DENIED: September 21, 1993 GSBCA 12320 CARL W. POOLE, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Carl W. Poole, pro se, Charlotte, NC. George U. Lane, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges NEILL and WILLIAMS. WILLIAMS, Board Judge. In this appeal a purchaser of surplus pagers seeks rescission of his contract with the General Services Administration (GSA) and a full refund of the purchase price, $788.83. Appellant Carl W. Poole filed his notice of appeal on February 24, 1993, and elected the accelerated procedure on March 29, 1993. The parties have presented their cases on the record. Findings of Fact In early August 1992, respondent issued invitation for bids (IFB) number 4KFBPS92058 for the sale of 70 lots of miscellaneous property. At issue here is item 007 described as "ONE LOT CONSISTING OF 14 EA PAGERS, MOTOROLA PAGEBOY II, 4 EA PAGERS, MOTOROLA DEMENSION IV." Appeal File, Exhibit 2. Many of the other lots were described as "estimated to contain" the stated quantities. Id. The IFB specified that lots 007 through 009 were located at Montgomery, Alabama, and could be inspected from August 10 until August 20, 1992. Appeal File, Exhibit 2. The IFB indicated the quantity of item 007 as "1 LT." Id. 2 The IFB contained the following relevant terms and conditions: 1. INSPECTION. 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. 2. CONDITION AND LOCATION OF PROPERTY. Unless otherwise provided in the Invitation, all property listed therein is offered for sale "as is" and "where is." Unless otherwise provided in the Invitation, the Government makes no warranty, express or implied, as to quantity, kind, character, quality, weight, size, or description of any of the property, or its fitness for any use or purpose. Except as provided in Conditions No. 12 and 14 or other special conditions of the Invitation, no request for adjustment in price or for rescission of the sale will be considered. This is not a sale by sample. . . . . 12. ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT. Unless otherwise provided in the Invitation, when property is sold by a unit other than "weight," the Government reserves the right to vary the quantity tendered or delivered to the purchaser by 10 percent; . . . . The purchase price will be adjusted upward or downward in accordance with the unit price and on the basis of the quantity . . . actually delivered. Unless otherwise specifically provided in the Invitation, no adjustment for such variation will be made where property is sold on a "price for the lot" basis. . . . . 14. RISK OF LOSS. Unless otherwise provided in the Invitation, the Government will be responsible for the care and protection of the property subsequent to it being available for inspection and prior to its removal. . . . With respect to losses only, in the event the property is offered for sale by the "lot," no adjustment will be authorized under this provision unless the Government is notified of the loss prior to 3 removal from the installation of any portion of the lot with respect to which the loss is claimed. Appeal File, Exhibit 2A. The Description Warranty stated: 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 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, expressed or implied. . . . Appeal File, Exhibit 2. Appellant submitted a bid of $788.83 as his total bid price for item 007 on August 26, 1992. Appeal File, Exhibit 3. Appellant indicated on the bid that he had inspected the property. Id. On August 27, 1992, GSA awarded contract number GS04F92FBEE230 to appellant. Appeal File, Exhibit 5. The Notice of Award directed appellant to present payment by September 7, 1992, and to remove the property by September 17, 1992. Id. The notice indicated that this property was located at the VA center in Montgomery, Alabama. Id. Appellant was located in Charlotte, North Carolina. On September 14, 1992, appellant appeared at the VA in Montgomery, Alabama, to accept delivery of the pagers. Appellant's Record Submission, Attachment. Upon inspection of the property at delivery, appellant found thirteen Pageboy II pagers and five Demension IV pagers instead of fourteen Pageboy II pagers and four Demension IV pagers as listed in the IFB. Appellant informed the VA's property custodian that the quantities did not conform to the description in the IFB, and the custodian replied: "It doesn't matter, you will have to take them anyway." Declaration of Diana D. Poole (June 1, 1993). GSA Form 27A, the Purchaser's Receipt and Authority to Release Property, was signed by appellant and annotated to correct the pager quantities as thirteen Pageboy II and five Demension IV. Appeal File, Exhibit 6. 4 By letter dated September 24, 1992, appellant requested that GSA's contracting officer refund the purchase price, due to the misdescription of the pagers. Appellant stated: This will serve to notify you that the property listed as lot number 007 was misdescribed. The description reads, "One lot consisting of 14 ea pagers, Motorola Pageboy II, 4 ea pagers, Motorola Demension IV". The lot consisted of 13 ea pagers, Motorola Pageboy II, 5 ea pagers, Motorola D[e]mension IV. I noted the discrepancy when the items were removed, but was told that the total quantity was 18 as was in the bid package. I believe the item was misdescribed as a brief scan of other items in the bid package will show that other lots have "one lot est to contain...." before the quantity. Lot number 007 did not have "estimated to contain" but instead read "one lot consisting of...". I will agree that if the description had read "est to contain", I would have no reason for discussing this issue; however, the listing was very specific. I am therefore requesting permission/approval to return the lot as directed by the Contracting Officer and obtain a refund for the purchase price. Appeal File, Exhibit 7. On November 25, 1992, the contracting officer issued his final decision denying appellant's request for rescission. Appeal File, Exhibit 12. Discussion Appellant seeks rescission of his contract on the ground that the pagers were misdescribed in the IFB. Respondent contends that appellant is not entitled to rescission because (1) notice of the alleged misdescription was untimely and (2) under the Description Warranty no refund would be made for shortage of property sold by lot. Did Appellant Submit Timely Notice of the Misdescription? The Description Warranty emphasized that no refund would be made unless the purchaser submitted written notice of the misdescription within fifteen calendar days of the date of removal. Appellant claims that he timely submitted a notice that the pagers were misdescribed on September 24, 1992, by letter to the contracting officer, within fifteen days of his removal of 5 the pagers on September 14, 1992. Appeal File, Exhibit 7. Respondent contends that appellant removed the pagers on September 9, 1992, and that the contracting officer did not receive the notice required under the Description Warranty until September 28, 1992, thus making appellant's notice untimely. Respondent's Record Submission at 3-4. Respondent's argument fails for lack of proof. Respondent contends without any evidentiary support that delivery occurred on September 9, 1992. Appellant has proffered motel and rental car receipts which indicate that delivery likely occurred in Montgomery, Alabama, on September 14. Appellant's Reply Record Submission, Attachment. Is Appellant Entitled to a Rescission of the Contract Due to a Misdescription of the Pagers? Appellant seeks rescission and a refund because the IFB described fourteen Pageboy II pagers and four Demension IV pagers, but appellant actually received thirteen Pageboy II pagers and five Demension IV pagers. Appellant's claim fails. First, appellant should have detected that one Pageboy II pager was missing during the inspection.[foot #] 1 Appellant does not claim that what he saw at the inspection is different than what he received at delivery. Complaint; Appellant's Record Submission. Nor is there any suggestion in the record that an intervening event altered the mix or quantities of the pagers in lot 007 between the time of inspection and delivery. Appellant's contention is rather that he first noticed that lot 007 was misdescribed at delivery. It is well established that purchasers cannot recover under a misdescription claim for deficiencies that could reasonably have been observed in a proper inspection of the property to be purchased. Garrett J. Veenstra, GSBCA 7251, 85-2 BCA 18,127, at 90,982 ("Appellant's claim of misdescription appears groundless in light of the general rule that, absent latent defects, a bidder is bound by its own inspection." (quoting Richard A. Guthrie, GSBCA 5721, 81-2 BCA 15,163, at 75,014)); Doris A. Lahage, GSBCA 7321, 84-2 BCA 17,498, at 87,155; Mary E. Mullins, GSBCA 6726, 83-2 BCA 16,588, at 82,493. Here, the identity and manufacturer of the pagers was readily ascertainable upon inspection, as is evidenced by appellant's observation at delivery. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The only evidence to suggest that appellant actually travelled to Alabama and performed an inspection is the checkmark on appellant's bid indicating "bidder has inspected the property." Appeal File, Exhibit 3. ----------- FOOTNOTE ENDS ----------- 6 Moreover, under the terms of the Description Warranty, appellant is not entitled to a refund once he removed the property, because the pagers were sold by lot. Sheldon Aircraft Products Corp., ASBCA 12905, 68-2 BCA 7,163, at 33,196. The Description Warranty explicitly stated that "After the property has been removed, no refund will be made for shortages of property sold by the 'LOT.'" Appeal File, Exhibit 2. Here, although appellant discovered the discrepancy at delivery, he took possession of the lot and removed the pagers. Appeal File, Exhibit 6. Appellant further claims that he was "forced to accept delivery against his better judgment" because the property custodian advised him he "had to take [the pagers] anyway" and appellant believed the property custodian was the GSA's contracting officer's representative. Appellant's Record Submission at 5. This misadvice, while unfortunate, does not entitle appellant to a refund. The VA property custodian's statement, as interpreted by appellant, was inconsistent with the clear, emphatic terms of the IFB, which were incorporated into the contract, that once property sold by lot was removed, no refund could be made. These terms of the IFB reflect the Government's legitimate concern that it would be problematic to ascertain the quantity in a given lot, once the lot was removed from the Government's possession. Decision For the foregoing reasons, appellant's appeal is DENIED. MARY ELLEN COSTER WILLIAMS Board Judge I concur: EDWIN B. NEILL Board Judge