Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________________________ DENIED: October 18, 1999 _________________________________________ GSBCA 15044 CHARLES T. NYQUEST, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Charles T. Nyquest, pro se, Missoula, MT. Leigh Ann Holt, Office of Regional Counsel, General Services Administration, Denver, CO, counsel for Respondent. NEILL, Board Judge. This case involves the appeal of a contracting officer's decision denying a claim of $510 for brake repairs made to a vehicle after it was purchased at auction from the General Services Administration (GSA). The appellant, Mr. Charles T. Nyquest, has elected to have his case decided using the Board's procedure for small claims. This decision, therefore, will have no value as precedent but is final and conclusive and shall not be set aside except in case of fraud. Board Rule 202(b). The Government has filed a motion for summary relief pursuant to Board Rule 108(g). For the reasons stated below, we grant the motion and, therefore, deny Mr. Nyquest's appeal. GSA's motion contains a statement of facts. The Board, by order dated July 20, 1999, directed appellant to file within thirty days any objections he might have to this statement. To date, no objections whatsoever have been filed. We assume, therefore, that the Government's version of the facts in this case is uncontested. These facts are as follows: 1. On April 29, 1999, GSA conducted a public auction of Government vehicles at the offices of the United States Forest Service at Fourteenth and Catlin Streets in Missoula, Montana. Appeal File, Exhibit 1. 2. The "Special Terms and Conditions of Sale" relating to the auction contained the following statement at the top of page one: "CONDITION OF PROPERTY IS NOT WARRANTED." Appeal File, Exhibit 1. 3. A copy of the "Special Terms and Conditions of Sale" was provided to bidders and included the following pertinent paragraphs: Description Warranty: 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/her own 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. After property has been removed, no refund will be made for shortages of property sold by "Lot". This warranty is in place of all other guarantees and warranties, expressed or implied. The Government does not warrant the merchantability of the property or 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, or consequential. Clause 2 of Standard Form 114C is deleted. 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 1. 4. Standard Form 114C, "General Sale Terms and Conditions," and Standard Form 114C-4, "Auction Conditions," were incorporated by reference in the "Special Terms and Conditions of Sale." These forms were available for review by the bidders. Appeal File, Exhibit 1. 5. One of the vehicles for sale, Item 044, was a 1991 Jeep Cherokee. The actual vehicle description was as follows: STA WAGON, JEEP, CHEROKEE, 1991, 4WD, 6 CYL, 5 SPD MT, AC, TAG: 6324, (EST MI 83439), VIN: 1J4FJ27S5ML590799. Appeal File, Exhibit 1. 6. Appellant, Mr. Charles Nyquest, of Missoula, Montana, was assigned bidder registration number 570. The bidder registration card provided bidders the following information: Subject to the General Sales Terms and Conditions (Standard Form 114C) and any Special Terms and Conditions applicable to this sale, I, the undersigned (as bidder number identified above), offer and agree to purchase all items awarded to me on this sale as registered. Appeal File, Exhibit 2. 7. During the auction, appellant purchased Item 044, described in paragraph five above, for $5100. Appeal File, Exhibits 1-4. 8. Title to the vehicle passed to appellant on April 29, 1999. Appeal File, Exhibit 4. 9. On April 30, 1999, Mr. Nyquest returned to the Forest Service location in Missoula. The vehicle custodian at the Forest Service test-drove the Jeep Cherokee and indicated to Mr. Nyquest that the vehicle pulled to the right. He suggested that Mr. Nyquest take the vehicle to Scotts Mufflers and Brakes. The shop mechanic thought that a repair of $100 or less would be needed. 10. By letter dated May 12, 1999, appellant claimed that the vehicle had brake problems and that fact had not been noted in the description of the vehicle. Appellant requested reimbursement of $510 for replacement of the front and rear brakes. Appellant's claim was made within fifteen days of his purchase and removal of the vehicle. Appeal File, Exhibit 5. 11. By letter dated May 19, 1999, the contracting officer informed appellant that his claim was denied as the Government only warrants description and not condition. Appeal File, Exhibit 6. 12. By letter dated May 22, 1999, appellant requested reconsideration of the contracting officer's earlier decision. Appeal File, Exhibit 7. 13. By letter dated June 2, 1999, the contracting officer issued his final decision denying appellant's claim. Appeal File, Exhibit 8. 14. Appellant appealed the contracting officer's Final Decision to the Board by Notice of Appeal dated June 5, 1999. Appeal File, Exhibit 9. 15. The contracting officer retrieved the vehicle repair history from the Forest Service. The repair history indicates that routine maintenance was performed on the vehicle and no significant repairs were required throughout the ownership of the Forest Service. A brake problem was identified in July 1997, but was repaired. Appeal File, Exhibit 10. Discussion Resolving a dispute on a motion for summary relief is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Olympus Corp. v. United States , 98 F.3d 1314, 1316 (Fed. Cir. 1996); Copeland Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986). Appellant has not called to our attention any genuine issue of material fact in GSA's version of the facts in this case. Neither do we find any such issue in reviewing the documentation in the appeal file submitted by GSA. We need only determine, therefore, if the Government is entitled to prevail in this case as a matter of law. Our conclusion, based upon the special terms and conditions of sale in the contract of purchase Mr. Nyquest entered with GSA, is that the Government should prevail. As a bidder in the GSA auction, Mr. Nyquest agreed to purchase all items awarded to him subject to the "General Sales Terms and Conditions" and the "Special Terms and Conditions" applicable to the sale. These, therefore, are the terms and conditions of his contract with GSA for the purchase of the Jeep Cherokee. Among these terms and conditions is the express provision: "CONDITION OF PROPERTY IS NOT WARRANTED." The terms and conditions further provide that the Government warrants only that the property listed (in this case, Item 044, the Jeep Cherokee) will conform to its description. This warranty of description is said to be "in place of all other guarantees and warranties, expressed or implied." Mr. Nyquest's claim obviously relates to the condition of the vehicle he purchased and not the accuracy of its description. He has not taken issue with the accuracy of the description of Item 044. He does not contend that the item he purchased was not the Jeep Cherokee as described. Rather, he complains that the brakes in this vehicle were later found to be in need of repair and asks that GSA reimburse him for this cost. Under the terms of the contract, the bidder clearly bears the risk of problems associated with the condition of the vehicle. William B. Wobig v. General Services Administration, GSBCA 14424, 98-1 BCA 29,650. The contracting officer is correct in refusing to pay Mr. Nyquest's claim. The contract Mr. Nyquest has entered with GSA does not permit payment of the claim. He purchased the Jeep Cherokee "as is" and totally free of all warranties other than that of description. The law requires that the contract terms and conditions be honored by both parties. Mr. Nyquest has no right to anything more than what the contract provides, and the contracting officer cannot grant relief beyond that which is permissible under the terms of the same contract. Coleridge D. Henri v. General Services Administration, GSBCA 13991, 97-2 BCA 29,187; Maqdi A. Risk v. General Services Administration, GSBCA 13572, 96-2 BCA 28,401. Decision GSA's motion for summary relief is granted. We affirm the decision of the contracting officer. Mr. Nyquest's appeal is DENIED. _____________________ EDWIN B. NEILL Board Judge