Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________________________________ DENIED: December 14, 1998 __________________________________________ GSBCA 14614-TD ASSOCIATED PRODUCTS SUPPLY COMPANY, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Jay S. Belshaw, Torrance, CA, counsel for Appellant. Barbara H. Vail, Office of Chief Counsel, United States Customs Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and WILLIAMS. NEILL, Board Judge. In this case, Associated Products Supply Company (APSCO) appeals the decision of a contracting officer denying APSCO's request for an extension of the time provided under its contract for the removal of goods purchased at auction. APSCO contends that the extension should have been granted because the Government had already breached the contract by not permitting prospective buyers to view these goods. Pursuant to Board Rule 111, the parties have elected to submit this case on the record without a hearing. For the reasons set out below, we deny the appeal. Findings of Fact 1. On August 27, 1997, the United States Customs Service (USCS), through its contractor, EG&G Dynatrend (EG&G), held a sale of seized property and general order merchandise at Port Everglades, Florida. Exhibit 2 (all exhibits are part of the appeal file submitted by the parties). 2. The catalog for the auction advised bidders that there were terms of sale that would govern each sale and provide the information needed to complete any purchase. A bidder s checklist on page three of the catalog reminded bidders to read these terms. Exhibit 2 at 3. 3. The terms of sale were of two types. One set of twenty- five specific terms and conditions was set out in a separately printed four-page pamphlet incorporated by reference into the catalog. It was entitled "Sale of Government Property General Sale Terms and Conditions." Exhibit 1. A second set of terms was entitled Select Terms of Sale and appeared on page 22 of the catalog itself. Exhibit 2 at 22. 4. Five of the General Sale Terms and Conditions which are of relevance to this dispute read as follows: 1. GENERAL INFORMATION: The contractor, EG&G Dynatrend, is acting as the agent of the government with respect to the sale of Government property. 6. ORAL STATEMENTS AND MODIFICATIONS: . . . . Further, no interpretation of any provision of the sale contract, including applicable performance requirements, shall be binding on the Government unless furnished or agreed to, in writing, by the Contracting Officer or his/her designated representative. 14. DELIVERY, LOADING, REMOVAL: (a) The Purchaser will make all arrangements and perform all work necessary to effect removal of the property. The Purchaser shall remove the property at his/her expense within the period of time allowed in the catalog/brochure. . . . 15. EXPORT ONLY: Any property/merchandise listed in the sales catalog "For Export Only" may not be entered into the commerce of the United States and must be exported under conditions described in the sales catalog/brochure. . . . . . . . Unless a different period for removal is applicable with respect to goods or conveyances that are sold "For Export Only," the purchaser will have 60 days to remove the property/merchandise from the United States or purchaser will be deemed in default and the property/merchandise will be resold by the Government as provided in paragraph 20 of the Terms and Conditions of Sale. 20. DEFAULTS: Failure to make required payments and/or property/merchandise removal within the time frames specified in the sales catalog/brochure shall be deemed forfeiture of any rights, title, and interest the Purchaser may have acquired. The title of such property/merchandise shall revert back to the Government without further notice to the Purchaser and will result in any monies paid being forfeited. The transaction shall be null and void as to the Purchaser. Exhibit 1. 5. Of the Selected Terms of Sale set out in the catalog, the following provision is of relevance to this dispute. It reads: REMOVAL - EXPORT ONLY . . . All export only seized property and general order merchandise must be physically removed from the United States within 60 days from the day of sale or buyer will default the terms of sale and property/merchandise will be resold by the U. S. Customs Service. Removal of export only items must be completed no later than October 27, 1997. Exhibit 2 at 22. A final provision in the Select Terms of Sale advises bidders that, in addition to the select terms set out in the catalog, there are additional terms relating to any sale, which will be available at viewings and auction, or which may be requested by phone or fax.[foot #] 1 Id. 6. The owner of APSCO, Mr. Albert (Greg) Germansky, signed a bidder registration form for the auction held on August 27, 1997. Among other provisions on the form is one which reads: I agree to comply with the terms of sale contained in the sale[s] catalog for this sale and all future sales I attend. Exhibit 3. ----------- FOOTNOTE BEGINS --------- [foot #] 1 We conclude, based on statements made by the parties in their briefs and in the absence of any dispute on the point, that the conditions referenced in this statement are the "General Sale Terms and Conditions" described above in Findings 3-4. ----------- FOOTNOTE ENDS ----------- 7. The sales catalog for the auction held on August 27, 1997, identified lots 10, 11, 12, and 14 for sale for "EXPORT ONLY." Exhibit 2 at 6. 