Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ March 16, 1998 __________________ GSBCA 13973-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 October 19, 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 thirty-seven 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. In acknowledging Tri-State's appeal, GAO noted for the record that the appeal had in fact been filed as of October 24, 1995, but that it would not be processed further at that time. Tri-State was advised that the case had been assigned case file number B- 270298. The following year, 1996, 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-270298 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-270298. In response to this request, the Board sought and received from GAO the case file on B-270298. The case was docketed as GSBCA 13973-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 twenty 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-9,546,774 $1688.00 C-9,546,775 1688.00 C-7,565,113 299.30 E-3,933,535 2444.97 C-7,561,070 285.38 C-7,563,991 1585.75 C-7,563,269 $ 450.00 D-1,882,459 2448.21 D-1,434,482 341.50 D-1,882,455 255.60 D-1,882,806 509.12 C-7,561,072 616.37 C-7,581,671 1669.96 C-7,560,471 341.68 C-9,534,713 414.64 D-1,644,812 1185.12 E-0,786,838 150.23 D-1,698,370 266.50 C-9,719,428 539.27 D-1,882,859 509.12 ________ $17,688.72 In the second group of claims are seventeen 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 follow: GBL CLAIM (DODUC 120820) D-1,213,648 $ 177.58 C-5,717,278 1115.00 C-9,603,958 154.72 D-1,963,502 175.78 C-9,538,262 468.72 C-9,522,643 187.88 C-8,100,411 736.00 C-9,537,373 115.64 C-9,476,643 1133.44 C-9,502,030 574.72 C-9,481,300 67.58 D-1,963,766 177.58 C-9,538,195 503.72 D-1,961,583 494.16 D-1,213,627 200.00 C-9,476,644 1133.14 C-9,538,124 236.32 ________ $ 7651.98 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 lists but one reason for disallowing the claim in question. The certificates read: 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. In this case, OTA has been afforded the opportunity to state any and all reasons it might have to deny Tri-State's claims for supplemental payment. This is essentially the same opportunity which OTA had some time ago when it first audited these same 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. We concluded that the change made on October 19, 1992, in MFTRP 1A could be applied retroactively and that, even for shipments prior to that date, a FAK rate was not to be applied to any commodities to which a DODUC code had already been assigned by MTMC headquarters. We agreed with Tri- State that the change could be applied retroactively because it represented nothing more than the recognition of a policy already well supported by provisions contained in the tender instructions published several years before by MTMC. Tri-State Motor Transit Co., GSBCA 13763-RATE, 97-2 BCA 29,098. In deciding GSBCA 13763-RATE, we discussed briefly the GAO decision which OTA continues to rely on in this case as the sole reason for disallowing 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 noted that we were not bound by the GAO decision and in this case chose not to follow it. Id. at 144,826. It should come as no surprise, therefore, that we reject OTA's continued reliance on the precedent established in B- 255630, et al. as the sole reason for disallowing the claims in this case. In the absence of any other stated objection to the claims in question, therefore, we direct OTA to reissue settlement certificates allowing each of them. _____________________ EDWIN B. NEILL Board Judge