________________________ DENIED: October 14, 1994 ________________________ GSBCA 12886 MOHINDER SINGH, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Mohinder Singh, pro se, Rockville, MD. Judith A. Bonner, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. Before Board Judges NEILL, VERGILIO, and GOODMAN. VERGILIO, Board Judge. On June 24, 1994, the Board received this appeal from Mohinder Singh. Mr. Singh had purchased a vehicle from the respondent, the General Services Administration. Mr. Singh seeks to recover storage charges and repair costs allegedly incurred on the vehicle. He contends that the vehicle he removed was not as described or as it appeared at the time of the sale in that items were removed from the vehicle prior to his taking possession of it. Storage costs were properly assessed. Mr. Singh has failed to meet his burden of proof to recover repair costs. The record does not demonstrate that, at the time of removal, the vehicle was in a condition different from that at the time of sale; that Mr. Singh incurred the alleged repair costs for the vehicle in question; that the repairs were made necessary by the alleged misdescription or vandalization of the vehicle; or that Mr. Singh complied with the contract requirements of notifying the agency of the allegedly misdescribed or altered condition of the vehicle. Accordingly, the Board denies the appeal. Findings of Fact 1. On April 21, 1994, the agency conducted an auction. The contract specifies that failure to pay for and remove property by a given date and time may result in the assessment of liquidated damages and/or storage costs, and/or in a default. Appeal File, Exhibits 1 at 3, 25 at 1-2 ( 9). 2. A special term and condition of the sale is the "description warranty" providing, in part: 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 AND MAINTAINS THE PROPERTY IN THE SAME CONDITION AS WHEN REMOVED. After property has been removed, no refund will be made for shortages of property sold by the "LOT". This warranty is in place of all other guarantees and warranties, express or implied. The Government does not warrant merchantability of the property or its purpose. The amount of recovery under this provision is limited to the purchase price of the misdescribed property. The purchaser is not entitled to any payment for loss of profit or any other damages, special, direct, indirect, or consequential. Clause 2 of Standard Form 114C is deleted. Appeal File, Exhibit 1 at 3. 3. The contract, Appeal File, Exhibit 1 at 2, addresses the "risk of loss": Unless otherwise provided in the Invitation, the Government will be responsible for the care and protection of the property subsequent to it being available for inspection and prior to its removal. Any loss, damage, or destruction occurring during such period will be adjusted by the Contracting Officer to the extent it was not caused directly or indirectly by the Purchaser, its agents, or employees. At the discretion of the Contracting Officer, the adjustment may consist of rescission. With respect to losses only, in the event the property is offered for sale by the "lot", no adjustment will be authorized under this provision unless the Government is notified of the loss prior to the removal from the installation of any portion of the loss with respect to which the loss is claimed. Id., Exhibit 25 at 2 (Standard Form 114C, June 1968, 14). 4. Mr. Singh submitted the winning bid on the vehicle identified in lot 603, the stated quantity of which was "1 LT"-- one lot. Appeal File, Exhibits 1 at 22, 3, 5. 5. Mr. Singh did not remove the vehicle within the time required under the contract. Appeal File, Exhibit 1 at 4, Exhibits 6, 8. Prior to removal, claiming a failure to exercise good judgment and that he was not in his right mind (although he does not suggest a lack of competency to enter into a contract), Mr. Singh attempted both to have the agency not enforce the sale and to avoid being defaulted and charged for his failure to pay for and remove the vehicle. Id., Exhibits 11-15, 17, 18. 6. Avoiding a default, after paying the amount he bid on the vehicle plus a storage charge (within the contract- established limits, Finding 1), Mr. Singh removed the vehicle on June 17. Appeal File, Exhibits 18-21; Declaration of Contracting Officer at 3 ( 10). Contrary to the assertions of Mr. Singh, the originals of the sales receipts have no annotations (by Mr. Singh or otherwise) suggesting that, at the time of removal, the condition of the vehicle was different from that at the time of the sale. Attachments to Agency Letter to Board (Aug. 23, 1994); Declaration of Property Disposal Specialist at 3 ( 9). 