Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________________ March 9, 1999 ______________________________ GSBCA 14376-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. James F. Fitzgerald, Director, Transportation Audits Division, 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. Claimant asks that this Board review the decision by the General Services Administration s Office of Transportation Audits (OTA) denying additional payment of $1658.17 for shipment of water coolers which the Government Bill of Lading (GBL) designated as Freight All Kinds (FAK). The GBL cited as rate authority, and claimant initially based its invoice on, a tender which was part of a Standing Route Order (SRO) and applied only to certain named commodities. Subsequently, claimant sent a supplemental invoice based upon a tender covering FAK. A GBL Notice of Correction, which reclassified the shipment to state that it was not FAK but was within the scope of the SRO, was issued by Defense Contract Management Area Operations, Philadelphia (DCMAO) two months after the claim was submitted.[foot #] 1 Because claimant has not met its burden of proving that the shipment was initially misclassified under the SRO, the claim for additional payment is denied. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Department of the Army, Military Traffic Management Command (MTMC) supported OTA s denial based upon the issuance of the GBL Notice of Correction. ----------- FOOTNOTE ENDS ----------- 2 Background On June 16, 1992, claimant picked up a 13,056-pound shipment from General Electric Corporation in Burlington, New Jersey (GE- Burlington) for delivery to Ingalls Shipbuilding Corporation in Pascagoula, Mississippi (Ingalls). The GBL stated that the shipment was FAK, that the commodity classification number was National Motor Freight Classification (NMFC) 999912, and that claimant s Department of Defense (DOD) Tender 486 was the governing rate authority. This shipment was transported under an SRO, i.e., a traffic lane between GE-Burlington and Ingalls, which covers only Electrical Appliances and Instruments, NOI,[foot #] 2 NMFC 61700, and Tender 486 was a rate authority under this SRO. The Defense Traffic Management Regulation (DTMR) states that [o]rdinarily, SROs will be issued when the origin, destination, commodity(ies), and frequency of shipments constitute a repetitive traffic pattern. DLAR4500.3, Paragraph 17-3 (d) (1986). The DTMR defines repetitive movements as two or more shipments per month. Id. The GBL also stated that Shipper Furnished Carrier DD Form 1907. That form, a Signature and Tally Record, cited claimant s Tender 486 under permit number, and FAK as the freight classification description, and contained a handwritten reference to Work Order 523695. That work order identified the freight as water coolers. Claimant completed its delivery on approximately June 17, 1992. On approximately June 23, 1992, claimant submitted an invoice in the amount of $2029.56 and was paid on July 9, 1992. Claimant billed according to Tender 556 and described the commodity shipped as water coolers. Tender 556 is a billing rate under the same SRO that includes Tender 486 and covers the same items. It differs from Tender 486 in terms of the equipment used to transport the shipment and the base billing rate.[foot #] 3 On approximately June 16, 1995, claimant submitted a supplemental claim to the Defense Accounting Office, Norfolk, Virginia, for $1658.17, alleging an erroneous computation of charges based upon a tender cited in the GBL which it claimed applied neither to FAK nor to water coolers. According to claimant, NMFC 999912 was incorrect in that it was not an existing NMFC designation, but rather the number of a DOD Unique ----------- FOOTNOTE BEGINS --------- [foot #] 2 NOI means not otherwise identified. [foot #] 3 On July 11, 1993, OTA determined that the claimant had been overpaid $425 by billing according to Tender 556 rather than 486 and collected that amount plus interest through a setoff. That action is not at issue in this claim. ----------- FOOTNOTE ENDS ----------- 3 Code (DODUC) description and claimant offered no rates whatsoever under DODUC 999912.