Allstates Air Cargo, Inc.

Allstates Air Cargo, Inc. BNUMBER: B-261266; B-261266.2 DATE: February 29, 1996 TITLE: Allstates Air Cargo, Inc. ********************************************************************** Matter of:Allstates Air Cargo, Inc. File: B-261266; B-261266.2 Date:February 29, 1996 DIGEST A Department of Defense guaranteed traffic tender provided that payment of the full amount of the charges required the carrier to deliver by the desired delivery date. It also provided that normal delivery service was Monday through Saturday no later than 5 p.m., and included a reduced payment for late deliveries. However, some destination installations stopped receiving shipments prior to 5 p.m., and the carrier documented instances in which a receiving installation closed prior to 5 p.m. Because the tender specifically stated that delivery by 5 p.m. was timely, the carrier's delay in delivery is excusable, and the full amount of charges are payable, if the carrier can clearly demonstrate that it would have delivered a particular shipment by 5 p.m. on a given day, but it was prevented from doing so solely because of the receiving office's closure prior to that time. The carrier's proof should adhere to the requirements contained in the records procedure. DECISION Allstates Air Cargo, Inc. (Allstates), an air freight forwarder, requests review of the General Services Administration's (GSA) disallowance of its claims for reimbursement for amounts set off by GSA for overcharges on various government bill of lading transactions.[1] GSA asserted overcharges on these shipments, concluding that the tender's low rate applied when Allstates failed to meet the tender's requirement of timely delivery. Allstates contends that it attempted delivery of each shipment on the desired delivery date (DDD), but it was unable to accomplish delivery because, in each instance, the destination installation had closed prior to 5 p.m. We reverse GSA's settlements and remand this matter to GSA to await further proof from Allstates to support its claims. In 1992, the Military Traffic Management Command (MTMC) awarded Allstates Freight All Kinds[2] guaranteed traffic[3] from the Defense Depot in Columbus, Ohio, to various points in the continental United States. The terms and conditions of the agreement between Allstates and the Department of Defense (DOD) were drafted and controlled by MTMC, and were contained in tender 600,005. Item 32 of tender 600,005 provided, among other things, that Allstates agreed to charges at a rate of 50 percent of the rate offered by it if "a shipment is not delivered to the consignee's address consistent with the desired delivery date shown on the bill of lading and/or shipping manifest." Additionally, item 26d provided that normal delivery service was Monday through Saturday "no later than 5 p.m." GSA contends that Allstates made regular deliveries to the destinations involved, and it was well aware of the shipping and receiving hours. GSA does not believe that item 26d required a receiving installation to remain open until 5 p.m. to receive shipments, and it says that "it merely establishes reasonable guidelines for service requirements." Allstates points out that it could have been removed from the contract if on-time deliveries fell short of 95 percent of the covered shipments. It notes that the Defense Depot in Columbus, the shipper, did not consider its service unsatisfactory with respect to the transactions in dispute. The record does not contain any evidence, as required by item 33d, that the shipper notified Allstates of a service failure or notify it that it intended to remove Allstates due to such a failure. Allstates also directs our attention to item 29d which states that if the consignee is unable to accept a shipment through no fault of the carrier, the carrier will annotate the delivery receipt with the time/date consignee was notified that the shipment was available and the person and telephone number of the person who declined delivery. Allstates prepared documents noting the date of each attempted delivery, depot personnel with whom it made contact, and the actual dates of delivery. After reviewing the matter, MTMC agreed with Allstates saying that the carrier submitted the necessary documentation to support its claim with respect to the GBLs in question. MTMC acknowledges that the different depot destinations had different receiving times, and concludes that the carrier should not be penalized for the irregular and sporadic receiving times involved. We reviewed the sample of six transactions that Allstates submitted to us with its May 23, 1995, request for review. They involve shipment dates from March 1993 to August 1993.