Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
                           __________________
 
                           September 17, 1998
                           __________________
 
 
                            GSBCA 14560-RATE
 
 
              In the Matter of TRI-STATE MOTOR TRANSIT CO.
 
 
        Robert  D. Norcom,  Auditor,  Tri-State Motor  Transit  Co.,
   Joplin, MO, appearing for Claimant.
 
        James   F.  Fitzgerald,   Director,  Transportation   Audits
   Division,  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.
 
   BORWICK, Board Judge.
 
        In this  matter  we consider  the  question of  whether  our
   decision in C.I. Whitten Transfer Co., GSBCA 13911-RATE, 97-1 BCA
     28,860, should be applied retroactively to pending claims so as
   to entitle  Tri-State Motor  Transit Co. (TSMT)  to $959.84.   We
   conclude that it  should.  TSMT  is entitled to  a refund of  the
   $959.84  (representing principal plus  interest) that it  paid to
   the Government  pursuant to notices  of overcharge issued  by the
   General Services Administration's Office of Transportation Audits
   (OTA).  
 
        The record  shows the following.   On January 27,  1994, the
   transportation officer at  the Naval Weapons Station,  Earle, New
   Jersey, shipped 15,637 pounds of explosives to  the Naval Weapons
   Station, Yorktown, Virginia, by Government Bill of Lading   (GBL)
   G-2,824,738.   The  shipment was  for the  benefit of  the United
   States Coast  Guard (Coast Guard),  because on the GBL  it states
   that the charges were  to be paid by the Commandant  of the Coast
   Guard.   The  carrier was  TSMT,  which charged  $1371 under  its
   special  rate authority  1064 stated in  the GBL.   TSMT  filed a
   claim  for an  additional $261.08,  asserting it  should  be paid
   under  its tariff  T100  instead of  its  special rate  authority
   because the shipment was for the  benefit of the Coast Guard, not
   the Department of  Defense (DoD).   Application of TSMT's  tariff
   would result  in total  freight charges  of $1632.08,  or $261.08
   more than it had been paid under the GBL. 
 
 
        On  February 10,  1994, the  transportation  officer at  the
   Naval  Surface Warfare Center, Crane, Indiana, shipped 138 pounds
   of  firearms  and related  commodities  to  the 5th  Coast  Guard
   District,  Portsmouth, Virginia, by GBL G-4,023,350.  The carrier
   was TSMT, which charged $688.40 under its special rate  authority
   001303 as stated  in the GBL.   TSMT again filed  a claim for  an
   additional $655.90, because  the shipment was for  the benefit of
   the  Coast Guard.   Application  of TSMT's  tariff for  the items
   would result  in total freight  charges of  $1344.30, or  $655.90
   more than it had been paid under the GBL.
 
        For both  claims, TSMT  asserted that  our decision  in C.I.
   Whitten  Transfer Co., GSBCA  13911-RATE, 97-1 BCA    28,860, was
   dispositive.  In that  case, involving a shipment made  by DoD on
   behalf of the  Coast Guard, we held that the carrier was entitled
   to  be paid  at its  tariff rate  because the  carrier's tenders,
   issued  pursuant to  special  rate  authority,  applied  only  to
   shipments made for the benefit of the DoD, not  to shipments made
   for  civilian agencies.   Our  decision  there relied  on Baggett
   Transportation  Co.  v. United  States,  670 F.2d  1011  (Ct. Cl.
   1982).  After the claims were filed, the Government paid TSMT the
   total requested, or $916.98.
 
        Subsequently, the  OTA submitted  notices  of overcharge  to
   TSMT, maintaining that  the decision in GSBCA  13911-RATE was not
   retroactive, and that the  governing authority was a  decision of
   the    Comptroller     General,     45     Comp.     Gen.     118
   (1965).[foot #] 1      For   GBL  G-2,824,738,   OTA   sought   a
   refund of $261.08 plus interest of $12.07 for a total of $273.15.
   For GBL G-4023350,  OTA sought a refund of  $655.90 plus interest
   of  $30.79, for  a  total  of $686.69.    TSMT paid  the  alleged
   overcharges  plus interest totaling  $959.84 and filed  a request
   for review at this Board.
 
                               Discussion
 
        Neither  OTA nor  the  Military  Traffic Management  Command
   (MTMC)  disputes TSMT's underlying assumption that the shipments'
   tenders at issue  here are limited to  DoD agencies only, as  was
   the case in Whitten.  Rather, both MTMC and OTA focus  on whether
   the Whitten decision should be applied retroactively.  OTA  erred
   in  determining  that  our decision  in  Whitten  has prospective
   application  only.     In  both   federal  court  cases   and  in
   administrative  adjudications,  decisions   generally  are  given
   retroactive effect because  of the overriding policy  of treating
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 That decision held  in part that a  carrier could
   authorize use  by  one agency  of  the carrier's  special  tender
   applicable to another agency by manifesting clear assent such  as
   an annotation on the bill of lading.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   similarly  situated parties  the  same, which  is  regarded as  a
   fundamental principle both  of stare decisis and the  rule of law
   generally.   National  Fuel  Gas Supply  Corp. v.  Federal Energy
   Regulatory  Commission, 59  F.3d  1281,  1289  (D.C.  Cir.  1995)
   (citing  Beam v.  Georgia,  501  U.S. 529,  537-38  (1991)).   In
   federal courts, consequently, the exceptions to the retroactivity
   of decisions  are limited: (1)  the decision creates a  new rule,
   either by  overruling past precedents relied upon  by the parties
   or because it  was an issue of first  impression; (2) retroactive
   application  would  be more  likely  to  hinder than  to  further
   operation of the new rule; and  (3) retroactive application would
   produce substantialy  inequitable results.   Chevron  Oil Co.  v.
   Huson,  404   U.S.  97,   106-07  (1971);   District  Lodge   64,
   International Association of Machinists and  Aerospace Workers v.
   NLRB, 949 F.2d 441 (D.C. Cir. 1991).[foot #] 2  
 
 
        Analogous stringent limitations  apply when considering  the
   retroactivity of agency adjudications.  Agency adjudications will
   be applied retroactively  unless: (1) the particular  case is one
   of  first  impression;  (2) the  new  rule  represents an  abrupt
   departure  from well established  practice or merely  attempts to
   fill a void  in an unsettled area  of law; (3) the  party against
   whom the new rule is applied relied upon the former rule; and (4)
   the  statutory interest  in  applying a  new  rule outweighs  the
   reliance of a party on the old standard.  District Lodge  64, 949
   F.2d at 447. 
 
        In Whitten, we did not  make new law; rather, we interpreted
   the provisions of the  tender and tariff in light of  the law the
   Court of Claims  articulated in 1982 in Baggett.   In Whitten, we
   noted  that the  concurring judge  in  Baggett took  note of  the
   decisions of the  Comptroller General holding to the contrary and
   considered  them "wrong."   Whitten,  97-1  BCA at  143,989.   In
   deciding Whitten, therefore,  the Board did not deal  with a case
   of first  impression or  develop a new  rule that  represented an
   abrupt  departure  from  an  old   rule.    We  applied  the  law
   articulated by the  authoritative court as it has  stood since at
   least  1982.   Since  the  agency  has  not demonstrated  that  a
   departure from the general rule of retroactivity is warranted, or
   demonstrated that Whitten is distinguishable from this matter, we
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2 In Reynoldsville  Casket  Co. v.  Hyde, 514  U.S.
                      ___________________________________
   749,  759 (1995),  the Supreme  Court  held that  a remedy  which
   avoids  the application  of a  new  rule is  appropriate in  four
   specific circumstances: (1) where there is  an alternative way of
   curing  a constitutional  violation; (2)  where,  there exists  a
   previously existing independent  basis having nothing to  do with
   retroactivity; (3) where,   as in the law  of qualified immunity,
   there is a  well-established legal rule that trumps  the new rule
   of law, which general rule  reflects both reliance interests  and
   other significant policy justification; or (4) where, a principle
   of law limits the principle of retroactivity itself. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   will  follow the  reasoning  of  Whitten.   TSMT  is entitled  to
   payment of $959.84  
 
 
 
 
                                 __________________________
                                 ANTHONY S. BORWICK
                                 Board Judge