Before Michel and Gajarsa, Circuit Judges, and Cudahy, *fn1 * Senior Circuit Judge.
The opinion of the court was delivered by: Michel, Circuit Judge.
Appealed from: General Services Administration Board of Contract Appeals
Wayne T. Palmer appeals from the decision of the General Services Administration Board of Contract Appeals (the "GSBCA"), denying Mr. Palmer's claim, which he elected to pursue under the statutory small claims procedure, for breach of a vehicle sale contract. See Palmer v. General Servs. Admin., No. 14063 (GSBCA May 12, 1997). On appeal to us, following special briefing on jurisdiction and regular briefing, repeatedly deferred, on the merits and appointment of an amicus curiae and filing of an amicus curiae brief, the appeal was finally submitted for our decision after oral argument on June 8, 1999. *fn2 1 The pertinent section of the Contract Disputes Act of 1978 (the "CDA"), 41 U.S.C. § 608(d) (1994), bars an appeal from a decision of any board of contract appeals where the claimant has elected the small claims procedure, except in cases of "fraud." We hold that as used in that subsection "fraud" refers to the board proceeding, not the formation of the underlying contract. Because Mr. Palmer has not alleged any such fraud, we must dismiss his appeal for lack of jurisdiction.
On August 1, 1996, Mr. Palmer attended a vehicle auction held by the General Services Administration (the "GSA") Fleet Management Center in Denver, Colorado. At the auction, Mr. Palmer signed a "bidder registration card" agreeing to a number of special terms and conditions of sales at the auction, set forth in a form described below, as well as general terms and conditions in a general form that was referenced in the special form. Before bidding, Mr. Palmer requested from an auction representative the maintenance record of a 1992 Ford Bronco, but was told that he could not be provided with that document. Despite not being able to view the maintenance record, Mr. Palmer bid on the Bronco for $11,000. His was the highest bid and it was accepted. After placing his winning bid, Mr. Palmer signed a "bid card" similar to the bidder registration card, which stated in capital letters, "Subject to the general sales terms and conditions
(Standard Form 114C) and any special terms and conditions applicable to this sale, I, the undersigned, offer and agree to purchase the item designated above at the price indicated above."
During the auction, Mr. Palmer also received the "Special Terms and Conditions of Sale" form (the "Form"). At the top of the Form was printed, "IMPORTANT - Please read before bidding," under which was written, "CONDITION OF PROPERTY IS NOT WARRANTED." The Form continued:
"Description Warranty: 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. . . . 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. . . ."
"Deficiencies, when known, have been indicated in the item description. However, absence of any indicated deficiencies cannot mean the item is without deficiencies. Bidders are cautioned to inspect before bidding." (emphasis added).
Mr. Palmer took possession of the vehicle and drove it without difficulty for three months. Then, in November 1996, Mr. Palmer drove the Bronco to Albuquerque, New Mexico. During the trip the Bronco experienced transmission problems. The Bronco was towed to a Ford dealership where Mr. Palmer was informed that the entire transmission needed replacement. The dealership replaced the transmission for $1,955.06, including parts and labor. The Bronco's odometer read 64,715 miles when Mr. Palmer brought the vehicle into the Ford dealership, indicating that he had driven the vehicle 9,505 miles since he purchased it at the auction.
Mr. Palmer submitted a claim to a GSA contracting officer (the "CO") seeking $1,348.82 plus tax, the cost of the new transmission, exclusive of labor. Mr. Palmer received a letter, dated December 6, 1996, from the CO, denying his claim. The CO reasoned that under the express terms and conditions of the sale, as stated in both the bid card and the registration card, which Mr. Palmer signed, and further detailed in the Form, the Bronco came with a warranty of description, but no warranty of condition, and thus, no guarantee of the fitness of the Bronco's transmission. Furthermore, Mr. Palmer failed to submit in writing a claim under the description warranty within fifteen days of the sale as required by the express terms of the warranty.
In a letter dated December 10, 1996, Mr. Palmer responded to the denial of his claim, stating that the issue was one of "good faith," not the terms and conditions of a warranty. The CO again denied Mr. ...