_______________________ DENIED: August 19, 1994 _______________________ GSBCA 12466 D. BERNARD, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Daryl J. Bernard, pro se, Miami, FL. George U. Lane, Jr., Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges BORWICK, WILLIAMS, and VERGILIO. VERGILIO, Board Judge. On June 18, 1993, the Board received a notice of appeal from D. Bernard, who had purchased a vehicle from the respondent, the General Services Administration. Years after the purchase, and after the vehicle had been totalled in an accident, Mr. Bernard discovered that he had purchased a vehicle that was not as described. In fact, the vehicle he possessed was newer than that described at the sale and had a different vehicle identification number; the vehicle he received was stolen property. Mr. Bernard did not return the vehicle to the agency; instead, he returned it to the police and insurance company of the prior owner. Mr. Bernard seeks to recover all of his costs expended on the vehicle through the time he learned that it was stolen. Mr. Bernard has failed to establish a basis for recovery. He was in possession of the vehicle. Although the sale documentation misdescribed the vehicle, Mr. Bernard has not acted within the terms of the contract to recover. Moreover, Mr. Bernard has not demonstrated how the misdescription diminished the value of the vehicle or how the misdescription caused him to expend any of the costs for which he seeks recovery. Accordingly, the Board denies the appeal. Findings of Fact 1. The agency conducted a sale of vehicles on a competitive bid basis. The sales letter describes item 24: "1978 Porsche 924, SN 9248209688, 4 cyl, 2 dr. 5 Speed manual transmission. SEVERE ELECTRICAL PROBLEMS." Appeal File, Exhibit 4 at 2. 2. One of the general terms and conditions of the sale relates to title: Unless otherwise provided in the Invitation, title to the property sold hereunder shall vest in the Purchaser as and when removal is effected. On all motor vehicles . . . requiring licensing by a State motor vehicle regulatory agency, a certificate of release, Standard Form 97 will be furnished for each vehicle and piece of equipment. Appeal File, Exhibit 1 ( 7). 3. Some of the particular provisions of the "special terms and conditions of sale" provide: STANDARD FORM 97: (The United States Government Certificate of Release of a Government Vehicle) is not a motor vehicle registration, it is evidence of title only to be used by the purchaser to obtain a proper state motor vehicle registration. This property is being offered in accordance with the exchange/sale provision of Section 201(C) of the Federal Property and Administrative Services Act of 1949. 63 STAT. 384, as amended Appeal File, Exhibit 4 at 4. 4. Another special term and condition, "Description Warranty," provides: 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 the merchantability of the property or its fitness for any use or 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. Appeal File, Exhibit 4 at 4. 5. Having submitted the winning bid of $2,900 for item 24, Mr. Bernard took possession of the vehicle in September 1986. Appeal File, Exhibits 5, 6. 6. On January 6, 1987, Mr. Bernard obtained from Florida a certificate of title to the vehicle; the title identifies the vehicle as in the agency's sales letter (i.e., a 1978 Porsche, identification number 9248209688), with "GO" (the Government) identified in the block "state prev. reg." Appeal File, Exhibit 6. 7. On July 14, 1987, the purchased vehicle was involved in an accident. The traffic accident report describes the damage to the vehicle as "disabling" and "total." Bernard Answer to Agency Request for Production of Documents (item B). 8. By letter dated January 24, 1993, Mr. Bernard informed the contracting officer: While making repairs, I discovered the vehicle to have been altered. The V.I.N. [vehicle identification number] stamped on the shock mount pillar had been finished over. Careful filing brought the original numbers out and it was different from the V.I.N. plate on the windshield. National Auto Theft Bureau records show that the car was stolen in Rye, New York, and is a 1980 vehicle. It had been stolen on 11/14/81. The vehicle was turned over to the North Miami Police auto theft division and then recovered by National Auto Theft Bureau. Appeal File, Exhibit 6. The altered vehicle numbers were discovered when preparing to chop and disassemble the car. Bernard Answer to Agency Interrogatories ( 2). 9. By the letter dated January 24, Mr. Bernard submitted a claim to the contracting officer requesting $4,209.07. Although the attached receipts do not total that amount, the letter states that this figure represents the purchase price and all expenses incurred prior to discovering that the vehicle had been stolen (registration title, insurance, repair manual, water pump, electrical system repair, parts, and stolen car report). Appeal File, Exhibit 6. Discussion Mr. Bernard seeks to recover $4,209.07 (plus costs). In the complaint, Mr. Bernard characterizes his basis for recovery as a "tort claim for negligence, bad faith and breach of contract." Subsequently, in support of the requested recovery, Mr. Bernard contends that the agency failed to pass proper title to the vehicle and that the agency misdescribed the vehicle. The agency maintains that the Board lacks jurisdiction over that portion of the claim which seeks recovery under a theory of tort. The agency asserts that the agency acted in good faith at all times. The agency contends that, as to the breach of contract portion of the claim, the agency transferred good title to the vehicle; accordingly, Mr. Bernard was a bona fide purchaser in good faith with marketable title to the vehicle. Assuming that the vehicle was misdescribed at the time of the sale, the agency maintains both that Mr. Bernard failed to return the vehicle in its original condition within the time period established by the contract and that the misdescription did not diminish the value of the property actually obtained. Mr. Bernard has failed to demonstrate a basis for recovery at this Board. The record does not suggest that the agency intentionally misdescribed the vehicle. The agency does not dispute the contention of Mr. Bernard that the vehicle sold by the agency and purchased by Mr. Bernard was a 1980 Porsche with a vehicle identification number different from that identified in the notice of sale. A misdescription occurred. Mr. Bernard did not return the vehicle to the agency; hence, Mr. Bernard did not return the vehicle within the time frame established in, or in the same condition as required by, the contract. Finding 4. Also fatal to Mr. Bernard's claim is the lack of proof that the misdescription adversely affected Mr. Bernard. The accident and diminution in the value of the vehicle occurred without regard to the description of the vehicle in the sale documents. The record does not suggest that the misdescription induced or caused Mr. Bernard to expend any of the requested costs. Decision Mr. Bernard has failed to show entitlement to any recovery. Accordingly, the Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge