______________________ March 27, 1997 ______________________ GSBCA 13948-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. On February 5, 1993, the Naval Weapons Station in Yorktown, Virginia issued government bill of lading (GBL) G-1,034,693 to Tri- State Motor Transit Co. (Tri-State). In GBL Block 24, under the heading "Seal Numbers," is the notation "US DISC. 0790149,150." The GBL requested two types of protective services for this shipment, dual driver protective service and motor surveillance service. Tri-State carried the shipment and sent a voucher for $415 to the Department of Defense (DoD). In January 1996, Tri-State sent a supplemental voucher to DoD. According to Tri-State, DoD owed an additional amount because DoD requested exclusive use of the vehicle that Tri-State used to carry the shipment. In support of its supplemental voucher, Tri-State said: Shipper applied a security device (other than an ordinary seal) which required the use of mechanical means to break and which requires exclusive use as provided in Item 470- 1(4), Trism, Inc., Agent, Tariff 4001, which provides: The use of any method of sealing a dromedary box or 410 container, ie: 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 (sic) of any notation on the bill of lading and the charges named in paragraph 1 will apply. As evidence that such a security device was applied to carrier's equipment: . . . "U.S. D.I.S.C." appearing before the seal number in Block 24 of the GBL is the prefix for a Cable Lock Seal used by the Dept. of Defense. A Tri-State employee states in an affidavit that he does not recall ever observing the prefix "U.S.D.I.S.C." on an ordinary seal or lock. Instead, he says, this prefix is used for cable locks. He also states that he has never known DoD to request a protective security service without also using a security device other than an ordinary seal on the container, and that such security devices can be compromised only with a heavy-duty bolt cutter. DoD's Military Traffic Management Command (MTMC) issues Freight Traffic Rules Publication No. 1A (MFTRP 1A), which governs freight services provided by motor freight carriers doing business with DoD. MFTRP 1A is used "solely in conjunction with the DOD Standard Tender of Freight Services, MT Form 364-R." MFTRP 1A, Item 10. The Defense Traffic Management Regulation (DTMR) explains that the application of a seal by a shipper does not constitute a request for exclusive use. DTMR, DLAR 4500.3, Item 34-10. When exclusive use is requested, the DTMR lists the types of locks that can be used to seal the shipment: [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 9505-00-244-7550), may be substituted. DTMR, DLAR 4500.3, Item 34-11. DoD referred Tri-State's claim to the General Services Administration (GSA). GSA allowed part of the claim and denied the part of the claim that concerns exclusive use. Tri-State asked us to review GSA's partial disallowance of the claim. Discussion Tri-State says that the application of a cable seal to the shipment constitutes a request for exclusive use according to Trism Tariff 4001, Item 470-1(4), quoted above. Tri-State says that a cable lock is commonly used by DoD agencies as a security device, and that the prefix "U.S.D.I.S.C.," which is found on the face of the GBL in this case, identifies a cable lock. Tri-State also notes that DoD requested two types of protective security services for this shipment, and that DoD always applies a security device that can be broken only by mechanical means when it requests a protective security service. GSA's position is that Tri-State has not supported its claim that it is owed an additional amount for the exclusive use of a vehicle. GSA states that there is no evidence that this shipment was secured with the type of seal identified in Trism Tariff 4001, Item 470-1(4), which mentions a bolt seal, padlock, cable lock, ball type lock, wire twists, or other seal that must be broken by mechanical means. GSA notes that Tri-State did not provide the national stock number of the locks that it says were used on this shipment, so GSA is not able to confirm that the type of seal used is consistent with a seal that is used when an agency requests exclusive use, as explained in the DTMR. MTMC's position is that the Naval Weapons Station did not request exclusive use in accordance with MFTRP 1A. MTMC also asserts that laches should bar Tri-State's claim because Tri- State's delay in presenting its claim "inevitably prejudices" MTMC. MTMC states, "Sometimes, records have been destroyed and are not recoverable. Sometimes, individuals have moved, retire, or become unavailable for other reasons." We reject GSA's position because Tri-State came forward with an affidavit to establish that the shipment was secured with the type of seal identified in the Trism tariff, and neither GSA nor MTMC came forward with anything to counter Tri-State's affidavit. If a lock with the prefix "U.S.D.I.S.C." is not a cable lock that must be broken by mechanical means, we would have expected MTMC to come forward and contradict Tri-State's affidavit. We reject MTMC's position because MFTRP 1A applies to tenders, and not to tariffs. Also, MTMC has not established that it was prejudiced in this case, which is an essential element of laches. Cornetta v. United States, 851 F.2d 1372 (Fed. Cir. 1988) (en banc). Tri-State has adequately supported its position. The shipper applied a cable lock that could be broken only by mechanical means. According to the terms of Trism Tariff 4001, Item 470-1(4), this constitutes a request for exclusive use and Tri-State is entitled to be paid for providing exclusive use of a vehicle. ______________________________ MARTHA H. DeGRAFF Board Judge