January 6, 1998 GSBCA 14352-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. Colonel James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. DANIELS, Board Judge (Chairman). Tri-State Motor Transit Co. asks us to review the General Services Administration's actions regarding twenty-five separate claims the company filed with the agency during 1996. The claims concern Tri-State's carriage of heavy expanded mobility ammunition trailers for units of the Department of Defense (DoD) during 1993. Tri-State sent DoD invoices for basic transportation charges shortly after the shipments were made. The agency paid the amounts stated on the invoices. Later, Tri- State claimed that it was entitled to additional payments pursuant to Item 190 of the Military Traffic Management Command Freight Traffic Rules Publication No. 1A because DoD had stated on bills of lading that the trailers had values in excess of their "released values." The "released value" limits the carrier's liability in the event the shipment is lost or damaged. According to Item 190, tenders filed with DoD for the movement of vehicles including truck trailers "will be subject to a released value not exceeding $20,000 for each vehicle." However, "[i]f a value exceeding th[is] released value is stated on the bill of lading, this valuation shall control." The shipper must pay an additional amount -- a premium to cover the carrier's increased liability in the event of loss or damage to the vehicles being transported. In each and every one of the claims involved in this case, the bill of lading (a) stated that the shipment consisted of two trailers weighing 21,700 pounds and (b) contained the notation "Released value not exceeding $2.50 per pound per article." Tri- State, using a methodology which we have approved in the past as being faithful to the provisions of Item 190, calculated that DoD must pay an additional $21.45 for each shipment as a consequence of the notation of a value in excess of the released value. See Tri-State Motor Transit Co., GSBCA 13735-RATE (Nov. 18, 1997); Tri-State Motor Transit Co., GSBCA 14243-RATE (Nov. 4, 1997); Tri-State Motor Transit Co., GSBCA 13839-RATE, 97-1 BCA 28,953. In accordance with statute and regulation, Tri-State submitted its claims to the General Services Administration's Office of Transportation Audits (OTA). See 31 U.S.C. 3726(a) (1994); 41 CFR subpt. 101-41.6 (1996). On November 24 and 25, 1997, OTA denied twenty-two of the claims. OTA's entire explanation for its denials was, "Excess valuation charges are not applicable. May submit claim to the GSBCA [General Services Board of Contract Appeals] for a decision."[foot#] 1 OTA has not yet acted on the remaining three claims. Until mid-1996, the function of reviewing OTA's decisions on claims by common carriers for transporting individuals or property for the United States Government was performed by the General Accounting Office (GAO). GAO held that when a value in excess of the default released value is indicated on a Government bill of lading, the carrier is exposed to liability up to the higher value and must be compensated for the increased risk it assumes, in accordance with the provisions of regulation. Tri- State Motor Transit Co., B-254378, et al. (Feb. 16, 1994), aff'd on reconsideration (July 5, 1995). On April 17, 1997, this Board determined that GAO's reasoning and conclusion were correct. Tri-State Motor Transit Co., GSBCA 13746-RATE, 97-1 BCA 28,951. The following day, we issued another decision on this matter, specifically applying the holding to shipments of ammunition trailers. Tri-State Motor Transit Co., GSBCA 13839-RATE, 97-1 BCA 28,953. Before OTA resolved twenty-two claims involved in this case, we issued four other decisions reiterating the same holding. Tri-State Motor Transit Co., GSBCA 13735-RATE (Nov. 18, 1997); Tri-State Motor Transit Co., GSBCA 14251-RATE (Nov. 13, 1997) (pertaining to heavy expanded ammunition trailers); Tri- State Motor Transit Co., GSBCA 14243-RATE (Nov. 4, 1997); McGil Specialized Carriers, GSBCA 14127-RATE, 97-2 BCA 29,295. Each of the decisions cited in this paragraph was sent to OTA. The Board's decisions constitute final administrative action on each claim presented and must, as a matter of law, be followed by OTA. Tri-State Motor Transit Co., GSBCA 14241-RATE, 97-2 BCA 29,306 (citing Fischbach & Moore International Corp. v. United States, 617 F.2d 223 (Ct. Cl. 1980)). The twenty-two claims ----------- FOOTNOTE BEGINS --------- [foot #] 1 On some of the claims, OTA's wording varied slightly from this message. ----------- FOOTNOTE ENDS ----------- which OTA has denied here involve factual situations which are obviously identical in all material regards to the circumstances in the decisions cited in the previous paragraph. OTA should clearly have granted the claims. Since it has not, we do so now. Tri-State should be paid forthwith the money it seeks. Because OTA has not yet rendered decisions on the remaining three claims, these matters are not ripe for review by the Board. C. I. Whitten Transfer Co., GSBCA 13810-RATE (Nov. 25, 1997); McGil Specialized Carriers, GSBCA 13926-RATE, 97-1 BCA 28,876; Tri-State Motor Transit Co., GSBCA 13896-RATE, 97-1 BCA 28,873. We must consequently dismiss without prejudice Tri-State's request that these claims be granted. If, after OTA resolves any of the three claims, Tri-State is dissatisfied with the determination, the carrier may ask us to review OTA's action. We have commented in the past that OTA's failure to honor its own commitments is improper. Tri-State Motor Transit Co., GSBCA 14241-RATE, 97-2 BCA 29,306. Here, OTA has failed to evaluate claims in light of established law. By forcing Tri- State to appeal to the Board to secure relief to which it is patently entitled, OTA has also wasted the time of both the carrier and the Board. OTA has made a mockery of the procedure for review of carrier claims which Congress established, and in so doing, has added to the costs of implementing that design. This is the sort of behavior which drives up the cost of Government contracting, as well. Unnecessary aggravation dissuades some prospective contractors from doing business with the Government, thereby reducing competition (with its salutary effect on prices to the consumer), and induces firms remaining in the market to recoup through higher charges expenses which they expect to incur needlessly. Before concluding this opinion, we comment briefly on two positions espoused in the case, one by the Military Traffic Management Command (MTMC), which is representing DoD, and one by Tri-State. MTMC urges us to reject the claims under what it characterizes as "the de minimis doctrine." MTMC maintains, "Each claim represents Tri-State's own failure to properly bill for services rendered. By indulging in consideration of these claims, the Board allows Tri-State to burden the system for little monetary gain at great expense to the government." Tri- State asks us to consider that OTA's failure to issue decisions on the three remaining claims, notwithstanding the fact that each of the claims has been pending for more than one year, "constitutes a de facto denial of claimant's claims." Neither of these positions is supported by the underlying statute, 31 U.S.C.A. 3726 (West Supp. 1997). The statute allows a carrier to make a claim not later than three years (excluding time of war) after the latest of four specified dates. Id. 3726(a). (It similarly allows the Government to make deductions from previously-paid bills within three years (excluding time of war) after a bill was paid. Id. 3726(b).) The statute does not restrict claims (or Government deductions) to amounts above a threshold figure. Unlike another law with which we are familiar, the Contract Disputes Act of 1978, 41 U.S.C.A. 601-613 (West Supp. 1997), the statute concerning payments for transportation services performed for the Government does not permit claims to be deemed denied if they are not decided in the first instance within a set period of time after they are received. See id. 605(c)(5). The positions espoused by MTMC and Tri-State may be secured only through changes in the law. _________________________ STEPHEN M. DANIELS Board Judge