October 30, 1997 GSBCA 13747-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, Department of the Army, Headquarters, Military Traffic Management Command, Falls Church, VA, appearing for Department of Defense. GOODMAN, Board Judge. This case involves two shipments. On July 31, 1991, the traffic management office at Dover Air Force Base, Dover, Delaware, issued Government bill of lading (GBL) E-2,297,407 to Tri-State Motor Transit Co. (Tri-State). This GBL described the freight being transported as electrical instruments. The GBL states that dromedary service was requested. In block 24, under the heading "seal numbers," the GBL contains the annotation "0495668/0495669." 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. The GBL also notes that this shipment was a foreign military sales shipment. Tri-State submitted a freight bill to the Department of Defense (DoD) on August 13, 1991, for transporting this shipment. Thereafter, Tri-State claimed that it was owed an additional amount of $474.75 because DoD requested, and Tri-State allegedly provided, exclusive use of the container that Tri-State used to transport the shipment. On September 7, 1995, the General Services Administration (GSA) denied Tri-State's claim stating: There is nothing on the GBL to invoke exclusive use provisions. Notations on the GBL such as "Do not use flame or heat producing tools to break a seal" are safety precautions for the shipment of explosives, and cannot be construed as a limitation or denial of the carrier's right of access to the equipment. The circumstances of the second shipment involved in this case are similar. On July 24, 1991, the Sierra Army Depot in Herlong, California, issued Government bill of lading (GBL) E-1,132,440 to Tri-State. This GBL described the freight being transported as explosives. The GBL states that dromedary service was requested and furnished. In block 24, under the heading "seal numbers," the GBL contains the annotation "30755,56." The GBL also contains the following annotations, among others: FLAME OR HEAT PRODUCING TOOLS WILL NOT BE USED TO REMOVE SECURITY DEVICES. DUAL DRIVER PROTECTIVE SERVICE REQUESTED. Tri-State submitted a freight bill to DoD on August 13, 1991, for transporting this shipment. Thereafter, Tri-State claimed that it was owed an additional amount of $2,525 because DoD requested, and Tri-State allegedly provided, exclusive use of the container that Tri-State used to transport the shipment. On September 7, 1995, GSA denied Tri-State's claim stating: There is nothing on the GBL to invoke exclusive use provisions. Notations on the GBL such as "Do not use flame or heat producing tools to break a seal" are safety precautions for the shipment of explosives, and cannot be construed as a limitation or denial of the carrier's right of access to his equipment. Request for Review On November 15, 1995, Tri-State asked the General Accounting Office (GAO) to review GSA's decisions with regard to the GBLs at issue in this case. This request for review was originally docketed as B-270570. No action was taken by GAO prior to mid- 1996, when the authority to review the actions of the Administrator of General Services stemming from audits of bills presented by carriers or freight forwarders for transporting individuals or property for the United States Government was transferred from GAO to this Board. C.I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA  28,860. Discussion Timeliness The Military Traffic Management Command (MTMC) contends that the claims are untimely based upon the applicable statutory time limits. Section 3726 of title 31, United States Code, imposes one time limitation on the filing of carrier claims with GSA, and another on the filing of requests for administrative review of GSA's decisions on those claims. As to the claims themselves, subsection (a) of the statute provides: A claim under this section shall be allowed only if it is received by the Administrator [of General Services] not later than 3 years (excluding time of war) after the [latest] of the following dates: (1) accrual of the claim; (2) payment for the transportation is made; (3) refund for an overpayment for the transportation is made; or (4) a deduction under subsection (b) of this section is made. See also 41 CFR 101-41.602 (1996) (GSA regulations implementing this statute). In 1975, the statute was amended to include a limitation on the time within which administrative review of a GSA audit action or determination on a claim may be made. Pub. L. No. 93-604,  201(3), 88 Stat. 1959, 1960 (1975). This provision survives, in modified form, as 31 U.S.C.  3726(g)(1). It permits a review to be made "if the request [for such review] is received not later than 6 months (excluding time of war) after the Administrator acts or within the time stated in subsection (a) of this section, whichever is later." We have held that we will not consider a claim unless it meets both of these time requirements -- presentation to GSA within three years of the latest of the four events described in subsection (a) and filing with us (or GAO, as previously required) within six months of the later of the two events described in subsection (g)(1). C.I. Whitten Transfer Co., 97-1 BCA at 143,987. By letter dated October 7, 1997, to this Board, claimant has supplied sufficient information to establish that its claims were timely filed with GSA within three years of the date that payment was made. The request for review to GAO was timely made within six months of the date that GSA rejected the claims. Thus, claimant has complied with the statute of limitations insofar as these claims are concerned. Exclusive Use The identical issue raised in this case was discussed at length in Tri-State Motor Transit Co., GSBCA 13737-RATE, 97-1 BCA  28,945. As in that case, on the date that the GBLs were issued in the instant case, 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, i.e.: 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 and the Sierra Army Depot to the shipments at issue in this case, Tri-State relies upon provisions of the Defense Traffic Management Regulation (DTMR), paragraphs 34-10 and 34-11. We addressed this argument in Tri-State: 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 [dual driver protective service], 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). Id. at 144,216-17. In the instant case, as in Tri-State, 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 the shippers 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. GSA's position is that Tri-State has not established that the shipments in this case were secured with anything other than ordinary seals. In response, Tri-State has supplied information concerning one of the shipments in this case. Tri-State alleges that a document in the record "confirmed that a security device as defined in the instructions set forth in [DTMR 34-11] was applied to a carrier's equipment" with regard to GBL E-1,132,440. This document is a letter dated June 27, 1996, executed by another individual on behalf of the traffic manager at Sierra Army Depot, which indicates that a "Serially numbered Tyden Ball Seal" was applied. GSA submitted an affidavit from the traffic manager which states: The shipment in question . . . did not have, nor did it require a "special security device" applied to the dromedary container in which the shipment was placed into for transport. What was required and applied to the dromedary container were two each Tyden ball seals . . . which is an ordinary security seal applied to all dromedary containers or vans departing Sierra Army Depot. . . . . The individual that signed [the June 27, 1996, letter] was attempting to explain the type seal used, which was nothing more than the standard Tyden ball seal. Affidavit of Thomas H. Ryan (Nov. 25, 1996). On August 26, 1997, the Board asked Tri-State to submit any documentation that would indicate the type of seal placed on the carrier's equipment. Tri-State never provided any documentation. In Tri-State, we stated: 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. 97-1 BCA at 144,217. In the instant case, Tri-State has not established that the type of seal applied to the two shipments at issue was one of the types of seals identified in either Tri-State's tariff or in DTMR 34-11. We have no evidence of the type of seal applied to the shipment from Dover Air Force Base. The evidence we have concerning the seal applied to the shipment from Sierra Army Depot establishes that a serially-numbered Tyden ball seal was applied. Tri-State has not established that the seal could be broken only by mechanical means or that the seal had a peened bolt and nut. Without such evidence, we cannot conclude that DoD requested exclusive use according to the terms of the tariff. ____________________ ALLAN H. GOODMAN Board Judge