8. APSCO was the successful bidder for lots 10, 11, 12, and 14, which consisted of various assortments and types of liquor. Exhibit 4. APSCO's total bid for these items amounted to $22,000. Exhibit 17. 9. On September 2, 1997, Mr. Germansky began to make inquiries regarding how the liquor APSCO had purchased at auction for export only could be "domesticated," i.e. made eligible for sale within the United States. He first contacted EG&G Dynatrend, the Government s sales agent. He was referred to the USCS and finally to the Bureau of Alcohol, Tobacco and Firearms (ATF), the agency which had originally seized the liquor in question. Declaration of Albert Germansky (Germansky Declaration) (Undated) 4-7. 10. On September 22, 1997, Mr. Germansky spoke to an ATF attorney regarding the submission of a formal request to the agency for permission to domesticate the liquor. Of particular concern to Mr. Germansky was the amount of time that would be required to process the request; he was aware of the requirement to remove the liquor by October 26. Mr. Germansky contends that the ATF attorney assured him at the time that whatever time ATF took to rule on APSCO's request would be added to APSCO's sixty- day export period. Germansky Declaration 8. 11. Following his conversation with the ATF attorney, Mr. Germansky sent a facsimile message to ATF formally requesting permission to sell in the domestic market the liquor previously purchased at auction for export only. Exhibit 18. 12. The ATF attorney recalls having a discussion with Mr. Germansky regarding APSCO s desire to have its recently purchased liquor domesticated. He unequivocally states, however, that he does not have the authority to grant any extension of the sixty- day export period which applied to APSCO s liquor and that he would not advise anyone that whatever time ATF took to decide a request to domesticate would or could be added to that sixty-day export period. Declaration of Barry S. Orlow (Oct. 19, 1998) 4, 9. 13. By letter dated October 27, 1997, ATF denied APSCO s request to domesticate the export-only liquor. Exhibit 19. 14. APSCO failed to remove the liquor from the United States within sixty days of sale, as required pursuant to the export provision of its contract. Exhibit 7. 15. On November 24, 1997, APSCO requested permission from both the USCS and USCS s contractor, EG&G, to allow prospective clients to view the liquor it had purchased at auction, which was then in storage at EG&G s facility and at another vendor s facility. Exhibits 5-6. 16. By letter dated November 25, 1997, EG&G notified APSCO that permission to view the liquor was denied. The letter explained that APSCO was in default for failure to comply with the export provisions of its contract and that, pursuant to contract terms, APSCO had consequently forfeited title to the liquor and any monies previously paid for its purchase. EG&G's letter also advised APSCO that the liquor would be scheduled for resale at the next available public auction. Exhibit 7. 17. By letter dated January 23, 1998, to the contracting officer, APSCO s owner, Mr. Germansky, requested at least thirty additional days to arrange to sell or store the liquor in a facility acceptable to the Government. Exhibit 10. 18. This request was formally denied in a decision rendered by the contracting officer on March 17, 1998. Exhibit 15. By letter to this Board dated June 11, 1998, APSCO appealed the contracting officer s decision. Discussion There is no dispute in this case on whether APSCO removed from the United States, within sixty days of August 27, the liquor purchased on that date. This did not occur. There also is no dispute that, under the contract, failure to comply with the applicable removal requirement would constitute default and result in APSCO's loss of title to the merchandise and forfeiture of the monies paid for it. APSCO argues, however, that the contract s sixty-day requirement for export was waived when the ATF attorney advised Mr. Germansky that this period would be extended by whatever time ATF took to reply to APSCO s request to sell the liquor domestically. Since ATF required thirty-five days to reply, APSCO contends that the sixty-day delivery period was extended by that number of days. Prior to the expiration of this extended period, APSCO requested permission for prospective clients to view the merchandise. These requests were denied. This, according to appellant, constituted a breach of the Government s contract with appellant. Since the liquor originally purchased has now been resold, appellant seeks, as damages for this alleged breach, the $22,000 originally paid for its purchase. APSCO s argument is premised on the application of the doctrine of equitable estoppel. In its brief it states: The equitable doctrine of waiver and estoppel must be applied to the facts of this case to reach a just decision. . . . . . . . By the very terms of Paragraph 15 of the contract, (Exhibit 1), a different period than 60 days may be applicable to exportation of goods. Therefore, the government can waive the 60 day default provision. Here it is clear that the agency which can decide to domesticate liquor (ATF) also has the apparent authority to waive the 60 day default provision while it decides to grant domestication or not. APSCO s Brief at 5. One initial problem with APSCO's argument is the assumption that the contract provides that a period other than sixty days may be applicable to the exportation of goods. We disagree. It is indeed correct that Paragraph 15 of the contract's General Sales Terms and Conditions mentions the possibility. Nevertheless, another removal provision appears in the contract's Select Terms of Sale. This removal provision does not speak of any period other than the one for sixty days. Finding 5. It is axiomatic to contract interpretation that, in the event of any conflict or inconsistency between general and specific terms, the provision directed to a particular matter controls. Dalton v. Cessna Aircraft Co., 98 F.3d 1298, 1305 (Fed. Cir. 1996); Hills Materials Co. v. Rice, 982 F.2d 514, 517 (Fed. Cir. 1992). In this case, the General Sales Terms and Conditions, although incorporated by reference into the contract, are nonetheless intended for general use in this and other contracts, while the Select Terms of Sale appearing on page 22 of the sales catalog itself were obviously intended for use in sales made in conjunction with the auction at which APSCO purchased the seized liquor. Consequently, it is the removal provision appearing among the Select Terms of Sale which controls. Because this provision makes no mention of an alternative period for removal, we conclude that the contract does not provide for such a possibility. In the absence of a formal contract modification, therefore, there simply is no alternative in this contract to the specified sixty-day removal period. Furthermore, under the contract, no interpretation of any provision of the contract, including applicable performance requirements, could be binding on the Government unless furnished or agreed to, in writing, by the contracting officer or his/her designated representative. Finding 4. Aside, however, from our objection to appellant's position based upon the contract provisions themselves, there is an additional problem regarding appellant's use of an argument based upon estoppel. Even if we view the facts of this case in a light most favorable to appellant and accept, for purposes of argument, that an alternative to the sixty-day delivery period was possible under the contract and that the ATF attorney did in fact assure APSCO s owner that the contract s export period would be extended, appellant s argument, based as it is on estoppel, fails. It is well established that it is essential to a holding of estoppel against the United States that the course of conduct or representations on which a claimant has relied be made by officers or agents of the United States who are acting within the scope of their authority. Emeco Industries Inc. v. United States, 485 F.2d 652 (Ct. Cl. 1973). Appellant has provided nothing to suggest that the ATF attorney had the actual authority to waive or modify the terms of its contract with the USCS. Rather, APSCO's argument is that the ATF attorney had "apparent authority" to do so. This, however, will not do. It is likewise well established that only an agent acting within the actual scope of his or her authority can bind the Government. Office of Personnel Management v. Richmond, 486 U.S. 414 (1990). For this reason the Supreme Court has written: Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. Federal Crop Insurance Corp. v. Merrill, 322 U.S. 380, 384 (1947). Thus, we need not determine whether the ATF attorney made the statement attributed to him by APSCO since, even if he did make it, it had no legal effect. In view of appellant's inability to prove that there was a period for removal other than the sixty-day period established under the original contract, the allegation of breach, predicated as it is upon the extension of the original period by an additional thirty-five days, fails as well. Given appellant's noncompliance with the contract's sixty-day removal requirement, the Government rightly concluded that appellant was in default, that title to the liquor reverted, and that monies paid for it were forfeited. The contracting officer's decision refusing to accede to APSCO's demands for more time to remove the liquor was, therefore, justified given the facts of this case and the applicable contract provisions. Decision This appeal is DENIED. ________________________________ EDWIN B. NEILL Board Judge We concur: ______________________________ ________________________________ STEPHEN M. DANIELS MARY ELLEN COSTER WILLIAMS Board Judge Board Judge