DENIED: January 26, 1993 GSBCA 11873 ANTONIO ZUCO, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Antonio Zuco, pro se, Kissimmee, FL, appearing for Appellant. A. R. Dattolo, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges LaBELLA and GOODMAN. GOODMAN, Board Judge. This appeal, filed on June 5, 1992, arises from a General Services Administration (GSA) auction of confiscated property. Appellant, Antonio Zuco, bought a 1985 Chevrolet Corvette at the auction. Appellant alleges that he is due relief because he found cosmetic and mechanical defects after he purchased the vehicle. GSA contends the car was sold without any guarantee. Appellant submitted the appeal pursuant to Rule 14, requesting the accelerated procedure, and neither party requested a hearing. We deny the appeal, for the reasons stated herein. Findings of Fact 1. GSA conducted the auction in question on April 15, 1992, at the Kennedy Space Center in Florida. Appeal File, Exhibit 5. 2. A 1985 Chevrolet Corvette was listed as item number 48. The property listing mentioned only that the car had automatic transmission and air conditioning. No representations were made as to the condition of the vehicle. The auctioned property was to be made available for inspection on the mornings of April 14 and 15, 1992. Appeal File, Exhibits 5, 6. 3. Bidders were notified that the vehicles being auctioned may have been seized and possibly had liens upon them. Appeal File, Exhibit 6. 4. Prospective bidders were warned with identical language that appeared in both the auction flyer announcing the auction and the property listing for the auction that "CONDITION OF PROPERTY IS NOT WARRANTED." This language preceded the following clause which also appeared in both documents: 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 & 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. CLAUSE NO. 2 OF STANDARD FORM 114C IS DELETED. DEFICIENCIES, WHEN KNOWN, HAVE BEEN INDICATED IN THE ITEM DESCRIPTION. HOWEVER, ABSENCE OF ANY INDICATED DEFICIENCY DOES NOT MEAN THE ITEM MAY NOT HAVE DEFICIENCIES. BIDDERS ARE CAUTIONED TO INSPECT BEFORE BIDDING. CONDITION OF THE PROPERTY IS NOT GUARANTEED. CAUTION: NOTWITHSTANDING ANY OTHER PROVISION OF THIS SALE, ALL PROPERTY, WHETHER OFFERED OR DESCRIBED AS AN INDIVIDUAL ITEM, LOT, UNIT OR SYSTEM MAY ACTUALLY BE INCOMPLETE WITH COMPONENTS MISSING, DEFECTIVE, DAMAGED OR ALTERED OR HAVE LATENT DEFECTS OR OTHERWISE REQUIRE EXTENSIVE REPAIRS OR SERVICING FOR WHICH THE GOVERNMENT WILL NOT BE RESPONSIBLE. Appeal File, Exhibits 5, 6. 5. The following language appeared at the beginning of the property description: CONDITION OF PROPERTY IS NOT GUARANTEED. YOU ARE CAUTIONED TO INSPECT AND ASSURE YOURSELF OF CONDITION PRIOR TO BIDDING. Appeal File, Exhibit 6. 6. There is no evidence in the record that suggests that appellant failed to receive both the auction flyer and the property listing containing the above language. 7. Appellant claims that the car was shown as a "special interest" item, that the car was locked at the time designated for inspection, and that he "tried unsuccessfully with several [GSA] employees to check the condition of the interior and the condition of the car's engine. No one present had the key to the automobile, at this time I was given the reason that this was to avoid damage to the car." Complaint; Appeal File, Exhibit 10. 8. According to appellant, despite the fact that he could not inspect the interior of the automobile, "I was encouraged at the protection given to this particular car and assuming that the automobile was in perfect condition, decided to register a bid on the car." Appeal File, Exhibit 10. 9. The contracting officer has submitted a statement that the car was available for inspection between 7:45 a.m. and 8:15 a.m. on the morning of the auction, and had been available for inspection on the previous day at thirty minute intervals from 7:30 a.m. to 3:30 p.m. Appeal File, Exhibit 13. 10. Appellant also alleges that before the bidding began, the contracting officer who acted as the auctioneer stated that "Everything in the car is operational. The radio is intact, the rear spoiler is inside the car." Appeal File, Exhibit 14, Notice of Appeal.[foot #] 1 11. The tape of the auction supplied and transcribed by GSA[foot #] 2 does not contain any assertion that "[e]verything in the car is operational." Rather, the contracting officer states: ----------- FOOTNOTE BEGINS --------- [foot #] 1 The notice of appeal alleges that three other people heard this statement. The notice refers to a letter sent to the contracting officer the day after the purchase which contains signatures of three witnesses, but the alleged statement that "[e]verything in the car is operational" is not mentioned in the letter that the witnesses signed. [foot #] 2 The quality of the tape is very clear, and the statements made were accurately transcribed and appear in the Appeal File, Exhibit 7. ----------- FOOTNOTE ENDS ----------- Item 48, 1985 Chevy Corvette. 84,291 miles. The spoiler and the radio are in the car. Item 48. Who'll start the bidding off with a $6000 bid? I'm bid 6 now 61 . . . ." Appeal File, Exhibit 7. 12. The tape of the auction shows that the bidding proceeded until the car was purchased for $9,050. No other statements are made concerning the condition of the car. Appeal File, Exhibit 7. 13. The day after appellant purchased the car, appellant contacted the GSA contracting officer by telephone and complained of cosmetic and mechanical defects. Appeal File, Exhibits 9, 10. 14. By letter dated April 21, 1992, appellant informed the contracting officer that the car overheated as he drove it home, and he subsequently had the car inspected, at which time he found that it needed approximately $3,850 in repairs for a defective water pump, correction of electrical problems, an inoperative air conditioning system, correction of speaker wiring and dashboard wiring, and repair of weather stripping and a crack in the glass top. The record contains no indication that appellant has actually paid for the repairs. Appeal File, Exhibit 10. 