______________________________________ DENIED: December 30, 1994 ______________________________________ GSBCA 12921 JULIUS L. SIMMS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Julius L. Simms, pro se, Laurel, MD. Judith A. Bonner, Office of Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. WILLIAMS, Board Judge. On August 1, 1994, appellant, Julius L. Simms, filed this appeal from a contracting officer's decision denying his claim for reimbursement for repairs to a vehicle that he purchased from respondent, the General Services Administration (GSA). Appellant contends that he encountered mechanical problems with the transmission of the vehicle shortly after he purchased it. He seeks $1,100, the amount that he spent for the repairs. Appellant has elected to submit his case on the record, under the Board's small claims procedure. Under Board Rule 13, a decision in a small claims case is final and conclusive, may not be set aside except in case of fraud, and has no value as precedent. The Board denies this appeal for several reasons. First, the condition of the vehicle was not guaranteed. Second, there is no evidence in the record to suggest that the Government had knowledge of any defect in the vehicle. Finally, appellant failed to notify the contracting officer within the required time period that the property had been misdescribed. Findings of Fact On February 24, 1994, GSA conducted a public auction at the GSA Surplus Sales Center in Springfield, Virginia. Appeal File, Exhibit 2. A complete list of the property that was to be sold was set forth in the auction packet entitled "Property Listing and Addition [sic] Provisions of Warehouse Auction." Id. The auction packet stated that items would be available for inspection on February 22 and 23, 1994, from 8:30 a.m. until 3:00 p.m. Id. The invitation for bids (IFB) contained the following provisions: "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 AND MAINTAINS THE PROPERTY IN THE SAME CONDITION AS WHEN REMOVED. . . . This warranty is in place of all other guarantees and warranties, express or implied. The government does not warrant the 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 money damages, special, direct, indirect, or consequential. . . . Appeal File, Exhibit 2 at 3-4. The IFB further cautioned bidders to "bid at your own risk." Id. at 4. The section of the auction packet that described the property for sale contained descriptions of the vehicles. Some descriptions included explanations of defects in the vehicle, such as: "slight body damage, transmission slipping . . ." and "bad radiator." Appeal File, Exhibit 2 at 12. However, for the vehicle at issue, no defects were listed. Id. The vehicle at issue was only described as needing a tune-up. Id. The contracting officer testified in an affidavit that "at the time of the sale [he] had no knowledge that the vehicle had a defective transmission. All known deficiencies were included in the item description." Affidavit of Benjamin E. Morris (Morris Affidavit) (November 8, 1994) 5. Standard Form 126, which was submitted to GSA by the owning agency, the Drug Enforcement Administration, indicated that the vehicle needed a tune-up, but no other repairs were listed. Appeal File, Exhibit 1. Appellant was the high bidder on a vehicle that was described as: 314 Sedan, 1987 Ford Crown Victoria, 8-cyl. VIN: 2FABP74F2HX214423, Est. Mi: 72,940 (1531GE33540140) Tune-up Appeal File, Exhibit 2 at 12. The total purchase price was $2,300. Id., Exhibits 5, 6. Appellant inspected the vehicle, but was unable to start it because it had a dead battery. Appeal File, Exhibit 9. After appellant purchased the vehicle, he installed a fully charged battery. Affidavit of Russell E. White (White Affidavit) (August 26, 1994) at 2. Appellant is not claiming the cost of the battery. Appellant removed the vehicle from the GSA lot on February 24, 1994. According to a friend who accompanied the appellant to the auction, as soon as the vehicle warmed up "there was a 4 or 5 second delay before the transmission engaged, thus, revealing a problem with the transmission." White Affidavit at 2. While driving the vehicle from the GSA lot to his residence, appellant detected a very strong odor of something burning. Appeal File, Exhibit 7. By the time he arrived home, he determined that there was a major transmission problem that "rendered the vehicle inoperable." Id. Upon arriving at the appellant's residence, they found "an emission of a cloud of smoke, and the strong odor of burning fluid . . . ." Id. However, appellant did not inform GSA of this transmission problem until April 17, 1994, almost two months after he had removed the vehicle. Appeal File, Exhibit 7; Morris Affidavit at 7. Appellant states that this delay could not be helped because he was unable to pay for the repairs until April. Letter from Appellant to the Board (Sept. 2, 1994). Appellant also urges that in order to take the vehicle to a location specified by GSA pursuant to the Description Warranty clause, he had to repair it first. Appellant's Record Submission at 3. However, the invoice from the transmission shop and the warranty on the new transmission listed the vehicle's mileage at 73,988 miles, whereas the odometer disclosure statement, which was signed by a GSA contracting officer and by appellant on the date of purchase, stated that "the odometer now reads 72,940 miles . . . ." Appeal File, Exhibits 4, 9. On April 17, 1994, in a letter to the contracting officer, appellant requested reimbursement in the amount of $1,100 for the transmission repairs.