_________________________________________________________________ RESPONDENT'S MOTION FOR SUMMARY JUDGMENT DENIED: JUNE 16 , 1995 _________________________________________________________________ GSBCA 12721, 13173 HOMER O. BYERS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Adrian L. Bastianelli, III, of Bastianelli, Brown & Touchey, Washington, DC, counsel for Appellant. Martin A. Hom and Max J. Brown, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, HYATT, and NEILL. DEVINE, Board Judge. Appellant submitted a sealed bid in the amount of $92,809 to the General Services Administration (GSA), an agency of the United States Government, in response to an invitation for bids on the work of removing and replacing deteriorated exterior slate pavers on the walls of the Federal Courthouse in Roswell, New Mexico. Appeal File, Vol. 2. Appellant's place of business is in Shreveport, Louisiana. Id. The bid submission date was originally April 20, 1993, but it was rescheduled twice and ultimately became June 29, 1993. Appeal File, GSBCA 12721, Vol. 2 at 283. The solicitation stated: "Offers providing less than 60 calendar days for Government acceptance after the date offers are due will not be considered and will be rejected." Appeal File,[foot #] 1 Exhibit 17. There is no indication in the record that Byers limited the acceptance period of his offer in any way. ----------- FOOTNOTE BEGINS --------- [foot #] 1 All citations to the appeal file are to GSBCA 12721 Vol. 1, unless otherwise noted. ----------- FOOTNOTE ENDS ----------- The record shows that the Government accepted Byers' offer on August 24, 1993, the 56th day after the closing date, by mailing him the award documents by certified mail, "return receipt requested." Appeal File, Exhibit 4. The award package was addressed to Byers at the address shown on his offer and on subsequent correspondence. Byers executed the return receipt form attached to the package. Id., Exhibit 28. However, according to the postmaster in Shreveport, when Byers discovered it was from GSA, he returned it to the postal clerk. Id., Exhibit 29. He later admitted receiving it, but characterized it as a `pile of junk' that he did not want. Id., Exhibit 22. Thereafter, on August 26 Byers advised GSA by letter (received August 27) that the specifications were defective in that the specified pavers had the wrong dimensions and would not perform satisfactorily. Appeal File, Exhibit 18. Byers also advised GSA in the same letter that an adversarial relationship had developed in the pre-award contract discussions and that he, Byers, did not wish to proceed with the contract. Id. On August 31, 1993, the contracting officer advised Byers that he had been awarded the contract in the award documents mailed to him on August 24, 1993. Appeal File, Exhibit 20. Byers responded to this letter on September 10, 1993, but did not mention the award documents dated August 24, 1993. He repeated a request for the return of his bid bond, which he had made earlier in the August 26 letter. Id. The award package that was returned to the postal clerk by Byers was subsequently returned to GSA by the post office. Appeal File, Exhibit 23. It apparently bears a postmark dated August 25. Id., Exhibit 27. Thereafter GSA requested that Byers supply the performance bonds and insurance policies required by the contract, and when they were not forthcoming, issued a cure letter, which, in essence, directed Byers to supply the missing documents or face a termination for default. Appeal File, Exhibit 24. Byers did not respond satisfactorily and the contract was terminated for default on October 8, 1993. Id., Exhibit 33. This appeal followed. The Government has filed a motion for summary judgment on the ground that Byer's original bid was an offer for acceptance by GSA, and that GSA accepted Byers' offer when it put the award package in the mail on August 24, 1993. The Government argues that the act of mailing was an acceptance by the Government of Byers' bid, and a contract came into being when the acceptance was put into the mail. Byers argues that no contract ever came into existence, apparently on the theory that he withdrew his offer in his letter of August 26, therefore there was nothing for the Government to accept. Byers also argues that his offer was too defective to be accepted because the bid bond did not contain either his name or a final sum, and it was not valid for a bid date after April 20, 1993 (the original date for the submission of offers and later changed), thus no contract came into being. Byers makes a similar argument in his allegation that the Government accepted his offer after the 60-day period for acceptance set out in an amendment to the solicitation had expired, thus negating the formation of a binding contract. Byers makes three additional arguments that all presume the existence of a binding contract. The first is that the specifications were defective and the Government's failure to correct the defect amounted to a breach of contract. The defect relied on by Byers is the fact that the contract called for pavers measuring 15 inches by 30 inches, but that he had been told that pavers of this size would "pop off" the building and that smaller pavers 9 inches by 9 inches would be more satisfactory. The second is that the contracting officer's failure to send him additional photographic prints of the existing pavers (to replace the photos included in the solicitation which Byers says were unclear) for the purpose of allowing him to determine how many existing pavers were re-usable and how many were not, was a breach of contract by the Government which justified Byers' failure to perform. The third is that the termination for default was improper because it was based on appellant's failure to supply the performance bond and insurance policies required by the contract, but that appellant did not have to do these things because the Government had not yet cured the defective specifications and was, therefore, itself in breach of the contract, a state of facts which also justified his failure to perform. Discussion Byers' defenses based upon his argument that his offer was too defective to be accepted and, in any event, had expired through lapse of time avail him nothing. The bid bond was required for the protection of the Government and was waivable by the Government. This provision conferred no rights on Byers. In addition Byers may not profit from his own failure to meet the terms of the solicitation, if such was actually the case. The lapse of time that Byers asserts as invalidating his acceptance is not set out in the solicitation. All offers were required to be kept open for 60 days, but nothing in the solicitation required an offer to be accepted by the Government within 60 days. In any event the Government accepted the offer within 60 days. Byers' three arguments that presume the existence of a binding contract do not bear close scrutiny. The first is that the specifications were faulty because the pavers were the wrong size, or so Byers had been told. The Government is, of course, the judge of what size pavers it requires. The fact that someone unnamed has told Byers that a different size might work better does not amount to a defect in the specifications. Similarly, the contracting officer's failure to send additional photos of the existing pavers does not amount to a breach of contract justifying Byers' refusal to perform, especially where not required by the contract. Byers was advised in the solicitation to inspect the premises but chose not to. Nor was Byers excused from furnishing the performance bond and the insurance policies required by the terms of the contract because of the Government's alleged failure to cure the defective specifications by changing the paver size, for reasons heretofore set out. The only theory that Byers advances that might relieve him of his responsibilities under the contract is that he had withdrawn his offer before acceptance. The record shows that the Government's acceptance of Byers' offer was deposited with the United States Postal Service on August 24, 1993, receiving a post- mark date of August 25, 1993. The record also shows that the acceptance was sent "return receipt requested," bearing the number P 186 506 688, and that the signature "Homer O. Byers" appears on a Postal Service receipt for a GSA package bearing the same number. The signature appears to be similar to other signatures appearing on correspondence in the record which purport to be signed by Homer O. Byers. The receipt is undated but it was returned to GSA bearing a postmark of September 14, 1993. The record also shows that on September 14, 1993, Byers was contacted by Kay Norris, the GSA contracting officer, by telephone and asked if he had received the award package. Byer's response was: "[I]f that was what it was that he didn't want it." The appeal file supplied by the Government, with respect to most of which appellant has filed a motion to strike, shows a prima facie case that the award package was deposited with the U.S. Postal Service on either August 24 or 25, 1993. If this proves to be the case, it will not matter what appellant either intended or accomplished by his letter of August 26, 1993. Under familiar principles the Government's posting of its acceptance of appellant's offer was effective on the date thereof to create a binding contract. 1 S. Williston on Contracts 81 (3d ed. 1990); Adams v. Lindsell, 1 B&Ald 681 (1818). Appellant's attempt at withdrawal of his offer, if that is what it was, in his letter of August 26, 1993, was a failure, since a withdrawal is not effective until received. Williston, supra, 56. Although the record shows a prima facie case on these points, Byers is entitled to cross examine the Government's witnesses, and to produce evidence of his own in refutation, or to at least depose the Government's witnesses in order to determine the strength of the Government's case against him. Decision Accordingly, appellant's motion to strike certain exhibits in the appeal file is denied; discovery is authorized and will be completed by July 17, 1995; the Government's motion for summary judgment is denied; and this matter is set down for hearing on July 25, 1995, on the issue of the date and fact of the Government's mailing of the award package, unless the parties can agree on a record submission, in which case the date given shall be the date by which record submissions shall be completed and filed with the Board. If counsel have another hearing scheduled for that date, or assert a point of personal privilege, such as an already scheduled vacation, I will consider such earlier or later date as counsel can agree on. In the meantime the issue of excess re-procurement costs will be held in abeyance. ______________________ DONALD W. DEVINE Board Judge We Concur: __________________ ______________________ CATHERINE B. HYATT EDWIN B. NEILL Board Judge Board Judge