CBCA 5131

MOTION TO DISMISS DENIED: October 13, 2016 CBCA 5131 E INDUSTRY, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Moshe Bloorian of E Industry, Inc., Brooklyn, NY, appearing for Appellant. Kasia Dourney, Office of Chief Counsel, United States Customs and Border Protection, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges WALTERS, SULLIVAN, and BEARDSLEY. BEARDSLEY, Board Judge. E Industry, Inc. (E Industry) seeks to recover the purchase price of $15,000 plus the shipping costs of $3000 that it paid to purchase fabric in a Department of Homeland Security, United States Customs and Border Protection (CBP) online auction. Appellant also requests that the agency remove the fabric from appellant’s facility. Appellant asserts that the fabric bought did not conform to the description in the sales catalog for bids. Respondent filed a motion to dismiss appellant’s appeal for failure to state a claim upon which relief can be granted. We deny the motion. CBCA 5131 2 Factual Background On May 21, 2015, appellant was the successful bidder for the merchandise at issue in this appeal in an online auction held by CWS Marketing Group (CWS) on behalf of the agency. The merchandise was described in the online sales catalog for bids as “Lot 30 - Fabric: C/O China; Warehouse Viewing Only; 163 Rls, GO2105270493012. Imperial CFS/Torrance, CA.” The sales catalog also included six photographs of the merchandise. The agency appraised the value of the merchandise as $8150. Appellant won the bidding with a bid of $15,000. The fabric was sold pursuant to the “Sale of Government General Order Merchandise, General Sale Terms and Conditions.” Clause 8 of the terms and conditions states: The Government warrants to the original Purchaser that the merchandise listed in the sales catalog for bids will conform to its description. This warranty is in place of all other guaranties and warranties express or implied. The Government does not warrant the condition, quality, or merchantability of the merchandise or its fitness for any use or purpose. The condition of items offered varies from “NEW” to “SALVAGE.” The Purchaser understands and agrees that all merchandise is purchased and accepted “AS IS, WHERE IS” and “WITH ALL FAULTS.” The terms and conditions of the sale limited the amount of recovery in the event of a misdescription “to the purchase price of the inaccurately described merchandise. The Purchaser is not entitled to any payment for loss of profit or any other money damages, including special, direct, indirect, incidental, or consequential.” If a misdescription is determined after removal of the merchandise, however, “the Government will refund any money paid if the Purchaser takes the merchandise at his/her expense to a location specified by the Contractor.” The merchandise must be in the same condition as when it was removed from the agency’s possession. Bidders were “invited, urged, and cautioned to inspect the merchandise prior to submitting a bid.” Appellant, however, chose not to inspect the merchandise prior to bidding, despite a live preview held on May 20-21, 2015. Appellant timely submitted a claim for reimbursement to CWS requesting a refund of the amount paid for the merchandise. On July 7, 2015, CWS denied appellant’s request for reimbursement. On July 24, 2015, appellant submitted a claim to the contracting officer requesting that the agency review CWS’s decision and refund the $15,000 it paid for the merchandise, refund the $3000 in shipping costs, and remove the items from appellant’s CBCA 5131 3 facility.1 The contracting officer denied appellant’s claim based on the terms and conditions of the sale. The contracting officer determined that the merchandise conformed to the description and photographs in the catalog and noted that the appellant chose not to inspect the lot prior to purchase. On December 21, 2015, appellant appealed the contracting officer’s final decision to the Board, asking that the Board reverse the agency’s decision. In its complaint, appellant asserts that the merchandise it purchased did not conform to the description in the sales catalog.