DENIED: August 26, 1992 GSBCA 11571 HARRY W. GRIFFITH, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Harry W. Griffith, Gainesville, Florida, appearing for Appellant. George U. Lane, Office of Regional Counsel, General Services Administration, Atlanta, Georgia, counsel for Respondent. Before Board Judges NEILL, PARKER, and HYATT. PARKER, Board Judge. On March 22, 1991, appellant Harry W. Griffith submitted bids on four cars that respondent General Services Administration (GSA) was selling at auction. His bids were low on three of the cars, and he paid for one of them a few days later. After appellant declined to accept the other two cars, respondent terminated both contracts and asked him to pay liquidated damages. Appellant then alleged that the car he actually bought was misdescribed and suggested that respondent set off the difference between the amount he paid and the car's actual lesser value against any liquidated damages he might owe. Respondent rejected this offer. This appeal ensued. Findings of Fact 1. To sell surplus automobiles and trucks, respondent issued a four-page invitation for sealed bids (IFB) early in 1991. Appeal File, Exhibit 2. The IFB stated that inspections could occur between March 19 and 20, 1991, at the KSFC, and that bidding would open at 10:00 a.m. on March 21, 1991. Appeal File, Exhibit 2. 2. Attached to the IFB was an "Item Bid Page," Standard Form 2555-R, consisting chiefly of blocks that a bidder could use to list the item number, unit price bid, and total price bid. Appeal File, Exhibit 2 at 2. The form also included the following clause: This bid is subject to the General Sale Terms and Conditions (Standard Form 114C, March 1974 edition), Special Sealed Bid Conditions (Standard Form 114C-1, June 1986 edition), and the Sales letter which are incorporated herein by reference . . . . Id. At the bottom of the page, the clause entitled "PAYMENT AND REMOVAL OF PROPERTY" stated the following: Payment shall be made as prescribed in Condition No. 4, Standard Form 114C. Bidder is required to pay for any or all of the items awarded under this bid at the price set opposite each item, within 10 calendar days after date of award, and to remove the property within 20 calendar days after date of award by the Government. Id. 3. Standard Form 114C is titled "SALE OF GOVERNMENT PROPERTY GENERAL SALE TERMS AND CONDITIONS." Condition No. 6, titled "PAYMENTS," provides that: "The Purchaser agrees to pay for property awarded to him in accordance with the prices quoted in his bid." Appeal File, Exhibit 4. Condition No. 9 is a default clause, which provides that: If, after the award, the Purchaser breaches the contract by failure to make payment within the time allowed by the contract required by Condition No. 6, or by failure to remove the property as required by Condition No. 8, then the Government may send the Purchaser a 15-day written notice of default . . . . 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 . . . . Id. 4. Among the cars listed for sale was item number 014, described as follows: 1986 Mercedes 190E 6 CYL, AT, PS, PB, RA ID 689-0545; SN WDBD24A7EA58216 INOPERABLE: ENGINE REPAIR REQ Appeal File, Exhibit 2 at 3. The Drug Enforcement Administration (DEA) had sent this car to respondent on November 5, 1990. Appeal File, Exhibit 1. Item number 009 was an inoperable six-cylinder 1986 Chevrolet Celebrity station wagon, and item number 010 was a 1985 eight-cylinder Dodge Ramcharger requiring freeze plug repairs. Id. 5. The back page of the IFB listed "Special Terms and Conditions of Sale," and provided the following description warranty for the cars: 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 keep the property and refund any money paid if the purchase 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 . . . . Appeal File, Exhibit 2. 6. Using the standard bid form, SF-2555-R, appellant bid $3600 for the Dodge Ramcharger, $2100 for the Chevrolet Celebrity, and $7100 for the 1986 Mercedes. Appeal File, Exhibit 3. Appellant also bid on a fourth car. Id. 7. On March 22, 1991, respondent accepted appellant's bid of $2100 for the Chevrolet Celebrity, Appeal File, Exhibit 5, but appellant failed to pay for the car by April 1, 1991, or remove it by April 12, 1991, as required, id. Respondent also accepted appellant's bid of $3600 for the Dodge Ramcharger, which appellant again failed to pay for or remove within the required period of time. Id., Exhibit 6. Respondent sent appellant a cure notice on April 15, 1991, noting that he would be liable for liquidated damages of $1140, in accordance with the terms and conditions on Standard Form 114C. Id., Exhibit 8. Respondent sent a second cure notice on April 28, 1991, giving appellant 30 more days to comply. Id., Exhibit 10. 8. Appellant paid $7100 for the Mercedes on March 26, 1991. Appeal File, Exhibit 7. However, he soon found out that it was a 1984 Mercedes 190E, which he alleges is worth about $3000 less than a 1986 model, id., Exhibit 11, and called respondent about the problem on April 23, 1991, id., Exhibit 13. Respondent suggested that he return the car for a full refund of the purchase price. 9. Appellant responded to the default notices by letter, dated June 21, 1991, in which he argued that IFB did not "mention in any way anything in reference to fines of any kind," and that "[i]t was after I refused to accept the two vehicles that they told me I was being charged without any advance warning or notice." Appeal File, Exhibit 11. Appellant suggested that respondent set off the alleged $1140 against the $3000 difference between the amount he paid for the Mercedes and a 1984 model's Blue Book value. Id. Respondent treated the letter as a request for a final contracting officer decision, id., Exhibit 12, and denied the claim on August 6, 1991, on the grounds that Standard Form 114C permitted it to assess liquidated damages against him for failure to accept the Chevy and Dodge, id., Exhibit 13. Respondent also denied relief as to the Mercedes, since appellant was not willing to return the car for a refund as the contract required. Id. 10. Appellant appealed that decision to the Board on October 20, 1991. By letter dated November 22, 1991, he argued that the remedy of returning the Mercedes, which respondent offered, was inappropriate, since he had spent several hundred dollars retitling and fixing the engine of the car and would need to drive it 300 miles to return it to the auction site. As to Standard Form 114C, he said that: At no place does it mention anything about any fines. Anyone bidding on these cars would not expect any hidden clauses or rules that need to be researched before bidding that morning. There was no mention of the GSA Form 114 Regulation in bidding information. No warning whatever. Reject me if necessary but a fine is unreasonable for a little inconvenience to GSA. Appellant attached copies of "Blue Book" pages, which listed the price of a 1986 Mercedes four-door 190E sedan at $9050 for loan, $12,250 retail and the price of a 1984 model at $6500 loan, $8850 retail. The parties elected to submit the case on the record, pursuant to Rule 11, on April 24, 1992. Discussion Appellant first appears to allege that he made a unilateral mistake by bidding on four cars, although he only intended to purchase one. Under this theory, appellant could obtain relief by proving that the contracting officer overreached by accepting his bids, although he knew or should have known that they were mistaken. Ruggiero v. United States, 190 Ct. Cl. 327, 339, 420 F.2d 709, 716 (1970). In Ruggiero, the Court of Claims found that the contracting officer should have known that a bid for inaccessible land parcel would have to be part of a larger bid for companion parcels with road access. Id. Here, however, respondent notes that since car dealers are frequent auction customers, a bid for more than one car is not unusual and would not give the contracting officer constructive knowledge that appellant misunderstood that he must take all items for which he was the highest bidder. Also, the bid materials sent to appellant, at the "PAYMENTS AND REMOVAL" clause, clearly warned bidders that they could be awarded any and all of the items they bid on. Finding 3. We agree with the Government that there was no basis for the contracting officer to suspect a mistake in appellant's bids. Second, we find no merit to appellant's claim that the respondent placed an undue burden on bidders by incorporating Standard Form 114C, which included the "Default" clause imposing the 20 percent liquidated damages liability, by reference into the bid package. Incorporation of clauses by reference is a common practice in Government contracting which has been upheld time and time again. American Electric Contracting Corp. v. United States, 217 Ct.Cl. 338, 349, 579 F.2d 602, 608 (1978) ("[t]he fact that the contract did not physically incorporate the specifications and the QPL but only referred the bidder to them did not make it any less the bidder's responsibility to examine them"); Rosco, Inc., ASBCA 32102, 88-1 BCA 20,489, at 103,640 (1987). Although not part of the bid package here, Standard Form 114C is readily available. Respondent publishes it as part of the Federal Property Management Regulations (FPMR) and has it printed in the Federal Register, 41 CFR 101-1.104-1 (1991). The Government Printing Office distributes such forms through the Federal Depository Library System, 44 U.S.C. 1905 (1988). Finally, if appellant did not understand a portion of the bid package, all he had to do was ask. Appellant, not the Government, must bear the risk of appellant's failure to exercise reasonable diligence. We also deny appellant's claim for a setoff. Appellant's sole remedy, whether appealing or not, is to obtain a full refund on a returned car. Finding 6. Had appellant returned the car, we could have setoff any liquidated damages owed from the $7100, but we will not provide relief beyond that remedy, which appeared quite plainly on the contract's face. Sherwin Clark v. General Services Administration, GSBCA 9499, slip op. at 3 (June 15, 1992) (appellant's only remedy is refund with purchase price, not help with repair bills). Finally, appellant characterizes the assessment of the liquidated damages as a "fine," which we interpret, liberally, as an argument that the damages constitute a penalty. We have upheld the validity of this "20 percent" levy numerous times as bearing a reasonable relationship to the Government's administrative costs of terminating a bidder for default and awarding the car, at a possible loss, to the next lowest bidder, if one is available. Edward J. Coover, GSBCA 5758, 80-2 BCA 14,761, at 72,867; see also Baltazar Torres v. General Services Administration, GSBCA 11472, slip op. at 5 (June 15, 1992) (the 20% liquidated damages provision not invalid as penalty where damages calculation represents reasonable estimation, as of contract date, of the actual damages which would result if a party failed to perform); Mike Casey v. General Services Administration, GSBCA 11570, 92-2 BCA 24,882, at 124,102 (Government can collect 20% liquidated damages and withhold bidder's deposit on truck where bidder failed to prove he had grounds to void the sale). Decision For the reasons stated above, this appeal is DENIED. Appellant must pay the $1140 in liquidated damages assessed, plus applicable interest. _______________________________ ROBERT W. PARKER Board Judge We concur: _______________________________ _______________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge