_________________________ DENIED: February 9, 1993 _________________________ GSBCA 12173 JACK P. WADE, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jack P. Wade, Greenbrier, TN, appearing for Appellant. A. R. Dattolo, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. DeGRAFF, Board Judge. Appellant, Jack P. Wade, purchased a 1987 Dodge Caravan at a spot bid sale from respondent, General Services Administration (GSA). Appellant rebuilt the Caravan's transmission and then submitted a claim to respondent for reimbursement of the cost of rebuilding the transmission. The contracting officer denied the claim and this appeal followed. Appellant elected to proceed in accordance with the Board's small claims procedure. 41 U.S.C. 608 (1988); Rule 13. Accordingly, this decision is not appealable except in the case of fraud and is of no precedential value. The appeal was submitted for decision upon the record. For the reasons set forth below, the appeal is denied. Findings of Fact 1. In an "Auction/Spot Bid Calendar" (Bid Calendar) dated April 1992, GSA notified the public that several vehicles, including several 1987 Dodge Caravans, would be offered for sale on April 14, 1992, at a spot bid sale in Smyrna, Tennessee. Appeal File, Exhibit 2. Although the Bid Calendar does not provide specific information concerning any of the vehicles to be sold, it contains the following language: CONDITION: The condition of the property is not GUARANTEED. Bidders are cautioned to inspect before bidding. DESCRIPTION WARRANTY: THE GOVERNMENT WARRANTS TO THE ORIGINAL PURCHASER THAT THE PROPERTY IN THE INVITATION TO BID WILL CONFORM TO ITS DE-SCRIPTION. IF A MISDESCRIPTION IS DETERMINED BEFORE REMOVAL, 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 THEIR OWN EXPENSE, TO A LOCATION SPECIFIED BY THE CON-TRACTING OFFICER. NO REFUND WILL BE MADE UNLESS THE PURCHASER SUBMITS A WRITTEN NOTICE TO THE CONTRACTING OFFICER WITHIN 15 CALENDAR DAYS OF REMOVAL, THAT THE PROPERTY IS MISDE- SCRIBED AND MAINTAINS THE PROPERTY IN THE SAME CONDITION AS WHEN REMOVED. . . . THIS WAR-RANTY IS IN PLACE OF ALL OTHER GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED. THE GOVERN-MENT DOES NOT WARRANT THE MERCHANTABILITY OF THE PROPERTY OF 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. Appeal File, Exhibit 2. 3. The Bid Calendar also states that the vehicles being sold would be available for inspection on April 13, 1992, from 9:00 a.m. until 3:00 p.m. and April 14, 1992, from 8:00 a.m. until 9:00 a.m. Appeal File, Exhibit 2. 4. A complete list of the vehicles that were to be sold is set forth in GSA's "Property Listing and Provisions of Spot Bid Sale" (Property Listing). Appeal File, Exhibit 2. 5. The Caravan at issue in this appeal was described in the Property Listing as follows: LIGHT TRUCK, 1987 DODGE, CARAVAN, DARK BLUE FUEL: GAS, 6 CYL, TAG:G41-70695, EST MI: 74366 VIN:2B4FK2135HR253127 A/T, A/C, P/B, P/S Appeal File, Exhibit 2. 6. The Property Listing states, "CONDITION OF PROPERTY IS NOT GUARANTEED. YOU ARE CAUTIONED TO INSPECT AND ASSURE YOURSELF OF CONDITION PRIOR TO BIDDING." Appeal File, Exhibit 2. The Property Listing also states, "CONDITION OF PROPERTY IS NOT WARRANTED," and contains nearly the same "Description Warranty" as is found in the Bid Calendar. Appeal File, Exhibit 2; see Finding 1. 7. In addition, the Property Listing states, "DEFICIENCIES, WHEN KNOWN, HAVE BEEN INDICATED IN THE ITEM DESCRIPTION. HOWEVER, ABSENCE OF ANY INDICATED DEFICIENCIES DOES NOT MEAN THE ITEM IS WITHOUT DEFICIENCIES. BIDDERS ARE CAUTIONED TO INSPECT BEFORE BIDDING." Appeal File, Exhibit 2. 8. The Property Listing provides that vehicle sales were subject to the provisions of Standard Form 114C, "Sale of Government Property, General Sale Terms and Conditions." Standard Form 114C provides, "The Bidder is invited, urged, and cautioned to inspect the property prior to submitting a bid. Property will be available for inspection at the places and times specified in the Invitation." In addition, the form provides that the Government's liability to a purchaser shall not exceed the refund of the purchase price. The form also provides that any oral statements which might be made by Government representatives at the sale and which would change or supplement the terms of the Invitation, were unauthorized and conferred no right upon any bidder. Appeal File, Exhibit 3. 9. The Property Listing notes that some of the vehicles being sold were not in perfect condition. For example, one vehicle is described as having a "cracked exhaust manifold;" a second is described as being a "total wreck;" and a third is described as having an "exhaust leak." The Property Listing does not provide any repair or damage information either for the Caravan at issue in this appeal or for many of the other vehicles listed. Appeal File, Exhibit 3. 10. Mr. Wade attended the spot bid sale on April 14, 1992, and offered to purchase the van at issue here for $4,889. Appeal File, Exhibits 2, 4. Mr. Wade signed a bidder registration and a bid card, both of which provided that his offer was subject to the conditions and terms of Standard Form 114C. Appeal File, Exhibit 4. 11. During a status conference convened by the Board on January 27, 1993, Mr. Wade stated that he did not inspect the Caravan before submitting his bid. He also stated that he was given a copy of the Property Listing at the sale. 12. Mr. Wade was the successful bidder for the Caravan, which was transferred to him by GSA on April 14, 1992. Appeal File, Exhibits 5, 6. 13. In a letter dated June 23, 1992, Mr. Wade wrote to GSA concerning problems he had encountered with the Caravan's transmission. Appeal File, Exhibit 7. In his letter, Mr. Wade states that he was told at the sale that, if there were any major problems with the vehicles offered for sale, those problems would be announced before the sale. He also states that no mention was made of any problem with the van's transmission. Further, Mr. Wade states that, the day he drove away from the sale, he checked the fluid levels in the Caravan, discovered that there was no transmission fluid registering on the dip stick, and added transmission fluid. The next morning, he states, he noticed that the Caravan had leaked transmission fluid onto his garage floor. He also states that he had noticed a "shifting problem as the van tried to shift from one gear to another." Mr. Wade's letter also states that, by mid-May 1992, he was adding transmission fluid every 100 miles. In addition, Mr. Wade states that on June 9, 1992, he took the van to a transmission shop and paid $503 for a "complete transmission overhaul." Appeal File, Exhibit 7. 14. Mr. Wade's Notice of Appeal to the Board includes a copy of an invoice dated June 11, 1992, for $503.36 from B&J Transmission and a signed statement by Jack McKnight, the owner of B&J Transmission. The invoice states that B&J Transmission charged Mr. Wade $503.36 to overhaul the Caravan's transmission. The invoice also states that the van then had an odometer reading of 77,604 miles. Mr. McKnight states that, in his opinion, the Caravan had a transmission problem which caused the leak that existed at the time GSA sold the van to Mr. Wade. 15. In an internal memorandum dated July 7, 1992, GSA's Tennessee Fleet Manager reported to GSA's Property Management Sales Section, "At the time the vehicle was sold, we had no knowledge of any problems with the vehicle." Appeal File, Exhibit 10. 16. The Caravan's service history establishes that on November 28, 1989, when the van's odometer registered 60,158 miles, its automatic transmission had been repaired. The service history does not indicate that the van had experienced any other transmission problems. Appeal File, Exhibit 15.[foot #] 1 17. In a letter dated July 14, 1992, GSA informed Mr. Wade, "As announced at the beginning of the sale and written in the property listing you received when you registered at the sale, the Government does not warranty the condition of a vehicle. Bidders are cautioned to fully inspect the vehicles on which they are bidding." Appeal File, Exhibit 11. The letter states that ----------- FOOTNOTE BEGINS --------- [foot #] 1 GSA provided the Caravan's service history to the Board and to Mr. Wade on January 28, 1993. The Board has included the service history in the Appeal File as Exhibit 15. ----------- FOOTNOTE ENDS ----------- the contracting officer decided not to adjust or rescind the contract between Mr. Wade and GSA. Appeal File, Exhibit 11. 18. On September 23, 1992, Mr. Wade submitted a claim letter to GSA. Appeal File, Exhibit 12. In the letter, Mr. Wade alleges that a transmission fluid leak was present when he purchased the Caravan, and he requests payment for the cost of the rebuilt transmission. Appeal File, Exhibit 12. 19. On October 14, 1992, the contracting officer issued his final decision, denying Mr. Wade's claim. Appeal File, Exhibit 13. 20. Mr. Wade timely filed this appeal to the Board. In his Notice of Appeal, Mr. Wade alleges that the Caravan had a major transmission problem when it was sold on April 14, 1992, and he further alleges that GSA knew of the problem at the time of the sale. He seeks reimbursement of the $503 that he paid to have the transmission rebuilt. Discussion Mr. Wade's ability to recover the amount he requests is governed by the terms of Standard Form 114C, the Bid Calendar, and the Property Listing, which contain the terms of the agreement between the parties. Mr. Wade may recover only if he can establish that : (1) at the time of the sale, GSA knew that the Caravan had a defective transmission and inaccurately described the Caravan; and (2) Mr. Wade notified GSA of the misdescription within 15 days after removing the Caravan from the sale site, maintained the van in the same condition as when he purchased it from GSA, and delivered it to a site specified by GSA. If Mr. Wade complied with these provisions, he was entitled to a refund of the purchase price of the Caravan. None of the terms of the written agreement between the parties could be changed or supplemented by any oral statements made at the time of the sale. Given the terms of the agreement between the parties and the facts presented in this appeal, Mr. Wade is not entitled to the recovery he requests. In order to establish that GSA misdescribed the van, Mr. Wade must provide substantial evidence to establish that, at the time of the sale, the Caravan's transmission was defective and that GSA knew of the defect. Dorothy & Al Audycki, GSBCA 9309, 88-3 BCA 21,112; James P. Smith, GSBCA 8216, 86-3 BCA 19,131. The evidence in the record is not sufficient to establish either that the transmission was defective at the time of the sale or that GSA knew of a defect. The Caravan's service history establishes that it had not been subject to repeated transmission problems before Mr. Wade purchased it at the sale. The Caravan had experienced only one transmission problem, which occurred nearly two and one-half years and 14,000 miles before GSA offered the van for sale. Finding 16. The problem was repaired and there is no evidence to suggest that the Caravan ever experienced any additional transmission problems. The mere fact that repairs were made to the transmission at some time in the past does not establish that a defect existed at the time of the sale. The opinion of Mr. McKnight, the owner of B&J Transmissions, is not persuasive because he had no knowledge of the condition of the van at the time of the sale. Thus, there is insufficient evidence to establish that the transmission was defective at the time of the sale. Concerning GSA's knowledge of transmission problems with the Caravan at the time of the sale, in the status conference held January 27, 1993, Mr. Wade explained that he assumes that GSA must have known at the time of the sale that the van had a transmission problem. But, as Mr. Wade explained, he does not have any evidence to establish that GSA actually had any knowledge of a transmission problem at the time of the sale. In fact, GSA's fleet manager states that GSA knew of no problems with the van at the time of the sale. Finding 15. There is no evidence in the record to establish that, at the time of the sale, GSA knew that the Caravan's transmission was defective. Even if the evidence were sufficient to establish that GSA inaccurately described the van at the time of the sale, Mr. Wade is not entitled to recover because he failed to comply with the terms of the parties' agreement which govern the remedy for a misdescription. Mr. Wade states that, almost immediately after he removed the Caravan from the sale lot, he realized that it had a transmission problem. Finding 13. The parties' agreement required Mr. Wade to notify GSA of any misdescription within fifteen days after taking possession of the Caravan. Yet, Mr. Wade did not notify GSA of any problem until more than two months after he took possession of the van. Id. The parties' agreement also required Mr. Wade to return the Caravan to GSA in the same condition as when it was removed from the GSA sales lot. Yet, during the two months after the sale, Mr. Wade drove the van 3,238 miles and had the transmission rebuilt. Id. Thus, even if Mr. Wade could establish that the Caravan was inaccurately described by GSA at the time of the sale, he is not entitled to recover because he failed to comply with the terms of the parties' agreement which govern the remedy for a misdescription. Geoffry W. Garner, GSBCA 9942, 89-3 BCA 22,163; Irving Kaplan, GSBCA 8244, 86-3 BCA 19,196; Jerome T. Jenks, GSBCA 7952, 86-2 BCA 18,877. Under no circumstances is Mr. Wade entitled to recover the $503 that he requests. This is the amount that Mr. Wade paid to have the transmission rebuilt. The agreement between the parties provides that Mr. Wade's exclusive remedy was to return the Caravan to GSA in the same condition as when he purchased it and, in exchange, GSA would refund the purchase price. Findings 2, 6. The parties' agreement explicitly states that no other remedy was available to Mr. Wade. Thus, even if Mr. Wade could establish that the Caravan was inaccurately described by GSA at the time of the sale, he is not entitled to recover the amount that he requests. Audycki; Kaplan. Finally, Mr. Wade is not entitled to recover, even if we accept as true his statement that, at the sale, GSA announced that it would inform bidders of any major problems with the vehicles being sold and that no announcement was made concerning the Caravan's transmission. Any recovery is barred because the parties' written agreement expressly provides that its terms could not be changed or supplemented by any statements made at the sale and, as explained in the preceding paragraphs, the terms of the parties' written agreement bar any recovery by Mr. Wade. In addition, even if the announcement made at the sale could alter the terms of the parties' written agreement, it would not be reasonable to interpret GSA's announcement to mean that GSA would inform bidders of problems of which it was unaware. This would have been impossible. Thus, even accepting Mr. Wade's statements concerning the announcements made at the sale, he is not entitled to recover. Decision For the foregoing reasons, the appeal is DENIED. ________________________________ MARTHA H. DeGRAFF Board Judge