Board of Contract Appeals General Services Administration Washington, D.C. 20405 August 12, 1999 GSBCA 15017-RATE In the Matter of CROWLEY AMERICAN TRANSPORT, INC. Edwin Z. Perez, Collection Specialist, Crowley American Transport, Inc., Jacksonville, FL, 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. GOODMAN, Board Judge. Claimant, Crowley American Transport, Inc., has sought review of three decisions by the Audit Division of the General Services Administration (GSA) Office of Transportation and Property Management (the Audit Division). The Audit Division maintains that claimant had overcharged the Military Sealift Command on ocean freight shipments. This case involves Government bills of lading G0832833, G0832834, and G0832852. After payment was made by the Government, the Government alleges that a post-payment audit revealed an overcharge as a result of a controversy concerning the correct commodity description. Claimant applied the rate for Trucks, NOS, tariff line item (TLI) 8603-00-0001. GSA contends that the descriptions Automobile, Freight and Passenger, TLI 8700-01-0001, and Truck Tractors, Not Exceeding 3200 CFT, TLI 8700-00-2134, more accurately describe the commodities shipped. Since these descriptions result in a lower rate, GSA contends that the Government is entitled to the lower rate. Claimant seeks the difference between the lower rate the Government asserts is due and the rate based upon the description which it believes is applicable. In response to claimant s request for review, GSA states: 2 We have reviewed the records and sustain our original position that the commodity rates applied in the Notices of Overcharge were more specific and therefore, more suitably applicable. The shipment identified by GBL G0832833 consisted of commodities described as Mil. Veh. 2.5 ton (Ambu/Bus/Trk). We agree with the Military Traffic Management Command (MTMC), that the word truck (Trk) appears in the description of the commodity, however, so do the words ambulance and bus (Ambu/Bus). Based on the complete description, there is no indication that the shipment specifically consisted of trucks. Therefore, the tariff line item describing Automobile, Freight and Passenger is most appropriate because it includes all types of self-propelled vehicles. The shipment represented by GBL G08328334 [sic] is described as a Vehicle, without any specific inclusion of the word truck. Therefore, it too is included in the all-encompassing tariff line item description Automobile, Freight and Passenger. The third shipment is identified by GBL G0832852 and consisted of Vehicles, GT 2.5 ton capacity (Mil Truck), 1656 cubic feet. [Claimant] Invoice further describes the commodity as heavy trucks, 6X4 TR TRAC. Consequently, the tariff line item describing Truck, Tractors, Not exceeding 3200 CFT more precisely describes the vehicle. GSA argues further that claimant, by applying the Trucks, NOS commodity description, is using the most general type of rate. "NOS" means not otherwise specified in this tariff. GSA contends that: More specific commodity descriptions take precedence over this type, which is reserved for commodities not more precisely described. In addition, the tariff line items that we used apply from the more exact port origin city of Jacksonville, Florida, rather than the designation ORIGIN USA GROUP. Discussion GSA s position in this case is that if there are two applicable tariff descriptions which apply, the lower rate applies, and the shipper is given the benefit of the lower rate. Its factual arguments as to the existence of the two equally appropriate tariff descriptions are set forth above. In support 3 of the legal principle that the shipper is given the lower rate when two descriptions and tariffs are equally appropriate, GSA has cited United States v. Gulf Refining Co., 268 U.S. 542 (1925), Baggett Transportation Co. v. United States, 670 F.2d 1011 (Ct. Cl. 1982), and cases cited therein. This Board s Rule 301(b) provides, "The burden is on the claimant to establish the timeliness of its claim, the liability of the agency, and the claimant's right to payment." 48 CFR 6103.1(b) (1998). The claimant in this action submitted copies of various documents with no explanation other than a statement that it has reviewed and audited the charges billed to MSC based on the tariffs in effect at that time, and found the charges to be correct as billed. It has not responded to the factual and legal arguments of MSC and GSA detailed above that there are two equally appropriate tariff descriptions which are applicable, and that under such circumstances the shipper is entitled to the lowest applicable rate. Accordingly, claimant has failed to meet its burden of proof, and its claim is denied. ___________________________ ALLAN H. GOODMAN Board Judge