Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________ May 29, 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. Some time ago, claimant, Tri-State Motor Transit Co. (Tri- State ), submitted to the Department of Defense (DOD) four supplemental vouchers asking for additional payment based on the excess released value of the four separate shipments it had previously transported and for which it had already been paid. DOD did not pay the supplemental vouchers but rather referred them for audit to the Office of Transportation Audits (OTA) of the General Services Administration (GSA). For a considerable length of time, OTA took no action on the claims. Toward the close of 1997, Tri-State asked this Board to review OTA's failure to take action on the claims. Shortly thereafter, OTA did act on the claims. It issued certificates of settlement denying the vouchers on the ground that excess valuation charges are not applicable. Tri-State asks that we review these determinations. The first of the four cargoes in question was shipped on January 13, 1993, under Government bill of lading (GBL) G- 2,476,002. The Government paid Tri-State for this shipment on February 24, 1993. The GBL for the shipment stated that the released value of the cargo was not to exceed $2.50 per pound. The cargo weighed 34,820 pounds and thus had a released value of $87,050. In accordance with provisions set out in the Freight Traffic Rules Publication No. 1A (FTRP No. 1A) of Military 2 Traffic Management Command (MTMC), this resulted in an excess released value of $67,050, for which a charge of fifteen cents per $100 of value or fraction thereof is applicable. For this cargo, therefore, Tri-State calculated a total excess released value charge of $100.65. Its supplemental voucher seeking this amount was dated December 12, 1995. The second cargo was shipped on February 2, 1993, under GBL G-2,537,721. The Government paid Tri-State for this shipment on April 5, 1993. The GBL for the shipment stated that the released value of the cargo was not to exceed $2.50 per pound. The cargo weighed 22,000 pounds and thus had a released value of $55,000. Using the applicable rate from MTMC's FTRP No. 1A, Tri-State calculated a total excess released value charge of $52.50. Its supplemental voucher seeking this amount was mailed on April 10, 1996. The third cargo which is in contention here was shipped on September 8, 1993, under GBL D-2,786,783. The Government paid Tri-State for this shipment on September 23, 1993. The GBL for the shipment stated that the released value of the cargo was not to exceed $2.50 per pound. The cargo weighed 21,700 pounds and thus had a released value of $54,250. Using the applicable rate from MTMC 's FTRP No. 1A, Tri-State calculated a total excess released value charge of $21.45. Its supplemental voucher seeking this amount was mailed on September 27, 1996. The fourth and final cargo in this case was shipped on June 9, 1993, under GBL G-2,285,009. The Government paid Tri-State for this shipment on June 17, 1993. The GBL for the shipment stated that the released value of the cargo was not to exceed $2.50 per pound. The cargo weighed 13,830 pounds and thus had a released value of $34,575. Using the applicable rate from MTMC FTRP No. 1A, Tri-State calculated a total excess released value charge of $21.90. Its supplemental voucher seeking this amount was mailed on June 11, 1996. Discussion In commenting initially on the claims which are the subject of this case, MTMC counsel suggests that it would appear that they were not filed within the three-year statute of limitations set forth in Section 3726 of Title 31 of the United States Code. In making this comment, however, MTMC readily acknowledges that it does not possess all of the documentation necessary to confirm this. Neither OTA nor Tri-State have addressed this issue. Based upon the record before us, we conclude that two of the four claims are untimely filed. The applicable United States Code provision to which MTMC counsel refers stated: 3 (a) A carrier or freight forwarder presenting a bill for transporting an individual or property for the United States Government may be paid before the Administrator of General Services conducts an audit, in accordance with regulations that the Administrator shall prescribe. A claim under this section shall be allowed only if it is received by the Administrator no later than 3 years (excluding time of war) after the later of the following dates: (1) accrual of the claim; (2) payment for the transportation is made; (3) refund for an overpayment for the transportation is made; or (4) a deduction under subsection (b) of this section is made. 31 U.S.C. 3726(a) (1994). The regulations issued by the Administrator of General Services which implement this statute provide that a claim is considered "received" by the Administrator if received by GSA or its "designee," namely, "the agency out of whose activities the claim arose." 41 CFR 101-41.602(b) (1996). Of the four claims at issue here, all accrued prior to initial payment and the record does not indicate the occurrence of any refund or deduction. Hence, the three year period for the submission of the claims began to run from the time of initial payment since that was later than the shipment date. Furthermore, the claims would be deemed to be "received" upon receipt by the DOD as GSA's "designee." For purposes of these four claims, therefore, we deem them timely submitted if the period between the date of initial payment and receipt of the supplemental voucher by DOD is no more than three years. Two of Tri-State's claims fail to meet this test. The claim based on GBL G-2,537,721 was paid on April 5, 1993. The supplemental voucher involving this shipment was not even mailed, however, until April 10, 1996, over three years from the date of initial payment. Similarly, the claim based on GBL D- 2,786,783 was paid on September 23, 1993, but the supplemental voucher was not mailed until September 27, 1996. What, however, of the remaining two claims? OTA's position in this case is similar to that which it has maintained in other cases involving claims for excess released value. It contends that prior Board decisions on this type of claim are restricted to the facts of each case and, therefore, of limited application. In a recent decision, Tri-State Motor Transit Co., GSBCA 14353- RATE, 98-1 BCA 29,515, the Board discussed this contention of OTA. In that case, we recognized that each claim presents a 4 unique set of facts but noted that factual differences between one claim and another are legally significant only if they lead to different results when the same legal principles are applied to the two claims. In late March of this year, we issued an order to OTA referencing that decision and directing OTA to identify precisely what legally significant factual differences exist in the instant case to justify a resolution other than that repeatedly and consistently provided by the Board for other apparently similar cases. In a separate order, we invited MTMC to address the same issue if it wished to do so. Neither OTA nor MTMC responded to our orders. We assume, therefore, that they agree with us that there are no legally significant factual differences between the claims in this case and those in the numerous other cases involving excess released value charges where we have granted the claims. 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 claims for excess released value charges of $100.65 (based on shipment under GBL G-2,476,002) and $21.90 (based on shipment under GBL G-2,285,009) are, therefore, both granted. OTA is directed to issue settlement certificates allowing both claims. Tri-State's claims for excess released value charges for shipments made under GBL G-2,537,721 and GBL D- 2,786,783 are dismissed as untimely filed . _____________________ EDWIN B. NEILL Board Judge