CBCA 4380

DENIED: March 6, 2015 CBCA 4380 MYKOLA SHCHUPAK, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Nicholas W. Kowalchyn, Staten Island, NY, counsel for Appellant. Charles G. McCarthy, Office of Regional Counsel, General Services Administration, San Francisco, CA, counsel for Respondent. DANIELS, Board Judge (Chairman). Mykola Shchupak purchased an automobile from the General Services Administration (GSA) through an on-line auction. Mr. Shchupak claims that he is entitled to a refund of the purchase price and the costs he incurred to have the vehicle shipped to him because the car he received is not the one pictured in the auction catalog. Under the terms and conditions of the auction, this contention cannot prevail. The appeal is denied. Mr. Shchupak elected to have this case considered under the Board’s small claims procedure. Board Rule 52 (48 CFR 6101.52 (2014)); see 41 U.S.C. § 7106(b) (2012). Consequently, this decision is being rendered by a single judge. The decision is final and conclusive; it may not be set aside except for reason of fraud and has no value as precedent. Id.; Mitchell Enterprises, Inc. v. General Services Administration, 03-2 BCA ¶ 32,403, at 160,354 (citing Palmer v. Barram, 184 F.3d 1373 (Fed. Cir. 1999)). The Board convened CBCA 4380 2 a telephonic conference with counsel for the parties to discuss proceedings in the case. Counsel outlined their positions orally and agreed to have the case decided on the basis of the written record, supplemented only by the oral statements made in the conference. Board Rule 19(a). Findings of Fact On August 1, 2014, GSA advertised for sale numerous crash-test vehicles which were located in Adelanto, California. Two of the automobiles were 2013 Lexus RX350 sport utility vehicles (SUVs). They were designated as item numbers 029 (later designated as 429) and 030 (later designated as 430). Lot number 429 was described as follows: Year: 2013 Make: Lexus Mileage: unknown Model: RX350 VIN [vehicle identification number]: 2T2ZK1BA8DC087635 Report number: 693-42163-4213-0029 2013 Lexus, RX350, SUV, VIN: 2T2ZK1BA8DC087635, crash test vehicle, not repairable for highway use, salvage only non revivable title, agrees not to attempt to repair this vehicle for highway use, successful bidder agrees to notify any subsequent purchaser of this NRHU stipulation. Engines and components in separate location at the facility, it is suggested the successful bidder have a flat bed truck to remove this lot (693163-4213-0029) (DTNH22- 09-D-00122). Lot number 430 was described identically, except that the VIN was stated to be 2T2ZK1BA3DC087297, the report number was stated to be 693163-4213-0030, and the lot number was stated to be (69316304231-0030) (DTNH22-09-D-00122). GSA also provided photographs of the vehicles in its on-line auction catalog. The agency admits that the photographs of the vehicle in lot 430 were posted for lot 431, which was another crash-test vehicle. The photographs posted for lot 430 show a car in apparently good condition, except for the driver’s side doors, with the VIN stated for lot 429. The photographs posted for lot 431 show a car in considerably worse condition, with the entire driver’s side and the front of the car badly damaged, as well as the VIN stated for lot 430. The auction sale was subject to various terms and conditions, among which were the following: Description Warranty. The Government warrants to the original purchaser that the property listed in the GSAAuctions.gov website will conform to its written description. If a misdescription is determined before payment, the CBCA 4380 3 contract will be cancelled without any liability to the bidder. 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 expense to a location specified by the Sales Contracting Officer. . . . 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 purpose.