______________________ April 4, 1997 _______________________ GSBCA 13737-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, General Services Administration, Washington, DC, appearing for General Services Administration. Col. David A. Shull, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. DeGRAFF, Board Judge. On August 26, 1991, the Traffic Management Office at Dover Air Force Base, Dover, Delaware issued government bill of lading (GBL) E-2,298,741 to Tri-State Motor Transit Company (Tri-State). The GBL described the freight being transported as a Class A explosive, "rocket ammunition with explosive projectile." The GBL states that dromedary service was requested, as was dual driver protective service (DDPS). In Block 24, under the heading "seal numbers," the GBL contains the annotation "0498231/0498232." The GBL also contains the following annotations, among others: FLAME OR HEAT PRODUCING TOOLS WILL NOT BE USED TO REMOVE SECURITY DEVICES. SHIPPER SEAL(S) APPLIED, CARRIER MAY REMOVE SEAL(S) AND REPLACE WITH EQUIVALENT SEAL(S). . . . APPLICATION OF SHIPPER SEAL(S) DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE. Tri-State submitted a voucher to the Department of Defense (DoD) on September 10, 1991, for transporting this shipment. Some time later (the date is not contained in our record), Tri-State claimed that it was owed an additional amount because the shipment was a foreign military sale (FMS) shipment and because DoD requested exclusive use of the container that Tri-State used to transport the shipment. On August 30, 1995, the General Services Administration (GSA) denied Tri-State's claim. On September 8, 1995, Tri-State asked the General Accounting Office (GAO) to review GSA's decision. The Military Traffic Management Command (MTMC) informed GAO that the shipment at issue was, indeed, an FMS shipment. MTMC agreed with GSA, however, that DoD had not requested exclusive use. GSA informed GAO that Tri-State billed for mileage in excess of that allowed by Tri-State's tariff, and overcharged for providing DDPS. GSA later agreed that Tri-State had not overcharged for providing DDPS. Only two issues, exclusive use and mileage, remain for us to resolve. Discussion Exclusive use On the date that the GBL was issued, Tariff ICC TSMT 4000-B, Item 525, paragraph 4, read as follows: The use of any method of sealing a dromedary box or 410 container, ie: bolt seals, padlocks, cable locks, ball type locks, wire twists, etc., which require the use of mechanical means to break that seal will be considered as a request for exclusive use irregardless of any notation on the bill of lading . . . . As evidence that one of the types of seals described in its tariff was applied by Dover Air Force Base to the shipment at issue in this case, Tri-State relies upon provisions of the Defense Traffic Management Regulation (DTMR). In Tables 34-2 and 34-3, the DTMR sets out minimum standards that apply to shipments of confidential and sensitive material, including ammunition. Shipments of confidential material require, at a minimum, DoD constant surveillance service, but do not require exclusive use. The requirements for shipments of sensitive material vary according to the type of material being transported. The most sensitive material requires protective security service, armed guard surveillance, security escort vehicle service, and exclusive use. The least sensitive material requires DDPS, but does not require exclusive use. For confidential and sensitive material, regardless of whether exclusive use is required, the DTMR explains that the shipment will be sealed by the shipper in accordance with DTMR paragraph 34-10. DTMR paragraph 34-10 states that shippers will apply seals to shipments of confidential or sensitive material. Paragraph 34-10 states, "Seal application by shipper does not constitute a request for exclusive use of vehicle. See paragraph 34-11 when exclusive use of vehicle is required." Paragraph 34-11 reads as follows: When exclusive use of a vehicle is required, or when exclusive use of a closed and locked compartment on carrier equipment is used for movement of SECRET, CONFIDENTIAL, or sensitive material, a serially numbered cable seal lock (NSN 5340-00-084-1570), or other type of specialized seal that provides equal or better security on carload or truckload shipments, must be applied. A serially numbered, ball-type seal with a peened bolt and nut (NSN 5340-00-081-3381), or a number 5 American wire gauge steel wire twist (NSN 9505-00-244-6550), may be substituted. See Figure 32-1, Item 21, Instruction d(1)(h), for required GBL annotation. Item 21, Instruction d(1)(h) of the DTMR provides, "When applicable, [annotate the GBL]: 'Flame or heat-producing tools will not be used to remove security devices.' (See. para 34-11)." The DTMR spells out the specific language of the annotations that are required on GBLs when seals are applied by shippers to sensitive and confidential shipments. The DTMR also explains that, for shipments requiring exclusive use, the GBL must be annotated with the words "Exclusive use of vehicle requested by Government," or similar language. In addition, when exclusive use is requested, the DTMR says that the GBL must contain an endorsement to be signed by the carrier at the freight's destination, certifying that exclusive use was furnished. DTMR, Item 21, Instructions d(1)(e), o(2). Tri-State reads the DTMR to say that the annotation "Flame or heat-producing tools will not be used to remove security devices" will be used only when DoD requests exclusive use. Tri-State says that, because its GBL includes this annotation, it must presume that Dover Air Force Base applied one of the seals mentioned in paragraph 34-11, which describes the seals that are applied when DoD requests exclusive use. According to Tri-State, if one presumes that DoD applied a type of seal described in paragraph 34- 11, this constitutes a request for exclusive use according to Tri- State's tariff because the seals described in paragraph 34-11 are included within the types of seals mentioned in Tri-State's tariff. Tri-State also says that the shipment must have been either confidential or sensitive, and that this supports a conclusion that a seal described in paragraph 34-11 was applied. In response, GSA says that Tri-State's tariff provides that, if the shipment at issue was secured with a bolt seal, padlock, cable lock, ball type lock, wire twists, etc. which can only be broken by mechanical means, this constitutes a request for exclusive use. GSA's position is that Tri-State has not established that the shipment in our case was secured with such a seal. On February 4, 1997, the Board asked Tri-State to submit any documentation that would satisfy GSA's concerns about Tri-State's claim. Tri-State never provided any documentation. The DTMR makes it clear that, even if this shipment was confidential or sensitive, not all shipments of confidential or sensitive material require exclusive use, that shipments of these materials will be sealed by the shipper, and that the application of a seal by the shipper does not constitute a request for exclusive use. The DTMR also makes it clear that, when exclusive use is requested, particular types of seals are required, but there is no evidence that one of these seals was used for this shipment. The DTMR does not say that the flame or heat-producing tools annotation can be used only when DoD requests exclusive use, or that this annotation amounts to a request for exclusive use. In fact, the DTMR's explanation of how to annotate a GBL to request exclusive use does not mention flame or heat-producing tools. The fact that the GBL was annotated to refer to the use of flame or heat-producing tools does not mean that DoD applied one of the types of seals described in Tri-State's tariff and, by doing so, requested exclusive use. Tri-State has not established that the type of seal applied to this shipment was one of the types of seals identified in Tri- State's tariff. Without such evidence, we cannot conclude that DoD requested exclusive use, according to the terms of the tariff. Mileage According to Tri-State, it is entitled to recover for transporting the shipment 2,294 miles. Tri-State cites to the following tariff provision: If due to State, Municipal, or Federal regulations governing the transportation of these commodities a route of greater distance than the distance computed under the [Household Goods Mileage Guide] is necessary, the greater distance shall apply. Tariff ICC TSMT 4000-B, Item 450, at 9. Tri-State says that it relied upon Compu.Map, a proprietary computer program, to provide the shortest lawful highway route available for transportation of explosives in compliance with federal, state, and municipal regulations, and that the shortest route was 2,294 miles, according to Compu.Map. According to GSA, Tri-State is entitled to recover for transporting the shipment 2,178 miles, in accordance with the Household Goods Mileage Guide. GSA says that if state, municipal, or federal regulations required Tri-State to travel more than the distance computed according to the mileage guide, those regulations would have also required Tri-State to obtain permits. GSA stated that, if Tri-State would submit copies of the permits it obtained in order to comply with the regulations, this would validate Tri- State's mileage claim. On February 4, 1997, the Board asked Tri-State to supply documentation to establish that permits were issued, or any other documentation to satisfy GSA's concerns. Tri-State never responded. Tri-State has not established that GSA's mileage calculation is incorrect. Tri-State's tariff permits it to charge for a route longer than that set out in the mileage guide only if the longer route is necessary due to state, municipal, or federal regulations. Tri-State has not established that any regulations necessitated a longer route than that set out in the mileage guide. ______________________________ MARTHA H. DeGRAFF Board Judge