B-242986, Jun 18, 1991, 91-1 CPD ***

B-242986, Jun 18, 1991, 91-1 CPD ***

PROCUREMENT - Payment/Discharge - Shipment costs - Rate schedules - Applicability DIGEST: The government may use the rates in a carrier's Freight All Kinds tender involving area origins and destinations, in lieu of those in a tender involving specific origin points but area destinations, when the former result in lower charges.

Harris Transport Company:

Harris Transport Company requests our review of the General Services Administration's (GSA) audit actions, assessing overcharges in 40 Government Bill of Lading (GBL) transactions. Harris contends that GSA's application of the company's territorial-based rate tenders was improper because the carrier had a rate tender specifically applicable to the two origin points.

We sustain GSA's actions.

All of the shipments consisted of military Freight All Kinds (FAK) and originated at either Mishawaka or South Bend, Indiana, between February and May 1989. Harris charged for its services under its Tender 31, which applied on FAK shipped exclusively from Mishawaka or South Bend to all points in the continental United States. GSA, supported by the Military Traffic Management Command (MTMC), contends that rates in Harris' territorial Tenders 13, 14 and 16 /1/ apply to these shipments because they produced lower charges.

All four tenders were submitted on the Department of Defense Standard Tender of Freight Services, and each specified MTMC Freight Traffic Rules Publication No. 1A (MFTRP 1A) as the governing publication. Like the rates in Tenders 13, 14 and 16, the rates submitted by Harris in Tender 31 were per hundredweight per mile rates and were contained in Section E, the "Territorial Rates" section of the Standard Tender, as opposed to Section D, the "Point-to-Point Rates" section.

Harris argues that Tender 31, with its specific origins, should take precedence over the territorial tenders. The carrier notes that Tender 31 was referenced on the GBL.

We see no merit in Harris' position.

Section B, paragraph e of Tender 31 stated: "except as provided in Item 60, of MFTRP 1A, this tender shall not apply where charges for service provided under this tender exceed charges otherwise applicable for the same service in tenders filed with MTMC." At the time of the shipments, Item 60, paragraph 3 of MFTRP 1A provided that the lowest charge obtainable would apply when the carrier had different charges for the same article (e.g., FAK) published in Section E of the same or different tenders.

Thus, Tender 31 and MFTRP 1A clearly permit the use of the lower rates in territorial Tenders 13, 14 16. This is consistent with the general rule that a shipper is entitled to the lower rate where there are conflicting applicable rates. See United Carriers, Inc., 67 Comp.Gen. 479, 482 (1988).

Finally, reference to Tender 31 on the GBL's does not preclude GSA from using a lower applicable rate from another tender. It is well settled that 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 obligations at law. See Starflight, Inc., 65 Comp.Gen. 84, 86 (1985).

GSA's action is sustained.

/1/ Tenders 13 and 14 applied on FAK from all points in various states, including Indiana, to various destination states (except the western states) moving on flatbed trailers (Tender 13) or vans (Tender 14). Tender 16 involved FAK shipments from the same origins to the western states using flatbeds.