Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 22, 1998 GSBCA 14491-RATE In the Matter of UNIVERSAL TRANSPORTATION & SERVICES Judi G. Mohundro of Universal Transportation & Services, Hardy, AR, 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). On October 7, 1992, the Department of the Navy issued a Government bill of lading (GBL) to Universal Transportation & Services (UTS), requiring UTS to pick up a 60,000-pound, two- piece hub assembly from Bird Johnson in Walpole, Massachusetts, on October 9 and deliver it to a Navy facility in Norfolk, Virginia. Although the GBL does not state a delivery date, it is marked "emergency," and UTS says without contravention that the assembly was "to be delivered . . . the following day in order to make a ship." There does not appear to be any question that UTS delivered the goods in accordance with this direction. The question before us is how much the company should have been paid for its services. UTS explains, "At that time (and also at present) the only tenders that my company has offered to the Department of Defense [DoD] are for that of air freight services, as we are an indirect air carrier (air freight forwarder, if you will). . . . [W]e have never held our company out to the public as a motor common carrier." UTS had given DoD a Uniform Tender of Rates and/or Charges for Transportation Services which is clearly marked "Air Freight Forwarder." Under the version of that tender which was in effect in October 1992, the rate for shipping 60,000 pounds from Massachusetts to Virginia, door to door, by "priority overnight service" (overnight delivery by the next business morning), was $39,498. UTS billed, and the Navy paid, this amount. Nearly three years later, the General Services Administration's Office of Transportation Audits (GSA) audited this transaction and determined that DoD should have paid UTS only $2,035 for transporting the hub assembly. GSA explained, "[T]his shipment moved via motor carrier, and is, therefore, subject to motor carrier rates and charges. Since [UTS] has no operating authority as a motor carrier, rates for motor transportation were applied from another carrier's tariff on a quantum meruit[foot #] 1 basis." UTS objects to GSA's reasoning and its conclusion. UTS does not deny that the shipment moved solely by motor carrier. According to UTS, however, it had a tender on file with DoD, performed the service that was requested of it by the Navy, and should be paid in accordance with the terms of the tender. Before reaching the merits of the case, we consider and reject the Military Traffic Management Command's suggestion that UTS's request for review of GSA's audit determination was untimely. Section 3726 of title 31, United States Code imposes one time limitation on the filing of carrier claims with GSA and another on the filing of requests for administrative review of GSA decisions on those claims. Subsection (a) of section 3726 allows carriers to make claims to GSA within three years (excluding time of war) after the latest of the following dates: accrual of the claim; payment for the transportation; refund for an overpayment for the transportation; and deduction by the Government from an amount subsequently due, to compensate for an earlier overcharge. Subsection (g) allows carriers to request administrative review within six months after GSA acts on a claim. We will consider a carrier's request only if both of these requirements have been met. C. I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA 28,860; see also Valley Moving & Storage Co., GSBCA 14307-RATE (Feb. 23, 1998); Tri-State Motor Transit Co., GSBCA 13747-RATE, 98-1 BCA 29,398 (1997). UTS met the subsection (a) requirement by filing its claim on April 22, 1997, less than three years after GSA's August 30, 1995, notice of overcharge. The carrier met the subsection (g) requirement by filing its case with us on February 6, 1998, less than six months after GSA's January 30, 1998, denial of the claim. As to the merits, we agree with GSA's position. At the time this shipment was made, surface and air common carrier transportation were governed by different statutory and ----------- FOOTNOTE BEGINS --------- [foot #] 1 "Quantum meruit" means "as much as he deserved." ______________ It is an equitable doctrine which provides a reasonable amount of recovery for labor and materials furnished, even in the absence of an express contract. Black's Law Dictionary 1243 (6th ______________________ ed. 1990). ----------- FOOTNOTE ENDS ----------- regulatory schemes. 49 U.S.C. subtit. IV (1988) (surface); 49 U.S.C. app. ch. 20, subch. IV (1988) (air). Firms moving goods by motor vehicle in interstate commerce were required to secure licenses, establish tariffs, and file routes with the Interstate Commerce Commission; they could not provide transportation services without complying with these strictures. See, e.g., 49 U.S.C. 10702, 10703, 10725, 10761, 10762. UTS's tender to DoD did not cover motor vehicle transportation, and UTS has not shown that it had any other authority under which it might have moved the hub assembly by motor vehicle. Thus, there was no legal authority for UTS to carry the assembly by truck, as it did. Application of a tender intended for air transportation to surface delivery was improper.[foot #] 2 The General Accounting Office (GAO), which previously considered carriers' requests for administrative review of GSA transportation audit decisions, allowed payment for transportation charges on a quantum meruit basis where a carrier moved Government goods in the absence of a valid contract, tariff, or tender which dictated the proper amount due. United Carriers, Inc., B-229309 (June 21, 1988). This holding is consistent with court decisions that where a Government contract award is contrary to statute or regulation due to an action of the contractor, the contractor may recover on a quantum meruit basis, but only to the extent that the Government receives any benefit from the contractor's performance. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 565 n.22 (1961); Crocker v. United States, 240 U.S. 74, 81 (1916); United States v. Amdahl Corp., 786 F.2d 387, 395 (Fed. Cir. 1986). We consider the GAO's rule to be appropriate to situations such as the one at issue here. Unfortunately, in applying the rule, GSA has used rates from a tariff which is inapplicable to the shipment. The tariff GSA selected was ICC TSMT 4000-B, issued by Tri-State Motor Transit Co. of Joplin, Missouri. This tariff was canceled, effective November 21, 1991 -- nearly a year before UTS moved the hub assembly involved in this case. While it was valid, the tariff ----------- FOOTNOTE BEGINS --------- [foot #] 2 The law contained two exceptions to the general rule, but neither of them is of assistance to UTS in this case. A common carrier which transported goods by air as well as motor vehicle might be exempt from the requirements if the transportation was part of a continuous movement. 49 U.S.C. 10526(a)(8)(B); see also 49 U.S.C. app. 1301(24). UTS's _________ transportation of the hub assembly, however, was entirely by truck. A common carrier which generally transported goods by air could also be exempt from the surface transportation requirements if it used a motor vehicle instead of aircraft "because of adverse weather conditions or mechanical failure of the aircraft or other causes due to circumstances beyond the control of the carrier or shipper." 49 U.S.C. 10526(a)(8)(C). UTS has not attempted to show that this exception applied to this shipment. ----------- FOOTNOTE ENDS ----------- contained rates which applied to the movement of "explosives, blasting supplies, flammable liquids and solids, commodities bearing a security classification by the United States Government and weapons, ammunition and drugs which are designated sensitive by the United States Government," and hub assemblies do not appear to fall within any of these categories. The tariff also applied when goods were "transported in dromedary service or 410 container service," and there is no indication that such was the situation here. In addition, the document expressly states, "Rates named in Tariff will not apply on shipments from or to . . . ocean port facilities," and GSA has not challenged UTS's statement that this shipment was delivered for loading onto a ship. The Government clearly derived a benefit from UTS's having moved the hub assembly by truck from Massachusetts to Virginia, on a priority basis, in October 1992. In calculating the value of this benefit, the Government may look to a contract, tariff, or tender which was relevant to this sort of shipment at that time. GSA may collect the difference between the amount the Government has paid UTS for its services and the reasonable value of those services. _________________________ STEPHEN M. DANIELS Board Judge