7. Mr. Singh first notified the Government of his intent to recover costs in excess of the purchase price and his repair costs in his notice of appeal (received by the Board on June 24), in which he alleges that items in the vehicles were "missing and improper." Specifically, he alleges that the dashboard had been tampered with and opened, panel lights and tire tools were missing, wiring was exposed, and a radio/tape deck, a sun-shield and engine parts were removed. Appeal File, Exhibit 23. By letter dated August 30, the contracting officer formally denied the claim of Mr. Singh to recover his alleged costs. Mr. Singh elected to proceed with the action at the Board. 8. The contracting officer declares that Mr. Singh "said nothing to me concerning the condition of the vehicle" and that until receipt of the notice of appeal, he had received no oral or written statement from Mr. Singh regarding the condition of the vehicle. Declaration of Contracting Officer at 3 ( 11). 9. The agency's property disposal specialist, who dealt with Mr. Singh during his removal of the lot 603 vehicle on June 17, declares: Mr. Singh did not make any statements to me regarding the condition of the vehicle. Nor did he ask me to deliver any oral or written statements to the Contracting Officer concerning the condition of the vehicle. Mr. Singh made no notations concerning the condition of the vehicle on the sales office receipts. Declaration of Property Disposal Specialist at 3 ( 7). 10. A material handler employed by a contractor to the agency, who assisted Mr. Singh in the removal of the vehicle, declares: Mr. Singh said nothing to me about any change in the condition of the vehicle. I had accepted the vehicle into the lot when it was brought to the Property Center in the beginning of April, approximately one to two weeks before the sale. I did not notice any change in the condition of the vehicle between April 1994 when it was brought to the sale site and June 17, 1994 when Mr. Singh removed the vehicle. When I sat in the vehicle on June 17, 1994, there was a radio installed in the vehicle. I did not see any evidence of the dash board having been tampered with. There was a piece of wire on the floor on the driver's side. The wire was in the same spot when the car first arrived at the sale site in April. I think it might have been part of a power booster. I saw no other evidence of missing parts. Declaration of Material Handler at 2 ( 5). Further, "Mr. Singh did not ask me to give any oral or written statements to the Contracting Officer about the condition of the vehicle." Id. ( 6). 11. Mr. Singh has not returned the vehicle to the agency. The receipts supplied by Mr. Singh do not themselves demonstrate that all of the work was performed on the vehicle here at issue or that all, or any specific portion, of the work was necessitated by the alleged misdescription or changes in the condition of the vehicle. Declaration of Contracting Officer, Attachment A. The evidentiary record contains no foundation or support to assist in assessing the relevancy of and weight to be given the receipts. Discussion Mr. Singh seeks to recover the storage costs and repair costs he allegedly incurred regarding the purchased vehicle. Storage costs The record fully supports the agency's imposition of storage costs. Mr. Singh did not have the vehicle removed in accordance with the terms of the contract; hence, the agency could assess such charges. Findings 1, 6. Repair costs Mr. Singh has demonstrated no viable basis to recover his alleged repair costs. Having shown no misdescription, Mr. Singh has failed to demonstrate a basis for recovery under the terms of the "description warranty"; he purchased and took possession of the identified vehicle. Moreover, the vehicle was sold as a "lot," Finding 4. The clause provides that no refunds will be made for shortages after the property has been removed. Finding 2. Even so, having neither provided written notice to the contracting officer within fifteen calendar days of removal, nor returned the vehicle to the agency, Mr. Singh has established no basis for recovery under the clause. Further, he has not demonstrated a legal basis under the clause to recover his repair costs while retaining the vehicle. To the extent that Mr. Singh suggests that the condition of the vehicle was altered after the sale and prior to his taking possession, the record does not support such a contention. Findings 6, 9, 10. Further, having removed the vehicle without having notified the Government of any alleged loss, the contract specifies that "no adjustment will be authorized." Finding 3. Even if it were shown that the property had been misdescribed or vandalized after the sale and prior to removal, and that the notice provisions were complied with or waived, the record justifies no recovery. Factually, Mr. Singh has failed to demonstrate that he incurred the repair costs on the vehicle in question, and that the repairs were necessitated by the alleged misdescription or change in the condition of the vehicle. Decision The Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge