__________________________________ MOTION FOR SUMMARY RELIEF GRANTED; APPEAL DENIED: January 7, 1998 __________________________________ GSBCA 14295 MERCER'S AUTOS, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. H. F. Mercer, owner of Mercer's Autos, Laurinburg, NC, appearing for Appellant. George U. Lane, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges NEILL, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On September 2, 1997, the Board received this appeal from Mercer's Autos, the successful bidder on a vehicle at an auction held by the respondent, the General Services Administration. The sale documents describe the vehicle as requiring repairs and are silent on the condition of the paint. After paying for the vehicle, Mr. H. F. Mercer, owner of Mercer's Autos, went to remove the vehicle. He contends that approximately 60% of the exterior paint was gone from the vehicle and that the engine could not be started. He did not remove the vehicle. The agency deemed Mercer's Autos to be in default, assessed liquidated damages as provided for in the terms of the sale, and refunded the remainder of the amount paid. Mercer's Autos seeks a full refund of the amount paid, claiming that the vehicle was misdescribed. Mercer's Autos contends that the misdescription exists in the oral statements of custodians of the vehicle whom Mr. Mercer contacted prior to the sale, who informed him that the paint condition was good, and that the condition report for the vehicle indicated that nothing was wrong. The agency has moved for summary relief. The Government did not warrant the condition of the vehicle. The terms of the sale accurately described the vehicle with the phrase "repairs required." The terms of the sale warned potential bidders that oral statements made by Government employees are unauthorized and confer no right upon a bidder or purchaser. Mercer's Autos defaulted on its contract by failing to remove the vehicle. The agency appropriately assessed liquidated damages. The Board grants the motion for summary relief and denies the appeal. Findings of Fact 1. On January 29, 1997, at an agency sale of vehicles, with a price of $1,460, Mercer's Autos was the successful bidder on a vehicle. Exhibits 3 (lot 82), 4, 5 (all exhibits are in the appeal file). 2. A term of the sale and ensuing contract specifies that the condition of property is not warranted. The terms of sale and contract also contain a "description warranty": "The Government warrants to the original purchaser that the property listed in the Invitation for Bid 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." Exhibit 3 at 3. The sale documents do not specify the condition of the paint on the vehicle purchased; the description of the vehicle includes the phrase "repairs required." Id. (lot 82). Moreover, although not material to this dispute, the terms and conditions of the sale address inspection: "Please inspect the property before bidding." Exhibit 3 at 3. 3. A general condition of the sale cautions that any oral statement or representation by any representative of the Government changing or supplementing any condition of the sale or contract is unauthorized and confers no right upon a bidder or purchaser. Exhibit 2 at 2 ( 16); Exhibit 3 at 3 (sale is subject to Standard Form 114C, June 1986). The contract permits the Government to retain 20% of the purchase price as liquidated damages should the vehicle not be removed within the contractually specified period. Exhibit 2 at 1-2 ( 9); Exhibit 3 at 4 (Default). 4. Mercer's Autos paid for, but did not remove, the vehicle. Exhibit 3 at 4 (Payment and Removal); Exhibits 6, 9. Mr. Mercer refused to remove the vehicle, claiming it was misdescribed. Mercer's Autos contends that the misdescription exists in the oral statements of custodians of the vehicle whom Mr. Mercer contacted prior to the sale, who informed him that the paint condition was good, and that the condition report for the vehicle indicated that nothing was wrong. Mr. Mercer states that, contrary to such representations, approximately 60% of the exterior paint was gone from the vehicle and the engine could not be started. 5. By letter dated April 8, the agency informed Mercer's Autos that, by not removing the vehicle (the time for removal having elapsed), it had failed to cure its default. The agency assessed liquidated damages of $292, retaining that amount and returning the balance of the price paid by Mercer's Autos for the vehicle. Exhibit 9. 6. By letter dated May 29, the contracting officer issued a decision, responding to and denying a claim by Mercer's Autos that it be released from the contract at issue and that it receive a full refund of the amount it paid for the vehicle. Exhibit 11. Discussion Mercer's Autos was the successful bidder on the vehicle in question. It failed to remove the vehicle, contrary to the terms specified in the contract. The vehicle was not misdescribed. The sale documents describe the vehicle as requiring repairs. In light of Mercer's Autos' failure to remove the vehicle, the agency found Mercer's Autos to be in default and assessed liquidated damages. The agency calculated the amount in accordance with the terms of the sale and contract. Mr. Mercer asserts that in bidding on the vehicle he relied upon statements of Government employees who indicated that the condition of the paint was good and that a report revealed no necessary repairs. The statements of the custodians are not material facts. The terms of the sale expressly caution that oral statements or representations are unauthorized and confer no right upon the bidder or purchaser. Mercer's Autos relied upon any such representations at its own risk. The terms of the sale accurately described the vehicle. Decision The Board GRANTS the motion for summary relief and DENIES the appeal. The agency has properly withheld $292 as liquidated damages for the default by Mercer's Autos. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: _____________________________ ____________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge