_________________________ June 13, 1997 _________________________ GSBCA 13826-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. John R. Bagileo of Bagileo, Silverberg & Goldman, L.L.P., Washington, DC; and Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, 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 June 26, 1990, the Anniston Army Depot in Anniston, Alabama, issued Government Bill of Lading (GBL) C-7,654,383 to Tri- State Motor Transit Company (Tri-State). The GBL showed that the Anniston Army Depot was the shipper of freight that was to be transported by Tri-State to Fort Belvoir, Virginia. The GBL explained that Tri-State's shipping charges were to be billed to the Drug Enforcement Agency (DEA). The GBL block labeled "Tariff/Special Rate Authority" contained the notation "TMST 0200." The GBL block labeled "Seal Numbers" contained the notation "USDISC0468072-050." The GBL provided that the shipper requested dromedary service. In addition, the GBL contained the following notation: SHIPPER SEALS APPLIED. CARRIER MAY REMOVE SEALS AND REPLACE WITH EQUIVALENT SEALS ON PRIOR CONSENT OF CONSIGNOR. IF SEALS ARE BROKEN IN EMERGENCIES, NOTIFY [TELEPHONE NUMBERS OMITTED] AS SOON AS POSSIBLE. CARRIER MUST ANNOTATE SEAL CHANGES ON GOVERNMENT BILL OF LADING. APPLICATION OF SHIPPER SEALS DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE. Tri-State transported the freight and sent an invoice for $489 to the DEA. DEA paid this amount. Later, Tri-State sent the DEA an invoice claiming an additional $996.56. The General Services Administration (GSA) decided that Tri-State was not due any additional payment. Tri-State asked the General Accounting Office (GAO) to review its claim. In 1996, Congress transferred the review function formerly performed by GAO to the Director of the Office of Management and Budget (OMB), and authorized the Director to delegate it to any other agency or agencies. Pub. L. No. 104-53,  211, 109 Stat. 514, 535 (1996). 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). Tri-State and GSA agree that the rates that were the basis for the invoice of $489 were tender rates available only to the Department of Defense (DoD), and not available to the DEA. Tri- State says that the applicable rates are contained in tariff TSMT 4000B, and GSA has not disputed this. Item 525 of the tariff, which contains the rules for exclusive use of a dromedary container, provides: When a shipper inserts the following notation on the bill of lading: "DO NOT BREAK SEALS EXCEPT IN CASE OF EMERGENCY OR UPON PRIOR AUTHORITY OF THE CONSIGNOR OR CONSIGNEE. IF FOUND BROKEN OR IF BROKEN FOR EMERGENCY REASONS, APPLY CARRIER'S SEAL AS SOON AS POSSIBLE AND IMMEDIATELY NOTIFY BOTH THE CONSIGNOR AND THE CONSIGNEE." Carrier will consider this as requiring exclusive use . . . . Any notation which in any way limits or denies carrier access to the Dromedary . . . shall be deemed by the carrier to require exclusive use . . . . Tri-State says that it provided exclusive use of the dromedary container used for the shipment at issue here. As evidence of this, Tri-State provided records that it generates to record information about its shipments. These records show, for example, the route and distance traveled by a shipment, the number of the trailer used to haul the shipment, the position of a shipment on a trailer, the names of the tractor drivers, etc. These records also show whether a container held more than one shipment. The records relevant to this case show that the shipment at issue here was transported in its own container. In other words, this shipment had exclusive use of the dromedary, according to Tri-State's records. Discussion The issue is whether Tri-State is entitled to be paid for the exclusive use of a dromedary container. Tri-State says that it is entitled to be paid for exclusive use, according to the holding in Baggett Transportation v. United States, 23 Cl. Ct. 263 (1991), aff'd, 969 F.2d 1028 (Fed. Cir. 1992). GSA says that Tri-State is not entitled to recover for exclusive use because it did not establish that exclusive use was, in fact, provided. As the trial court explained in Baggett, in order to apply exclusive use rates, there are two conditions that must be met. First, there must be substantial compliance with the requirements of the tariff concerning a request for exclusive use. Second, there must be some evidence to establish that exclusive use was actually provided. In Baggett, the tariffs of two plaintiffs provided, "Any notation which in any way limits or denies carrier access to the Dromedary . . . shall be deemed by the carrier to require exclusive use . . . ." This is exactly the language that is found in the Tri-State tariff at issue in our case. The GBLs in Baggett contained a notation virtually identical to the notation contained in the GBL in our case, permitting the carrier to remove the shipper seals with the prior consent of the shipper. The trial court in Baggett decided that the prior consent statement contained in the GBL notation "at least in some way denies the carrier access to the dromedary," because it allows the carrier to remove the shipper seals only with the consent of the shipper. 23 Cl.Ct. at 273. The trial court held that the prior consent statement contained in the notation, combined with the tariff provision concerning limiting a carrier's access to the dromedary, constituted a request for exclusive use. We agree with the court's conclusion. Therefore, the first condition for applying exclusive use rates is met. GSA has not provided us with any reason to reject the evidence provided by Tri-State concerning exclusive use. Tri-State's records establish that it provided exclusive use, and so the second condition for applying exclusive use rates is met. Tri-State is entitled to be paid for providing exclusive use of a dromedary container for this shipment. _____________________________ MARTHA H. DeGRAFF Board Judge