______________________ April 17, 1997 _______________________ GSBCA 13746-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. Government bill of lading (GBL) G-0,394,347, issued on June 4, 1992, tendered a shipment of aircraft engines to Tri-State Motor Transit Company (Tri-State). Tri-State was to pick up the shipment from General Electric Company in Cincinnati, Ohio and deliver it to Eglin Air Force Base, Florida. The GBL identified the applicable tender as TSMT 555. The GBL stated, "Released value not exceeding $5.00 per pound per article," which was the released value established in tender TSMT 555. If a shipment is lost or damaged, the released value limits a carrier's liability to the lesser of the released value or the actual loss or damage sustained. Tri-State picked up and delivered the shipment and sent a voucher for $1,713.60 to the Defense Finance and Accounting Service. GSA and Tri-State agree that tender TSMT 555 did not apply to the shipment because the tender did not offer rates between Cincinnati and Eglin Air Force Base and because the tender was canceled before the date of the shipment. Instead, Tri-State tender 456 applied, and Tri-State billed according to the rate set out in tender 456. Later, Tri-State claimed that it was owed an excess value charge. According to Tri-State, Military Freight Traffic Rules Publication No. 1A (MFTRP 1A), Item 190, says that a carrier is entitled to an excess value charge if the value stated on the GBL exceeds the released value contained in the applicable tender. The released value stated on the GBL was $5.00 per pound, which exceeded the $2.50 per pound released value contained in tender 456. Tri-State calculated the additional amount it believed it was due in accordance with MFTRP 1A, Item 190. The General Services Administration (GSA) denied Tri-State's claim because GSA decided that excess released value charges did not apply to the shipment. Tri-State asked the General Accounting Office (GAO) to review GSA's decision. Congress transferred the review function formerly performed by GAO to the Director of the Office of Management and Budget (OMB), and authorized him to delegate it to any other agency or agencies. Pub. L. No. 104-53,  211, 109 Stat. 514, 535 (1995). The Acting Director of OMB delegated this function to GSA (Delegation, June 28, 1996), and the Acting GSA Administrator redelegated it to this Board (Delegation, July 17, 1996). Later, Congress made permanent the assignment of this duty to the Administrator. Pub. L. No. 104-316,  202(o)(2), 110 Stat. 3826, 3844 (1996). Discussion MFTRP 1A, Item 130 provides that, except as otherwise provided in Item 190, a carrier is liable for all loss and damage to freight. Item 190 discusses released value and explains how released value can limit a carrier's liability. Paragraph 6 of Item 190 explains that the released value established in a tender applies "without the necessity of the shipper providing a released value statement on the bill of lading." Paragraph 6 states: If a value exceeding the released value is stated on the bill of lading, such valuation shall control and the following excess value charges will apply: Excess Released Valuation Excess Valuation Charges a. Released to a value Base transportation rate in exceeding $20,000 per carrier[']s tender plus an excess each vehicle in the value charge of 15 cents for each shipment. $100 or fraction thereof by which the declared value of the shipment exceeds $20,000 per vehicle. b. Except as provided in Base transportation rate in (a) above, released carrier[']s tender plus an excess to a value exceeding charge of 15 cents for each $100 the value that may be or fraction thereof by which the stated in [the tender]. declared value of the shipment exceeds that for which the base transportation rate applies. Paragraph 7 of Item 190 says that, if a shipment is lost or damaged, the carrier's liability is limited to the lesser of the released value or the actual loss or damage sustained. Item 190 also says that a carrier's liability is limited to the lesser of the declared value of the shipment when stated on the bill of lading or the actual loss or damage sustained. The GBL was subject to 41 CFR 101-41.302-3(e) (1991), which says that a shipment is made at the limited valuation specified in the tender, "unless otherwise indicated on the face of the GBL." Paragraph 6 of Item 190, which says that the released value contained in the tender applies without the shipper having to provide a released value statement on the GBL is consistent with this regulation. Tri-State says that the GBL shows on its face that the released value of the shipment was $5 per pound. Because this exceeds the released value contained in the applicable tender, Tri- State concludes that the $5 per pound valuation controls and that the terms of Item 190 of MFTRP 1A establish the excess valuation charge that Tri-State is entitled to recover. GSA makes two arguments concerning why Tri-State is not entitled to recover its claimed excess value charge, and we reject both arguments. First, says GSA, Tri-State was responsible for ensuring that any errors or ambiguities on the face of the GBL were corrected before it moved the shipment. On its face, however, the GBL did not contain any error or ambiguity because the stated released value of $5 per pound was consistent with tender TSMT 555. Second, GSA says that when Tri-State determined that tender 456 applied to the shipment, it should have also determined that the corresponding released value of $2.50 per pound applied to the shipment, and it should have resolved any questions concerning released value at that time. This argument seems to presume that there is something inconsistent between using the rates contained in tender 456 and stating a released value of $5 per pound. MFTRP 1A explains, however, that a shipper can state a value on a GBL that exceeds the applicable tender's released value, and so the agency was permitted to use tender 456 and to state a released value of $5 per pound. When Tri-State realized that the applicable tender was tender 456, Tri-State was not obligated either to conclude that a released value of $2.50 per pound applied to the shipment or to raise a question concerning the proper released value of the shipment. Although the Military Traffic Management Command's (MTMC's) initial position was that Tri-State should be paid, MTMC later agreed with GSA. In addition to adopting GSA's arguments, MTMC makes two arguments of its own, which we reject. First, MTMC says that if the GBL contained an improper tender number, Tri-State was responsible for correcting that number before accepting the shipment, and that the terms of the GBL should not be changed unless there is proof of mutual mistake. Although it would have been preferable if someone had noticed before the shipment moved that the tender number stated on the GBL was incorrect, there is no evidence to suggest that anyone was aware of the mistake until after the shipment moved. GSA and Tri-State agree that tender TSMT 555 did not apply to the shipment, and so a correction has to be made to the terms of the GBL in order to pay Tri-State the correct amount for moving the shipment. GSA and Tri-State agree that tender 456 applied to the shipment, and MTMC does not suggest either that some tender other than tender 456 applied to the shipment or that Tri-State should not be paid for its services. Thus, the contract as evidenced by the GBL should be corrected to show that tender 456 applied to the shipment. MTMC's second argument is that the $5 released value stated on the GBL simply states the released value contained in tender TSMT 555, and has "no meaning in the absence of a 'declared value' as required by Item 190" of MFTRP 1A. According to MTMC, no evidence suggests that the shipper ever intended to release the shipment at a value exceeding the released value contained in the applicable tender. The regulations to which the GBL was subject said that the shipment was made at the tender's released value "unless otherwise indicated on the face of the GBL." Consistent with this, MFTRP 1A, Item 190, paragraph 6 says that the tender's released value applies "without the necessity" of providing a released value on the face of the GBL. But, paragraph 6 also says that if "a value exceeding the released value is stated on the bill of lading, such valuation shall control" and the carrier is entitled to excess value charges. It seems clear, given these provisions, that if the released value stated on a GBL is higher than the released value stated in a tender, the tender's released value does not apply and the carrier is entitled to excess value charges. MTMC says that this is true only if the GBL contains a "declared value." The concept of "declared value" is introduced when paragraph 6 of Item 190 explains how to calculate the excess value charge. Paragraph 6 says that the excess value charge is fifteen cents for each $100 by which the "declared value" of the shipment exceeds the released value stated in the tender. Although MTMC says that the $5 per pound released value stated on the face of our GBL does not amount to a "declared value," MTMC has not cited us to any precedent to support its position. In Tri-State Motor Transit Co., B-254378, et al. (Feb. 16, 1994), aff'd on reconsideration (July 5, 1995), GAO concluded that "declared value" meant the released value stated on the GBL. This is consistent with earlier precedent that speaks of the "declared released value" of a shipment. See Strickland Transportation Co. v. United States, 334 F.2d 172 (5th Cir. 1964); American Farm Lines, B-200939 (May 29, 1981); Secretary of Defense, 38 Comp. Gen. 768 (1959); American Home Foods, Inc. v. Delaware, Lackawanna & Western Railroad Co., 303 ICC 655 (1958). We agree with GAO's conclusion that "declared value" means the value declared or stated on the face of the GBL by the shipper. If the shipper wished to use the released value contained in the applicable tender, it did not have to state any released value on the face of the GBL. The shipper, however, declared a released value of $5 per pound on the face of the GBL. If the applicable tender had contained a released value of $5 per pound, Tri-State would not be entitled to any excess value charge. MFTRP 1A makes clear, however, that a carrier is entitled to collect an excess value charge if the shipper declares a value that exceeds the released value contained in the applicable tender. Tri-State is entitled to collect an excess value charge, calculated in accordance with MFTRP 1A. ______________________________ MARTHA H. DeGRAFF Board Judge