Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                                            

                     DENIED: November 9, 2005
                                                            


                           GSBCA 16681


                         GAYLE ENSMINGER,

                                             Appellant,

                                v.

                 GENERAL SERVICES ADMINISTRATION,

                                             Respondent.

     Gayle Ensminger, pro se, Burlington, KY.

     Gabriel N. Steinberg, Office of Regional Counsel, General
Services Administration, Atlanta, GA, counsel for Respondent.

Before Board Judges DANIELS (Chairman), HYATT, and DeGRAFF.

DANIELS, Board Judge.

     This appeal fails for lack of proof as to damages.

                         Findings of Fact

     In May 2005, the General Services Administration (GSA)
advertised for sale through its on-line GSAAuctions.gov website a
2004 Ford Taurus sedan.  Gayle Ensminger was the high bidder for
this item.  He paid for the car, and GSA prepared a certificate
which would enable him to obtain title to it.  

     A few days later, Mr. Ensminger arrived at the location at
which the vehicle was garaged to pick it up.  At that time, the car
looked quite different from its appearance in the pictures that GSA
had posted on its website.  In Mr. Ensminger's words, "[S]omeone
decided to use the jaws of life to cut the front end off of the
car."  The contracting officer provided details: "The bumper had
been removed, the front quarter panel had been cut and partially
removed, the headlight harness had been removed."  The parties
agree that GSA had either modified the vehicle, or allowed it to
have been modified, between the time the agency offered it for sale
and the time Mr. Ensminger arrived to take possession of it.

     The contracting officer offered to refund the purchase price
and cancel the sale on the basis that, as she wrote, "the pictures
were so far from the actual condition of the vehicle that it was
very misleading to the buyer."  Mr. Ensminger accepted this offer. 
He maintains, however, that cancellation of the transaction is not
sufficient relief.  He demands that GSA also reimburse him for the
costs he incurred in anticipation of taking possession of the
automobile: rental of a trailer on which to haul the vehicle (which
was advertised as being in inoperable condition), purchase of
chains to hold the car on the trailer and a tarpaulin to cover it
while on the trailer, and the hire of two young men to assist with
transport of the sedan.  Mr. Ensminger says that the amount of
money he spent on these items was, variously, "over $1200"; "est.
$1300"; and "including gas[,] about $1300."  The contracting
officer refused to make payment, and Mr. Ensminger appealed her
decision.

     When the Board asked for proof of the claimed costs, Mr.
Ensminger increased the amount to $1800, which included the hire of
three individuals, rather than two; the purchase of a wiring
adapter and ball hitch for the trailer; the purchase of gasoline
the truck consumed on the two-day trip to pick up the car; and
food, drink, and lodging for four people on the trip.  Mr.
Ensminger says that he has no receipts for any of these costs.  The
Board afforded him an opportunity to submit a declaration under
penalty of perjury as to the expenses.  Mr. Ensminger declined this
opportunity, saying that he "[doesn't] know how accurate the
number[s] are" and that he has a very poor memory.

                            Discussion

     GSA maintains that its liability to Mr. Ensminger is limited
by the terms and conditions of the on-line auction in which he
participated.  When GSA accepted Mr. Ensminger's bid, these terms
and conditions became part of a contract between the agency and the
buyer.  Darren R. Gentilquore v. General Services Administration,
GSBCA 16705, slip op. at 4 (Oct. 20, 2005).  GSA relies on the
following clauses which are among the terms and conditions:

     Description Warranty.  The Government warrants to the
     original purchaser that the property listed in the
     GSAAuctions.gov website 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. . . .  This warranty is in place
     of all other guarantees and warranties, expressed or
     implied.

     The Government does not warrant the merchantability of
     the property or its purpose.  The purchaser is not
     entitled to any payment for loss or profit or any other
     money damages   special, direct, indirect, or
     consequential.

     Refund Amount.  The refund is limited to the purchase
     price of the misdescribed property.

     We do not agree with GSA that these clauses are pertinent to
this case.  Mr. Ensminger has never alleged that the 2004 Ford
Taurus sedan which was listed in the GSAAuctions.gov website, and
for which he was the high bidder, did not conform to its
description.  Rather, he has alleged, and GSA agrees, that the
vehicle did conform to its description but was modified between the
time it was offered for sale and the time he arrived to take
possession of it.  Thus, the Description Warranty and Refund Amount
clauses do not help to resolve this case, and the limitations on
liability they prescribe are not applicable to it.  Western
Aviation Maintenance, Inc. v. General Services Administration,
GSBCA 14165, 00-2 BCA   31,123, at 153,727, 153,729.

     Through the terms and conditions of the auction, GSA agreed to
convey to Mr. Ensminger the vehicle it described on its website. 
By modifying the car after advertising it, or allowing the car to
be modified, GSA prevented itself from making this conveyance and
therefore breached its contract with Mr. Ensminger.  If Mr.
Ensminger could prove that he incurred damages as a result of this
breach, we could direct GSA to reimburse him for the damages, so as
to put him in as good a financial position as the one he would have
occupied if the contract had never been made.  To receive monetary
relief, he would have to show that the damages were foreseeable at
the time the contract was made and present sufficient evidence to
permit us to make a fair and reasonable approximation of their
amount.  Western Aviation Maintenance, 00-2 BCA at 153,739-40.

     Although GSA breached the contract, Mr. Ensminger cannot
recover any damages because he has not presented sufficient
evidence to permit us to approximate their amount.  The amount he
claims has changed over time, varying by about fifty percent.  The
number of helpers he claims to have hired to pick up the car has
changed, as well.  He has provided no receipts for any of the
charges he says he incurred, and when offered a chance to document
those charges in a declaration made under penalty of perjury, he
declined to do so.  While we may admire Mr. Ensminger's
forthrightness in acknowledging the reason for not making a
declaration   a poor memory   this failing does not provide any
comfort in attempting to determine the extent of his expenses. 
Further, even if the expenses had been adequately documented, Mr.
Ensminger has not shown that all of them should have been
foreseeable.  Why, one might ask, would a purchaser of an
inoperable vehicle need two or three assistants to get the vehicle
onto a trailer?  Why would these people need to spend a night on
the road when traveling the less than five hundred miles round-trip
from Mr. Ensminger's home in Burlington, Kentucky, to the place
where the car was garaged, Champaign, Illinois?  This turns out to
be one of those cases in which the breach does not result in an
award of damages.  Western Aviation Maintenance, 00-2 BCA at
153,745 (citing San Carlos Irrigation & Drainage District v. United
States, 111 F.3d 1557, 1563 (Fed. Cir. 1997); Wells Fargo Bank v.
United States, 88 F.3d 1012, 1022 (Fed. Cir. 1996), cert. denied,
520 U.S. 1116 (1997)).

                             Decision

     The appeal is DENIED.





                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge

We concur:





_________________________               _________________________
CATHERINE B. HYATT                 MARTHA H. DeGRAFF
Board Judge                             Board Judge