__________________ December 22, 1997 __________________ GSBCA 13869-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, appearing for Department of Defense. NEILL, Board Judge. In this case claimant, Tri-State Motor Transit Co. (Tri-State), asks that we review the denial of payment on six supplemental freight bills.[foot #] 1 The claims were denied by the Office of Transportation Audits (OTA) of the General Services Administration. Tri-State contends that the shipments in question did not involve the items described in the Government bills of lading (GBLs) and that the rates applied in preparing the original bills were, therefore, incorrect. To correct these errors, Tri-State issued supplemental bills. The OTA, however, has denied these requests for additional payment. For the reasons stated herein, we conclude that the claims in question should be paid. Tri-State believes that a decision of the Comptroller General, Tri-State Motor Transit Co., B-259756 (Aug. 18, 1995), ----------- FOOTNOTE BEGINS --------- [foot #] 1 This case, as originally presented to us, included claims relating to four additional supplemental freight bills involving the following Government bills of lading: C- 1,189,889; D-0,083,845; E-0,764,119; and D-1,002,331. We have since been informed that Tri-State s claims relating to these shipments have been certified for payment in full and are no longer subject to dispute. ----------- FOOTNOTE ENDS ----------- is dispositive of each of the six claims. In that case, Tri-State sought additional payment based upon the fact that a shipment had been incorrectly identified as "ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILE, CLASS A EXPLOSIVE" when, in fact, what had been tendered for shipment was a guided missile with a warhead. The Comptroller General concluded that Tri-State was entitled to payment in accordance with the rate applicable to a guided missile provided the carrier could prove that the item in question had been misdescribed and was in fact a guided missile. We have previously held that we adhere to the principle under which the Comptroller General resolved that case. Tri- State Motor Transit Co., GSBCA 13743-RATE, 97-2 BCA 29,068. In so stating, we have likewise affirmed that it is incumbent upon the carrier to prove the true identity of the goods shipped. Tri-State contends that during the investigative audit process it has scrutinized the six GBLs themselves and consulted various Department of Defense (DOD) technical publications. In addition, it claims to have obtained and reviewed Government documentation relating to the shipments themselves which was not available to Tri-State s rate clerks at the time of the original billing. The six GBLs and the adjustment sought by Tri-State for each one are as follows: 1) C-8,774,764 $1,408.11 2) C-6,603,998 787.32 3) E-1,049,368 1,697.65 4) C-9,155,703 671.60 5) E-0,869,780 851.18 6) D-0,083,845 821.33 The earliest of these shipments was made in July 1990. The latest occurred in August 1991. With the exception of GBL E-1,049,368, all of the GBLs expressly identify the commodity being shipped as ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILES[[foot #] 2] CLASS A EXPLOSIVES. The terminology used for E-1,049,368 reads: AMMUNITION WITH EXPLOSIVE PROJECTILES CLASS A EXPLOSIVES. Each GBL also bears the DOD unique commodity (DODUC) Code 064200 Sub 01, which the Military Traffic Management Command (MTMC) informs us is a designation for ammunition, explosives, fireworks or chemical munitions, NOBIN, Class A. MTMC also explains that the DODUC Code for missiles or rockets guided with warheads is 064300 Sub 04. Each GBL calls for armed guard surveillance services, exclusive use of the vehicle, and satellite motor surveillance. ----------- FOOTNOTE BEGINS --------- [foot #] 2 The language on the GBLs varies slightly on whether the cargo consists of "EXPLOSIVES PROJECTILE," "EXPLOSIVE PROJECTILES" or "EXPLOSIVE PROJECTILE." ----------- FOOTNOTE ENDS ----------- On two of the six GBLs (namely: C-8,774,764 and C-9,155,703) Tri-State's auditor found, amid the detailed descriptions of the items shipped, references to "PL23." On another, E-0,869,780, is a reference to "PL93." Claimant has demonstrated through an excerpt from a U.S. Army publication, Hazard Classification of United States Military Explosives and Munitions, that the notations PL23 and PL93 involve Department of Defense Ammunition Code (DODAC) nomenclature according to which the PL23 classification is said to be indicative of "GM [guided missile], W/LNCHR [with launcher] SURF [surface] ATTACK M222 (DRAGON)" and PL93 is said to indicate "GM[guided missile] INTER- AERIAL FIM 92A (STINGER BASIC)." For the shipment described in GBL C-6,603,998, Tri-State has provided a DOD line item release/receipt document (DD Form 1348-1) which expressly references this GBL but describes the item shipped as "GUIDED MISSILE ROUND (STINGER)." For the shipment described in GBL D-0,083,845, a DOD material inspection and receiving report (DD Form 250) references this same GBL but describes the item shipped as "GM [guided missile] SUB SYSTEM INTERCEPT AERIAL." For the shipment described in GBL E-1,049,368, Tri-State has produced a work order which was filled out based on information initially provided by the shipper when ordering pickup of the item. The order indicates that the shipper identified the commodity to be shipped as a Red Eye Missile. Tri-State's auditor has subsequently determined that according to DODAC nomenclature, the "Red Eye" is considered a guided missile to which two DODAC numbers have been assigned, namely 1425-PJ01 and 1425-PJ05. Notwithstanding the evidence provided by Tri-State, OTA continues to maintain that, with the exception of the shipment covered by GBL C-9,155,703, none of the shipments in dispute here involved guided missiles. MTMC, however, is apparently prepared to admit that the shipments did involve guided missiles. It argues that claimant was on notice that the commodities being shipped