DENIED: APRIL 14, 1995 GSBCA 12972 TEXAS AERIAL SURVEYS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Richard J. Tijerina of Texas Aerial Surveys, Houston, TX, appearing for Appellant. Jerry Ann Foster, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges DEVINE, BORWICK, NEILL. DEVINE, Board Judge. Appellant was awarded a contract to purchase an automobile in a Government sale of personal property, but before appellant paid for the vehicle and took delivery, the Government discovered a mistake in the advertised description of the car and withdrew it from the sale. Appellant seeks possession of the car because it is a more valuable car than the one originally described. Findings of Fact The General Services Administration (GSA), an agency of the United States Government, issued an invitation for bids (IFB) on certain surplus property which included a number of vehicles, one of which was a Porsche that had been seized by the United States Department of Justice in connection with a drug arrest and turned over to GSA for disposal on sealed bids. GSA's IFBs were mailed out to a list of persons who had previously indicated an interest in such sales. Prospective buyers submitted sealed bids by mail. The IFB described the automobile in dispute as: Item 148. Sports car, 1978 Porsche 911, 6 cyl., ST, AC., VIN 9118311099, (C8965F). (1531AA41360078) BURNS AND LEAKS OIL/BAD CLUTCH/CHARGING SYSTEM NOT WORKING/NEEDS BATTERY/SITTING FOR 7 MONTHS/REPAIRS REQUIRED. Appeal File, Exhibit 1. Appellant, whose place of business is in Houston, Texas, inspected the car in Ft. Worth, Texas, before submitting its bid. Appeal File, Exhibit 3. At bid opening on July 13, 1994, Texas Aerial Surveys was the high bidder at $6,178. Id. at 5. Shortly after bid opening and before award, GSA was advised that the Porsche's VIN number was incorrect. Id. at 6. A correct number was supplied. Id. GSA considered the VIN error to be clerical and appellant was awarded the contract on July 21, 1994, by mail. Id. at 7. On July 25, 1994, GSA was informed by another bidder that the car was not a 911 but a turbo-charged Porsche 930, a much more valuable car. Id., Exhibits 8, 9. The contracting officer notified the high bidder, Texas Aerial Surveys in the person of Mr. Richard Tijerina, on July 29, 1994, by telephone that the vehicle's year, model and identification number were incorrectly stated in the sale documents, that the award was cancelled and the vehicle withdrawn from sale, and that he should not send payment. Id., Exhibit 10. This call was followed by a letter dated August 1, 1994, to the same effect. Id., Exhibit 11. Appellant nevertheless sent a cashier's check dated August 3, 1994 for the amount of its bid. Id. Exhibit 14. It was returned to him on August 8, 1994, by GSA. On August 12, 1994, Mr. Tijerina's lawyer wrote to GSA demanding that it turn the car over to his client, stating "The 930 moniker is simply a European designation of a 911 moniker." Appeal File, Exhibit 15. The car itself carried no marking showing its model number as such, but it did have the word "Turbo" in script on the trunk lid. Id., Exhibit 18. The correct VIN number was 9309700228. It appeared in two different locations stamped into the metal of the car's frame. Id., Exhibit 17. According to Porsche representatives the first three numbers of the VIN give the model number (930) and the fourth digit the year of manufacture, in this case, 9. Thus the l978 Porsche 911 coupe was actually a 1979 Porsche 930 Turbo. Id., Exhibit 18. The publication Value Guide to Cars of Particular Interest lists the average value of a 1978 911 SC Coupe at $12,600, and the average value of a l979 930 Porsche Turbo at $22,200. Id., Exhibit 20. The National Automobile Dealers of America's Official Used Car Guide lists a comparable difference in value. Id., Exhibit 21. The sale documents contain the following provisions with respect to the Government's right to withdraw sale items: WITHDRAWAL OF PROPERTY: The Government reserves the right to make withdrawals of property offered for sale at any time prior to removal. WITHDRAWAL OF PROPERTY: Bidders are cautioned that all property for sale is subject to withdrawal for further Government use prior to the actual removal. Property may also become unavailable for sale before, or during the inspection period. To Preclude any unnecessary cost, travel time, etc., bidders are advised to call the custodian to insure that the items being offered, or that have been awarded, are still available. Appeal File, Exhibit 1 at 8, 9. Discussion The Government argues that the Guaranteed Description clause runs in favor of the seller as well as the buyer, and that the misdescription discovered before removal allows the Government to keep the property and return the purchase price. This argument is specious. The clause runs only to the benefit of the buyer. It gives the seller no rights at all. Next the Government argues that the 911 Porsche it purported to sell to Mr. Tijerina does not exist, therefore not only is the Government unable to transfer title and make delivery of a non-existent vehicle, but there was no meeting of minds and thus no contract. Of course the car itself exists because it was parked by the Government on the sale lot and inspected there by Mr. Tijerina. The fact that the numbers were wrong does not alter the fact that the Government showed appellant a car on which appellant later became the high bidder. Nor does the mixup in numbers prevent a meeting of the minds. The answer to the problem lies in whether or not title passed from the Government to Texas Aerial Surveys despite the operation of the withdrawal clauses. If it did, certain results will ensue; if not, there will be a different outcome. We hold that title to the car did not pass to Mr. Tijerina and Texas Aerial Surveys because of the effect of the withdrawal clauses. After Mr. Tijerina was notified that he was the high bidder, two things remained to be done by him to get the car into his possession, and out of reach of the Government's withdrawal clauses. The first was to send payment and the second was to remove the car from the Government's possession. He did the first even though he then knew that the car he had bid on was a different and more valuable car than the one listed in the sales documents because the Government had told him so before he mailed his check. He also knew that the Government had told him not to make the payment because it had withdrawn the car from the sale and would not make delivery. At this point appellant was trying to consummate a deal too good to be true, and could not succeed. At the time of award, both the Government and appellant believed that the Government was selling, and appellant was buying, a 1978 Porsche 911. There thus existed a serious mutual mistake of fact as to the subject matter of the bargain. We construe the withdrawal clause "in accordance with its purpose, i.e. `to meet those instances in which (1) a need for the property develops after it has been declared surplus and offered for sale, or (2) a serious mistake has been made, such as a grave price discrepancy between the true value of the item and the amount bid.'" Benjamin v. United States, 348 F.2d 502, 516 (Ct.#Cl. 1965)(quoting Freedman v. United States, 320 F.2d 359, 362 (Ct.#Cl. 1963)). The case before us fits exactly within the second category set out above. The Government's contemplated "further use" was to correct the mistake by re-advertising the car with its correct designation and to perhaps realize its greater value at a future sale. A contrary holding might well result in a windfall to appellant and a loss to the Government. Decision We hold that the Government had the right to withdraw the misdescribed car under the stated circumstances and therefore DENY the appeal. _____________________ DONALD W. DEVINE Board Judge We concur: _____________________ _____________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge