________________________ DENIED: September 11, 1998 ________________________ GSBCA 14555 JOHN F. COLLINS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John F. Collins, pro se, Stone Mountain, GA. George U. Lane, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges DANIELS (Chairman), WILLIAMS and GOODMAN. GOODMAN, Board Judge. Appellant, John F. Collins, appeals from two contracting officer decisions which terminated for default his contract for the purchase of a vehicle and assessed liquidated damages against him. Pursuant to Board Rule 111, the parties have elected to submit the appeal for decision on the written record. We deny the appeal. Findings of Fact 1. The General Services Administration (GSA) Personal Property Sales office located in Atlanta, Georgia publicized for sale by sealed bid various surplus vehicles. Included in this listing of surplus vehicles was a 1994 Plymouth Acclaim that had been provided to GSA for sale by the Department of Agriculture on March 18, 1997. The vehicle was offered for sale on invitation for bid (IFB) 41FBPS97170. The mileage of the vehicle was not supplied to bidders in the IFB. Appeal File, Exhibit 2. 2. All potential bidders responding to the advertisements were provided with an IFB package that included the Sale Terms and Conditions and a Property Listing, which read in relevant part: If, after the award, the Purchaser breaches the contract by failure to make payment within the time allowed by the contract . . . or by failure to remove the property . . . then the Government may send the purchaser a 15-day written notice of default (calculated from the date of mailing) and upon Purchaser s failure to cure such default within that period . . . the purchaser shall lose all right, title, and interest which he might otherwise have acquired in and to such property as to which a default has occurred. 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. . . . Notwithstanding any other provision of this contract, unless paid within 30 calendar days from the date of first written demand, all amounts that become payable by the purchaser to the Government under this contract shall bear simple interest at the rate which has been established by the Secretary of the Treasury as provided in Section 12 of the Contract Disputes Act of 1978 (Public Law 95-563), from the date of first written demand until paid. Appeal File, Exhibit 2. 3. The bid opening date was September 4, 1997. The property being sold was available for inspection with the holding agencies. The Plymouth Acclaim, identified as Lot Number 78, was available for inspection commencing August 18, 1997 from 9:00 a.m. to 3:00 p.m. through August 25, 1997. Appeal File, Exhibit 2. 4. Mr. Collins submitted a timely bid on lot number 78 in the amount of $5825, which was the high bid. Appeal File, Exhibit 3. Notice of Award was signed on September 22 and mailed to Mr. Collins. Appeal File, Exhibit 4. 5. On September 28,1997, a letter was received by facsimile from Mr. Collins, which read in relevant part: [I]t has been brought to my attention that the GSA did not list all the information about lot #078 that the GSA normally furnishes in their description of property of this particular type; namely, an automotive vehicle, which was a car, in this case. If am referring to the GSA practice, whether by policy or by regulation, of listing the . . . mileage as shown on the odometer. There was no mileage indicated in this case. My investigation reveals that this car, even though it is a relatively late model car, has extremely high mileage of over 88,000 miles. Needless to say, the policy of the GSA in the past few years appears to be that of selling fleet vehicles before they become extremely high mileage and very difficult to sell. It appears to me to be a possibility the mileage was omitted either accidentally or on purpose in order to facilitate the sale of this car for top dollar. I have bought dozens of cars from the GSA, none of which were high mileage cars and all of which were good vehicles. I would most definitely have not have bid on lot #078 had I known it was an extremely high mileage vehicle. Therefore, in view of the fact I was not furnished all of the normal and easily available information on lot #078, I hereby withdraw my bid. Appeal File, Exhibit 5. 6. By letter dated December 5, 1997, the contracting officer responded to appellant s letter by issuing a contracting officer s decision. The contracting officer s letter read in relevant part: [Y]ou indicate that you wish to withdraw your bid on this item because of the mileage. You also state that the mileage was not shown on the Invitation for Bid (IFB) and you indicate that you believe it was GSA s practice to list the mileage on all vehicles. You suggest this information was omitted purposely in order to sell the vehicle and mention that fleet vehicles are sold before the mileage becomes extremely high. Fleet vehicles are disposed of in accordance with a replacement cycle established by GSA. This cycle requires that sedans be sold after the vehicle becomes three years old or reaches a mileage of at least 60,000 miles. This replacement cycle does not apply to other agency vehicles. Other agency vehicles are disposed of in accordance with guidelines established by each agency. The