Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________ July 10, 1998 _______________ GSBCA 14394-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. NEILL, Board Judge. Claimant in this case has asked that the Board reconsider that portion of its decision of May 29, 1998, which dismissed as untimely two claims for excess released value charges. In support of its request for reconsideration, Tri-State now offers for inclusion in the record documentation which supports its contention that the claims were timely filed. We authorized the Office of Transportation Audits (OTA) and Military Traffic Management Command (MTMC) to comment on the request. OTA, in reply, poses no objection to the request for reconsideration, states that it agrees that the two claims are timely, and advises that it is prepared to issue settlement certificates allowing the claims if the Board finds that they have merit. MTMC has chosen not to submit any comments on Tri-State's request. Upon review of the material now submitted by Tri-State, we conclude that our original finding that the claims were untimely is now shown to be incorrect. For the reasons stated below, we grant the request for reconsideration. Background Based on information in the record at the time of our original decision, we assumed that Tri-State was paid on April 5, 1993, for the cargo moved on February 2, 1993, under Government bill of lading (GBL) number G-2,537,721. Using that date to calculate the three-year period available for filing claims related to that shipment, pursuant to 31 U.S.C. 3726(a) (1994), we concluded that a supplemental invoice dispatched on April 10, 1996, was sent after the expiration of the three-year period. In its request for reconsideration, Tri-State has now furnished us with documentation which establishes that the actual date of payment for the shipment made under GBL G-2,537,721 was not April 5 but April 19, 1993, and that the supplemental invoice for $52.50 for excess released value charges was received by the Government on April 11, 1996. Similarly, based on information in the record at the time of our decision, we assumed that Tri-State was paid on September 23, 1993, for the cargo moved on September 8, 1993, under GBL D- 2,786,783. Using that date to calculate the three-year period available for filing any additional claims related to that shipment, we concluded that a supplemental invoice dispatched on September 27, 1996, was untimely. In its request for reconsideration, Tri-State has also furnished us with documentation which establishes that the actual date of payment for the shipment made under GBL D-2,786,783 was not September 23 but October 7, 1993, and that the supplemental invoice for $21.45 for excess released value charges was received by the Government on October 2, 1996. Discussion With its supplemental submissions, Tri-State has now demonstrated that the two claims previously deemed by the Board to be untimely filed were, in fact, filed within three-years of payment and are, therefore, timely. Useful as this supplemental documentation may be, one could object to its being admitted to the record at this late date. Presumably it was available to Tri-State and could have been offered prior to the Board's decision. Under Board rules, the burden is on the claimant to establish the timeliness of its claim. 48 CFR 6103.1 (1997). Normally, we expect evidence such as that now offered by Tri- State to be included in the submissions made by the claimant prior to a decision by the Board. This is particularly true where the issue of timeliness is raised by a party. In this particular case, however, because of the manner in which the timeliness issue was treated by the parties, we are prepared to make an exception. As noted in our original decision, MTMC initially raised the issue of timeliness but candidly admitted that it did not possess the documentation necessary to prove that the claims were untimely. Notwithstanding the concerns voiced by MTMC, OTA apparently conceded the timeliness issue and challenged the claims on an altogether different ground. Under these circumstances, we will not fault Tri-State for not establishing a more complete record on the timeliness of its claims before the Board issued its decision. We will, therefore, accept the supplement now offered by Tri-State. Since that evidence establishes the timeliness of the two claims, which we dismissed earlier as untimely, we vacate our earlier dismissal of them and turn now to an assessment of them on their merits. OTA s objection to all four claims which are the subject of this case has been the same. It contends that prior Board decisions on claims for excess released value charges are restricted to the facts of each case and, therefore, of limited application. As explained in our earlier decision, we invited OTA and MTMC to identify for us precisely what legally significant factual differences existed with regard to the four claims in this case which would justify a resolution other than that repeatedly and consistently provided by the Board for other apparently similar cases. With regard to the two claims previously deemed to be timely, we found no legally significant factual difference and, in the absence of any reply from either OTA or MTMC, concluded that they likewise, on further analysis, were of a similar mind. We, therefore, granted both claims. As to the two claims previously dismissed as untimely, we reach the same conclusion. Upon review of them, we find no significant factual difference which would warrant a solution other than that previously provided by the Board for other similar cases. E.g., Tri-State Motor Transit Co., GSBCA 14352- RATE, 98-1 BCA 29,521; Tri-State Motor Transit Co., GSBCA 14249-RATE, 98-1 BCA 29,516; Tri-State Motor Transit Co., GSBCA 14353-RATE, 98-1 BCA 29,515; Tri-State Motor Transit Co., GSBCA 14251-RATE, 98-1 BCA 29,443 (1997); Tri-State Motor Transit Co., GSBCA 14245-RATE, 98-1 BCA 29,431 (1997); Tri-State Motor Transit Co., GSBCA 13735-RATE, 98-1 BCA 29,415 (1997); Tri- State Motor Transit Co., GSBCA 14243-RATE, 98-1 BCA 29,411 (1997); McGil Specialized Carrier, GSBCA 14127-RATE, 97-2 BCA 29,295; 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 s request for reconsideration of our decision of May 29, 1998, is granted. Our dismissal of Tri-State s claim for excess released value charges for shipments made under GBLs G-2,537,721 and D-2,786,783 is vacated. Instead, the claims of $52.50 for shipment made under GBL G-2,537,721 and of $21.45 for shipment made under GBL D-2,786,783 are granted. OTA is directed to issue settlement certificates allowing both claims. All other provisions of our original decision of May 29, 1998, remain unchanged. _________________________ EDWIN B. NEILL Board Judge