B-241633, Jun 6, 1991, 91-1 CPD ***
B-241633: Jun 6, 1991
" the term "gross lbs" should be interpreted in the sense in which it is generally used and understood. Carriers have the burden of proving that special services were not only performed but also were requested. 3. A carrier is not entitled to charges in addition to line- haul charges in the absence of a specific tariff or tender provision providing for them. 4. Where a carrier is awarded only certain destinations of a series for which quotations were solicited. There is no legal authority to pay a carrier attorney's fees incurred in pursuing a transportation claim before the General Accounting Office. Embassy contends that GSA's weight assessments were incorrect. Many of the overcharges are based GSA's calculation of the weight applicable to shipments performed under two consecutive Tenders of Service.
B-241633, Jun 6, 1991, 91-1 CPD ***
PROCUREMENT - Payment/Discharge - Shipment costs - Standard measurements DIGEST: 1. Where an agency solicitation for air freight services specifies that rates quoted by carriers shall be in "gross lbs," the term "gross lbs" should be interpreted in the sense in which it is generally used and understood, i.e., scale weight, not volume weight. PROCUREMENT - Payment/Discharge - Shipment costs - Additional costs Evidence sufficiency 2. Carriers have the burden of proving that special services were not only performed but also were requested. 3. Generally, a carrier is not entitled to charges in addition to line- haul charges in the absence of a specific tariff or tender provision providing for them. 4. Where a carrier is awarded only certain destinations of a series for which quotations were solicited, payment for shipments ordered to other destinations should not be based on the carrier's unsuccessful quotations. PROCUREMENT - Payment/Discharge - Shipment - Common carriers - Attorney fees 5. There is no legal authority to pay a carrier attorney's fees incurred in pursuing a transportation claim before the General Accounting Office.
Embassy Air Express, Inc.:
Embassy Air Express, Inc., an air freight forwarder, requests review of the General Services Administration's (GSA) assessment of overcharges on several Government Bill of Lading (GBL) transactions. Embassy contends that GSA's weight assessments were incorrect, and that the agency improperly disallowed charges for special transportation services. sustain GSA's action in part, and we overrule it in part.
Many of the overcharges are based GSA's calculation of the weight applicable to shipments performed under two consecutive Tenders of Service, known collectively as DOS 5-A, issued by the Department of State for freight all kinds and unaccompanied baggage. Through DOS 5 A, State solicited quotations on moving items to a host of different locations throughout the world, from the Washington, D.C., area and outside.
Embassy and GSA disagree on the interpretation of the term "gross lbs." found in Rule 2 (Basis of Weight) of DOS 5-A, the weight factor used to determine charges in individual shipments. Rule 2 states that air rates quoted for services "shall be in gross lbs. as indicated in the appropriate rate bidder's column. ..." The column was headed "$/#" (dollar/pound).
Embassy says that there are two standard measures of chargeable weight in the air freight transportation industry: actual gross weight and volume weight. Actual gross weight is determined by simply placing the item shipped on a scale, whereas volume weight is determined by measuring the dimensions of the item shipped and applying a standard formula to them. Embassy asserts that the standard industry practice is to use whichever of the two measures yields the higher chargeable weight. The company explains that the practice is intended to protect carriers that transport large dimension, low actual weight shipments occupying a large section of the cargo hold of an aircraft. Embassy argues that the practice should have been followed here, and complains that GSA applied gross weight even though the agency had applied volume weight as chargeable weight in auditing nine bills subject to the same provision in previous versions of DOS 5-A.
GSA responds that "gross lbs." obviously refers to actual gross weight. The agency maintains that the phrase cannot refer to volume weight because that would require a conversion formula, and DOS 5-A made no provision for such a conversion. GSA dismisses any evidence of other use of volume weight as the chargeable weight as an "erroneous computer entry." /1/
We agree with GSA's interpretation of the term "gross lbs." A term in a tender of service like DOS 5-A is interpreted in the sense in which it is generally used and understood. American Farm Lines, Inc., B-198433, July 28, 1980. This rule of interpretation applies particularly in situations where, as here, ordinary, nontechnical language was used in lieu of standard technical terminology. /2/ In our view, the use of the term "gross lbs.," especially coupled with a rate column labeled with a reference to pounds, should have alerted Embassy to the fact that the Department of State intended that weight would be measured by placing the article on a scale. The absence of a formula in DOS 5-A for calculating volume weight, while not determinative, provides additional support for the conclusion that "gross lbs." was intended in its ordinary literal sense.
Embassy has provided us copies of Notices of Overcharge in other audits in which GSA applied volume weight under a prior DOS 5-A solicitation. stated above, however, GSA advises that these were in error. Further, we note that the notices were issued on January 1, 1989, after the movement of all shipments in issue; Embassy thus clearly did not rely on them in submitting its bids.
In addition to the chargeable-weight dispute, Embassy objects to GSA's recovery of additional amounts that had been paid to Embassy for 1) expedited delivery or transportation via routes not designated in the Tender of Service; 2) transportation of oversized freight, and 3) transportation to destinations solicited by the Department of State but not awarded to Embassy under DOS 5-A.
As to the first matter, absent a specific tender provision, a carrier is not entitled to charges in addition to its line-haul charges (e.g., for expedited delivery or rerouting). Moreover, carriers have the burden of proving not only that such special services were performed, but that they also were requested. See A-Line, Ltd., B-228785, Jan. 29, 1988. Generally, higher charges for special services must be supported with an annotation on the GBL involved, or by a separate statement, containing the name of the carrier requested to perform the special service; the kind and scope of services ordered; and the signature of the person ordering such services. See 41 C.F.R. Sec. 101 41.302-6. Embassy's exhibits do not contain copies of GBL's or statements which substantially comply with this regulation, nor does DOS 5-A contain provisions for expedited delivery or rerouting.
On the issue of oversized freight, we are not aware of any shipment moving within the period of review where the article shipped exceeded the dimensional limits of DOS 5-A. If Embassy can demonstrate that an article shipped exceeded the specific limits of the Tender of Service, the shipment would be beyond the scope of DOS 5-A, so that the rates quoted in response to it would not apply.
The third matter concerns GSA's application of the rates quoted by Embassy on shipments to destinations other than those for which Embassy actually received an award. We agree with Embassy that such rates should not be applied.
As stated above, through DOS 5-A the Department of State solicited rates for a large number of destinations. Rule 15 of DOS 5-A provided that rates quoted would be used when, in the agency's discretion, their use appeared to be in the best interests of the government. In the cover letters sent out with DOS 5-A to solicit quotations, State stated that carriers/forwarders will be advised of the overseas point(s) that they are "eligible" to serve, and described how "awarding the lowest rate will be judged" if two carriers submit identical rates. Also, the letter to Embassy advising of its selection to serve certain destinations refers to those specific destinations as being those "awarded" to it.
In our view, although Rule 15 does not state a limitation on the use of quoted rates, the letters sent out with the solicitation, and the selection notice sent to Embassy, clearly indicate that rates quoted would be used by the government only if the company were chosen from amongst the responding firms for that particular destination. This means that payment to a firm for transportation to a destination not "awarded" to it, and that it thus was not "eligible" to serve, would not be based on its DOS 5- A quotation.
It is not clear why the Department of State ordered Embassy to take shipments to destinations that had been awarded to others. In any event, the use of Embassy's unsuccessful DOS 5-A quotations to calculate amounts payable to the firm is inappropriate; GSA should use whatever rate authorities otherwise would apply in making those calculations.
Embassy requests attorneys fees and other costs incurred in conjunction with this matter. There is no legal authority for such reimbursement, however. See 68 Comp.Gen. 269, 276 (1989) (concerning the Equal Access to Justice Act, as amended, 5 U.S.C. Sec. 504).
GSA should settle the transactions in dispute in accordance with this decision.
/1/ Rule 2 of DOS 5-A was revised in 1989, after all shipments in issue moved, to provide for the use of volume weight.
/2/ Embassy states that "gross pounds" has a special meaning within the air freight industry, and is used to distinguish a particular shipment's weight after packaging from its weight in "net pounds," i.e., without packaging. However, the carrier has been unable to refer us to any industrial publications defining that term.