Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________ February 20, 1998 _________________ GSBCA 14055-RATE In the Matter of ADMIRAL-MERCHANTS MOTOR FREIGHT INC. James Mallinger, Traffic Manager, Admiral-Merchants Motor Freight Inc., Minneapolis, MN, 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. VERGILIO, Board Judge. Agency determinations of carrier overcharges for shipments became final because the carrier waited beyond the three-year period to submit most claims and beyond the period to pursue one claim after the agency sustained an overcharge following a protest by the carrier. The claimant, Admiral-Merchants, has filed this matter for Board review concerning twenty-nine shipments it transported for the Government during 1991 and 1992. For each of the shipments, subsequent to payment by the Government, the General Services Administration (GSA) issued a notice of overcharge demanding a refund of a specified dollar amount. 41 CFR 41.5 (1992) (the demands for refund constituted claims by the Government). The rationale of the claimed overcharges was that exclusive use was inappropriately billed and paid. These notices were provided to the carrier between April 1992 and February 1993. The record reveals that for one of the shipments the Director, Transportation Audit Division, GSA, issued a letter dated August 1, 1992, stating that a "protest request" from the carrier concerning the overcharge was denied; the basis for the denial was that the exclusive use charge was not applicable. The carrier submitted a letter, styled as a "protest," dated December 15, 1992, to the Military Traffic Management Command (MTMC), which had been involved with the shipments. In the letter, the carrier references no particular shipments, but objects to GSA's interpretation of the phrase "exclusive use." The carrier notes that it has suffered a loss in excess of $10,000 as a result of the interpretation. Such a submission, which fails to provide fair notice to the Government regarding the specific claims in question, does not constitute a protest under regulation. 41 CFR 101-41.503 (1993). No response to the letter is contained in the record, although the carrier states that regarding the deductions the "protest" was denied. By letter dated November 25, 1996, to the General Accounting Office (GAO) (which resolved rate claims prior to this Board), the carrier sought to be made whole for amounts deducted under the interpretation of exclusive use. The submission referenced a decision, Advanced Distribution System, Inc. v. United States, 34 Fed. Cl. 598 (1995), in support of payment. The GAO forwarded the matter to this Board. The carrier has provided no further specifics concerning this matter, such as when deductions were taken or what other actions it may have taken concerning the demands for refunds and deductions at issue. Board rules specify that the burden is on the claimant to establish the timeliness of its claim. Rule 301(b). Statute specifies that a claim for payment for transportation shall be allowed only if it is received by the Administrator of General Services not later than three years after the later of the following dates: (1) accrual of the claim; (2) payment for the transportation is made; (3) refund for an overpayment for the transportation is made; or (4) a deduction pursuant to statute. 31 U.S.C. 3726(a) (1994). Implementing regulations specify procedures for filing claims. 41 CFR 101-41.5, -41.6, -41.7. The record fails to reveal that the carrier complied with the three-year requirement for twenty-eight of the twenty-nine shipments. For those, the record does not demonstrate that a request for review was submitted or a claim for payment was submitted within three years after the agency took a deduction. 41 CFR 101-41.701. For the one disputed overcharge presented to and resolved by what is now GSA's Office of Transportation Audits (OTA), the carrier has not demonstrated that it timely requested review after the August 1992 denial. That claim is also time-barred. 31 U.S.C. 3726(g)(1) (1994); 41 CFR 101-41.701(b) (requests for review must be received within six months, excluding time of war, from the date the settlement action was taken or within the three-year period established in statute, whichever is later). The carrier has not shown that it abided by the time requirements for pursuing an action regarding the demands for refund and deductions. The Board may not reach the merits of this matter. By statute, there is no authority to allow the individual claims. ____________________________ JOSEPH A. VERGILIO Board Judge