DENIED:  April 14, 2014
CBCA 3229
EURASIA PARTNERS, LLC,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Emanuel S. Benjamin of Benjamin Law Group, PL, Miami, FL, counsel for Appellant.
Marianna Lvovsky, Office of Chief Counsel, Internal Revenue Service, Department
of the Treasury, Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, VERGILIO, and POLLACK.
POLLACK, Board Judge.
This appeal arises out of the purchase of an oil painting by Eurasia Partners, LLC
(Eurasia or appellant) at a Department of the Treasury (Treasury or Government) online
auction.  The appeal raises issues as to misdescription; timeliness of the claim; and
alternatively, misrepresentation.
The Government has moved for summary relief, asserting that the painting was neither
misdescribed nor misrepresented.  The Government has also asserted that even if the painting
was misdescribed, appellant cannot prevail because appellant failed to comply with the
timeliness standard set out in the contract for submitting such a claim.


CBCA 3229 2
Background
Eurasia purchased a painting for $6107 from an online Government auction.  The
auction was conducted on August 8, 2011, to dispose of a variety of surplus property owned
by the Government.  The auction was handled by VSE Corporation (VSE).  Prior to the
auction, VSE circulated a catalog containing brief descriptions of the property contained in
each auction lot.  The painting at issue was described in the VSE catalog as follows:
Lot 127 1 EA
IC20105201900051007 1 EA
Painting: Attributed to Jose Mijares, Oil on Canvas, Signed “Mijares”, 26” x
21”, Framed
Work is of the Period of the Named Artist.  On the Basis of Style Can be
Ascribed to Him, However the Authenticity is Not Certified.
The auction was subject to “SALE OF GOVERNMENT PROPERTY GENERAL
SALE TERMS AND CONDITIONS.”  The following provisions are relevant to the instant
dispute.
5.  INSPECTION OF PROPERTY:
The bidder is invited, urged, and cautioned to inspect the property prior to
submitting a bid.  The failure to inspect property shall not constitute cause for
cancellation of sale.  The property or a representative sample of property will
be available for inspection at the places and times specified by the contractor.
Absolutely no access to property is allowed without prior contractor
authorization.
. . . .
8.  PROPERTY DESCRIPTIONS:
The Government warrants to the original Purchaser that the property 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
property 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 property is purchased and accepted “AS IS, WHERE IS” and “WITH
ALL FAULTS.”

CBCA 3229 3
The amount of recovery under this provision is limited to the purchase price
of the inaccurately described property.  The Purchaser is not entitled to any
payment for loss of profit or any other money damages, including special,
direct, indirect, incidental, or consequential.
For Purchasers claiming recovery under the warranty of description, no refund
will be made unless the Purchaser: 
a) submits a written notice to the Contractor within 30 calendar days of
the date of removal that explains in what manner the property was
inaccurately described.
b) If the government agrees, then a full refund of the money received
will be returned.
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 Contractor.  The Purchaser must maintain
the property in the same condition as when removed.
. . . .
25.  FALSE ADVERTISING AND UNFAIR OR DECEPTIVE ACTIONS:
The use of false or misleading advertisements in commerce or other
unfair or deceptive practices are unlawful (15 U.S.C. 45, et seq.).  In
disposing of any property purchased from the Government, purchasers
should exercise extra caution in preparing advertisements to ensure that
they do not violate applicable Federal, state or foreign government laws 
Eurasia removed the painting from the storage vendor’s facility by September 1, 2011,
which was within the time frame set out in the auction documents.  At the time of purchase,
appellant believed the painting was an original by Jose Mijares, a prominent Cuban painter. 
Sometime thereafter, Eurasia contacted representatives of Mr. Mijares’ estate.  The Mijares
representatives evidently examined the painting and advised appellant on May 25, 2012, that
the painting had not been painted by Mr. Mijares.  According to appellant, it was told the
painting was a forgery.  In further support of the forgery claim, appellant points out that the

CBCA 3229 4
back of the painting bears the date of “7/28/04.”  That date postdates Mr. Mijares’s date of
death.  Appellant asserts that the date thereby establishes that the painting could not have
been by Mr. Mijares, or met the other description elements in the catalog, such as being of
his period and ascribed to him.
On June 12, 2012, Eurasia contacted VSE to request a refund.  VSE refused, replying
that “the [painting] was not misdescribed.”  VSE further asserted that the “authenticity of the
piece was not guaranteed at the time of sale.”  VSE cited the general terms and provisions
for the sale– specifically the Property Descriptions clause– and directed appellant to contact
the agency contracting officer (CO) if it wished to dispute the matter further.  Eurasia
contacted the CO on June 26, 2012, to request a refund.  On December 19, 2012, the CO
denied the request, finding that VSE accurately described the painting.  The CO stated that
Inspection of Property clause of the sale terms and provisions precluded reimbursement. 
Eurasia appealed the CO’s decision to the Board on January 31, 2013.
After pleadings and the appeal file were submitted, counsel for Treasury filed a
motion for summary relief.  The motion, filed on February 13, 2013, argued that there was
no misdescription and, further, that the materials provided to bidders contained a number of
provisions which clearly established that the Government was not guaranteeing that the
painting was an original by Mijares.  Eurasia challenged the motion, contending that granting
summary relief would be improper, that the painting was misdescribed in the catalogue, and
that the Government used false and misleading advertising in its description of the painting. 
Eurasia additionally asserted that the catalog’s disclaimer that the “Authenticity is Not
Certified” was not sufficient to put prospective bidders on notice that the painting was a
forgery.  As to the latter point, Eurasia asserted that art is frequently sold without
corresponding certificates of authenticity, and a reasonable bidder would not expect the
Government to sell a forgery.
During preparation of the ruling in this matter, the presiding judge recognized that
even though timeliness of the claim had not been raised by the Government, the record
showed that timeliness was an issue.  The auction had been held in August 2011, and the
claim had not been submitted until June 2012.  The Property Descriptions clause provides
that where a claim is based on misdescription, the claim must be submitted within thirty days
of removal.  Having recognized a potential problem, the Board issued to the parties an order,
dated September 12, 2013, where we pointed to substantial Board precedent which has
uniformly enforced time limits in cases of misdescription.  The Board stated that even if it
found in favor of appellant on its defense of the motion as to misdescription, that would
appear to at best be a  pyrrhic victory.  Citing Alliance Business Enterprises, LLC v. GSA,
CBCA 1101, 08-2 BCA ¶ 33,994, the Board provided that board decisions appear to have
recognized an exception to the strict application of time in those instances where an appellant

CBCA 3229 5
can prove knowing misrepresentation or fraud on the part of the Government.  The Board
continued that to qualify for the exception, appellant would have to establish that the
Government knew that the painting was not as described and that the Government knowingly
provided details which misrepresented what was being sold.  The Board concluded that
proving such misrepresentation is a much more difficult matter than establishing an error in
the description, and noted that in the filings by appellant to that point, the Board saw no
evidence or allegation as to knowing misrepresentation. 
Because the Government had not raised timeliness in either its pleadings or its motion,
and given that appellant had not had an opportunity to address timeliness, appellant was
given time to address timeliness; examine its case; and if warranted, amend its pleadings. 
The Board specifically stated that misdescription and misrepresentation are very different
theories.  The Board gave appellant thirty days to respond to the order and stated that the
Board would then assess what further actions would be taken as to the motion, including
whether the Government could file a response.
On October 11, 2013, the Board received appellant’s amended response to
respondent’s motion for summary relief.  In the three-page filing, appellant reiterated its
various arguments as to misdescription and cited the Board to information appellant relied
upon to establish that the description was both false and misleading.  Appellant did not,
however, specifically argue misrepresentation, nor did it provide any evidence showing
Treasury or VSE had knowledge that the descriptive language placed in the advertisement
was false.  Appellant did, however, argue that the timeliness provision in the Property
Descriptions clause should not be operative under the facts of this case, asserting that time
should be measured from the date of reasonable discovery.  The Government then filed a
short reply.
Discussion
Summary relief is only appropriate where there is no genuine issue of material fact
and the moving party is clearly entitled to judgment as a matter of law.  Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 
Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary relief.  A fact is considered to be material if it
“will affect [the Board’s] decision,” and an issue is genuine if “enough evidence exists such
that the fact could reasonably be decided in favor of the non-movant at a hearing.”  William
W. Caswell v. General Services Administration, CBCA 479, 07-2 BCA ¶ 33,679, at 166,746. 
In considering a motion for summary relief, all justifiable inferences are to be determined in
favor of the nonmoving party.  Anderson at 249, 255.  The moving party has the burden of
stating the basis for summary relief and identifying evidence within the record that

CBCA 3229 6
demonstrates the absence of a genuine issue of material fact.  Celotex Corp., 477 U.S. at 323. 
The nonmoving party is then required to rebut the motion by articulating specific facts that
show there is a genuine issue for trial.  Id. at 324. 
Eurasia contends that the description in the auction catalogue is in error in a number
of fundamental respects.  For purposes of deciding the motion for summary relief, we accept
those contentions as true.  However, even accepting the matters as true, the evidence and
arguments, presented by Eurasia, provide a classic claim for misdescription; and, as we said
in the Board’s September 12, 2013, order, even if we were to find that the Government mis-
described the painting, appellant still could not prevail.  That is because the record shows that
Eurasia’s claim was not submitted within the thirty-day time frame required by the Property
Descriptions clause, the clause covering available relief due to misdescription.  We have
consistently held that where a party fails to timely file its claim under clauses such as the
Property Description clause, the claim must be denied, even if misdescription is otherwise
established.  Everett M. Myers v. General Services Administration, CBCA 940, 08-1 BCA
¶ 33,841, at 167,477; Joseph M. Hutchinson v. General Services Administration, CBCA 752,
08-1 BCA ¶ 33,804, at 167,341; Danny R. Mitchell v. General Services Administration,
GSBCA 16122, 04-1 BCA ¶ 32,511, at 160,827-28 (2003).
Eurasia bought the painting on August 11, 2011, and removed it by
September 1, 2011.  It did not seek reimbursement until the following June.  It did not take
this last action within the thirty days specified under the controlling clause and therefore
cannot recover.  We have considered appellant’s argument that in a case of this nature,
dealing with artwork, time should not be measured by the sale date, but instead should be
measured on the basis of when the defect could have been discovered.  The Board has
considered that argument in other cases and has rejected the application of the actual
discovery date as the starting point.  See Alliance, 08-2 BCA at 168,119.
Normally, our analysis would end here, and given the law and evidence, we would
rule in favor of the Government as to its motion.  However, we stated in our September 2013
order to the parties that a claim of misrepresentation, if it could be proven, might defeat the
timeliness defense.  Alliance, 08-2 BCA at 168,119.  Since we raised the matter, we address
it briefly in this ruling.
There are two types of misrepresentation, fraudulent and material.  In regard to
fraudulent, the test is that the Government has to represent, as true facts, information that the
Government knew was false.  Hutchinson, 08-1 BCA at 167,341.  In this appeal, appellant
has advanced no evidence from which we could reasonably find or infer knowledge on the
part of the Government as to the falsity of anything it said.  Appellant has failed to raise such
evidence.  Accordingly, there can be no finding of fraudulent misrepresentation.

CBCA 3229 7
As to material misrepresentation, that requires the misrepresenting party to make an
assertion that is not in accord with the facts.  It further requires the party claiming
misrepresentation to establish that it justifiably relied upon the false information.  Morris v.
United States, 33 Fed. Cl. 733, 744-47 (1995) (cited in Danny R. Mitchell, 04-1 BCA at
160,995).  In this appeal, appellant is stating it read the description language to convey that
the painting was an authentic Mijares and painted by him.  However, reading the auction
description as a positive assertion that the painting was by Mijares is simply not reasonable. 
Use of words such as “attributed to,” “can be ascribed,” “on the basis of style,” and finally,
“Authenticity is Not Certified,” all combine to clearly convey a lack of guarantee and the
presence of uncertainty.  When that is combined with the warning in the Property Description
clause, one cannot find either an affirmative assertion or justifiable reliance.  While it is
unfortunate that appellant did not get what it expected, the warning language and lack of
certainty was there.  Eurasia simply failed to heed it.  The Government conveyed that the
painting might be by Mr. Mijares, but it certainly did not state that as a fact upon which any
reasonable bidder could rely.  Moreover, while not necessary for our result, had Eurasia
observed the date on the back of the painting, by its own assertion, it could have determined
that Mr. Mijares was not the painter.  Accordingly, we find that, on this record, there is no
evidence upon which could support a finding of material misrepresentation 
In addition to the arguments as to misdescription, appellant has also asserted that the
motion should be denied because the Government violated the False Advertising clause.  A
reading of the clause makes clear that the clause provides no mechanism for relief. 
Decision
We grant the Government’s motion and DENY the appeal.
HOWARD A. POLLACK
Board Judge
We concur:
JERI K. SOMERS JOSEPH A. VERGILIO
Board Judge Board Judge