CBCA 4740

DENIED: June 3, 2016 CBCA 4740 MARINE METAL, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Samuel Reyes, Jr., Vice President of Marine Metal, Inc., Brownsville, TX, appearing for Appellant. Ashley S. Amano and Janis P. Rodriguez, Office of Chief Counsel, Maritime Administration, Department of Transportation, Washington, DC, counsel for Respondent. Before Board Judges SOMERS, ZISCHKAU, and SULLIVAN. ZISCHKAU, Board Judge. Marine Metal, Inc. (MMI) seeks to recover $556,281 of the purchase price it claims that it overpaid for the purchase of an obsolete vessel, the Vanguard, on the ground that the Department of Transportation, Maritime Administration (MARAD or Government), did not reasonably represent the actual weight of the vessel in the public documentation MARAD made available prior to contract award. MARAD filed a motion for summary relief, asserting that the “as is” nature of the sale precludes appellant’s claim. For the reasons below, we grant MARAD’s motion and deny the appeal. CBCA 4740 2 Background MMI is a shipbreaking company located in Brownsville, Texas, that has been in business since 1997. It is one of a small number of qualified contractors for MARAD’s ship disposal program. On December 16, 2011, MARAD posted to its Virtual Office of Acquisition (VOA) portal a notice announcing that certain vessels in its ship disposal program (to be scrapped and recycled) were available for inspection by prospective offerors at its James River Reserve Fleet (JRRF) in Fort Eustis, Virginia. The Vanguard was among the listed vessels. The announcement indicated the vessels would be available for visits by prospective offerors from January 17 to January 27, 2012, for the purposes of inspection, hazmat sampling, and survey in anticipation of qualified contractors competing for the purchase of the obsolete vessels under Vessel Sales Solicitation SDPEXC-08001. Appeal File, Exhibit 2 at 66.1 The announcement further provided: REMINDER: Vessel(s) are offered in “AS IS” condition and “WHERE IS” location at their current mooring. The Government makes no guarantees or warranties regarding the condition of any obsolete vessel. VESSEL VISITS . . . . Electronic copies of some vessel specific or class drawings, surveys and tank soundings may be available on VOA. Other ship files may be available at the JRRF . . . and, when available, may be reviewed by offerors. . . . The Maritime Administration does not guarantee that any documentation provided is current, accurate or complete, or that it represents the “AS IS” condition of the vessel. Id. During the eleven-day vessel visitation period, MMI representatives undertook an inspection of the Vanguard. This inspection included visual inspections, physical sampling, and a calculation of the vessel’s hull displacement. In the certified claim it would later submit to MARAD, MMI noted that it had calculated the vessel displacement utilizing a “recognized industry formula,” which “yielded an estimated minimum weight of 15,937 tons, 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 4740 3 thus showing an acceptable displacement within the 10% variation and also within the range of previously recorded displacement figures.” See Notice of Appeal. On or around June 4, 2013, in advance of its solicitation for offers, MARAD posted to the VOA portal various documents containing descriptions of the Vanguard. Exhibit 3. This documentation provided brief synopses of the vessel’s history. See, e.g., Exhibit 4 at 127, 155. The documents also indicated that, in its current configuration, the Vanguard had a length of 595 feet, a gross weight of 21,626 tons, and a light ship displacement weight of 13,882 tons. Exhibit 1 at 65-1.2 These documents did not, however, make any specific representations as to the amount of recyclable tonnage offerors could expect to recover from the ship. On June 5, 2013, MARAD formally solicited offers for the purchase of the Vanguard and other obsolete vessels.