Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________________ March 31, 1999 ______________________________ GSBCA 14615-RATE In the Matter of AMERICAN STITCHING & BOX, INC. Lamont Ririe, Vice President of American Stitching & Box, Inc., Fairfield, CA, 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. HYATT, Board Judge. American Stitching & Box, Inc. (AS&B), claimant, contracted with the United States Army to provide moving services for the Presidio of San Francisco. The moving services were provided over an approximate two-month period from September through November 1994. In its claim letter, AS&B explains that it was unable to locate military personnel associated with the services provided at the Presidio, which had closed, to present the last five government bills of lading (GBLs) in order to obtain payment for services rendered. AS&B's vice president, who joined the company in 1998, states that it took him until April 1998 to locate the appropriate agency and department to forward the GBLs to for payment. At that time, AS&B forwarded the GBLs to the Defense Finance and Accounting Service (DFAS) in Indianapolis. DFAS determined that the GBLs had not been paid and forwarded them to the General Services Administration (GSA). GSA rejected the GBLs as having been submitted for payment outside the three year statute of limitations. The claim before us pertains to five GBLs: GBL Number Amount Date Services Delivered D-2-165,545 $2,000 11/14/94 D-2,165,546 $2,000 11/15/94 D-2,165,547 $2,000 11/16/94 D-2,165,548 $2,000 11/18/94 D-2-165,549 $2,000 11/21/94 Block 13 of each of these GBLs directs that charges be billed to: Army Finance and Accounting Center Chief, Transportation Operations Indianapolis, IN 46249-0601 In support of its claim for payment, AS&B points out that there is no question that the Army received the moving services contracted for under the subject GBLs and adds that it made diligent, although misdirected, efforts over the years to contact Army personnel, including the issuing officer, Major Galyean, to obtain payment of these outstanding bills. The file contains an unsigned letter dated January 17, 1995, from AS&B's administrative manager addressed to Major Galyean at the Presidio. This letter explained that AS&B was seeking payment for the moving services provided in November 1994, and stated that the required documentation was provided to a Ms. Alberta Banks for processing. Ms. Banks apparently had requested a Form 82 as a prerequisite for processing the invoices. There is no response to this letter in the record, and no evidence that it was actually received by Major Galyean. The file also reflects that in 1996 AS&B retained the services of a consultant to assist in determining how and where to present the invoices for payment. GSA responds that the claims were submitted untimely and payment is precluded by the applicable limitations period delineated in statute and implementing regulations. Although AS&B states that it tried to process these invoices for payment, there is no evidence that any of the claims were ever received by the Army. Moreover, GSA points out, had AS&B followed the instructions in block 13 of the GBLs it would readily have been able to submit the invoices for payment and would have avoided the statutory bar. Discussion The statutory provision relied upon by GSA regulates payment for transportation services and states that: (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 of General Services shall prescribe. A claim under this section shall be allowed only if it is received by the Administrator not later than 3 years . . . 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; (4) a deduction under subsection (b) of this section is made. 31 U.S.C. 3726 (1994). Under regulations implemented by GSA, claims are defined as including: (a) Requests by claimants for amounts not included in the original billing; (b) Requests by claimants for amounts deducted or set off by the Government; (c) Requests by claimants for amounts previously refunded by carriers; or (d) Unpaid original bills requiring direct settlement by GSA, including those subject to doubt regarding the propriety of payment. 41 CFR 101-41.601 (1994). AS&B's claims are covered by subsection (d) above. When AS&B submitted its GBLs to DFAS in April 1998, DFAS properly forwarded them to GSA in accordance with 41 CFR 101-41.604-2(b)(1), which states that agencies shall not pay transportation claims that are "time barred" by a statute of limitation or any claim with respect to which there is a question as to whether it may be "time barred." The regulations implement the three-year statute of limitations for filing a claim in the following manner: (b) A claim must be received by GSA or its designee (the agency out of whose activities the claim arose) within 3 years . . . from whichever is the latest of the following dates: (1) Accrual of the cause of action thereon; (2) Payment of charges for the transportation involved; (3) Subsequent refund for overpayment of such charges; or (4) Deduction made under 31 U.S.C. 3726, as amended. (c) Each claim of a carrier or forwarder, whether filed with GSA or with its designee (the agency out of whose activities the claim arose), must be clearly stamped with the month, day, and year of receipt by GSA or the designee agency so that there will be no question regarding the filing date when the determination of compliance with the 3- year limitation imposed thereon by 31 U.S.C. 3726 is made . . . . 41 CFR 101-41.602. Subpart (c) codifies a requirement that a claimant establish clear liability on the part of the United States to make the payment. In this instance, the three year statute of limitations was triggered by the time of accrual of the cause of action, which occurred in mid-November 1994. See Baggett Transportation Co. v. United States, 319 F.2d 864, 868 (Ct. Cl. 1963). Under the regulations, then, AS&B, to qualify for payment, was required to submit its claim either to the Army or to GSA by mid-November 1997, and to produce evidence that the claims were properly received either by GSA or the Army prior to the expiration of the three year period.[foot #] 1 Although AS&B states that it made periodic inquiries seeking to determine how it could be paid for the services rendered, there is no persuasive evidence that the GBLs were ever properly presented to the Government for payment within the prescribed three-year period. Under the applicable law and regulations, neither GSA nor the Board has the authority to allow payment of claims that are presented after the expiration of the three-year limitations period. AS&B's claims for payment under the subject GBLs are time barred and, accordingly, are dismissed. ____________________________ CATHERINE B. HYATT Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 A similar standard was also applied by the General Accounting Office, which reviewed such claims prior to July 1996. Peralta Shipping Corp., B-197661 (May 22, 1980). ______________________