Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________________ December 18, 1998 ______________________________ GSBCA 14480-RATE In the Matter of T. F. BOYLE TRANSPORTATION INC. James P. Matteodo, Pricing Manager, T. F. Boyle Transportation Inc., Billerica, MA, appearing for Claimant. James F. Fitzgerald, Director, Transportation Audits Division, General Services Administration, Washington, DC, appearing for General Services Administration. Robert L. Holston, Traffic Specialist, Goddard Space Flight Center, Wallops Island, VA, appearing for National Aeronautics and Space Administration. WILLIAMS, Board Judge. Claimant, T. F. Boyle Transportation Inc. (Boyle), contests the General Services Administration's (GSA's) assessment of overcharges in the amount of $2576.07, which GSA alleges resulted from Boyle's erroneous computation of charges based upon rates in the tender Boyle offered to the National Aeronautics and Space Administration (NASA) instead of the less expensive rates in the tenders Boyle offered to the Department of Defense (DOD). We conclude that Boyle did not overcharge the Government because it properly utilized the tender it offered to the agency which derived the benefit of the transportation, NASA. Background Boyle has a separate tender for the movement of freight on file with NASA, designated as Boyle 402. Boyle also has separate tenders specifically issued for DOD for the movement of its freight, and these tenders by their terms only apply to DOD shipments. On September 12, 1996, Boyle transported a shipment of rocket motors from the United States Army White Sands Missile Range in New Mexico to the NASA facility in Wallops Island, 2 Virginia. According to Government bill of lading (GBL) number G-4,395,168, the charges were to be billed to the consignee, NASA. Given this, Boyle billed $7382.64 for transporting this shipment in accordance with the rates in Boyle 402, the tender offered to and filed with NASA. Boyle did not charge the reduced rates applicable under any of its tenders filed with DOD because, under the terms of those tenders, non-DOD agencies such as NASA were not entitled to use rates in those tenders. On October 6, 1997, GSA issued a notice of overcharge to Boyle claiming that Boyle overcharged the Government in the amount of $2576.07 because Boyle erred in billing for this shipment on the basis of its tender filed with NASA when it should have billed on the basis of a tender filed with DOD. The issue before us is which rates applied -- the special lower rates offered to DOD alone in Boyle's tenders filed with DOD, the shipper, or the rates in the tender filed with NASA, the consignee, which paid the transportation charges. Discussion The Board resolved the identical issue in C. I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860, and concluded that the tender filed with the agency which receives the benefit of the transportation is the tender which applies. In the instant case that tender was Boyle's tender filed with NASA, the agency which paid for the transportation and received delivery, and not its tenders filed with DOD. As we noted in Whitten: A tender may be applied only if the entity to which it is offered actually receives a direct and substantial pecuniary benefit from the shipment. The Coast Guard paid for the shipment here. It received the direct and substantial pecuniary benefit of the shipment. The tender in question was offered to DOD alone. Because the Coast Guard is not part of DOD, it may not pay the rates which were offered only to DOD. Whitten, 97-1 BCA at 109,071. Thus, as we explained in Whitten, permitting DOD to secure special rates for shipments for non-DOD agencies would vitiate the terms of the tenders which are offered only to DOD, and not to other agencies such as NASA. In resolving the Whitten case, the Board relied upon a 1982 Court of Claims decision, Baggett Transportation Co. v. United States, 670 F.2d 1011 (Ct. Cl. 1982). The Board noted that it would follow the rulings of the Court of Appeals for the Federal Circuit with regard to cases involving requests by carriers for review of GSA's audit and claims determinations, and that the Baggett decision, issued by the Federal Circuit's predecessor court, was binding precedent. 3 Claimant has asked us whether Whitten applies to the instant case and, if so, what the effective date of the applicability of the Whitten decision is -- the date of the Whitten decision or the earlier date of the shipment which was the subject of Whitten. GSA argues that Whitten should not be applied retroactively. This Board has squarely ruled that its Whitten decision should be applied retroactively. As the Board explained in Tri- State Motor Transit Co., GSBCA 14560-RATE, slip op. at 2 (Sept. 17, 1998) (motion for reconsideration pending): In both federal court cases and in administrative adjudications, decisions generally are given retroactive effect because of the overriding policy of treating similarly situated parties the same, which is regarded as a fundamental principle both of stare decisis and the rule of law generally. The Board went on to note that there are limited exceptions to retroactivity and that none of those exceptions applied in the context of the Board's Whitten decision. The Board stated: In Whitten, we did not make new law; rather we interpreted the provisions of the tender and tariff in light of the law the Court of Claims articulated in 1982 in Baggett. . . . We applied the law articulated by the authoritative court as it has stood since at least 1982. Since the agency has not demonstrated that a departure from the general rule of retroactivity is warranted, or demonstrated that Whitten is distinguishable from this matter, we will follow the reasoning of Whitten. Id. at 2-3. In Tri-State Motor Transit Co., GSBCA 14169-RATE, et al., 97-2 BCA 29,294, at 145,724, this Board followed Whitten and emphasized the precedential value of that case as follows: "We issue decisions with the expectation that they will have precedential value -- that the principles expressed in them will be applied in future actions to which they might pertain." Thus, to answer claimant's question, the date on which a particular shipment occurred is immaterial for purposes of whether a Board decision, such as Whitten, will be followed.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 In fact, the Whitten rationale was applied in _______ Tri-State, 97-2 BCA 29,294, even though the shipments at issue _________ there were earlier than the shipment in Whitten in Tri-State _______ _________ shipments were made between 1988 and 1990, and in Whitten, the _______ shipment was made in 1993. ----------- FOOTNOTE ENDS ----------- 4 Rather, the Board applies any pertinent legal rationale from Whitten when it resolves a timely filed case subsequent to that decision, so long as the Whitten decision remains viable precedent. Decision The claim is granted. GSA's assessment of the overcharge of $2576.07 under GBL G-4,395,168 was erroneous. The Government may not collect this sum from Boyle. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge