________________________________________________ DENIED: February 16, 1994 ________________________________________________ GSBCA 12539 LOREN BROWN, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Loren Brown, pro se, Glendale, CA. Thomas Y. Hawkins, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. BORWICK, Board Judge. Appellant, Mr. Loren Brown, purchased a 1983 Dodge Ram 350 Van (van) at a spot bid sale from respondent, General Services Administration (GSA). Appellant purchased the van on August 27, 1992. Appellant submitted its claim to the contracting officer on July 14, 1993, alleging the Government misdescribed the mileage on the van. Appellant's claim requested reimbursement for repair costs to the van, registration costs associated with the van, and a refund of the purchase price. The claim was denied by the contracting officer on August 3, 1993, and this appeal followed. For the reasons stated below, the appeal is denied. Findings of Fact A notice informed the public that the Government was conducting a spot bid sale (sale) on August 21, 1992. Appeal File Exhibit 1. The sale was located in Bell, California, and offered for sale trucks, sedans, and vans. Id. The notice provided a list of the vehicles to be sold, describing the type of vehicle, the model, make and year, and the odometer reading. Id. On August 27, 1992, appellant purchased item #61 in the list -- the van -- for $3,855. Appeal File, Exhibit 2. The van was described as follows: VAN: 1983 Dodge Ram 350, 5-pass, 8 cyl, 4WD. (Tag # G63-17943) Odometer: 30,723 Id., Exhibit 1. The notice advised bidders: ****** CONDITION OF PROPERTY IS NOT WARRANTED ****** DESCRIPTION WARRANTY 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 REFUND ANY MONEY PAID IF THE PURCHASER 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. . . . Appeal File, Exhibit 1 (emphasis added). Eleven months after the auction, appellant wrote the Government. He concluded from the number of repairs the van required that the van had 130,723 miles and not the 30,723 listed in the item description. Appeal File, Exhibit 3. As evidence of the alleged misdescription of the van's mileage, appellant submitted an affidavit from Mr. Norman Harlan, a friend of appellant, who had accompanied appellant to the Government Sales Office a year after the auction. Affidavit of Mr. Norman Harlan (Harlan Affidavit), (August 28, 1993). Mr. Harlan relates the Sales Contracting Officer as stating: "'the place where they got the vehicle they have had this problem before about the mileage not being correct on vehicles.'" Harlan Affidavit. The Sales Contracting Officer is then supposed to have said: "'it is more than likely that the milage [sic] [of the vehicle] is incorrect.'" Id. To demonstrate the accuracy of the mileage as listed in the notice, respondent submitted a declaration from the Fleet Manager of the General Services Management Fleet Management Center in Bell, California. Declaration of Patti Thurtell (Thurtell Declaration) (Jan. 19, 1994). The Fleet Manager is "responsible for the maintenance and record-keeping for an inventory of approximately 3600 GSA-controlled motor vehicles in the five- county greater Los Angeles area." Id. at 1. The Fleet Manager stated that the mileage reported to GSA by the previous user of the vehicle was 27,325. Id. The Fleet Manager recalls requesting and receiving additional confirmation that the odometer had not "turned over," i.e., that the mileage was not 127,325. Id. Further, the Fleet Manager stated that while in GSA's custody, the vehicle was driven approximately 3,000 miles. Id. at 2. The Fleet Manager also indicated that the amount of the mileage on the vehicle corresponds to the type and amount of use by the previous possessor. Id. Discussion Appellant alleges that the Government misdescribed the van, claiming repair costs, registration fees, and a cash refund of the purchase price. Respondent argues that the appellant has not proved the alleged misdescription and has failed to timely file a its claim with the contracting officer in accord with the warranty provisions. We agree that appellant failed to prove that the Government misdescribed the van and to timely file its claim with the contracting officer. Misdescription In order to establish that GSA misdescribed the van, appellant must provide substantial evidence to establish that, at the time of the sale, the van's mileage was more than the amount listed and that GSA knew of the defect. Dorothy & Al Audycki, GSBCA 9039, 88-3 BCA 21,112; James P. Smith, GSBCA 8216, 86-3 BCA 19,131. Appellant's evidence does not show that the mileage was more than the amount listed at the time of the sale or that GSA knew of an alleged misdescription of the mileage. The most appellant's affidavit shows is that the Sales Contracting Officer thought there was a general problem with vehicle mileage at an unspecified automobile dealership. The Sales Contracting Officer did not state or claim any first-hand knowledge regarding the van purchased by appellant. Respondent submitted a statement from the person who is "responsible for the maintenance and record-keeping for an inventory of approximately 3600 GSA-controlled motor vehicles in the five-county greater Los Angeles area." The statement indicated that the prior owner was required to report the mileage on the van and that confirmation was requested and received that the mileage was correct as reported. This statement is more credible than appellant's affidavit. Because we find respondent's submitted affidavit to be more persuasive and credible, appellant has not proved that, at the time of the sale, the van's mileage was more than that listed in the item description or that GSA knew of the alleged misdescription. Warranty Notice The parties' agreement required appellant to notify GSA of any misdescription within fifteen days after taking possession of the van. Appellant, however, advised the Government of the alleged misdescription eleven months after taking possession of the van. Appellant is not entitled to recover because he failed to comply with the terms of the notice provision of the description warranty. Geoffry W. Garner, GSBCA 9942, 89-3 BCA 22,163; Irving Kaplan, GSBCA 8244, 86-3 BCA 19,196; Jerome T. Jenks, GSBCA 7952, 86-2 BCA 18,877. Decision The appeal is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: ______________________________ CATHERINE B. HYATT Board Judge ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge