_____________________ DENIED: June 18, 1996 _____________________ GSBCA 13572 MAGDI A. RISK, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Magdi A. Risk, pro se, Woburn, MA. John C. Sawyer, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and VERGILIO. VERGILIO, Board Judge. On March 29, 1996, the Board received this appeal from Magdi A. Risk. Mr. Risk had purchased a vehicle at an auction conducted by the respondent, the General Services Administration. Mr. Risk seeks reimbursement of $2,146.38, his alleged cost to obtain a rebuilt engine for the purchased vehicle. The contracting officer denied Mr. Risk's claim. Although the Government-provided auction information misdescribed the vehicle (in terms of the model year and the mileage), Mr. Risk and the agency were aware of the correct information at the time of his payment for and removal of the vehicle. Both he and the agency proceeded with the purchase/sale of the vehicle. Mr. Risk cannot rely on those two misdescriptions to cancel the contract; the record reveals no misdescription with respect to the condition of the engine. Mr. Risk asserts that the contracting officer obligated the agency to reimburse Mr. Risk for the repair work undertaken. The assertion fails. The contract expressly places on the purchaser the risk of repairs and provides that oral statements and representations are unauthorized and confer no right upon the purchaser. The record does not demonstrate that the contracting officer had either actual or implied authority to obligate the Government to reimburse the requested costs. Further, the terms and conditions of the sale make unreasonable any reliance by Mr. Risk upon the alleged oral statements of the contracting officer. Moreover, Mr. Risk has failed to meet his burden of proof to demonstrate that the contracting officer actually made the commitments alleged. Mr. Risk has failed to substantiate a legal basis which permits recovery; by the very conditions of the sale, the agency did not warrant the condition of the vehicle when sold, let alone agree to provide a rebuilt engine if necessary during the first 2,525 miles of use and six weeks after purchase. Accordingly, the Board denies the appeal. Findings of Fact 1. On December 2, 1995, the agency conducted an auction. The express terms and conditions under which the auction was conducted state, in relevant part: All property is in used condition except as otherwise indicated and may be inoperable, parts may be missing and repairs may be required. Also defects other than those noted may exist[]. Deficiencies when noted have been indicated in the item description, however the absence of any noted deficiency does not mean that the item may not have deficiencies. Bidders are reminded and cautioned to inspect before bidding. Any oral statement or representati[on] of the Government changing or supplementing the invitation or contract or any condition thereof, is unauthorized and shall confer no right upon the bidder or purchaser. . . . . IMPORTANT _________ DESCRIPTION -- PLEASE READ __________________________ 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 determine[d] 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 along with an itemized estimate o[f] repairs within 15 calendar days of the date of removal that the property is misdescribed and maintains the property i[n] 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 recovered under this provision is limited to the purchase price of the misdescribed property. The purchaser is not entitled to any payment for los[s] of profit or any other money damages, special, direct, indirect, or consequential. Exhibit 1 at 1, 6 (exhibits are in the appeal file). 2. The Government-provided information for the auction describes one vehicle--item 145--as follows: 1987 CHEVROLET C-1500 2 DR PICKUP 4X4 AT PS PB AC AM-FM COLOR WHITE VIN [] MILEAGE 86,750 REPAIRS REQUIRED Exhibit 1 at 5 (item 145). 3. For $6,700 Mr. Risk purchased item 145. On the day of the sale, he signed a form, captioned "purchaser's receipt and authority to release property," which describes the property as detailed in finding 2, with two exceptions: the model year is stated as 1989 and the mileage is stated as 85,900. Exhibits 4, 14 ( 10). This form accurately describes the vehicle. Exhibits 5, 14 ( 7). Mr. Risk has not suggested that at the time he paid for the vehicle he was unaware of the actual model year and mileage--consistent with the form he signed, Mr. Risk knowingly obtained a newer vehicle with less mileage than that described in the auction literature; the agency knowingly sold such a vehicle. Mr. Risk removed the vehicle on or shortly after the date of sale. 4. Mr. Risk represents that, in mid-January 1996, the given vehicle was towed to an engine rebuilding shop. Exhibit 15 at 2 ( 3). The mileage of the vehicle is listed on the repair receipt as 88,424. Exhibit 6 at 2. The charge to "replace engine with rebuilt" and for some additional work totals $2,116.13. A repair receipt for an 800 mile checkup, dated January 30, 1996, for apparently the same vehicle from the same shop identifies the mileage as 89,068. Id. at 3. The charge for this work was $30.25. The two repair bills total $2,146.38, the amount Mr. Risk seeks. 5. Mr. Risk avers that, before he had the repair work done, he telephoned the contracting officer to determine if the agency would pay for the repair. He contends that the contracting officer directed him to get the vehicle fixed and to send the bill to the contracting officer. Exhibit 15 at 2 ( 3). The contracting officer declares that he informed Mr. Risk to submit a letter detailing his concerns and attach any pertinent estimates for the work. Exhibit 14 at 2 ( 11). 6. Subsequently, Mr. Risk submitted to the agency letters of demands for payment detailing his version of the events, as well as a claim for reimbursement. Exhibits 6, 7, 9, 10. The contracting officer responded to the inquiries, noted his version of the events, and denied the claim. Exhibit 8. Discussion The misdescription in the auction material of the model year and mileage cannot serve as a basis for recovery. Mr. Risk was aware of the correct year and mileage at the time he paid for and removed the vehicle. He proceeded with the purchase; the agency proceeded with the sale. The record does not suggest that the agency misdescribed the condition of the engine; rather, the description of the vehicle specifies "repairs required." Had such a misdescription occurred, Mr. Risk failed to follow the contractual provisions to obtain relief. The terms and conditions of the sale specify that repairs to the given vehicle were required and that the Government warrants neither the merchantability of the vehicle nor its fitness for use or purpose. Mr. Risk purchased the vehicle without any assurance that it would work at the time of removal or for the foreseeable future. Mr. Risk is contending, in essence, that he obtained from the Government a "warranty" or "guarantee" that the agency was obligated to compensate him for his costs to obtain and have installed a rebuilt engine, if necessary, for at least the first six weeks after purchase and 2,525 miles of use. The terms and conditions of the sale expressly provide to the contrary--the agency is providing no such warranty. Mr. Risk alleges that he obtained assurances from the contracting officer in mid-January and thereafter that the agency would reimburse Mr. Risk his costs of engine repair. The record does not support the allegation by a preponderance of the evidence. The contracting officer states in an affidavit that he did not provide the assurances or guarantees asserted by Mr. Risk. The contemporaneous documentation and other material do not compellingly support the version of events asserted by Mr. Risk. Assuming, for purposes of discussion, that the contracting officer did make such remarks, the record does not demonstrate that the contracting officer had the authority to so obligate Government funds or that Mr. Risk could reasonably rely on such assurances. The contract expressly limits the Government's liability--here no misdescription has been alleged or proven with respect to the condition of the engine. Hence, there is an apparent lack of authority on behalf of the contracting officer to obligate the Government; to require the agency to reimburse Mr. Risk would contravene the terms of the contract and provide Mr. Risk a gratuitous, significant benefit--the agency would obtain no consideration for such payment. Further, the terms and conditions of the auction expressly put purchasers on notice that they are not to rely on oral statements of contracting officers. Thus, Mr. Risk could not have reasonably relied upon any oral assurances of the contracting officer. Mr. Risk attempts to shift risks to the Government; the terms and conditions of the auction placed those risks on the purchaser. The attempt to reform the contract or to recognize a contract as arising after the purchase and removal of the vehicle is unsupported legally and factually. Payment to Mr. Risk for repair of the vehicle would be outside the terms and conditions of the contract and could well represent an illegal expenditure of Government funds. Decision The Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge