B-236336, Jul 13, 1990, 90-2 CPD ***

B-236336: Jul 13, 1990

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The insertion of a tender number on a bill of lading is not conclusive as to the agreement and is not necessarily determinative of the government's legal obligations. Is respon-sible for the proper issuance of a Government Bill of Lading. Both tenders were in effect when the shipment was picked up. Item 28 of Tender 43 prohibits alternation with rates in other tenders: "On shipments covered by this tender alternation with other rates and charges is not permissible. The only rates and charges permitted on shipments covered by this tender are the rates and charges shown herein.". We have held that the insertion of a tender number on a bill of lading is not conclusive as to the agreement and is not necessarily determinative of the government's legal rights and obligations.

B-236336, Jul 13, 1990, 90-2 CPD ***

PROCUREMENT - Payment/Discharge - Shipment costs - Rate schedules - Applicability DIGESTS: 1. Where a tender other than the one referenced on a Government Bill of Lading (GBL) could apply to the shipment, the referenced tender permits alternation with otherwise applicable charges whereas the other one does not, and the unreferenced tender leads to a lower charge to the government, the unreferenced tender should be applied. PROCUREMENT - Payment/Discharge - Shipment - Tenders - Terms - Interpretation 2. The insertion of a tender number on a bill of lading is not conclusive as to the agreement and is not necessarily determinative of the government's legal obligations. PROCUREMENT - Payment/Discharge - Shipment costs - Additional Costs Bills of lading - Ambiguity 3. The carrier, not the government as shipper, is respon-sible for the proper issuance of a Government Bill of Lading, free of conflicting provisions.

Double M Transport, Inc.:

Double M Transport, Inc., appeals the General Services Administration's (GSA) audit action in citing the carrier for overcharges in the February 1987 movement of freight from Pennsylvania to California. /1/ We sustain GSA's action.

In preparing Government Bill of Lading (GBL) block 20, Tariff/Special Rate Authority, the shipper indicated that Double M's Tender 30 applied, and the carrier based its billing on that tender. GSA, however, believes Double M's Tender 43 offered by Double M under the Department of Defense's Guaranteed Traffic Program, which saves the government $323.28, should apply. Both tenders were in effect when the shipment was picked up. Tender 30, Supplement 1, became effective on January 13, 1987; Tender 43 became effective December 1, 1986.

We agree with GSA, based on the alternation clauses in the two tenders. Alternation permits selecting the lowest charge for a shipment from any of the rates and rate publications that could apply. Item 20.g of Tender 30 allows alternation in favor of lower charges otherwise applicable for the same service. On the other hand, item 28 of Tender 43 prohibits alternation with rates in other tenders:

"On shipments covered by this tender alternation with other rates and charges is not permissible. The only rates and charges permitted on shipments covered by this tender are the rates and charges shown herein."

Accordingly, in construing the two documents, lower charges in Tender 43 apply where both Tenders 43 and 30 cover the same shipment.

With regard to the shipper's reference to Tender 30 in block 20 of the GBL, we have held that the insertion of a tender number on a bill of lading is not conclusive as to the agreement and is not necessarily determinative of the government's legal rights and obligations. Starflight, Inc., 65 Comp.Gen. 84, 86 (1985). Here, the government's rights and obligations are determined by the relationship of Tenders 30 and 43, which permits the application of Tender 43 when it covers the shipment in issue.

GSA's settlement action is sustained.

/1/ The shipment was transported under Government Bill of Lading C 2, 053,394.