Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________ February 24, 1998 _______________________________ GSBCA 14160-RATE In the Matter of C. I. WHITTEN TRANSFER CO. John R. Bagileo of Bagileo, Silverberg & Goldman, L.L.P., Washington, DC; and Robert D. Norcom, Auditor, C. I. Whitten Transfer 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. DeGRAFF, Board Judge. When a carrier offers a tender rate to the Department of Defense, a non-Department of Defense agency cannot take advantage of that rate. Background On July 28, 1993, the Department of Defense (DoD) issued Government Bill of Lading (GBL) D-1,035,896 to C.I. Whitten Transfer Co. (Whitten). The GBL called for Whitten to pick up a shipment of ammunition from a DoD facility in Independence, Missouri and to deliver portions of it to three locations in California. Whitten's first delivery was at a DoD facility where 13,722 pounds of ammunition were unloaded; the GBL said that charges for this part of the shipment should be billed to the Defense Finance and Accounting Service. Whitten's second delivery was at a United States Coast Guard (USCG) facility where 1,405 pounds of ammunition were unloaded; the GBL said that charges for this part of the shipment should be billed to the Navy Material Transportation Office. Whitten's final delivery was at a DoD facility where 18,090 pounds of ammunition were unloaded; the GBL for this part of the shipment did not clearly state where Whitten should send the bill for its charges. Whitten transported the shipment and prepared an invoice for DoD based upon the rates set out in tender WITT 0421, which the GBL listed as the applicable Whitten tender. For some reason not made clear in our record, the USCG, an agency within the Department of Transportation, paid all of Whitten's charges for the entire shipment. Whitten later claimed that the USCG owed an additional amount because the rates set out in tender WITT 0421 are available only to DoD and are not available to the Department of Transportation. Whitten says that the USCG should have paid for the delivery made at the USCG facility according to higher rates established in one of Whitten's tariffs. Whitten submitted tender WITT 0421 on MT Form 364-R, Department of Defense Standard Tender of Freight Services. The Military Traffic Management Command's (MTMC's) instructions concerning the use and application of MT Form 364-R provided that the standard tender was "designed to offer rates for transportation services to DOD." Consistent with these instructions, MT Form 364-R contains the following language, which is part of Whitten tender WITT 0421: I am authorized to and offer on a continuing basis to the U.S. Department of Defense (meaning any Service or Agency which is part of the Department of Defense) . . . the transportation services described in this tender . . . . In addition, Whitten tender WITT 0421 states that the tender was offered pursuant to MTMC's Freight Traffic Rules Publication No. 1A (MFTRP 1A), which applies to "DOD shipments." The Office of Transportation Audits (OTA) denied the claim and Whitten asked us to review OTA's decision. Both OTA and MTMC submitted comments to us in support of OTA's decision. Discussion OTA and MTMC take the position that tender WITT 0421 is available for use by non-DoD agencies. We disagree. The language of the tender makes it clear that Whitten offered to give only DoD the direct pecuniary benefit of the tender rate, and the language cannot be interpreted to give a non-DoD agency such as the USCG the benefit of that rate. To permit a non-DoD agency to take advantage of a rate that Whitten offered only to DoD would not give effect to the intent of Whitten when it offered the rate contained in tender WITT 0421. We have previously considered and rejected all of OTA's and MTMC's arguments to the contrary. Tri-State Motor Transit Co., GSBCA 14169-RATE, 97-2 BCA 29,294; C.I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860. Whitten made its second delivery to a USCG facility and the USCG paid for this part of the shipment, which is evidence that the USCG received the direct pecuniary benefit of the WITT 0421 tender rate for this part of the shipment. Neither GSA nor MTMC has suggested that, for this part of the shipment, any pecuniary benefit accrued to DoD as a result of using the rate contained in tender WITT 0421. Thus, Whitten has established that for the part of the shipment that it delivered to the USCG facility, a non-DoD agency derived the pecuniary benefit of using the rate contained in tender WITT 0421. Because the USCG was not entitled to take advantage of the tender rate that Whitten offered only to DoD, the appropriate tariff rate should be used to compute the amount that Whitten is paid for the part of the shipment that it delivered to the USCG facility. Decision Whitten should be paid at the appropriate tariff rate for the part of the shipment that it delivered to the USCG facility and for which the USCG paid. We leave it to Whitten, MTMC, OTA, and the USCG to sort out the appropriate amounts due. ______________________________ MARTHA H. DeGRAFF Board Judge