Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________________ April 9, 1998 ______________________________ GSBCA 14113-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. WILLIAMS, Board Judge. On February 12, 1997, claimant, Tri-State Motor Transit Co. (Tri-State), filed the instant claim seeking $4,492.89, or alternatively $500, relating to transportation services provided. On January 16, 1998, claimant withdrew its primary claim for $4,492.89, but continues to maintain its alternative claim based upon its provision of tarpaulins for security purposes. The agencies seek dismissal of the remaining claim on grounds of laches and estoppel. We deny the requests for dismissal. Background On February 21, 1991, pursuant to Government bill of lading D-0,601,837, Tri-State shipped Class A explosive materials from Lone Star Army Ammunition Plant, Texarkana, Texas, to Medina Training Annex, Medina, Texas. This shipment required constant surveillance service. The original invoice was dated March 6, 1991, and did not include an additional charge for tarpaulins. Tri-State was paid for the transportation services, as invoiced, on June 12, 1991. Claimant contends that explosive materials require tarpaulins for security purposes by Department of Defense (DOD) 2 regulation and that such tarpaulins were provided. Claimant seeks $500, representing $100 per truckload for the tarpaulins. Discussion According to the Department of the Army, Military Traffic Management Command (MTMC), Tri-State failed to provide sufficient proof that its claim was in fact submitted to the General Services Administration, Office of Transportation Audits (OTA). OTA itself, which is represented by counsel, did not raise this argument, so we conclude the claim was presented. MTMC also argues that the claim is barred by laches. We disagree. Congress established a three-year statutory limitation for the filing of claims with the General Services Administration or its designated agency, 31 U.S.C. 3726. The time begins to run from the latest of four specified events, one of which is payment of charges for the transportation involved. Here, according to MTMC, payment was made on June 12, 1991, and Tri- State's claim was dated March 14, 1994, "almost three years after payment." As we explained in C. I. Whitten Transfer Co., GSBCA 13810-RATE, 98-1 BCA 29,391 (1997), when a claim has been brought within the statute of limitations, we will not impose the doctrine of laches to bar the claim unless the agency articulates facts establishing that claimant's delay in submitting the claim was both culpable and prejudicial. Neither circumstance has been proven here. OTA asserts the claim is barred by principles of estoppel, arguing: Claimant was aware of the requirement for tarps on the shipment at the time it executed the contract (Government Bill of Lading) as it was clearly aware of visually at the time of shipment. . . . [C]laimant did not include the rates on the original quote or first billing as it subsequently is now asking for, because it would not be low bidder. For this reasoning, claimant should be estopped from now receiving an "undeserved windfall." The concept of estoppel is inapplicable here. It is well established that statute and regulations give carriers the right to file claims later for amounts not included in original billings. E.g., C. I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, at 143,991 (citing American Farm Lines, Inc., B-200939 (May 29, 1981)). As this Board has recognized, "[the precedent of Baggett Transportation Co. v. United States, 670 F.2d 1011 (Ct. Cl. 1982)] is but one example of cases in which a carrier determined later that its first billings were improper and was able later to claim that additional moneys were due on a shipment." 97-1 BCA at 143,991. 3 At present the record contains no information disputing the carrier's contention that it provided tarpaulins valued at $500 for the shipments at issue. However, MTMC only addressed the timeliness and ripeness of the claim in its initial filing and expressly requested that if the Board determined that Tri-State had properly and timely filed a claim it receive an additional thirty days to review the technical merits.[foot #] 1 This request is granted. The agencies' request that the claim be dismissed is denied. MTMC and OTA shall file any oppositions to this claim by May 11, 1998. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 Similarly, OTA only argued that Tri-State's claim was barred under principles of estoppel; it did not address the merits of the claim.