[foot #] 4 On August 28, 1995, DCMAO issued a GBL Correction Notice changing the commodity classification number of the shipment from NMFC 999912 to NMFC 61700, Electrical Appliances or Instruments, NOI. On August 14, 1997, OTA disallowed the claim and advised claimant that the reason for the disallowance was the reclassification of the shipment because, as a result of the reclassification, the shipped items were specifically covered by the SRO and subject to the rates claimant offered under that SRO. MTMC supported OTA s denial of this claim and determined that the shipment contained water coolers under GE-Burlington s contract with the Department of the Navy for Water Cooler for the Aegis Weapon System (Submarines). MTMC further ascertained that claimant was the first alternate carrier on the SRO and that the same commodity as shipped in this case was tendered to [claimant] by the shipper on numerous occasions, under the existing SRO, between the same origin and destination. Claimant did not offer evidence to the contrary.[foot #] 5 Discussion Claimant contends that either FAK, or a specific water cooler designation -- both of which would be subject to the higher FAK rate -- rather than Electrical Appliances and Instruments, NOI -- is the appropriate classification for the shipment of water coolers, and that, therefore, the higher FAK rate should govern the shipment. This claim fails for lack of proof. It is fundamental that the burden is on the claimant to establish the liability of the agency, and the claimant s right to payment. Tri-State Motor Transit Co., GSBCA 13741-RATE, 97-2 BCA 29,286, at 145,713, quoting 48 CFR 6103.1(b); accord, Tri- State Motor Transit Co., GSBCA 13743-RATE, 97-2 BCA 29,068. Here, claimant admits that the coolers themselves have "not been sufficiently described for claimant to determine what particular type of water cooler was shipped." As such, claimant has not offered sufficient proof that the coolers in the shipment at ----------- FOOTNOTE BEGINS --------- [foot #] 4 Claimant does publish rates under DODUC 999913 FAK, and that is what it sought to substitute as the proper classification on its supplemental invoice. [foot #] 5 It appears that on November 26, 1997, OTA issued a Certificate of Settlement allowing the additional payment but subsequently rescinded the order. Claimant was apparently not notified of either action. ----------- FOOTNOTE ENDS ----------- 4 issue were misclassified as Electrical Appliances or Instruments, NOI, NMFC 61700. Claimant has identified several commodity classification numbers within the National Freight Motor Carriers classification scheme which refer to water coolers, which would be billable under the FAK rate claimed, and which it suggests would be more suitable designations for the water coolers in question than the 61700 Electrical Appliances and Instruments, NOI. However, claimant has offered no persuasive evidence to demonstrate that any of its suggested classifications have greater merit than the one used by the Government. The fact that the Interstate Commerce Commission has held that the "NOI" description should apply only in the absence of a more specific description does not establish the requisite factual premise to cause the coolers to be classified in one particular category as opposed to another. Nor does the GBL's description of the items as FAK require a conclusion that the items were in fact FAK. This Board has frequently recognized that an erroneous entry on a GBL may later be rectified. Tri- State Motor Transit Co., GSBCA 14262-RATE, 98-1 BCA 29,416, at 146,126; C. I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, at 143,990-91; see also Tri-State Motor Transit Co., GSBCA 13886-RATE, 97-1 BCA 28,941, at 144,212. Further, these items were shipped under an SRO, which is premised on repetitive movement of the same commodity between the same two points, and claimant had transported the same commodity on numerous occasions from the same shipper to the same destination under the SRO in question and under the tender rates contained in the SRO. There is no proof in the record that these repetitive shipments of the same commodity under this SRO were misclassified. Finally, in issuing its GBL Notice of Correction, some thirty-eight months after the shipment was made, DCMAO sought to clarify that the water coolers at issue were properly classified as "Electrical Appliances and Instruments, NOI" and not FAK. We note that the Notice of Correction standing alone and coming after the filing of the instant claim does not in this case definitively establish the proper classification of the water coolers in question. Rather, our decision is based upon claimant's failure to meet its burden of proving that the water coolers were misclassified. Decision Claimant has not demonstrated entitlement to additional payment and its claim is, therefore, denied. 5 ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge