1 Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________ June 26, 1998 _____________ GSBCA 13917-RATE In the Matter of C.I. WHITTEN TRANSFER CO. Robert D. Norcom, Auditor, C.I. Whitten Transfer 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. VERGILIO, Board Judge. The claimant seeks additional payment for a shipment of what is identified as "ammunition, incendiary." Entitlement to the additional payment is premised upon the shipment containing "chemical ammunition with incendiary charges or white phosphorus." The claimant has met its burden of proof. The Government has provided no example of, and the record does not indicate that there exists, "ammunition, incendiary" which is not "chemical ammunition with incendiary charges." The claimant has demonstrated entitlement to additional payment. The claimant, C.I. Whitten Transfer Co., seeks additional payment for a shipment under Government bill of lading (GBL) D-2,082,895. The Government requested and obtained shipment via dromedary service for 474 pounds of hazardous material, described on the Government Freight Waybill (here akin to a Government Bill of Lading (GBL)) as "AMMUNITION, INCENDIARY/1.4G/UN03000/PGII/ EXPLOSIVE 1.4G LABEL APPLIED." Shipment occurred on June 10, 1993. Whitten invoiced the Government on July 13, 1993, for $1,529.52. The invoice described the shipment as "explosive-class C." The amount invoiced was calculated on a minimum weight of 2500 pounds at $36.44 per hundred weight, plus additional charges based on mileage for particular services. The Government paid Whitten $1,529.52 in late July 1993. Whitten submitted a claim in mid-July 1996 seeking an additional $767 for line-haul services. Whitten specified the basis of its claim: "To apply a minimum weight of 5,000 for dromedary . . . shipment containing 'chemical ammunition with incendiary charges or white phosphorus, either with or without bursting charges' per decision of the Comp. Gen. In the Matter of Tri-State Motor Transit Co.--Reconsideration, File B-253293.2, et al., Nov. 16, 1995[.]" The Military Traffic Management Command (MTMC) Freight Traffic Rules Publication (MFTRP) No. 1A, item 325, note 3, applicable to this transportation, stated: When shipper provides additional descriptive information, following the hazardous material description entry on the GBL, which identifies chemical ammunition with incendiary charges or white phosphorus, either with or without bursting charges, then such commodities shall be subject to the highest line-haul minimum weight established for that service or actual weight, if greater, at the line-haul tender rate applicable thereto. The Office of Transportation Audits (OTA) originally disallowed the claim for additional charges, because it viewed the claim to have been filed untimely. OTA now recognizes that the claim was submitted timely. It contends that the claim must be denied under alternative theories of laches, estoppel, and equity. The record supports none of the theories. MTMC agrees with the claimant's interpretation of item 325 of MFTRP No. 1A, but asserts that the claimant has failed to show that the commodity shipped was chemical ammunition or that it included incendiary charges or white phosphorus. The hazardous materials regulations shed light on terms and descriptions used for the item shipped. Those regulations describe the phrase "ammunition, incendiary": Ammunition containing an incendiary substance which may be a solid, liquid or gel including white phosphorus. Except when the composition is an explosive per se, it also contains one or more of the following: a propelling charge with primer and igniter charge, or a fuze with burster or expelling charge. The term includes: Ammunition, incendiary, liquid or gel, with burster, expelling charge or propelling charge; Ammunition, incendiary, with or without burster, expelling charge or propelling charge; and Ammunition, incendiary, white phosphorus, with burster, expelling charge or propelling charge. 49 CFR 173.59 (1993). From the description in the waybill, the 1.4G annotation connotes a "[p]yrotechnic substance or article containing a pyrotechnic substance, or article containing both an explosive substance and an illuminating, incendiary, tear- producing or smoke-producing substance (other than a water- activated article or one containing white phosphorous, phosphide or flammable liquid or gel or hypergolic liquid)." 49 CFR 173.52. The description of the material transported indicates that it contained a pyrotechnic substance and an incendiary. This suggests that chemical ammunition with incendiary charges was transported. The Government has provided no example of "ammunition, incendiary" which is not "chemical ammunition with incendiary." Without a contravening example, the description in the waybill and the definitions found in the hazardous material regulations support the position of the claimant. The claimant is entitled to additional payment in the amount requested, which is not disputed. ____________________________ JOSEPH A. VERGILIO Board Judge