Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________ April 16, 1999 _______________________ GSBCA 14904-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, 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. NEILL, Board Judge. The claim for $341.68 which is the subject of this case has already been the subject of another decision of this Board, Tri- State Motor Transit Co., GSBCA 13973-RATE, 98-1 BCA 29,669. In that decision, the Board considered the claim along with thirty- six others of a similar nature. All of these claims by Tri-State Motor Transit Co. (Tri-State) were for supplemental payment and had been denied by the Transportation Audits Division (then the Office of Transportation Audits) of the General Services Administration (GSA) for the same reason. After auditing the thirty-seven supplemental invoices, GSA had issued certificates of settlement which denied payment for one reason alone. The requests were denied because each was said to be based on an assumption that a change effective October 19, 1992, in the Freight Traffic Rules Publication of the Military Traffic Management Command (MTMC) could be applied retroactively. In support of these denials, GSA cited decisions of the General Accounting Office (GAO), which had the authority to rule on transportation claims prior to transfer of that authority to this Board in 1996. The GAO precedents on which GSA chose to rely as the sole basis for objection to Tri-State's claims and which we examined in GSBCA 13973-RATE were considered by the Board in another transportation case decided shortly before our decision in GSBCA 13973-RATE. In Tri-State Motor Transit Co., GSBCA 13763-RATE, 97-2 BCA 29,098, the Board reached a conclusion different from that reached earlier by GAO. We concluded that the change made by MTMC effective October 19, 1992, should be applied to shipments prior to that date because the change represented nothing more than the recognition of a policy already well supported by provisions contained in the tender instructions published several years before by MTMC. On March 16, 1998, we issued our decision regarding the thirty-seven claims in GSBCA 13973-RATE. Relying on the earlier decision in GSBCA 13763-RATE, we rejected GSA's argument for denying payment and concluded: "In the absence of any other stated objection to the claims in question, therefore, [we] direct OTA to reissue settlement certificates allowing each of them." GSBCA 13763-RATE, 98-1 BCA at 146,974. No request for reconsideration of that decision was ever filed by GSA. GSA did not comply entirely with our decision. Instead, it reexamined the claim which is the subject of this case and issued another certificate of settlement denying payment. The reason given this time was that the commodity description in the Government bill of lading did not support the claimant's contention that the Department of Defense Unique Commodity Code (DODUC) number cited by Tri-State actually applied. This second denial of the claim prompted Tri-State to appeal once more to this Board. Upon docketing the case, we asked GSA to explain why it had not complied with our decision in GSBCA 13973-RATE by issuing a certificate of settlement authorizing payment of the claim. GSA replied that it understood our decision as applying only to the acceptability of the one objection it had raised to the thirty-seven claims in question. GSA further explained that the objection now being raised was of a different nature. It is said to be based upon a more recent Board decision, C. I. Whitten Transfer Co., GSBCA 14106-RATE, 98- 2 BCA 29,784. In that decision, the Board discussed the minimum burden of proof a carrier is expected to meet as a condition to payment. According to GSA, Tri-State can still not be paid because it has failed to meet a fundamental requirement for payment, namely, showing that the commodity shipped did in fact correspond to the alleged applicable DODUC number. MTMC agrees that Tri-State is not entitled to payment if it has not met the minimum standard of proof. GSA and MTMC are apparently of the opinion that, at the time we rendered our decision in GSBCA 13973-RATE, the only matter at issue was the validity of the rationale previously advanced by GSA in support of the certificates of settlement disallowing the thirty-seven claims in controversy. This assumption is incorrect. The Board's decisions in transportation rate cases are issued under a delegation of authority from the Administrator of General Services. That delegation expressly states that our decisions "constitute final administrative action on these claims, not subject to review within the agency." Accordingly, any and all objections to a carrier's claim, not merely that stated in the certificate of settlement, must be raised prior to a decision by the Board on that claim. See Tri-State Motor Transit Co., GSBCA 14241-RATE, 97-2 BCA 29,306. This would include of course any allegation that the claimant has not met the minimum burden of proving the liability of the agency and the carrier's right to payment. If such matters are not asserted, we may assume that they are conceded and, therefore, not in controversy. We recognize that GSA's failure to raise all possible objections to Tri-State's claims may have been attributable to the fact that, at the time the decision was rendered in GSBCA 13793-RATE, OTA's experience with this type of Board proceeding was still limited. Because of this and Tri-State's willingness to provide voluntarily additional documentation to assuage any remaining concerns on the part of the agency, the Board has not objected to Tri-State's proffer and GSA's examination of additional documentation in support of the claim. In seven other similar instances where GSA issued settlement certificates denying payment of claims already allowed by the Board in GSBCA 13793-RATE, this proffer satisfied GSA or led to a slight reduction of the claim to which Tri-State made no objection. As a result, we were able to dismiss Tri-State's appeals of those certificates disallowing payment. Tri-State Motor Transit Co., GSBCA 14796-RATE, et al. (Mar. 19, 1999); Tri-State Motor Transit Co., GSBCA 14838-RATE (Feb. 26, 1999); Tri-State Motor Transit Co., GSBCA 14798-RATE, et al. (Jan. 26, 1999). In the instant case, however, GSA has found the additional documentation unsatisfactory and remains opposed to payment of any of the claim. It is important for GSA to realize that the dialogue which we have permitted and, indeed, encouraged, between Tri-State and GSA on these various claims already allowed by previous decision is highly extraordinary and not something which GSA now or in the future has any right to expect or demand. As noted, we have permitted it here and in a few related cases because of the carrier's own commendable spirit of cooperation and because we recognize that, under the circumstances, GSA's failure to voice its additional concerns at the time the case was decided may have been attributable to initial inexperience. Nevertheless, in the instant situation, where the lingering conflict between GSA and Tri-State simply cannot be resolved to the mutual satisfaction of the parties, the claim must be certified for payment without further delay. The claim which is the subject of this case has already been allowed by this Board. The Board's decision on that claim in GSBCA 13973-RATE represents final administrative action on the matter. In the absence of a timely request for reconsideration, the matter must be considered closed. At this point, therefore, we expect GSA to comply with our original directive to issue a certificate of settlement on Tri-State's claim for $341.68 without further delay. Since the claim in question has already been allowed by the Board, no further action on our part is necessary. Accordingly, this case is dismissed. _____________________ EDWIN B. NEILL Board Judge