_______________________________________________ DENIED: November 20, 1995 _______________________________________________ GSBCA 13304 G.E. SALES AND RENTALS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Kenneth P. Graunstadt, Jr., of G.E. Sales and Rentals, Oakley, CA, appearing for Appellant. Thomas Hawkins, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. BORWICK, Board Judge. Appellant, G.E. Sales and Rentals (G.E. Sales), appeals from the decision of the contracting officer of respondent, General Services Administration (GSA), regarding a sale of surplus property--a landing craft utility (LCU). The contracting officer withdrew his acceptance of G.E. Sales's bid for the LCU because of a mistake--the GSA had misplaced another bidder's high bid for the LCU. The contracting officer returned the bid deposit to G.E. Sales. Unsatisfied with that action, G.E. Sales seeks the profit--$41,443--it alleges it would have made on the resale of the LCU had G.E. Sales been allowed to take possession of the item. The parties submitted the case on the record pursuant to Rule 11. Pursuant to Rule 13, G.E. Sales elected the small claims procedure for this appeal. Under the small claims procedure, the panel chairman may issue a single-judge decision. This decision is final and conclusive and shall not be set aside except in cases of fraud; it has no value as precedent. The Board denies the appeal. GSA's contracting officer orally withdrew GSA's acceptance of G.E. Sales's bid before G.E. Sales received GSA's written notice accepting that bid. There never was a contract for sale of the LCU between GSA and G.E. Sales; G.E. Sales is only entitled to return of its bid deposit. Findings of Fact 1. On or about September 22, 1994, respondent issued invitation for bid ("IFB") no. 91FBPS-95-002 for sale of surplus vessels and marine equipment. Appeal File, Exhibit 1. The sale was subject to the terms and conditions set forth in Standard Form 114C-1, "Special Sealed Bid Conditions," and Standard Form 114C, "General Sale Terms and Conditions," incorporated by reference in the IFB. Id. 2. Clause D of the Special Sealed Bid Conditions, titled "Award of Contract," states: The contract will be awarded to that responsible Bidder whose bid conforming to the Invitation will be most advantageous to the Government, price and other factors considered. A written award mailed (or otherwise furnished) to the successful Bidder within the time for acceptance provided in the Invitation shall be deemed to result in a binding contract without any further action by either party. Appeal File, Exhibit T. 3. On or about October 5, 1994, G.E. Sales, through its owner, Kenneth P. Graunstadt, Jr., submitted a bid of $3,187 for the LCU, a bid for another item, and a cashier's check for $6,214, which represented a deposit of twenty percent of the submitted bids for both items. Appeal File, Exhibit B. 4. Bids were opened on October 7, 1994, and, at that time, the contracting officer determined G.E. Sales's bid to be the high bid. Appeal File, Exhibit U, 4 (Affidavit of GSA Regional Sales Manager Mark Jensen (Aug. 15, 1995)). 5. On October 13, 1994, GSA, by Federal Express, sent a notice of award for the item to appellant. Appeal File, Exhibits C and U, 4. 6. On the same day that the notice of award was sent, a GSA secretary discovered an envelope from Mr. Joseph Garske which had been sent on October 3, 1994, addressed exactly as required by the IFB, and received in the mail room on October 4. Appeal File, Exhibit U, 5, 6. The envelope contained Mr. Garske's high bid for the LCU. Id. 8. 7. On October 13, 1994, the GSA Regional Sales Manager phoned G.E. Sales and left a message that GSA was withdrawing the award which had been sent to, but not yet received by, appellant. Appeal File, Exhibit U, 8. GSA then awarded the item to Mr. Garske. Id. On or about December 2, 1994, the contracting officer notified G.E. Sales in writing that "the award document ... [was] no longer valid and the Government [was] voiding [its] copy as the award [would] be processed to the higher bidder." Id., Exhibit G. 8. In December 1994, GSA refunded the bid deposit G.E. Sales submitted with its bid. Appeal File, Exhibits I, J. 9. On March 26, 1995, G.E. Sales submitted a claim for its alleged lost profits to the contracting officer. On June 13 G.E. Sales appealed to this Board after the contracting officer failed to issue a decision within sixty days from receipt of the claim. By decision of June 14, the contracting officer issued his decision denying the claim. 10. In addition to breach of contract, G.E. Sales claims that GSA violated the procedures of the Federal Acquisition Regulation (FAR) by: not using the sealed bid process properly; opening the second bid after notice of award had been sent to G.E. Sales; and not opening the second bid in public. Complaint 15. Discussion The provisions of this sale incorporated the familiar mailbox rule, i.e. that a binding contract occurs when the Government accepts the bid by placing the acceptance in the mail, or by otherwise furnishing the acceptance to the bidder. Finding 2. For a discussion of the mailbox rule, see Computer Wholesale Corp., GSBCA 4217, 76-1 BCA 11,859, at 56,811, aff'd on reconsideration, 76-2 BCA 12,163; Titan Atlantic Construction Corp., ASBCA 26007, 83-2 BCA 16,791, at 83,470. The mailbox rule, however, is inoperative in this case, since here, the Government delivered the acceptance by Federal Express. Finding 5. The mailbox rule applies only when correspondence is placed in the United States mail, not when it is placed in the hands of a private courier service or intermediary for subsequent delivery to the United States mail. Albert H. Voight, Inc., GSBCA 4433, 76-1 BCA 11,788 (no contract when acceptance placed in GSA inter-office mail room on acceptance date instead of in the United States mail). In another context--for determining timeliness of appeals--delivery of a notice of appeal to a private courier service is not the equivalent of placing the notice in the United States mails. In such a case, the date of actual receipt by the Board determines the timeliness of the appeal. Associate Engineering Co., VABCA 2673, 88-2 BCA 20,709, at 104,650. Contract formation would have occurred, if at all, upon G.E. Sales's receipt of the written acceptance. Before G.E. Sales received GSA's acceptance of its bid, however, the GSA contracting officer orally withdrew it. Thus, there was no contract between GSA and G.E. Sales for the sale of the LCU. Slobojan v. United States, 136 Ct. Cl. 620 (1956) (no contract for sale of land when, before Government's written notation of acceptance upon land-owner's offer to sell land was communicated to the land-owner, Government withdrew acceptance); see also Titan Atlantic Construction Corp., 83-2 BCA at 83,471 (no contract modification when Government received appellant's oral revocation of its acceptance before Government received written acceptance of the same modification). FAR 14.304-1(a)(2) gives the Government the right to consider a late bid if it is "received before contract award and" it is "determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the Government installation." 48 CFR 14.304-1 (1994). Because there was no contract award to G.E. Sales, the Government correctly considered the receipt of Mr. Garske's high bid "before award." Id.; Finding 7. Therefore, the Government acted within the guidelines of the FAR when it considered Mr. Garske's bid. Decision The appeal is DENIED. _________________________ ANTHONY S. BORWICK Board Judge