Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
                       _________________________
 
                              May 29, 1998
                       _________________________
 
 
                            GSBCA 14394-RATE
 
 
              In the Matter of TRI-STATE MOTOR TRANSIT CO.
 
 
        Robert  D. Norcom,  Auditor,  Tri-State Motor  Transit  Co.,
   Joplin, MO, appearing for Claimant.
 
        Jeffrey J.  Thurston,  Director,  Office  of  Transportation
   Audits,   General   Services  Administration,   Washington,   DC,
   appearing for General Services Administration.
 
        Col.  James F.  Quinn,  Staff Judge  Advocate, Headquarters,
   Military  Traffic Management  Command,  Department  of the  Army,
   Falls Church, VA, appearing for Department of Defense.
 
   NEILL, Board Judge.
 
        Some time ago,  claimant, Tri-State Motor Transit  Co. (Tri-
   State ),  submitted  to  the Department  of  Defense  (DOD)  four
   supplemental vouchers  asking for additional payment based on the
   excess released  value  of the  four  separate shipments  it  had
   previously transported and  for which it  had already been  paid.
   DOD  did not  pay the  supplemental vouchers but  rather referred
   them for  audit to the  Office of Transportation Audits  (OTA) of
   the  General Services Administration  (GSA).  For  a considerable
   length of  time, OTA took  no action on  the claims.   Toward the
   close of 1997, Tri-State asked this Board to review OTA's failure
   to take action on the claims.  Shortly thereafter, OTA did act on
   the claims.   It  issued certificates  of settlement  denying the
   vouchers on  the  ground that  excess valuation  charges are  not
   applicable.   Tri-State asks that we review these determinations.
 
 
        The first  of the  four cargoes in  question was  shipped on
   January 13,  1993,  under  Government  bill of  lading  (GBL)  G-
   2,476,002.   The Government  paid Tri-State for  this shipment on
   February 24, 1993.    The  GBL for the  shipment stated that  the
   released value of  the cargo was not  to exceed $2.50  per pound.
   The cargo weighed 34,820 pounds and  thus had a released value of
   $87,050.   In accordance with  provisions set out in  the Freight
   Traffic  Rules Publication  No. 1A  (FTRP  No. 1A)  of   Military
 
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   Traffic Management  Command (MTMC),  this resulted  in an  excess
   released value  of $67,050, for  which a charge of  fifteen cents
   per $100 of  value or fraction  thereof is applicable.   For this
   cargo,  therefore, Tri-State  calculated a total  excess released
   value charge of $100.65.   Its supplemental voucher seeking  this
   amount was dated December 12, 1995.  
 
        The second cargo was shipped  on February 2, 1993, under GBL
   G-2,537,721.  The Government paid Tri-State  for this shipment on
   April 5, 1993.  The GBL for the shipment stated that the released
   value of the cargo was not to exceed $2.50 per pound.   The cargo
   weighed 22,000 pounds  and thus had a released  value of $55,000.
   Using  the applicable  rate from  MTMC's FTRP  No. 1A,  Tri-State
   calculated a total  excess released value charge of  $52.50.  Its
   supplemental voucher seeking this amount was mailed on April  10,
   1996.  
 
        The third cargo  which is in contention here  was shipped on
   September 8,  1993, under GBL  D-2,786,783.  The  Government paid
   Tri-State for this  shipment on September 23, 1993.   The GBL for
   the shipment  stated that the released value of the cargo was not
   to exceed   $2.50 per pound.  The cargo weighed 21,700 pounds and
   thus had a released value of  $54,250.  Using the applicable rate
   from  MTMC 's FTRP  No. 1A, Tri-State   calculated a total excess
   released  value charge  of  $21.45.    Its  supplemental  voucher
   seeking this amount was mailed on September 27, 1996.  
 
        The fourth and final cargo in  this case was shipped on June
   9,  1993, under GBL  G-2,285,009.  The  Government paid Tri-State
   for this shipment  on June 17,  1993.  The  GBL for the  shipment
   stated  that the released  value of the  cargo was not  to exceed
   $2.50 per pound.  The cargo weighed 13,830 pounds and thus  had a
   released value of  $34,575.  Using the applicable  rate from MTMC
   FTRP No. 1A, Tri-State  calculated a total excess released  value
   charge of  $21.90.   Its supplemental voucher seeking this amount
   was mailed on June 11, 1996.
 
                               Discussion
 
        In commenting initially on the  claims which are the subject
   of this  case, MTMC  counsel suggests that  it would  appear that
   they were not filed within the three-year statute of  limitations
   set forth in  Section 3726 of Title 31 of the United States Code.
   In making this  comment, however, MTMC readily  acknowledges that
   it does not possess all of the documentation necessary to confirm
   this.   Neither  OTA  nor Tri-State  have  addressed this  issue.
   Based upon the record before us, we conclude that two of the four
   claims are untimely filed.   
 
        The  applicable United States  Code provision to  which MTMC
   counsel refers stated:  
 
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             (a) A  carrier or  freight forwarder  presenting a
        bill for transporting an individual or property for the
        United  States  Government  may   be  paid  before  the
        Administrator of General Services conducts an audit, in
        accordance  with  regulations  that  the  Administrator
        shall prescribe.   A claim under this  section shall be
        allowed only  if it is received by the Administrator no
        later than  3 years (excluding  time of war)  after the
        later of the following dates: 
 
             (1) accrual of the claim;
             (2) payment for the transportation is made; 
             (3) refund for an overpayment for the transportation is
   made; or 
             (4) a deduction under subsection (b) of this section is
   made.  
 
   31 U.S.C.   3726(a) (1994).
 
        The  regulations issued  by  the  Administrator  of  General
   Services which  implement this  statute provide  that a claim  is
   considered "received" by the Administrator  if received by GSA or
   its "designee," namely, "the agency  out of whose activities  the
   claim arose."  41 CFR 101-41.602(b) (1996). 
 
        Of  the four  claims at  issue  here, all  accrued prior  to
   initial payment and the  record does not indicate  the occurrence
   of any refund or deduction.  Hence, the three year period for the
   submission of the  claims began to run  from the time of  initial
   payment   since  that   was  later   than   the  shipment   date.
   Furthermore, the  claims would  be deemed  to be  "received" upon
   receipt by  the DOD as GSA's "designee."    For purposes of these
   four claims,  therefore, we  deem  them timely  submitted if  the
   period between  the date  of initial payment  and receipt  of the
   supplemental voucher by DOD is no more than three years.  
 
        Two of Tri-State's claims fail to meet this test.  The claim
   based  on  GBL  G-2,537,721  was  paid on  April  5,  1993.   The
   supplemental   voucher  involving  this  shipment  was  not  even
   mailed, however, until April 10,  1996, over three years from the
   date of  initial payment.   Similarly, the claim based  on GBL D-
   2,786,783 was paid  on September 23,  1993, but the  supplemental
   voucher was not mailed until September 27, 1996.    
 
        What, however, of the remaining two  claims?  OTA's position
   in this case  is similar to that which it has maintained in other
   cases  involving claims for  excess released value.   It contends
   that prior Board  decisions on this type of  claim are restricted
   to the facts of each case and, therefore, of limited application.
   In a recent decision, Tri-State  Motor Transit Co., GSBCA  14353-
   RATE, 98-1  BCA   29,515, the Board discussed  this contention of
   OTA.   In that case,  we recognized  that each  claim presents  a
 
                                                                   4
 
   unique set  of facts but  noted that factual  differences between
   one claim and  another are legally significant only  if they lead
   to  different results when the  same legal principles are applied
   to the two  claims.  In  late March  of this year,  we issued  an
   order to  OTA  referencing that  decision  and directing  OTA  to
   identify precisely what  legally significant factual  differences
   exist in the instant case to justify a resolution other than that
   repeatedly  and  consistently  provided by  the  Board  for other
   apparently similar cases.   In a separate order,  we invited MTMC
   to address the same issue if it wished to do so.    
 
        Neither OTA  nor MTMC responded  to our orders.   We assume,
   therefore,  that they  agree with  us that  there are  no legally
   significant factual differences  between the claims in  this case
   and those  in the numerous other cases  involving excess released
   value charges where we have  granted the claims.  E.g., Tri-State
   Motor Transit Co., GSBCA 14352-RATE, 98-1 BCA   29,521; Tri-State
   Motor Transit Co., GSBCA 14249-RATE, 98-1 BCA   29,516; Tri-State
   Motor Transit Co., GSBCA 14353-RATE, 98-1 BCA   29,515; Tri-State
   Motor Transit Co.,  GSBCA 14251-RATE, 98-1 BCA     29,443 (1997);
   Tri-State Motor Transit Co., GSBCA 14245-RATE, 98-1 BCA    29,431
   (1997); Tri-State Motor Transit Co., GSBCA 13735-RATE, 98-1 BCA  
    29,415 (1997);  Tri-State Motor Transit  Co., GSBCA  14243-RATE,
   98-1  BCA    29,411  (1997);  McGil  Specialized  Carrier,  GSBCA
   14127-RATE,  97-2 BCA     29,295;  Tri-State  Motor Transit  Co.,
   GSBCA 13839-RATE,  97-1 BCA     28,953;  Tri-State Motor  Transit
   Co., GSBCA 13746-RATE, 97-1 BCA    28,951.  
        Tri-State's claims  for  excess released  value  charges  of
   $100.65  (based on  shipment under  GBL  G-2,476,002) and  $21.90
   (based  on shipment under  GBL G-2,285,009) are,  therefore, both
   granted.   OTA  is  directed  to  issue  settlement  certificates
   allowing both  claims.   Tri-State's claims  for excess  released
   value charges for shipments made under GBL G-2,537,721 and GBL D-
   2,786,783 are dismissed as untimely filed . 
 
                                      _____________________
                                      EDWIN B. NEILL
                                      Board Judge