15. Appellant's April 21, 1992, letter requested a full refund for the vehicle, or alternatively either an award of $3,850 for the necessary repairs or credit for the purchase price toward a new vehicle. 16. The basis for appellant's claim is that appellant believes he was "misled by the extreme precautions that GSA took in locking the vehicle," and that "GSA misled me to believe that this vehicle's condition was far superior to those listed 'as is.'" See Complaint. In fact, in his April 21, 1992, letter to the contracting officer, appellant asserts that "I was encouraged at the protection given to this particular car and assuming that the automobile was in perfect condition, decided to register a bid on the car." Appeal File, Exhibit 10. 17. By final decision dated May 22, 1992, the contracting officer denied appellant's claim. Appeal File, Exhibit 12. 18. Appellant timely filed his pro se notice of appeal on June 5, 1992. Appeal File, Exhibit 14, Notice of Appeal. Discussion Appellant's claim is based on his alleged inability to inspect the interior of the vehicle prior to purchase, and the allegation that he was "misled" because the car was locked and not readily available for inspection. The claim in essence is that such circumstances resulted in a breach of the Description Warranty, i.e., the car was misdescribed. There is conflicting evidence as to appellant's ability to inspect the interior of the vehicle, with appellant asserting he was not given the opportunity and the contracting officer contending that there was ample opportunity. To recover on a claim such as that presented here, an appellant must show that the Government knew of the complained-of defect and failed to disclose it. Louis Paolino, GSBCA 11005, 92-1 BCA 24,500 (1991); Audycki, GSBCA 9309, 88-3 BCA 21,112. There is no evidence that the Government knew of any defects which it failed to disclose. To the contrary, the notice of auction and the property description both clearly notified potential purchasers that 1) the condition of the property was not warranted, and 2) deficiencies, when known, had been indicated in the item description. Finding 4. While there were no noted deficiencies in the item description, the bidders were further cautioned that even under such circumstances "ABSENCE OF ANY INDICATED DEFICIENCY DOES NOT MEAN THE ITEM MAY NOT HAVE DEFICIENCIES. BIDDERS ARE CAUTIONED TO INSPECT BEFORE BIDDING. CONDITION OF THE PROPERTY IS NOT GUARANTEED." Indeed, bidders were further warned: NOTWITHSTANDING ANY OTHER PROVISION OF THIS SALE, ALL PROPERTY, WHETHER OFFERED OR DESCRIBED AS AN INDIVIDUAL ITEM, LOT, UNIT OR SYSTEM MAY ACTUALLY BE INCOMPLETE WITH COMPONENTS MISSING, DEFECTIVE, DAMAGED OR ALTERED OR HAVE LATENT DEFECTS OR OTHERWISE REQUIRE EXTENSIVE REPAIRS OR SERVICING FOR WHICH THE GOVERNMENT WILL NOT BE RESPONSIBLE. Finding 4. Appellant and all potential purchasers were duly warned in writing that there were no warranties, and that the absence of any indicated defects was not to be construed as a representation that defects were not present. They were also advised that the property being sold might have been seized or otherwise confiscated, and this gave them additional notice that the prior owners may not have kept the vehicles in the best of repair. Findings 3, 4. In 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. The uncertainties inherent in such a transaction are presumably reflected in the size of the bid. Audycki; James P. Smith, GSBCA 8216, 86-3 BCA 19,131. The only remedy under the contract for a misdescription is to notify the Government and return the car for a refund of the purchase price within fifteen days. Under the terms of the contract, the buyer does not have the option to repair the car and seek the cost of repairs. Irving Kaplan, GSBCA 8244, 86-3 BCA 19,196 ("Recovery for a misdescription is limited by the contract terms to the purchase price of the item . . . ."); accord Audycki; John Gottsche, GSBCA 8374, 87-3 BCA 20,076. Appellant has no remedy as the car was not misdescribed by any written or oral representations of GSA. Appellant's allegation that the contracting officer stated at the auction that "[e]verything in the car is operational" is not supported by the tape and transcript of the auction. Contrary to the allegations of appellant, there is no evidence of any oral assertions made by the contracting officer as to the condition of the vehicle. The written property description stated that the car did have an automatic transmission and an air conditioning system, but buyers were cautioned by the auction flyer and property description that such components may not be in working order. The cosmetic defects were clearly visible to appellant prior to purchase, and there is no evidence that the Government knew that the alleged mechanical defects existed. The auction flyer and the property description clearly stated the property was sold without any guarantee, and prospective buyers were given adequate warning as to the possibility of defects. Findings 2, 4-5, 10-12. Appellant's assertions that he was misled by the car being locked into thinking that the vehicle was "far superior to those listed 'as is'," and that he assumed the vehicle was "in perfect condition," are not sufficient to support a claim that the Government knew of the existence of defects and was attempting to conceal them. In fact, the circumstances of the sale and the nature of the vehicle would suggest otherwise. The car was a seven-year-old sports car at the time of the auction with the odometer reading in excess of 84,000 miles. Purchasers were on notice that the vehicles being sold had possibly been confiscated. To expect a perfect vehicle was unreasonable, in light of the age, mileage, and circumstances of sale. Decision For the foregoing reasons, the appeal is DENIED. _____________________ ALLAN H. GOODMAN Board Judge I concur: ____________________ VINCENT A. LaBELLA Board Judge