____________________________ December 17, 1997 ____________________________ GSBCA 13964-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. HYATT, Board Judge. On December 1, 1992, the Defense Contract Management Administrative Office (DCMAO) in Dayton, Ohio issued government bill of lading (GBL) G-0,396,602 to Tri-State Motor Transit Co., for the shipment of Class A explosives from Piqua, Ohio to the Naval Weapons Station in Yorktown, Virginia. The applicable tariff is identified in Block 20 of the GBL as "TSMT 4001." The GBL stated that this was a foreign military sales shipment and that dromedary service was requested, along with dual driver protective service. In Block 24 of the GBL, under the heading "seal numbers," is the annotation "0037, 0038." The GBL also set forth the following annotations, among others, in block 18 (Description of Articles): 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 THE EQUIVALENT SEAL(S). . . . APPLICATION OF SHIPPER SEAL(S) DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE. The shipment was received in Yorktown, Virginia on February 11, 1993. Tri-State submitted a voucher for payment on February 16, 1993. On December 29, 1995, Tri-State filed a supplemental voucher with the General Services Administration (GSA) for an additional payment of $655.41 for providing exclusive use of the dromedary. Tri-State also presented an alternate claim in the amount of $36.66 to correct the charge for provision of dual driver protective services. Tri-State received payment of $36.66 on October 18, 1996, but GSA denied the claim of $655.41 for "exclusive use" charges. Tri-State has asked the Board to review GSA's denial of this portion of its claim. Discussion On the date that the GBL was issued, Tri-State's Tariff ICC TSMT 4001, Item 470-1, paragraph 4, provided 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. . . . A sample of a such a lock has been provided by Tri-State, but there is no evidence in the record to show that the type of lock submitted by Tri-State to the Board was in fact used to seal this particular shipment. To support its contention that one of the types of seals described in its tariff was applied by the shipper to the shipment at issue in this case, Tri-State relies upon its submission to the Board in GSBCA 13737-RATE. This submission addressed the provisions of the Defense Traffic Management Regulation (DTMR) and is discussed at length in the decision issued in that case. Tri-State Motor Transit Co., GSBCA 13737- RATE, 97-1 BCA 28,945; accord Tri-State Motor Transit Co., GSBCA 13747-RATE (Oct. 30, 1997). As the Board pointed out in Tri-State, GSBCA 13737-RATE, Tables 34-2 and 34-3 of the DTMR prescribe minimum standards applicable to shipments of confidential and sensitive material, including ammunition and explosives. At a minimum, such shipments require DOD constant surveillance service. These shipments do not necessarily require exclusive use of the dromedary or vehicle, however. Regardless of whether exclusive use is required, the DTMR further states that confidential or sensitive materials will be sealed by the shipper in accordance with DTMR paragraph 34-10. 97-1 BCA at 114,216. Paragraph 34-10 of the DTMR makes clear that seal application by the shipper does not necessarily constitute a request for exclusive use, and refers to paragraph 34-11 when exclusive use is required. Paragraph 34-11 provides 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 5340-00-0084-1570), or other type of specialized seal that provides equal or better security or carload or truckload shipments, must be applied. A serially numbered, ball-type seal with a peened bolt and nut (NSN 5340-00-081-3881), 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, "[w]hen applicable, [annotate the GBL]: 'Flame or heat-producing tools will not be used to remove security devices.' (See paragraph 34- 11)." As the Board recognized in Tri-State, GSBCA 13737-RATE, the DTMR spells out the specific language of the annotations that are required on GBLs when shippers apply seals to sensitive and confidential materials. In addition, the DTMR explains that for shipments requiring exclusive use, the GBL must be annotated with the words: "Exclusive use of vehicle requested by Government," or language to this effect. Further, when exclusive use is requested, the DTMR requires that the GBL contain an endorsement to be signed by the carrier at the freight's destination certifying that exclusive use was provided. 97-2 BCA at 144,216- 17. Tri-State contends that under the DTMR the annotation "Flame or heat producing tools will not be used to remove security devices" will be used only when the Department of Defense (DOD) requests exclusive use. Therefore, according to Tri-State, since this annotation was used on the GBL, it must be presumed that one of the seals mentioned in DTMR paragraph 34-11 was used and that such usage constituted a request for exclusive use because the usage of such a seal constitutes a request for exclusive use under the terms of Tri-State's tariff. GSA and the Military Traffic Management Command (MTMC) contend that to be entitled to additional payment for providing exclusive use of the vehicle, Tri-State must demonstrate that in fact a lock of the type described in its tariff was applied by the shipper. The mere use of the aforementioned annotation is not sufficient to establish a prima facie case that a lock like those delineated in the tariff was used by the shipper. The Board asked Tri-State if it could provide any documentation to show that the type of lock listed in its tariff was used, and explained that the sample lock, absent a means of linking it to the shipment in question, was not enough to establish that exclusive use was provided. Tri-State has not responded to this inquiry either to produce the evidence requested or to explain the seal numbers referenced in block 24. In essence, Tri-State has done no more than argue that it follows from the DTMR that a lock of the type described in its tariff should have been applied by the shipper. As we held in GSBCA 13737-RATE, however, this is not enough to prove that such a lock was in fact applied to this shipment. In the absence of specific evidence showing the seal applied by the shipper, we cannot conclude that DOD requested exclusive use under the terms of Tri-State's tariff. We consequently find that GSA properly denied this claim. _______________________________ CATHERINE B. HYATT Board Judge