B-230837, Nov 7, 1990, 90-2 CPD ***, Office of General Counsel

B-230837: Nov 7, 1990

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

The tender is complete and unambiguous on its face. A limitation of liability provision for a specific item in the governing classification cannot be incorporated by reference into the tender unless there is a clear and unambiguous statement in the tender making such an incorporation. Was not incorporated into the carrier's applicable rate tender. Is subject to released valuation. The matter was referred to us for reply. Which was referred to on the GBL and used as Preston's charge basis for the shipment. The governing publications listed in the tender apparently did not have any released valuation provisions regarding the damaged article either. If there are released valuation provisions in the governing publications listed in Tender 471.

B-230837, Nov 7, 1990, 90-2 CPD ***, Office of General Counsel

PROCUREMENT - Payment/Discharge - Shipment - Tenders - Terms - Interpretation PROCUREMENT - Payment/Discharge - Shipment costs - Rate schedules - Applicability DIGEST: Where carrier's rate tender for "Freight All Kinds" specifies a less truckload minimum charge or class rate, the tender is complete and unambiguous on its face, and a limitation of liability provision for a specific item in the governing classification cannot be incorporated by reference into the tender unless there is a clear and unambiguous statement in the tender making such an incorporation. Since the Department of Defense's new Freight Traffic Rules Publication Number 1, effective October 1, 1986, was not incorporated into the carrier's applicable rate tender, and since Publication Number 1 did not otherwise apply, a limitation of liability provision for "Freight All Kinds" shipments in Publication Number 1 did not apply to shipments under the carrier's rate tender.

Wylie O. Tindle

Chief, Freight and Traffic Office:

This further replies to your letter of February 12, 1988, to our Claims Group requesting advice whether Preston Trucking Company's liability for damage to an elevator trim tab, which moved in a freight all kinds (FAK) shipment in April 1987 under Government Bill of Lading (GBL) C1617459, is subject to released valuation. The matter was referred to us for reply.

The FAK shipment moved subject to Preston's Tender 471, Supplement 3, issued December 17, 1986, and effective January 1, 1987, which was referred to on the GBL and used as Preston's charge basis for the shipment. The GBL contained no released valuation annotation on its face. Also, Tender 471 contained no released valuation provisions, and the governing publications listed in the tender apparently did not have any released valuation provisions regarding the damaged article either. If there are released valuation provisions in the governing publications listed in Tender 471, those provisions would not have been sufficiently incorporated into Tender 471 to apply to this shipment by the terms and conditions governing acceptance and use of Government Bills of Lading in 41 C.F.R. 101-41-302.3(e) under the principle of law stated in 53 Comp.Gen. 747 (1974) and Mercury Motor Express, Inc., B-193029, Dec. 7, 1978, copies enclosed.

You have orally advised us that Preston believes it should receive the benefit of the released valuation provisions of the Department of Defense's new Freight Traffic Rules Publication Number 1, effective October 1, 1986, which states that FAK shipments are automatically subject to the released valuation of $1.75 per pound. The Rules Publication Number 1, however, appears not to apply to this shipment. A general announcement about Publication Number 1's effect stated:

"... affected carriers are not subject to the publications until such time as they individually file the DOD tender referring to these governing publications." 51 Fed.Reg. 30104 (1986).

You have indicated that Preston did not file a DOD tender (MTMC form MT- 364-R) referring to Publication Number 1 until after the FAK shipment in this case had moved. Preston's Tender 471 (filed on Form OP280) did not refer to Publication Number 1. Also, Publication Number 1 itself states that its "rules ... shall apply from, to, or between those points ... which are specified in the individual DOD Standard Tenders of Freight Service (tenders), MTMC Form MT-364-R filed with Headquarters, Military Traffic Management Command. ..." Apparently Preston had no form MT-364-R filed with Headquarters, Military Traffic Management Command, and since it nowhere else incorporated the released valuation rules of Publication Number 1 to govern this shipment, there could be no application of the released valuation provisions of Publication Number 1. /1/ Accordingly, we see no basis for Preston's contention that the shipment was subject to a released valuation.

We trust this is helpful to you and regret the delay in responding.

The Department of Defense's implementation instructions of November 5, 1986, for Publication Number 1 did not preclude tenders filed on Form OP280, such as Preston's Tender 471 in this case, from being applicable during the January 1-July 1, 1987, time period. We have already held that tenders filed on Form OP280 before the date of October 1, 1986, Publication Number 1's effective date, were not subject to Publication Number 1's requirements. See Berry Van Lines, B-232496, Nov. 21, 1989.