Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ March 16, 1998 __________________ GSBCA 13972-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. By letter dated August 30, 1995, Tri-State Motor Transit Company (Tri-State) appealed to the General Accounting Office (GAO) a series of decisions of the Office of Transportation Audits (OTA) of the General Services Administration (GSA). The decisions concerned supplemental invoices regarding 120 different transactions covered by an equal number of Government bills of lading (GBLs). In presenting its appeal to GAO, Tri-State noted that the issue involved in each of the supplemental invoices was the same as that addressed in an earlier decision of the GAO, namely, Tri-State Motor Transit Co., B-255630, et al. (Aug. 18, 1994). The carrier indicated that it continued to disagree with this decision and planned either to request GAO to reconsider the decision or else to challenge it in a judicial forum. GAO acknowledged Tri-State's request for review and advised that, for future correspondence, the case number assigned to these claims would be B-266021. Nevertheless, GAO explained that these claims and any others related to its decision of August 18, 1994, for B- 255630, et al. would be addressed only if and when a request for reconsideration were to be received. The following year, the responsibility for reviewing decisions of the OTA was transferred by statute from the Comptroller General to the Administrator of General Services. Pub. L. No. 104-316, 202(o)(2), 110 Stat. 3826, 3844 (1996). By delegation, this Board now exercises this review function on behalf of the Administrator in transportation rate cases. In October 1996, Tri-State advised the Clerk of the Board that no decision had ever been issued in GAO case number B-266021 and that no notice had been provided that the case had been transferred with others to the Board. Tri-State pointed out that the issue presented in that case was the same as that already before the Board in GSBCA 13763-RATE and requested that the Board consider the claims presented in B-266021. In response to this request, the Board sought and received from GAO the case file on B-266021. The case was docketed as GSBCA 13972-RATE and copies of the GAO file were provided to OTA and the Military Traffic Management Command (MTMC) for comment. From the comments submitted by the parties to this proceeding, it is clear that the basic issue presented in this case is, in fact, the same as that presented in GSBCA 13763-RATE. That issue is whether a change made on October 19, 1992, in MTMC's Freight Traffic Rules Publication 1A (MFTRP 1A) can be applied retroactively. This particular change provided that a FAK (Freight All Kinds) rate was not to be applied to any commodities to which a Department of Defense unique commodity (DODUC) code had been assigned by MTMC headquarters. Tri-State's position on this issue, as argued in GSBCA 13763-RATE, was that the change in MFTRP 1A could be applied retroactively because it represented nothing more than the recognition of a policy already well supported by provisions contained in tender instructions published several years before by MTMC. MTMC and OTA disagreed with this position and, in doing so, relied heavily upon a GAO decision stating that the change could not be retroactively applied. Tri-State Motor Transit Co., B-255630, et al. (Aug. 18, 1994). Tri-State has divided the supplemental payment claims which are the subject of this case into two groups. In the first group are sixty-three shipments originally billed on the basis of a FAK rate in a Tri-State tender. Tri-State contends that these shipments involved missiles or rockets to which the DODUC code 014255 applied. Accordingly, it seeks to charge the specific rate applicable to this item rather than a FAK tender rate. The shipments in question and the adjustments sought are as follows: GBL CLAIM (DODUC 014255) C-6,603,457 $ 531.95 C-6,603,458 1576.89 C-2,073,897 2368.82 C-8,451,179 278.35 D-1,208,859 1116.48 C-6,408,975 373.70 C-8,451,646 472.32 C-6,603,564 361.99 C-8,773,399 403.00 D-0,747,117 1572.16 C-9,782,267 864.66 C-6,603,235 1575.79 C-9,560,691 2244.99 C-8,760,463 511.59 C-8,760,443 468.66 D-0,601,059 335.66 C-6,603,234 2596.07 C-7,266,831 893.73 C-2,070,414 45.34 D-1,165,228 835.50 C-2,065,108 496.40 D-1,429,594 480.53 D-1,698,080 266.50 C-9,543,737 2588.28 E-0,765,476 479.72 D-0,667,862 1089.08 C-6,567,489 541.59 C-8,451,007 525.99 D-0,604,781 1300.75 C-9,471,895 1500.99 E-2,006,760 460.50 E-0,764,074 847.30 E-0,765,316 1302.45 C-8,422,529 642.73 D-1,259,330 1503.68 C-8,760,406 905.61 C-9,533,091 1463.55 E-0,765,355 519.72 C-8,760,409 669.56 C-6,603,965 748.13 D-1,379,049 283.94 D-0,667,303 335.18 C-9,260,795 2239.28 C-8,130,018 532.00 C-9,460,004 2613.28 E-0,720,357 1162.73 C-8,113,102 436.78 D-0,939,362 629.08 C-6,603,676 878.62 E-0,764,983 2299.00 C-8,037,961 957.60 D-1,416,317 561.27 C-9,508,733 347.62 C-8,830,367 376.74 C-9,782,416 869.40 C-9,460,001 2175.39 E-2,038,317 1168.47 C-7,267,300 1073.85 D-0,738,788 790.70 C-6,603,574 2803.67 C-1,235,103 2270.79 C-2,085,217 879.88 C-2,085,334 362.33 __________ $63,808.31 In the second group of claims are fifty-seven shipments which were also originally billed on the basis of a FAK rate in a Tri-State tender. Tri-State contends that these shipments involved aircraft engines to which the DODUC code 120820 applied. Accordingly, it seeks to charge the specific rate applicable to this item rather than a FAK tender rate. The shipments in question and the adjustments sought are as follows: GBL CLAIM (DODUC 120820) G-1,004,570 $ 467.50 D-0,742,184 218.90 D-0,643,952 358.68 C-9,461,097 408.33 C-5,786,050 124.50 C-9,482,577 344.90 E-2,038,253 36.00 C-7,652,714 225.00 C-5,751,772 740.34 C-7,654,164 72.15 C-8,054,082 1147.09 C-7,654,365 260.38 C-7,654,447 459.01 C-7,654,478 260.38 C-9,260,456 100.00 C-7,861,929 100.00 C-5,751,792 610.20 D-1,761,350 50.00 C-9,465,464 142.20 E-2,006,050 711.04 D-1,414,840 847.85 C-7,651,529 613.45 C-9,476,376 814.32 C-9,476,300 1116.20 C-8,100,410 952.00 D-2,412,232 441.32 C-9,476,565 1133.14 E-2,792,016 1052.14 C-9,476,560 1133.14 C-9,476,564 1133.14 E-2,046,279 720.56 C-8,100,402 90.23 C-8,100,401 490.23 D-1,426,133 479.24 E-0,766,880 877.00 C-7,657,512 1004.13 C-9,483,927 784.70 C-7,657,471 194.51 C-8,100,262 486.78 C-7,655,773 1163.29 E-2,038,370 25.98 D-1,210,739 52.92 C-5,594,178 900.38 C-5,594,169 2619.60 D-1,414,417 23.80 C-5,594,104 1917.28 C-5,594,114 1104.12 C-5,594,124 863.20 C-5,594,168 1196.72 C-7,658,386 206.01 C-5,594,080 2719.08 C-5,594,129 832.72 C-5,594,151 1196.72 D-1,277,229 864.61 D-1,210,733 52.92 C-5,593,870 1480.53 C-8,030,879 1843.00 ____________ $40,263.56 After its review of the documentation provided in support of the above listed requests for supplemental payment, OTA issued settlement certificates denying the individual claims. Although OTA's auditors presumably reviewed the supporting documentation in its entirety, each certificate, with but two exceptions, lists basically the same reason for disallowing the claim in question. Nearly all the certificates read as follows: Your claim for [amount of claim] . . . as an allowance for transportation furnished the United States Government under document reference number [GBL number], has been examined and disallowed for the following reason(s): Shipment is to be rated as FAK per GAO Decisions B-255630, B-256081 and B-256873. Change in MFTRP 1-A cannot apply retroactively to shipments moving prior to October 19, 1992. Eleven certificates[foot #] 1 likewise deny payment based on the same prohibition of retroactive application of the change in MFTRP 1-A, but cite GAO's decision in B-256872 (Dec. 29, 1994) rather than the GAO consolidated decision B-255630, et al. (Aug. 18, 1994) in support of that proposition. Only two certificates of settlement deny the claim on grounds other than GAO's decisions prohibiting retroactive application of rates. OTA disallowed the claim of $1,163.29 concerning GBL C-7,655,773 on the ground that the GBL stated that the shipment conformed to the conditions and limitations specified for excepted radioactive material instruments and articles and the original charge was, therefore, correct. The claim for $361.99 concerning GBL C-6,603,564 was disallowed on the ground that the record for this shipment did not indicate that DODUC code 014255 applied to the commodity shipped. In this case, OTA has been afforded the opportunity to state any and all reasons it might have in support of its original decision to disallow the above listed claims. Its initial position regarding the claims, however, remains unchanged. In comments submitted, OTA continues to offer no reason in support of its decision to disallow the claims other than that given in each of the original settlement certificates. Discussion Since this case was docketed and briefed, the Board has decided GSBCA 13763-RATE, which, as claimant contended, involved the same issue presented here. In that decision we discussed the GAO decision which OTA continues to rely on in this case as the sole reason for disallowing all but two of the claims listed above. We noted that the GAO decision was a brief one and did not address the specific provisions of MTMC s tender instructions which, in fact, led the Board to a conclusion different from that previously reached by GAO. We also noted that we were not bound by the GAO decision and in this case chose not to follow it. Tri-State Motor Transit Co., GSBCA 13763-RATE, 97-2 BCA 29,098. It should come as no surprise, therefore, that we reject OTA's continual reliance on the precedent established in B- 255630, et al. as the sole reason for disallowing the claims in this case. This includes the eleven claims disallowed by OTA based on the GAO decision in B-256872 rather than on the earlier consolidated decision in B-255630, et al. The former decision involves nothing more than the application of the precedent already established in the consolidated decision issued four months earlier. To the extent that we have rejected the conclusion reached by GAO in B-255630, et al., we likewise reject any conclusion reached by GAO in B-256872, which relies on the decision rendered in B-255630, et al. In the absence of any other stated objection to these claims, therefore, we direct OTA to reissue settlement certificates allowing all of them with the exception of the claim ----------- FOOTNOTE BEGINS --------- [foot #] 1 Namely: claims under GBL numbers C-5,594,114; C-5,594,124; C-5,594,168; C-5,594,080; C-5,594,129; C-5,594,155; C-1,235,103; C-2,055,217; C-2,085,334; C-8,030,879; and C-5,593,870. The claims relating to the last two GBLs were not denied with a formal certificate of settlement but rather by individual letters to Tri-State dated April 4, 1995. The letters, however, disallow the claims for the same reason as given in the formal certificates. ----------- FOOTNOTE ENDS ----------- of $1,163.29 concerning GBL C-7,655,773 and the claim of $361.99 concerning GBL C-6,603,564. Tri-State has neither rebutted OTA's initial reason for disallowing these two claims nor demonstrated to us how our decision in GSBCA 13763-RATE would support our allowing them. _____________________ EDWIN B. NEILL Board Judge