RESPONDENT'S MOTION TO DISMISS DENIED; APPEAL DENIED: August 26, 1997 GSBCA 13975 DANIEL ROBICHAUD, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Daniel Robichaud, pro se, Cherry Valley, MA. David G. Gherlein, Office of Regional Counsel, General Services Administration, Boston, MA, counsel for Respondent. Before Board Judges NEILL, BORWICK, and GOODMAN. GOODMAN, Board Judge. This appeal, filed on November 19, 1996, arises from an auction of government personal property. Appellant, Daniel Robichaud, bought a 1993 Dodge Spirit (the vehicle) at an auction conducted by respondent, the General Services Administration (GSA). Appellant seeks a refund of the purchase price of the vehicle because the car was allegedly misdescribed, as appellant contends that GSA failed to disclose that the vehicle was a flexible fuel vehicle. GSA contends the car was not misdescribed, and moved to dismiss the appeal on the basis of failure to give adequate notice of the claim and for failure to state a claim for which relief can be granted. We deny respondent s motion and also deny the appeal. Findings of Fact 1. The GSA conducted the auction on July 24, 1996, in North Dighton, Massachusetts. Appeal File, Exhibit 1. 1. The vehicle was listed as item number 87 in the invitation for bids. The description of the car read, in relevant part: "93 DODGE SPIRIT 4DSN . . . 4G." Appeal File, Exhibit 1 at 9. 2. The designation "4G" was in the column designated ENG. At the bottom of the page, the following definition read: "ENG-# OF CYLINDERS FOLLOWED BY G(AS) OR D(IESEL)." Appeal File, Exhibit 1 at 9. 3. The terms and conditions of the invitation for bids contained the following language: 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 KNOWN HAVE BEEN INDICATED ON THE ITEM CARD, HOWEVER THE ABSENCE OF ANY KNOWN DEFICIENCY DOES NOT MEAN THAT THE ITEM MAY NOT HAVE DEFICIENCIES. BIDDERS ARE REMINDED & CAUTIONED TO INSPECT BEFORE BIDDING. . . . . IMPORTANT DESCRIPTION WARRANTY PLEASE READ THE GOVERNMENT WARRANTS TO THE ORIGINAL PURCHASER THAT THE PROPERTY LISTED IN THE INVITATION FOR BIDS WILL CONFORM TO IT'S [sic] 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. . . . 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 LOSS OF PROFIT OR ANY OTHER MONEY DAMAGES, SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL. CLAUSE # 2 OF STANDARD FORM 114C IS DELETED. Appeal File, Exhibit 1 at 2-3. 4. The vehicle had an insignia on the driver's side front panel next to the front door which read FFV/Flexible Fuel Vehicle. Appeal File, Exhibit 11. 5. The designation of flexible fuel vehicle indicates that the vehicle can be operated on either gasoline or methanol-based fuel or a combination of both. Respondent's Record Submission, Attachment 1. 6. Respondent's fleet manager has stated: I am aware that GSA has purchased and subsequently sold a substantial number of flexible fuel vehicles during the last several years. Although the vehicles were alternative fuel capable, none of the vehicles was operated on anything other than gasoline. Declaration of Brian Smith (Smith Declaration) (undated)  3-4. 7. Respondent submitted a statement from a manufacturer's representative which stated, in relevant part: We will confirm that several thousand units were produced to operate on methanol-M85 or gasoline or any combination of these fuels. These are identical relative to operation or servicing when gasoline only is used. Respondent's Record Submission, Attachment 1. 8. Appellant was the successful bidder, and purchased the vehicle for $6,000. Appeal File, Exhibit 4. 9. On July 26, 1996, appellant contacted the GSA contracting officer by telephone and "express[ed] concern about the serviceability, and other problems." Appellant alleges that the contracting officer: stated he would investigate the matter and get back to me. I questioned [the contracting officer] about the 15 day deadline to submit my claim. He specifically stated to wait until he could checked [sic] out my concerns, and would get back to me. I made several phone calls on July 29 to get a update. [The contracting officer] had not completed his investigation. I told him I would continue to wait for his response. During our August 9, 1996 telephone conversation, [the contracting officer] stated he found two dealers in central Massachusetts that would repair the Dodge Spirit. He also stated GSA never experienced problems with these vehicles, and they are almost identical vehicles. I stated that this contradicts facts I uncovered pertaining to the Flex Fuel Dodge Spirit, and does not alleviate my concerns. I told [the contracting officer] that I would send my claim letter in a couple of days. [The contracting officer] agreed to this arrangement. The sequence of events clearly shows I contacted GSA two days after the auction, called several times within the deadline period, and submitted my claim as instructed by the contracting officer. Appellant's Response to Respondent's Motion to Dismiss at 1-2. 10. By letter dated August 11, 1996, appellant requested a full refund for the vehicle. The letter read, in relevant part: As we discussed during our August 9, 1996 telephone conversation, I am requesting a full refund for the Dodge Spirit . . . . Research in regards to servicing this vehicle reveals a serious problem. Because it is a dual fuel vehicle, it is not widely serviceable for engine and fuel system problems. This is a particularly acute problem since I routinely travel in rural areas throughout New England, where servicing a dual fuel vehicle is impossible. Appeal File, Exhibit 6. 11. By final decision dated September 17, 1996, the contracting officer denied appellant's claim. The final decision read, in relevant part: In your letter you state that the vehicle has a serious problem . . . . As the Contracting Officer of record for this sale, I have evaluated all of your concerns in relation to the stated terms and conditions. I have determined the vehicle was not misdescribed. To address your concerns regarding the serviceability of the vehicle, GSA has been working with you on specific dealerships as well as dealerships in the New England area. Our contact for Dodge has ensured us that the vehicle can be serviced in the New England Area. Accordingly, your claim is hereby denied. Appeal File, Exhibit 7. 12. Appellant timely filed his notice of appeal on November 15, 1996. Appeal File, Exhibit 8. 13. In at least one subsequent invitation for bids, GSA has designated the fuel for similar flexible fuel vehicles as "methol" [methanol]. Appellant's Record Submission, Attachment 1. Discussion Motion to Dismiss Respondent has filed a motion to dismiss the appeal for appellant's failure to give proper written notice within the fifteen day period in the invitation for bids, Finding 4. Appellant submitted its claim eighteen days after purchasing the vehicle, but in the interim had several phone conversations with the contracting officer, in response to which the contracting officer told appellant he would investigate appellant's concerns about the vehicle and advised appellant not to file a claim until the investigation was complete. On August 9, 1996, appellant again had a conversation with the contracting officer who gave appellant the results of his investigation. Appellant then informed the contracting officer that he would file a claim letter. The claim letter, dated August 11, 1996, referenced appellant s previous conversation on August 9, 1996. Findings 10, 11. Respondent does not deny that appellant verbally informed the contracting officer of the basis of his claim on July 26, or any of the conversations thereafter. Accordingly, even though appellant did not give written notice within the fifteen day period, respondent was clearly not prejudiced, as the contracting officer had actual notice of the claim and was apparently willing to waive the fifteen day period by his investigative actions and further conversations with appellant. The contracting officer's intent to waive this notice requirement is further evidenced by the fact that the contracting officer's final decision does not assert that appellant failed to give timely notice, but instead the decision addresses the concerns set forth in appellant's August 11, 1996, claim letter. Finding 12. Under such circumstances, the time requirements for notice of claims have been held to be waived by the contracting officer. See, e.g., Monaco Builders, Inc., PSBCA 323, 78-1 BCA  12,924 (1977); see also Universal Development Corp. v. General Services Administration, GSBCA 12138(11520)-REIN, et al., 93-3 BCA  26,100. We deny respondent's motion to dismiss for failure to give timely notice. Respondent also has moved to dismiss the appeal for failure to state a claim for which relief can be granted. As the basis of appellant's claim is for violation of the description warranty, we also deny the motion to dismiss as the claim is one, if adequately proven, for which relief can be granted. The Merits Appellant claims that respondent misdescribed the vehicle, and therefore violated the description warranty contained in the invitation for bids. Finding 4. Appellant states that because the vehicle was a flexible fuel vehicle, which meant that it could use either gas or an alternate fuel such as methanol, Finding 6, the description "inaccurately describes Flexible Fuel vehicles as having an engine that only uses gas." Appellant's Response to Respondent's Motion to Dismiss at 2. Respondent contends, and appellant does not dispute, that the vehicle was clearly marked with an insignia that stated "FFV/Flexible Fuel Vehicle" which "was obvious to even the most casual observer . . . was not a feature that was concealed by the government . . . [and] was readily discernable to any interested bidder . . . ." Respondent's Motion to Dismiss at 4; Finding 5. Appellant responds that: Visual inspection does not reveal the problems with Flex Fuel vehicles. The differences and problems are subtle, technical in nature, and required an exhaustive time consuming investigation that took weeks to complete. Questioning GSA officials, regarding the Flex Fuel designation, would have led to inaccurate information about the vehicle. . . . [T]here was no reasonable way I could have learned about Flex Fuel issues during the auction, or during the inspection period. Appellant's Response to Respondent's Motion to Dismiss at 2. To recover on a claim such as that presented here, an appellant must show that the Government knew of a 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. We find no misdescription of the vehicle, nor has appellant alleged any matter which is a defect in the vehicle. The vehicle was not described as one that can "only run on gas," as appellant alleges. The designation "G" in the engine column indicated that the vehicle used gasoline rather than diesel fuel, Finding 3, which was an accurate description. There is no dispute that the vehicle can operate on gasoline, and respondent's fleet manager has stated that the flexible fuel vehicles owned by the Government have only used gasoline and never used alternative fuel. Finding 7. The vehicle uses gasoline, as described, and therefore conforms to the description in the invitation for bids. The invitation for bids cautioned bidders to inspect the vehicle. Finding 4. The vehicle was clearly marked with an insignia that alerted bidders that it was a flexible fuel vehicle. Even so, appellant asserts that had he even seen the insignia, he would not have known the import of it, as the differences between alternative and standard fuel vehicles are subtle, technical in nature, and not apparent to a consumer inspecting the vehicle. As a result of these alleged differences, appellant states that he could only find two dealers in the Massachusetts area that were willing to service a flexible fuel vehicle in the event that the vehicle requires maintenance and repair of the fuel system or engine. Respondent has submitted a statement from its fleet manager affirming that the vehicle had been operated using only gasoline, Finding 7, and information from the manufacturer that states that flexible fuel vehicles are "identical relative to operation or servicing when gasoline alone is used." Finding 8. Serviceability is not a dispositive issue in this appeal. No representations were made in the description of the vehicle as to serviceability. In fact, appellant has not alleged that a problem has arisen for which service has been refused. He only states that "it is inevitable within the normal life span of this vehicle, maintenance and repair of the fuel system and engine will be required." Appellant also asserts that a used flexible fuel vehicle will consistently sell for less than a vehicle which operates on gasoline only. No representations as to resale value were made in respondent's description. Appellant is not entitled to a refund of the purchase price, as the vehicle was not misdescribed. Decision Respondent's motion to dismiss is DENIED. The appeal is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ ________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge