DENIED: April 1, 2016

DENIED: April 1, 2016

CBCA 5040

STEPHEN D. BRADLEY,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Stephen D. Bradley, pro se, Goodyear, AZ.

Keaton Norquist, Office of Regional Counsel, General Services Administration, San

Francisco, CA, counsel for Respondent.

Before Board Judges HYATT, POLLACK, and SULLIVAN.

POLLACK, Board Judge.

Appellant, Stephen D. Bradley, appeals the contracting officer’s final decision

denying his claim for the return of the purchase price of a used travel trailer sold to him by

the General Services Administration (GSA or Government) via auction, on the ground that

the Government misdescribed the condition of the vehicle. Respondent moves for summary

relief, arguing that appellant failed to establish the necessary elements needed to prevail

under the misdescription clause of the contract. For the reasons below, we grant

respondent’s motion and deny the appeal.

CBCA 5040

2

Background

1. On May 28, 2015, GSA offered a Rockwood Forest River Travel Trailer for sale

through its online auction website, GSAAuctions.gov. The auction announcement included

the following description of the vehicle:

Travel trailer, 30x8x10 foot, Rockwood, Forest River, 2002, w/ 4x12 foot

slide, GVWR [gross vehicle weight rating] 7560, 1 personnel door.

Conditions of appliances/equipment unknown. Repairs required included but

not limited to: gas cook stove missing, & evidence of rodent infestation.

Inspection is strongly recommended. . . .

THE CONDITION OF THE PROPERTY IS NOT WARRANTED.

The announcement indicated that the vehicle was located in Sasabe, Arizona, and informed

prospective bidders that arrangements for inspection of the vehicle could be made with the

listed property custodian.

2. As a condition of participating in the auction, prospective bidders were required

to agree to GSA’s online sale terms and conditions, which included the following provisions:

Inspection of Property

Bidders agree to physically inspect the property upon which they bid or

thereby waive the opportunity to conduct a physical inspection. In waiving

their inspection rights, bidders bear the risk for any gross omissions regarding

the functionality of items, failures to cite major missing parts and/or

restrictions with regards to usage that would have been revealed by physical

inspection.

Condition of Property

Condition of the property is not warranted. Deficiencies, when known, have

been indicated in the property descriptions. However, absence of any

indicated deficiencies does not mean that none exists. Therefore, the bidder

should ascertain the condition of the item through physical inspection. Please

also reference the Inspection of Property clause.

CBCA 5040

3

Description Warranty & Refunds

The Government warrants to the original purchaser that the property listed in

the GSAAuctions.gov website will conform to its written description.

Features, characteristics, deficiencies, etc. not addressed in the description are

excluded from that warranty. GSA further cautions bidders that GSA’s written

description represents GSA’s best efforts to describe the items based on the

information provided to it by the owning agency. Therefore, gross omissions

regarding the functionality of items, failures to cite major missing parts and/or

restrictions with regards to usage may occur.

The Government does not warrant the merchantability of the property or its

purpose. The purchaser is not entitled to any payment for loss of profit or any

other money damages – special, direct, indirect, or consequential.

Claims of Misdescription

If items have been awarded but not paid for and the successful bidder feels that

the property is mis-described, he/she must follow these procedures. A written

claim needs to be submitted to the Sales Contracting Officer within 15

calendar days from the date of award requesting release of contractual

obligation for reasons satisfying that of a misdescription. No verbal contact

with the custodian or the Sales Contracting Officer or any other federal official

will constitute a notice of misdescription.

When items are awarded and payment has been received, regardless of the

removal status (removal may or may not have occurred), the successful bidder

must submit a written notice to the Sales Contracting Officer within 15

calendar days from the date of payment email notification (the Purchaser’s

Receipt). If property has been removed and the claim is accepted by the Sales

Contracting Officer, the purchaser must maintain the property in its purchased

condition and return it at their expense to the location designated by the Sales

Contracting Officer or any other federal official.

3. On June 1, 2015, appellant accepted the above terms and conditions and was

therefore able to participate in the bidding process. Appellant does not state that he contacted

the GSA property custodian to inquire about the condition of the trailer or to arrange for

inspection of the property prior to submitting his bid.

CBCA 5040

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4. By e-mail message dated June 4, 2015, the GSA sales contracting officer (SCO)

notified appellant that he was the successful high bidder for the travel trailer at issue and was

awarded contract number GS-09F-15-FBE-6032 in the amount of $3460. The notice further

stated that payment for the vehicle was due within two business days of the date of the e-mail

message and that the property could be retrieved after appellant received his purchaser’s

receipt.

5. On June 5, 2015, appellant initiated a wire transfer to GSA in the amount of $3460.

On June 8, 2015, after the purchase transaction was complete, appellant received his

purchaser’s receipt authorizing him to remove the property.

6. On or around June 9, 2015, appellant retrieved the trailer and received a certificate

to obtain title. At the time of removal, the property custodian noted the poor condition of the

vehicle and advised appellant to undertake an inspection of the trailer. Appellant states that

he was “unable to perform a thorough inspection” due to the lack of power on-site and the

presence of, among other things, “an Africanized [b]ee infestation with an actual hive

attached to . . . [the] trailer.” Notwithstanding this observed condition, appellant took

possession of the vehicle.

7. On June 30, 2015, appellant delivered the trailer to a recreational vehicle repair

shop located in Mesa, Arizona. On July 1, 2015, appellant left for a one-month vacation.

By e-mail message dated July 7, 2015, the repair facility notified appellant of a number of

deficiencies in and on the trailer – including a missing furnace, severe water damage, and an

inoperable air conditioning unit – and provided a quote for the cost of repairs.

8. By e-mail message dated August 5, 2015, appellant contacted the GSA SCO

alleging that the Government had misrepresented the condition of the trailer in failing to

provide a complete description. Appellant alleged that the vehicle was missing its furnace,

had a broken air conditioning unit, and was water damaged. Appellant noted the deficiencies

were “easily identifiable but were undisclosed.” Appellant requested cancellation of the sale

and a full refund.

9. By e-mail message dated August 14, 2015, the SCO denied appellant’s claim,

concluding that, pursuant to the Claims of Misdescription clause, the claim was untimely and

that the property was not misdescribed.

10. By e-mail message dated August 25, 2015, appellant responded to the SCO’s

denial letter, again noting the deficiencies earlier identified in the vehicle and further alleging

that the trailer had an inoperable manual slide. As to the timeliness of his claim to GSA,

appellant stated that he could not deliver the trailer for repair inspection until he had first

CBCA 5040

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addressed the infestation issues.1 Morever, appellant stated, “We left for vacation on the 1st

of July for the month. It was upon our return I could finally deal with all the issues with this

trailer.” As to the contract provisions governing the sale cited by the SCO in the denial letter,

appellant stated, “[t]he numerous pages of rules and regulations . . . reference[d] are

burdensome to say the least” and it would be the rare case that “even one consumer [would]

be aware of, know and understand all the minutia of the rules and regulations contained in

your contracts.”

11. By e-mail message dated September 15, 2015, the SCO rendered a final decision

concerning appellant’s claim. As in his initial denial letter, the SCO determined that

appellant’s failure to comply with the misdescription notice provision, and the fact that the

property was not misdescribed, precluded his claim.

12. Appellant filed a timely notice of appeal with the Board on October 23, 2015. We

have jurisdiction pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109

(2012).

13. On December 28, 2015, GSA submitted its motion for summary relief.

Discussion

We begin our analysis with the familiar principles applicable to motions for summary

relief. Recently, in Turner Construction Co. v. Smithsonian Institution, CBCA 2862, et al.,

15-1 BCA ¶ 36,139, we explained:

Summary relief is appropriate when the moving party is entitled to judgment

as a matter of law, based upon undisputed material facts. URS Energy &

Construction, Inc. v. Department of Energy, CBCA 3632, 15-1 BCA ¶ 35,949,

at 175,683. The moving party bears the burden of demonstrating the absence

of genuine issues of material fact and all justifiable inferences must be drawn

in favor of the non-movant. Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A material

fact is one that will affect the outcome of the case. Anderson, 477 U.S. at 247.

“[T]he party opposing summary judgment must show an evidentiary conflict

on the record; mere denials or conclusory statements are not sufficient.”

1

Appellant indicated to the SCO that he undertook cleaning of the trailer before

addressing the infestation, fumigated the “entire unit several times,” and again “clean[ed]

and “scrub[bed] down” the trailer.

CBCA 5040

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Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir.

1987).

Id. at 176,394.

Appellant asserts he is entitled to the return of the $3460 paid for the purchase of the

trailer because “GSA failed to disclose the true nature” of the vehicle and he would not have

bid on the trailer “had the true nature of disrepair . . . been truthfully disclosed.” Appellant

is complaining about the condition of the trailer. The contract specifically states that the

condition of the property is not warranted and, further, that the absence of any indicated

deficiency does not mean that none exists. The bidder is warned to ascertain the condition

through inspection. Appellant made no inspection before submitting his bid. Although GSA

warrants that the items purchased in its auctions are the items they are stated to be, it

expressly disavows, in multiple provisions of the sale terms and conditions, any warranty of

condition. Everett M. Myers v. General Services Administration, CBCA 940, 08-1 BCA

¶ 33,841; Chris Ward v. General Services Administration, GSBCA 16473, 05-1 BCA

¶ 32,881. We find that under the circumstances in this case, appellant’s claim must be

denied. See Joseph M. Hutchison v. General Services Administration, CBCA 752, 08-1 BCA

¶ 33,804.

Here, the description GSA provided included clear language describing the condition

of the vehicle’s appliances and equipment “unknown” and alerting appellant to significant

potential repairs including, but not limited to, a missing stove and rodent damage.

Importantly, the Description Warranty & Refunds clause expressly excluded from the

warranty any deficiencies not identified (in this case, the defective air conditioning unit and

manual shift and the missing furnace). Where the sales terms and conditions plainly alert the

appellant of the risks of purchase, there is “no remedy . . . based on a warranty as to

condition.” Hutchison, 08-1 BCA at 167,341; see also Myers, 08-1 BCA at 167,477-78 (“In

these auction sales, where both the buyer and the seller are ignorant of the true condition of

the item sold, the buyer assumes the risks and uncertainties inherent in purchasing a used

item.”).

“The Description Warranty clause in [an auction sale] contract allows a purchaser to

recover his money where the vehicle has been misdescribed and where the purchaser has

submitted written notice of an actionable misdescription of the vehicle within fifteen days

from the date the vehicle was removed from the auction site.” Hutchison, 08-1 BCA at

167,340. Appellant’s contract contained such a clause, which expressly provided:

The Government warrants to the original purchaser that the property listed in

the GSAAuctions.gov website will conform to its written description.

CBCA 5040

7

Features, characteristics, deficiencies, etc. not addressed in the description

are excluded from that warranty. . . . Therefore, gross omissions regarding the

functionality of items, failures to cite major missing parts and/or restrictions

with regards to usage may occur. [Emphasis added.]

In this instance, the property was not misdescribed. “Misdescription requires the

Government to have made an error in describing what has been offered for sale.” Hutchison,

08-1 BCA at 167,341. Here, the Government accurately described what it offered for sale –

a 2002 Rockwood Forest River Travel Trailer requiring repair – and appellant does not

dispute that this is what he received (i.e., he does not challenge the accuracy of the

description). Appellant, instead, bases his mis-description claim on the fact that the property

was in worse condition than he expected. However, “[t]he fact that the condition of the

vehicle . . . [was] not what appellant expected or desired is not synonymous with a

misdescription.” Id. As such, appellant cannot prevail on a claim of misdescription in this

case.2

Finally, even if we were to find a misdescription, which we do not, appellant’s claim

is untimely. As we noted in Hutchison, “the failure to submit a claim within the requisite

time-frame of fifteen days defeats any claim a purchaser might otherwise have under the

Description Warranty clause.” 08-1 BCA at 167,341 (citing McNutt Used Cars v. General

Services Administration, GSBCA 16398, 04-2 BCA ¶ 32,668; Danny R. Mitchell v. General

Services Administration, GSBCA 16122, 04-1 BCA ¶ 32,511). Here, pursuant to the Claim

of Misdescription clause, appellant was required to submit such claim within fifteen calendar

days of receiving his purchaser’s receipt. Appellant received his purchaser’s receipt on June

8, 2015, and was therefore required to submit his claim by June 23, 2015. Appellant did not

notify the SCO of his claim until August 5, 2015 – fifty-eight days from the date he received

the purchaser’s receipt.

2

Appellant’s additional arguments alleging a misdescription of the trailer’s

vehicle identification number (VIN) and year model are also without merit. The VIN and

model year listed on the Arizona Department of Transportation certificate of title appellant

received (submitted as an exhibit with appellant’s response) and the VIN and model year

listed on the certificate to obtain title are identical.

CBCA 5040

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Decision

Based on the foregoing, respondent’s motion for summary relief is granted. The

appeal is DENIED.

__________________________

HOWARD A. POLLACK

Board Judge

We concur:

_________________________

CATHERINE B. HYATT

Board Judge

__________________________

MARIAN E. SULLIVAN

Board Judge