were guided missiles. MTMC contends that this was apparent from the descriptions on the GBLs and their continuation sheets, the DD Form 250s, and Tri-State's own work sheets. Tri-State takes issue with MTMC's statement and points out that the DD 250s were not available at the time of shipment and that its own worksheets were prepared after shipment and initial payment and were based upon what was uncovered during the postpayment audit investigation. We accept these explanations. MTMC's contention, however, that the actual contents of the shipments were obvious from the descriptions in the GBLs themselves requires closer scrutiny. On none of the six GBLs can we find a reference to the correct DODUC code for guided missiles, namely, 064300 Sub 04. Furthermore, on three of the six GBLs (namely C-6,603,998; E-1,049,368; and D-0,083,845), we can find no evidence on the face of the GBL of any conflicting terms regarding the description of what was said to be shipped. Indeed, Tri-State itself, in demonstrating that the items actually consisted of guided missiles rather than rocket ammunition, has relied upon documentation extraneous to the GBLs. For the remaining three GBLs, however, there is on the face of these documents passing reference to PL23 and PL93. Arguably, for one well versed in DODAC nomenclature and identifiers these references represent a conflict in the descriptions of the shipped items. It is well established that, although a shipper may prepare a bill of lading, the carrier is ultimately responsible for issuing the bill and should not execute the bill if it is obvious that the it contains conflicting terms. In the event that the carrier executes the bill notwithstanding the obvious conflict, it cannot later benefit from corrections or clarifications. In the past we have discussed the law on this point and noted that it is unquestionably applicable in situations where the carrier, upon reviewing the bill of lading, should have realized that there was a problem with it. Tri-State Motor Transit Co., GSBCA 13763-RATE, 97-2 BCA 29,098; C.I. Whitten Transfer Co., GSBCA 13893-RATE, 97-1 BCA 29,060. Nothing in the record before us convinces us that the conflict in terms created by passing reference to PL23 or PL93 in three of the GBLs at issue here was enough to put Tri-State on notice at the time of shipment that the item to be shipped was not AMMUNITION WITH EXPLOSIVE PROJECTILES CLASS A EXPLOSIVES, i.e., DODUC code 064200 Sub 01. We, therefore conclude that this less than obvious conflict in descriptive terms does not preclude Tri-State from demanding corrected payment for the three shipments. We likewise conclude that, based upon this same record, Tri-State has met its burden of demonstrating that these three and the remaining three shipments in question here did in fact involve guided missiles. In preparing the original bills for the six shipments in dispute here, Tri-State used rates applicable to the transportation of DODUC code 064200 Sub 01 items (i.e., ammunition, explosives, fireworks or chemical munitions, NOBIN, Class A. ). After concluding that the shipments involved guided missiles, Tri-State submitted supplemental invoices. The charges set out in these supplemental freight bills are based on TSMT Tariff 4006F and on item 812-3 of TSMT Tariff 100A, which governs truckload rates published in TSMT Tariff 4006F. In reviewing Tri-State's supplemental invoices, OTA has issued settlement certificates providing for partial payment of Tri-State s supplemental invoices based, however, on the application of container rates found in TSMT Tariff 4000B rather than on the truck rates found in TSMT Tariff 4006F. Tri-State strongly objects to OTA's use of TSMT Tariff 4000B and the container rates included therein. Tri-State s objection is based upon the fact that, at the time of shipment, this tariff did not offer satellite motor surveillance service. Since the shipments in question all involve this service, Tri-State contends that these rates are inapplicable to the shipments in question. OTA recognizes that Tariff 4000B does not provide satellite motor surveillance but observes that the GBLs called for container service and that container rather than truck rates, therefore, should be used. For this reason it has issued settlement certificates based on the container rates in TSMT 4000B. As for charges for satellite motor surveillance, OTA provides in its settlement certificates for payment at the rate of ninety-five cents per mile which, it explains, is the amount applicable to truckload rates published in TSMT Tariff 4006F. This, according to OTA, provides Tri-State, on a quantum meruit basis, with a reasonable value for the satellite motor surveillance services rendered and likewise permits the Government to continue to pay the container rate for the dromedary services requested in the various GBLs. In further support for this approach, OTA notes that the satellite motor surveillance charge it has authorized in the settlement certificates was in fact added to TSMT 4000B on November 4, 1991. We find OTA's utilization of container rates in the TSMT Tariff 4000B and the satellite motor surveillance charge applicable to TSMT Tariff 4006F unjustified. This "a la carte" approach flies in the face of traditional contracting for transportation services. As noted earlier, the shipments in question were all made prior to November 4, 1991. TSMT 4000B did not, therefore, at that time represent a standing offer to provide the combination of services which in fact was sought on the six GBLs in issue here. TSMT 4006F did offer the services -- albeit at rates which, in retrospect, are considerably less desirable to the Government than those found in TSMT 4000B. OTA's attempt to compromise Tri-State's claim by rewriting the transportation contract or imposing a contract implied in law is unacceptable. Tri-State should be paid for its services in accordance with the tariff applicable at the time. _____________________ EDWIN B. NEILL Board Judge