_____________________ June 27, 1997 _____________________ GSBCA 13739-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. James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, counsel for Department of Defense. HYATT, Board Judge. On January 15, 1991, the Defense Contract Management Agency Office (DCMAO) in Birmingham, Alabama, issued government bill of lading (GBL) D-1,500,980 to Tri-State Motor Transit Co. (Tri-State) for the shipment of two pallets of cartridges, class "C" explosives, from Cordova, Tennessee to Colt's Neck, New Jersey. Shipment was authorized pursuant to Tri-State's tender number 408. Block 16 of the GBL requests, among other things, dromedary service. On the second page of the GBL, under the continuation of Block 16, the following notation is made: DO NOT BREAK SEALS EXCEPT IN CASE OF EMERGENCY OR UPON PRIOR AUTHORITY OF THE CONSIGNOR OR CONSIGNEES. IF FOUND BROKEN OR IF BROKEN INTO FOR EMERGENCY REASONS, APPLY CARRIER'S SEALS AS SOON AS POSSIBLE AND IMMEDIATELY NOTIFY BOTH THE CONSIGNOR AND THE CONSIGNEE. Tri-State transported the freight and sent an invoice for $647.27 to DCMAO. This amount was paid. Later, Tri-State sent a supplemental invoice, seeking an additional $493.29 based on the provision of exclusive use of the dromedary. On August 24, 1995, the General Services Administration (GSA) issued a settlement certificate stating that Tri-State was not entitled to any further payment. On September 18, 1995, Tri-State asked the General Accounting Office (GAO) to review this claim and others of a similar nature. This matter was transferred to the Board on July 17, 1996. In support of its claim, Tri-State has provided a tractor continuity report showing that exclusive use of a dromedary container was in fact provided for this shipment. Discussion Transactions involving individual carrier tenders for the provision of motor freight services are generally governed by the Military Traffic Management Command's (MTMC's) Freight Traffic Rules Publication 1A (MFTRP 1A). Item 5, paragraph 2 of MFTRP 1A states that an individual carrier's tender "may not be made subject to any other publications for application of the rates and charges therein." Thus, to the extent that a tender is the basis for determining the applicable freight rate, as is the case here, recovery is controlled by the language of the MFTRP and the GBL as annotated. See Tri-State Motor Transit Co., B-256083 (June 10, 1994). Items 105, 205 and 325 of MFTRP 1A contain a comprehensive scheme for determining when a GBL annotation related to the sealing of an ordinary dromedary would constitute a request for exclusive use. In this case, the controlling MFTRP provisions are those that were in effect on June 1, 1989. Item 205 sets forth the conditions which will establish a request for exclusive use of a vehicle: 1. Except as to shipments for which the Government bill of lading (GBL) is annotated, "EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVERNMENT" or in the following manner: "DO NOT BREAK SEALS EXCEPT IN CASE OF EMERGENCY OR UPON PRIOR AUTHORITY OF THE CONSIGNOR OR CONSIGNEE. IF FOUND BROKEN FOR EMERGENCY REASONS APPLY CARRIER SEALS AS SOON AS POSSIBLE AND IMMEDIATELY NOTIFY THE CONSIGNOR AND THE CONSIGNEE," the application of seals/locks and the recording of seal numbers in the block provided on the GBL will not, in itself, require exclusive use of the vehicle. A note under item 205 states that this rule is also applicable to dromedary service (Item 325). Item 325 provides that the shipper will request exclusive use by annotating "Exclusive us[e] of Dromedary Service requested by the Government," or similar provision, on the bill of lading. Reading the two items together, we conclude that a GBL annotation that is substantially equivalent to the alternative language in item 205 would suffice to request exclusive use of a dromedary container as well. In addition, item 325 provides that an endorsement will be noted on the bill of lading, for the carrier's signature, certifying that exclusive use was furnished. Tri-State contends that the annotation on GBL D-1,500,980 is on all fours with the alternate language contained in Item 205 of the MFTRP, thus entitling it to recovery of an additional charge for providing exclusive use of a dromedary container. GSA has rejected Tri-State's claim, citing to Tri-State Motor Transit Co., B-256083 (June 10, 1994). In that case, however, the shipper argued that its tariff was controlling and relied upon the decision in Baggett Transportation Co. v. United States, 23 Cl. Ct. 263 (1991), aff'd, 969 F.2d 1028 (Fed. Cir. 1992), in which language similar to that on its GBL had been deemed to constitute a request for exclusive use under the terms of the carrier's tariff. Noting that the MFTRP was amended subsequent to the shipments at issue in Baggett, and that shipments provided under a carrier tender and the MFTRP were no longer subject to varying terms of a carrier tariff, GAO ruled that the carrier was not entitled to recover for the provision of exclusive use of a dromedary unit. In a subsequent decision, relied upon by Tri-State, GAO addressed circumstances closely akin to the facts presented here. In Tri-State Motor Transit Co., B-259719 (June 27, 1995), GAO, reviewing a transaction governed by the carrier's tender, the terms of the GBL, and the MFTRP, analyzed language identical to that contained on GBL D-1,500,980 and compared it to the alternate language of the MFTRP to conclude that a request for exclusive service had indeed been made. As such, since GBL D-1,500,908 requests dromedary service and is annotated with language which is substantially the equivalent of the alternative annotation set forth under item 205 of the MFTRP, we conclude that exclusive use was requested. MTMC, in its response addressing the merits of this claim, raises several arguments not raised by GSA. First, MTMC questions whether Tri-State's claim is timely filed under the statute requiring that such claims be presented within three years after accrual. MTMC points out that its copy of the request for payment is undated and hypothesizes that, given the 1991 shipment date, the claim may have been filed with GSA more than three years after payment for the transportation was made. 31 U.S.C.  3726 (1994); C.I. Whitten Transfer Co., GSBCA 13911-RATE (Feb. 21, 1997). Because of the length of time that has elapsed, not all of the records are readily available. Nonetheless, Tri-State and GSA have confirmed that Tri-State's initial invoice was dated March 7, 1991, and agree that it is likely the invoice would have been paid about thirty days after that date. The claim for exclusive use was mailed to GSA by Tri-State on March 8, 1994, and received by GSA on March 11, 1994. Given these circumstances, GSA does not contest the timeliness of the claim and the Board finds that it was timely filed within three years of receipt of payment of the original invoice. In addition, MTMC argues that Item 325 of the MFTRP, applicable to the provision of dromedary service, requires that the GBL be annotated with an endorsement, completed by the carrier's agent at destination, certifying that exclusive use was in fact furnished with respect to the particular shipment. This endorsement was not provided in GBL D-1,500,980. We construe this requirement to intend that appropriate proof of the provision of exclusive use services be submitted by the carrier. Although no endorsement is in fact set forth on the face of the GBL, Tri-State has nonetheless furnished proof that exclusive use was provided under this GBL. See Tri-State Motor Transit Co., GSBCA 13826-RATE (June 13, 1997). Neither MTMC nor GSA has contested the adequacy of this evidence. Accordingly, we find that Tri-State is entitled to recover the amount claimed for the provision of exclusive use services under GBL D-1,500,980. ________________________ CATHERINE B. HYATT Board Judge