vehicle you bid on was not a GSA fleet vehicle. The vehicle was reported to us by the Department of Agriculture. It is neither policy nor regulation for GSA to list the mileage of a vehicle in the IFB. When the mileage is listed, it is only an estimate. It was not the intention of GSA to withhold information in order to facilitate the sale of this car for top dollar. The vehicles on this sale were available for inspection from August 18 until August 25. . . . The fact that the IFB does not list the mileage does not constitute a misdescription and there are no provisions for withdrawal of a bid after an award was made. In view of the above facts, your request to withdraw your bid is denied. If you choose not to pay for the vehicle at your bid price, you will be assessed damages in the amount of $1165. Appeal File, Exhibit 6. 7. Appellant did not make payment for lot number 78 in accordance with the contract award. Respondent s Record Submission at 2-3. 8. On January 13,1998, respondent issued a notice of default to appellant informing him that the contract was terminated and that he was assessed liquidated damages in the amount of $1165. Appeal File, Exhibit 7. 9. On February 5,1998, a second letter of complaint was received from Mr. Collins indicating that he did not understand the termination process. Appeal File, Exhibit 8. 10. Respondent explains that in part, because of appellant s confusion, the Contracting Officer issued a new Final Decision on February 19, 1998 (Appeal File, Exhibit 9) . Respondent s Record Submission at 3. 11. The February 19, 1998 contracting officer s decision read in relevant part: Your letter questions the termination of your contract as well as your appeal rights. Your original letter, dated September 28, 1997, stated that you wished to withdraw your bid based on a misdescription. My answer to you dated December 5, 1997, addressed this request. As stated in the letter of December 5, 1997 The fact that the IFB does not list the mileage does not constitute a misdescription and there are no provisions for withdrawal of a bid after an award has been made. The terms and conditions of sales conducted by GSA are governed by the Federal Property Management Regulations (FPMR). These are laws that must be adhered to and cannot be changed. I have enclosed a copy of the regulation covering modification and withdrawal of bids (FPMR 101-45.704). Bids may be withdrawn or modified at any time prior to bid opening; however, they cannot be modified or withdrawn after that time. In your case, your request to withdraw your bid was made after award and could not be considered. . . . The termination of your contract is a separate issue. The mention of this in the December 5 letter was only to advise you of the consequences of a decision not to pay for the vehicle and to give you notice that the contract would be terminated if payment were not received. Perhaps this was confusing and it was not clear that a notice to terminate was intended. . . . Please refer to clause 9, Default [Standard Form 114C] which explains the default process. This clause states that the Government may send the purchaser a 15-day written default notice. This gives the purchaser 15 days in which to cure the default before termination of the contract. The default notice is an option, which is not normally given prior to termination for nonpayment. Your contract was terminated more than 15 days after you were advised that you would be assessed liquidated damages if payment was not received. . . . In view of the above facts, your request to withdraw your bid, based on misdescription, is denied. Your request that the termination of your contract for nonpayment be withdrawn is denied. Appeal File, Exhibit 9. 12. Appellant filed a notice of appeal with this Board dated April 7, 1998. 13. In his record submission, appellant notes that the mileage on the odometer of the vehicle was indicated as 88,179 on the Report of Personal Property sent by the Department of Agriculture to GSA. Appeal File, Exhibit 1. However, the information supplied by GSA to bidders did not report the mileage. Appellant states further: Please note on the Bid Results sheet, the listed high bidder and the next high bidder. Collins [appellant] bid $5825.00 based on my bank s NADA car value booklet for an average mileage car of the listed description. I assumed the mileage to be average mileage of cars sold by GSA in their program to sell cars with as low mileage as possible in order to get the best price for the government. The last two previous cars I bought from GSA had 20,000 and 21,000 miles on them - I figured this car to be in that category even though the mileage was omitted. Note the next low bid was $3601.00, a difference of $2224.00. [The second highest bidder] obviously knew something I did not know. The bid difference speaks loudly . . . . It may not be the policy, or required by regulations, but the GSA has always listed the mileage if that information was available. It makes no difference that GSA was handling this sale for the USDA, they still should have maintained their usual practice of listing the mileage. They made an error and are trying to alibi out of their responsibility. Appellant s Record Submission. Discussion Appellant was the highest bidder for a vehicle offered for sale at a GSA auction. Finding 4. Appellant had purchased vehicles from GSA at auction prior to this time, and these vehicles were considered by appellant to have average mileage. Appellant therefore assumed that the vehicle in this case had similar mileage. Finding 13. In this instance, GSA did not include the vehicle s odometer mileage in the information to bidders, but the vehicle was made available for inspection before the auction. Finding 1. Apparently appellant did not avail himself of his right to inspect the vehicle, because it was not until after he received notice of award that he discovered that the vehicle had many more miles on the odometer than he had assumed. Finding 5. After receiving notice of award, appellant attempted to withdraw his bid, alleging that GSA withheld the mileage information from him. Id. GSA refused to allow appellant to withdraw his bid, and the contracting officer informed appellant that he would be assessed liquidated damages of $1165 if he did not make payment for the vehicle. Finding 6. Appellant failed to make payment, and the contracting officer issued a notice of default, terminated the contract for default, and assessed liquidated damages. Finding 8. Thereafter, another contracting officer s decision was issued explaining the default process, and appellant appealed both decisions to this Board. Findings 10-12. Appellant believes that GSA made an error by not stating the mileage on the property description furnished to bidders, and that he therefore should have been allowed to withdraw his bid. He suggests that the mileage was omitted either accidentally or intentionally in order to facilitate the purchase of the vehicle for top dollar. Finding 5. It is GSA s position that it was not required to state the mileage, that appellant had a right to inspect the vehicle before bid but failed to do so, and that appellant submitted a valid bid that was accepted and could not be withdrawn after award. Accordingly, GSA believes that default termination was proper, and the Government is entitled to the liquidated damages plus interest on the amount due. The record in this appeal clearly supports the propriety of the default of the purchase contract, as there is no dispute as to appellant s failure to make payment of the purchase price and removal of the property from GSA s custody. Finding 7. Appellant alleges that respondent is at fault for not listing the mileage of the vehicle. Findings 5, 13. There is no evidence that GSA intentionally withheld the mileage of the vehicle from bidders. This Board has held that mileage is an attribute of a car s used condition and that the absence of an odometer reading is not considered a defect. Therefore, the car is adequately described even if mileage is not stated on a property description given to bidders, since bidders have a right to inspect a vehicle prior to bidding and may read the odometer at that time. Robert Canavero v. General Services Administration, GSBCA 4910, 78-1 BCA 12,967. Appellant admits he did not inspect the vehicle because he assumed that the vehicle s mileage was similar to that of vehicles he had previously purchased. Finding 13. Appellant notes that the second highest bidder apparently knew the mileage of the vehicle, since that bid was substantially lower. Id. There is no reason why appellant could not have availed himself of the opportunity to inspect the vehicle prior to bid, as the odometer reading was discernible. Having made a valid bid which was accepted, appellant did not have the right to withdraw his bid after award. We find the Government's assessment of liquidated damages to be a proper use of discretion pursuant to the terms of the contract. A liquidated damages provision, such as the one contained in this contract (Finding 2), will be upheld when actual damages are difficult to predict or determine and the amount agreed upon bears a reasonable relationship to probable damages. Edward J. Coover, GSBCA 5758, 80-2 BCA 14,761, at 72,867. Nor is the liquidated damages provision in the subject contract unenforceable as a penalty. Computer Sciences Corp., GSBCA 7418, 85-3 BCA 18,386, at 92,216. A liquidated damages clause is not invalid as a penalty where the damages calculation represents a reasonable estimation, as of the contract date, of the actual damages which would result if a party failed to perform. The Tommy Nobis Center, Inc., GSBCA 8988-TD, et al., 89-3 BCA 22,112, at 111,223; Edward J. Coover, 80-2 BCA at 72,867. The terms and conditions of sale contain a provision allowing the Government interest on the amount due if the purchaser fails to pay sums due. Finding 2. We have found that this provision applies to claims for liquidated damages. Fred McLean v. General Services Administration, GSBCA 14053, 97-1 BCA 28,832. Accordingly, the Government is entitled to interest on the liquidated damages assessed from the date of the first written demand, January 13, 1998. Finding 8. Decision The appeal is DENIED. Appellant is obligated to reimburse the Government the liquidated damages ($1165) with interest thereon according to the terms of the contract. ______________________ ALLAN H. GOODMAN Board Judge We concur: _____________________ _______________________ STEPHEN M. DANIELS MARY ELLEN COSTER WILLIAMS Board Judge Board Judge