration. A contracting officer decision concludes that Ms. Barbee was the successful bidder for a given vehicle at the auction, that she is in default for failure to pay for and remove the vehicle, and that she is liable to the agency for damages. Maintaining that she did not bid on the vehicle in question, Ms. Barbee seeks to reverse the decision of the contracting officer. The Board concludes that Ms. Barbee attended the auction, submitted the successful bid on the given vehicle, and failed to pay for (and remove) the vehicle. The agency properly deemed Ms. Barbee to be in default under the contract and to be liable for damages. Accordingly, Ms. Barbee is liable to the agency for $920 plus interest as dictated under the contract. The Board denies the appeal. Findings of Fact 1. On October 4, 1990, the agency held a "vehicle sale." Appeal File, Exhibit 1. The brochure announcing the sale both identifies the vehicles to be sold by lot number and description and specifies that the sale is to be held in accordance with the provisions of Standard Form 114C (General Sale Terms and Conditions), June 1986 edition, and the stated special terms and conditions. Appeal File, Exhibit 1. 2. Two of the "special terms and conditions" provide: IMPORTANT NOTICE TO ALL BIDDERS: You are cautioned to bid only on those items you are prepared to pay for and remove in accordance with the terms and conditions of the sale. All items awarded to you as the high bidder are contractually yours and must be paid for and removed within the time period allowed by this Invitation for Bids. Failure to do so may subject you to pay liquidated damages, a sum equal to the greater of (a) 20% of the total purchase price of the item(s) as to which the default has occurred; or (b) $25.00; or (c) the purchase price of such item(s) if the purchase is less than $25.00. It is not GSA policy to grant extensions of time for payment and removal. METHOD OF BIDDING: Items will be offered for sale one at a time in numerical order. Persons wishing to bid on an item may do so only at the time that item is being offered. Bidders will write their bids on special bid cards that will be available at the sale site. Sale officials will sort through all cards received for an item and select the card with the highest bid. The officials will then announce the high bidder and the amount of his high bid before proceeding to sell the next item. Bidders will not have the opportunity to raise a bid once the high bid for an item is announced. Appeal File, Exhibit 1 at 5. 3. The Default clause of the standard form specifies: The Purchaser agrees that in the event he fails to pay for the property or remove the same within the prescribed period(s) of time, the Government shall 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) $25, or the purchase price of such item(s) if the purchase price is less than $25. . . . Provided further, That the maximum sum which may be recovered by the Government as damages for failure of the Purchaser to pay for and remove the property shall be the formula amount. The Government shall specifically apprise the Purchaser, either in its original notice of default (or in separate subsequent written notice), that upon the expiration of the period prescribed for curing the default, the formula amount will be retained (or collected) by the Government as liquidated damages. Standard Form 114C (June 1986) at 1-2 ( 9). The form also has a separate provision regarding interest; interest shall accrue on all amounts not paid within thirty calendar days from the date of first written demand, notwithstanding any other provision of the contract. Id. at 2 ( 11). 4. Bid cards for items 4, 6, 11, 18, 19, 20, 22, and 26 have the name, address, telephone number, and signature of a Dorothea Barbee. Appeal File, Exhibits 11, 12. These cards were retained by the agency because each was among the three high bids on the given items. Id., Exhibits 11, 25 ( 3). 5. For item 11 (the vehicle at issue in this case), the agency determined that a Dorothea Barbee submitted the successful bid of $4600. For the sale of this item, the contracting officer read out the winning bid amount and his attempt at the pronunciation of the name. A Dorothea Barbee identified herself as the successful bidder and spelled her name. Appeal File, Exhibits 12, 25 (tape recording). 6. For item 26, a Dorothea Barbee submitted the successful bid of $4250. Exhibits 2, 6, 12. 7. At the conclusion of the sale, the Dorothea Barbee involved in this appeal (hereafter Ms. Barbee) paid for item 26. Exhibit 2. At that time, the contracting officer recognized that the same Ms. Barbee was also the successful bidder on item 11. He explained to Ms. Barbee that she was obligated to purchase item 11 (as well as item 26, for which she had paid). She did not deny that she had successfully bid on items 11 and 26. Appeal File, Exhibits 6, 23, 24. 8. The contracting officer provided Ms. Barbee with a cure letter dated October 5, 1990. The letter specifies that she is in default due to her failure to pay for and remove item 11. Further, it states that if the default is not cured by October 22, the agency will assess liquidated damages in the amount of $920 (20% of the $4600 price bid by Ms. Barbee). Appeal File, Exhibit 3. 9. On October 18, a Ms. Barbee called the agency. She said she will come by to pay for the vehicle and pick up the keys, she wants the vehicle and will be in before the deadline. Appeal File, Exhibits 4, 22. 10. By letter dated October 26, 1990, the contracting officer informed Ms. Barbee that because the default for item 11 had not been cured, "your contract is hereby terminated. Liquidated damages in the amount of $920 must be paid by you within 30 days of this letter." Appeal File, Exhibit 5. 