Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ March 16, 1998 __________________ GSBCA 13974-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 September 14, 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 twelve 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. By letter dated November 24, 1995, GAO acknowledged Tri-State's request for review and advised that, for future correspondence, the case number assigned to these claims would be B-270377. Nevertheless, GAO explained that it would defer further review of the case until an actual request for reconsideration of its decision of August 18, 1994 was filed. 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-270377 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 in another case already before the Board, GSBCA 13763-RATE, and requested that the Board consider the claims presented in B-270377 as well. In response to this request, the Board sought and received from GAO the case file on B-270377. The case was docketed as GSBCA 13974-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 presented the following supplemental payment claims: GBL CLAIM C-9,459,826 $2440.70 E-2,037,369 2181.15 C-8,760,347 586.88 E-0,869,920 2120.93 E-2,334,486 335.75 E-3,057,932 580.48 E-3,910,621 149.20 E-3,911,449 669.84 E-2,349,975 164.10 E-2,801,298 143.30 E-1,035,820 90.00 E-2,276,050 1045.16 _________ $10,507.49 After its review of the documentation provided in support of the above listed requests for supplemental payment, OTA issued settlement certificates denying each of 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 our decision of 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