_________________________ November 26, 1997 __________________________ GSBCA 14245-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. John R. Bagileo of Bagileo, Silverberg & Goldman, L.L.P., Washington, DC; and 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. Claimant, Tri-State Motor Transit Company (Tri-State), has asked that we review the denial of eight of its claims by the Office of Transportation Audits of the General Services Administration (GSA). The claims are for alleged excess released value charges on vehicles moved by claimant during 1991 pursuant to eight Government bills of lading (GBLs). We conclude that Tri-State is entitled to recover on seven of the eight claims. Claimant originally billed the Government for each of the eight shipments based on the stated "Freight All Kinds" or other National Motor Freight Classification designation listed on the GBLs. Tri-State sought no charge for excess valuation coverage in its original billing. Upon audit, claimant determined, based upon the released value annotations appearing on the GBLs, that it was entitled to excess valuation charges. With the exception of GBL D-1,032,191, each GBL does, in fact, contain either in box 15 or box 18 an annotation which, although in some cases worded slightly differently, nevertheless indicates that the released value for the cargo is not to exceed $2.50 per pound. The annotation for D-1,032,191 states that the released value does not exceed $1.75 per ton. 2 Based on the released value annotations appearing on the GBLs, Tri-State submitted claims in the following amounts. GBL Claim 1. D-1,101,868 $91.50 2. D-1,101,870 $61.35 3. D-1,046,279 $38.25 4. D-1,046,280 $38.25 5. D-1,179,926 $217.20 6. D-1,164,627 $182.10 7. D-1,101,519 $39.75 8. D-1,032,191 $40.35 TOTAL $708.75 Tri-State computed these claims using a methodology based on guidance provided in Military Traffic Management Command (MTMC) Freight Traffic Rules Publication No. 1A, Item 190. Taking GBL D-1,101,868 as a representative example, we note that claimant determined the release value of the wrecker truck which it transported, by taking $2.50 per pound (the released value annotation appearing in box 15 of the GBL) and multiplying it by the weight of the truck, 32,640 pounds. This resulted in a total released value of $81,600. Claimant then determined the excess declared value to be $61,600 ($81,600 less the default released value of $20,000). Claimant rounded this figure down to $61,000 and then applied the rate of $.15 for every hundred to arrive at an excess valuation charge of $91.50. Similar computations were performed for each of the other seven GBLs to arrive at the amounts claimed.[foot #] 1 GSA's Office of Transportation Audits issued settlement certificates which disallowed all eight of Tri-State's claims. The claims were rejected on the ground that the released value annotations on the GBLs did not entitle the carrier to anything more than what was originally sought based upon the item classification numbers shown on the GBLs. Claimant thereupon asked the General Accounting Office (GAO) to review GSA's denial. GAO docketed the request as B-266097. No decision was issued on the case. Tri-State did, however, receive a letter dated December 11, 1995, from GAO. The letter acknowledged receipt of Tri-State's claim and provided Tri-State with the case docket number. The letter went on to state: As you suggest, GSA's settlements appear to be contrary to our decision Tri-State Motor Transit Company-- Reconsideration, B-254378.2 et al., July 5, 1995. Your ----------- FOOTNOTE BEGINS --------- [foot #] 1 The calculation for the last GBL, D-1,032,191, is based on the assumption that the released value annotation of $1.75 per ton in block 15 is in error and should instead read $1.75 per pound. ----------- FOOTNOTE ENDS ----------- 3 letter to the . . . Administrator of General Services indicates that you are attempting to enforce our July 5, 1995, decision within GSA. If you are unsuccessful with the Administrator, you may have to pursue other remedies. We have clearly stated our position on this matter, and we have nothing further to add. We will maintain this letter as evidence of your request for review, and we will provide a copy of it with all enclosures to GSA and to the Military Traffic Management Command. Please advise if you believe there are future steps we can take. We read the final paragraph of this letter from GAO as indicating that the matter remained pending and was not resolved by GAO.[foot #] 2 Several months after GAO wrote this letter to Tri-State, the authority to review GSA's denial of carrier claims was transferred from GAO to this Board. C. I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, at 143,986. By letter dated July 7, 1997, Tri-State asked the Board to review GSA's denial of eight claims originally submitted to GAO and assigned docket number B-266097. We docketed the request and asked GAO to provide us the file for this case. We then invited the parties to file comments on these claims of Tri-State. Tri-State's position is that based on the earlier GAO decision of July 5, 1995, the GAO letter of December 10, 1995, and other decisions of the GAO and this Board regarding the same issue, there is nothing for this Board to do but affirm the continued applicability of those decisions and issue an order enforcing compliance with them. GSA's Office of Transportation Audits disagrees and contends that the decisions cited by claimant have limited application and are restricted by the facts relative to each case. The office, however, has deferred to MTMC to address the diversity of facts distinguishing these claims from those which have been the subject of the decisions cited by Tri-State. MTMC, although providing extensive comments, has provided us with no facts specific to the GBLs at issue in this case. The Government continues to maintain that the released value statements on GBLs do not entitle Tri-State to the additional ----------- FOOTNOTE BEGINS --------- [foot #] 2 This language does not appear in a similar letter written with regard to the claim which is the subject of our decision in Tri-State Motor Transit Co., GSBCA 14250-RATE (Oct. 21, 1997), in which the Board concluded that GAO had completed its review and effectively granted the claims in question. ----------- FOOTNOTE ENDS ----------- 4 amounts claimed. We agree with claimant that there is no substantive difference between the facts in this case and those in other cases where the Board and GAO have concluded that the Government's position is not correct. Tri-State Motor Transit Co., GSBCA 13735-RATE (Nov. 18, 1997); Tri-State Motor Transit Co., GSBCA 14243-RATE (Nov. 4, 1997); McGil Specialized Carriers, GSBCA 14127-RATE (Sept. 30, 1997); Tri-State Motor Transit Co., GSBCA 13839-RATE, 97-1 BCA 28,953; Tri-State Motor Transit Co., GSBCA 13746-RATE, 97-1 BCA 28,951; Tri-State Motor Transit Co.- -Reconsideration, B-254378.2, et al. (July 5, 1995). We follow our earlier decisions. Tri-State is, therefore, entitled to the amounts claimed as additional payment for the shipments covered by the first seven GBLs at issue. The claim regarding GBL D-1,032,191 is denied, however, since the $1.75 figure used by Tri-State to calculate its excess claim is clearly listed on the GBL as a "per ton" rather than a "per pound" figure. Using the "per ton" figure, one cannot calculate an excess released value but rather one which is considerably below the default value of $20,000. _____________________ EDWIN B. NEILL Board Judge