11. By letter dated November 14, 1990, Ms. Barbee informed the agency "I have received the car I bid[] on. No. 26." Appeal File, Exhibit 6. 12. On November 15, 1990, the contracting officer spoke with Ms. Barbee, who raised no basis for not paying for the vehicle (item 11). Appeal File, Exhibit 23. 13. By letters dated December 19, 1990, and January 31, 1991, the agency informed Ms. Barbee of the amount due, and that interest and other charges would accrue until the amount was paid. Appeal File, Exhibits 7, 8. 14. With payment still not received after other communications, the agency sent Ms. Barbee a letter dated November 28, 1994, advising her that interest, penalty, and administrative charges continued to accrue on the unpaid original amount of $920. The agency sought payment of $1749 (the $920 plus unspecified and undifferentiated late charges and interest). Appeal File, Exhibit 13. 15. During a telephone call on December 1, 1994, Ms. Barbee informed the agency that she desired to listen to the tape recording of the sale. For the first time, she asserted that she did not bid on items 11 and 26 and does not want to pay for them. Appeal File, Exhibits 14. 16. During a telephone call on December 9, 1994, the agency invited Ms. Barbee to view the eight bid cards of Dorothea Barbee from the sale, Finding 4. Ms. Barbee maintained that she did not bid on the vehicles and that the bid cards are not in her handwriting. Appeal File, Exhibits 15, 25. 17. On December 13, 1994, Ms. Barbee visited the agency's offices and reviewed the bid cards. She denied that the signatures were hers. Appeal File, Exhibits 16, 25. 18. By letter to the agency dated December 15, 1994, Ms. Barbee stated that she had reviewed the bid cards. Further, "These are not my handwriting. No bid cards were shown to me with my signature handwriting on it. I am now convinced that the car I [bought] was purchased without my handwriting signature." Appeal File, Exhibit 17. She further stated that she only bid on four cylinder cars and hoped for a burgundy-colored vehicle (item 11 was six cylinder and light blue). Id. 19. By letter dated January 6, 1995, to Ms. Barbee, the contracting officer issued a formal decision which identifies the forum for filing an appeal and for filing a claim. The letter states in part: "Based on information provided by you, and the documentation contained in the sale file, I am unable to grant the relief you have requested. There is nothing to support your allegation that someone else signed the bid cards in your name. Until your account is cleared it will continue to accrue late charges and interest." Appeal File, Exhibit 18. 20. In a letter to the agency dated February 2, Ms. Barbee comments on her conversation with the agency on October 18, 1990, in which she stated that she would pay for and pick up the keys; and that she wants the vehicle, Finding 9: "Pleas[e] apply that statement to item 26 [] which I did remove. It was on December 13, 1994, in [the agency's] office that I saw bid cards, item 11 and 26 that did not have my signature on them." Appeal File, Exhibit 19. 21. On February 7, 1995, the Board received this appeal. 22. In a notarized letter dated March 14, 1995, to the Board, Ms. Barbee states: "I have been assessed $1,749.48, for a car I did not bid for nor did I want to bid on and have not received. If some one has used my name, you should be looking for that person. You should be able to see this mistake." Discussion Ms. Barbee maintains that she did not bid on item 11. She asserts that the signature on the bid card is not hers. Without the need for handwriting experts, the record establishes that Ms. Barbee was the successful awardee on item 11. Even if the signature is not hers, the card was completed with her knowledge and authorization. She identified herself during the sale as the successful bidder for item 11. As the same individual, she identified herself as the successful bidder for item 26. She paid for item 26. Although informed at the time of payment for item 26 that she was obligated to pay for item 11 as well, she did not contemporaneously contend that she was not the bidder. Ms. Barbee attributes her statements of October 18--that she intended to pay for the vehicle and pick up the keys before the cure period expired--as relating to item 26. Finding 20. At that time she had already paid for item 26. Ms. Barbee's assertions that she did not bid on any vehicles further cast doubt on her disavowals regarding item 11. In a letter dated November 14, 1990, Ms. Barbee expressly recognized that she had bid on item 26. Finding 11. The contentions of Ms. Barbee in attempting to disavow the bid as hers are not credible and are not supported by evidence. The Board concludes that Ms. Barbee successfully bid on item 11 and was in default due to her failure to pay for and remove the vehicle. Although the amount of liquidated damages assessed is not specifically in dispute, under the default clause, the maximum amount the agency may assess for default is 20% of the price bid. Finding 3. In establishing "the maximum sum which may be recovered by the Government as damages," no mention is made of late charges, other administrative costs or penalties. Id. Hence, the contract does not permit the additional late charges (even if viewed to be other than punitive) to be assessed, because $920 is 20% of the sale price--the contractually agreed upon ceiling. The interest provision of the contract, however, operates without regard to the liquidated damages provision and its ceiling. Id. The agency may recover interest on the amount due from the date of first written demand (October 26, 1990). Decision The Board DENIES the appeal of Ms. Barbee. The agency is entitled to recover $920, plus interest as described in the contract. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ DONALD W. DEVINE MARY ELLEN COSTER WILLIAMS Board Judge Board Judge