[foot #] 1 Appeal File, Exhibit 7. Appellant claimed that GSA misrepresented the property because it failed to list the transmission problem. Id. On April 28, 1994, the contracting officer denied the request for reimbursement. Appeal File, Exhibit 8. On August 1, 1994, appellant filed a notice of appeal, seeking to recover the $1,100 that he paid for the transmission repair. Appeal File, Exhibit 9. Discussion Appellant claims that because "most vehicles with major problems had them listed, the failure to list the defective transmission in the description of the automobile [he] purchased was . . . a gross misrepresentation of its condition." Appeal File, Exhibit 9. By the terms of the invitation for bids, the only warranty made to appellant in this sale was a warranty that the vehicle would be accurately described. All other warranties and guarantees, express or implied, were specifically excluded. In order for appellant to recover based on misdescription, he must "show that the specific mechanical problems experienced by appellants were known to the Government prior to the sale and that the information was not disclosed to prospective buyers." Dorothy and Al Audycki, GSBCA 9309, 88-3 BCA 21,112, at 106,574; Mike Casey v. General Services Administration, GSBCA 11570, 92-2 BCA 24,882, at 124,102. Simply alleging that information was absent in the auction catalog is an insufficient basis for a successful claim. Geoffry W. Garner, GSBCA 9942, 89- 3 BCA 22,163, at 111,536-37. Appellant has not shown that the Government knew about the transmission problem prior to the sale. In fact, the only evidence in the record that addresses this issue is an affidavit from the GSA contracting officer stating that GSA did not know that the vehicle had a defective transmission. As the Board has stated before, "[i]n a sale of this sort, where both buyer and seller are ignorant of the car's condition, the risk that unknown defects exist is on the buyer." Antonio Zuco v. General Services Administration, GSBCA 11873, 93-2 BCA 25,734, at 128,026; James P. Smith, GSBCA 8216, 86-3 BCA 19,131, at 96,715. Appellant must also show that the vehicle was in the same condition that it was in when it was removed from the GSA lot. It would be impossible for appellant to demonstrate this because ----------- FOOTNOTE BEGINS --------- [foot #] 1 Appellant has submitted an invoice from Glen Burnie Automatic Transmission Shop for $1,100.14 dated April 8, 1994. Appeal File, Exhibit 9. ----------- FOOTNOTE ENDS ----------- he admittedly had the transmission rebuilt, and the vehicle appears to have been driven over 1,000 miles by the time appellant made the repairs. Jack P. Wade v. General Services Administration, GSBCA 12173, 93-2 BCA 25,808, at 128,461 (because purchaser of a vehicle had driven the vehicle 3,238 miles and had the transmission rebuilt, the vehicle was not in the same condition as it was in when it was removed from the GSA lot). Appellant has failed to demonstrate a basis for recovery under the warranty that the vehicle description was accurate because he failed to provide written notice to the contracting officer within fifteen calendar days of removal of the vehicle as the warranty requires. Loren Brown v. General Services Administration, GSBCA 12539, 94-2 BCA 26,718, at 132,908. According to the contract, written notice within fifteen days is a condition precedent to relief. Charles E. Warren, GSBCA 10376, 91-3 BCA 24,139. Based on statements made by appellant, and statements made by a friend of appellant's, it is clear that appellant knew at the time that he drove the vehicle off the GSA lot, or at least shortly thereafter, that there were "major" problems with the transmission. It was incumbent upon appellant to notify GSA of the misdescription within fifteen calendar days. Appellant failed to do so. Finally, the remedy requested by appellant, payment for repairs, is not permitted by the contract. Appellant took it upon himself to have the repairs made and there is no legal basis for the Government to reimburse appellant for the cost of those repairs. Antonio Zuco, 93-2 BCA at 128,027; John Fitzpatrick, GSBCA 7293, 84-2 BCA 17,361, at 86,512. Decision For the reasons stated above, the appeal is DENIED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge