B-203644, AUG 31, 1982

B-203644, AUG 31, 1982

DIGEST: WHERE REQUEST FOR RECONSIDERATION PRESENTS NO EVIDENCE DEMONSTRATING AN ERROR IN FACT OR LAW AND NO ARGUMENTS NOT PREVIOUSLY CONSIDERED, PRIOR DECISION IS AFFIRMED.

GENERAL SERVICES ADMINISTRATION - RECONSIDERATION:

THE GENERAL SERVICES ADMINISTRATION (GSA) REQUESTS RECONSIDERATION OF OUR DECISION OF JUNE 15, 1982, B-200939.2, ET AL., IN WHICH WE REVERSED A GSA AUDIT ACTION IN PART. WE CONCLUDED THAT A TACTICAL AIR CARGO TRANSPORTER AND LOADER (ACT) WAS AN OVER-THE-HIGHWAY VEHICLE AND, THEREFORE, COVERED BY ITEM 30(B)(1) OF AMERICAN FARM LINES, INC. (AFL), TENDER 345. SINCE THE GOVERNMENT FAILED TO COMPLY WITH THE RELEASED VALUATION REQUIREMENT OF ITEM 30(B), TENDER 345 RATES THEREFORE WERE NOT APPLICABLE, AND HIGHER TARIFF RATES WERE DUE AFL FOR THE SHIPMENT OF THE ACT.

SPECIFICALLY, IN OUR DECISION, WE STATED THAT:

"THE TACTICAL AIR CARGO LOADER DESCRIPTIVE LITERATURE SUBMITTED BY GSA STATES THAT THE TACTICAL AIR CARGO LOADER IS A TRANSPORTER AND LOADER AND IS A VEHICLE WITH A CAB, 'DESIGNED TO TRAVERSE ROUGH TERRAIN WITH A 25,000 POUND LOAD, AND WILL CARRY A 36,000 POUND LOAD ON PAVED SURFACES.' OUR VIEW, THIS ARTICLE IS COVERED UNDER 30(B)(1) BECAUSE IT IS AN OVER-THE-HIGHWAY TRUCK USED FOR TRANSPORTATION OF PROPERTY."

GSA POINTS OUT THAT THE DESCRIPTIVE LITERATURE REFERRED TO IN OUR DECISION ALSO STATES THAT THE OPERATIONAL WIDTH OF THE ACT IS 150 INCHES (12 FEET, 6 INCHES), ITS MAXIMUM SPEED IS 15 MILES PER HOUR AND, THUS, CANNOT BE CONSIDERED AN OVER-THE-HIGHWAY VEHICLE. GSA ALSO NOTES THAT WHILE THE ILLUSTRATIONS IN THE BROCHURE SHOW THE VEHICLE OPERATING ON ROUGH TERRAIN, PAVED AIRPORT RUNWAYS, TAXI STRIPS AND PARKING APRONS, IT DOES NOT OTHERWISE INDICATE THAT THE VEHICLE WAS DESIGNED TO BE OPERATED ON PUBLIC HIGHWAYS.

WE AFFIRM OUR PRIOR DECISION.

IN RENDERING OUR DECISION CONCERNING THE ACT, WE CONSIDERED THE VEHICLE'S CHARACTERISTICS. IT WAS OUR CONCLUSION THAT, WHEN READ AS A WHOLE, THE DESCRIPTIVE LITERATURE REGARDING THE ACT INDICATED IT WAS AN OVER-THE- HIGHWAY VEHICLE. FOR EXAMPLE, THE BROCHURE STATES THE ACT IS "IDEAL FOR USE AT FORWARD BASES," WHICH INCLUDES BASES NOT IN THE CONTINENTAL UNITED STATES WHERE THE "HIGHWAYS" MAY NOT BE AS TRAVERSABLE AS IN THE UNITED STATES. APPARENTLY, THE ACT IS FOR USE ON BOTH ROUGH TERRAIN AND PAVED SURFACES. THE FACT THAT THE VEHICLE IS OVERDIMENSIONAL OR TRAVELS AT REDUCED SPEEDS DOES NOT PRECLUDE ITS USE ON A HIGHWAY, AND THE BROCHURE CLEARLY INDICATES IT IS DESIGNED TO TRANSPORT PROPERTY. GSA HAS SUBMITTED NO EVIDENCE TO SUPPORT ITS VIEW THAT STATE PERMITS COULD NOT BE OBTAINED FOR THE VEHICLE'S USE ON HIGHWAYS OR THAT IT IS NOT DESIGNED FOR THE TRANSPORTATION OF PROPERTY.

SINCE THIS REQUEST FOR RECONSIDERATION PRESENTS NO EVIDENCE DEMONSTRATING AN ERROR IN FACT OR LAW AND NO ARGUMENTS NOT PREVIOUSLY CONSIDERED, OUR PRIOR DECISION IS AFFIRMED. AMERICAN VAN STORAGE, INC. - RECONSIDERATION, B-192951, MARCH 17, 1980.