B-241866, Jun 17, 1991, 91-1 CPD ***
B-241866: Jun 17, 1991
In which GSA applied tariff rates that were lower than the rates in the carrier's government rate tender. GSA used lower charges for the same services set out in the carrier's Tariff 501 C. /1/ GSA's action was based on 41 C.F.R. The carrier objects to the application of the rates in Tariff 501-C because the tariff included a statement that the "rates and provisions named in this tariff will not apply on shipments moving on a U.S. Is that the tariff predicated charges on lineal-foot requirements. The GBL's are governed by 41 C.F.R. The point of the regulation is not application. Or that the rates for such transportation are set out in Tariff 501-C. The fact that the GBL's cited Tender 1060 as the rate authority for the shipments is not determinative.
B-241866, Jun 17, 1991, 91-1 CPD ***
PROCUREMENT - Payment/Discharge - Shipment - Tenders - Terms - Interpretation DIGEST: Where use of a carrier's tariff rates results in lower charges than those available in the carrier's government rate tender, the tariff rates set the upper limit of those chargeable since shipments made on a GBL may take a rate no higher than that chargeable had the shipment moved on commercial shipment forms.
Sammons Trucking requests our review of the General Services Administration's (GSA) audit action on two military unaccompanied baggage shipments, in which GSA applied tariff rates that were lower than the rates in the carrier's government rate tender. We sustain GSA's actions.
Sammons billed the government under its Tender 1060, but GSA used lower charges for the same services set out in the carrier's Tariff 501 C. /1/ GSA's action was based on 41 C.F.R. Sec. 101-41.302-3(c), which requires that a GBL shipment "take a rate no higher than that chargeable had the shipment been made on the uniform straight bill of lading, uniform express receipt, or any other form provided for commercial shipments."
The carrier objects to the application of the rates in Tariff 501-C because the tariff included a statement that the "rates and provisions named in this tariff will not apply on shipments moving on a U.S. Government Bill of Lading." In a related argument, Sammons disputes application of the referenced regulation on the basis that Sammons in fact had no authority to haul household goods commercially.
Another reason that Tariff 501-C should not apply, according to Sammons, is that the tariff predicated charges on lineal-foot requirements, which the Military Traffic Management Command (MTMC) had prohibited (because they often exceed actual weight-based charges) by a 1983 letter to the industry.
Finally, Sammons points out that the GBL's cite Tender 1060 as the applicable rate authority for the shipments.
We find no merit in Sammons' arguments.
According to their Terms and Conditions, the GBL's are governed by 41 C.F.R. Part 101-41; as indicated above, section 101-41.302-3(c) precludes a shipment rate higher than that "chargeable" if the shipment had been made on other than a GBL. Although the language of Tariff 501 C may preclude the actual application of its rates and terms to a GBL shipment, the point of the regulation is not application, but to set an upper limit on what the carrier may charge the government: no more than the carrier would charge anyone else for the same services. Thus, GSA properly compared the tender rates with the tariff ones in determining the amount due Sammons.
Notwithstanding the carrier's allegation that it has no authority to haul household goods for commercial customers, GSA advises that Sammons' general commodity, commercial operating authority includes linehaul transportation of unaccompanied baggage. Also, MTMC, in commenting on the issue, notes that the carrier does not deny that it holds authority to transport military household goods and unaccompanied baggage, or that the rates for such transportation are set out in Tariff 501-C.
As to MTMC's 1983 letter prohibiting lineal-foot charges, both GSA and MTMC point out that the letter concerned only voluntary carrier tenders submitted to MTMC. It did not prevent a carrier from using lineal-foot charges in a public tariff filed with the Interstate Commerce Commission, so that the government, under 41 C.F.R. Sec. 101 41.302-3(c), can look to such charges where, as here, they lead to a shipment cost lower than that based on the tender.
Finally, the fact that the GBL's cited Tender 1060 as the rate authority for the shipments is not determinative. It is well-settled that the insertion of a tender number on a bill of lading is not conclusive as to the agreement and the government's obligations at law. See Starflight, Inc., 65 Comp.Gen. 84, 86 (1985); American Farm Lines, B-200939, May 29, 1981.
GSA's settlements are sustained.
/1/ Public rates and charges for surface transportation are filed with the Interstate Commerce Commission and published in tariff format. Additionally, a carrier voluntarily may offer the government free or reduced-rate services, using a tender format. See generally, Lockheed Propulsion Co., et al., 53 Comp.Gen. 977, 1009 (1974).