BNUMBER:  B-261127
DATE:  February 15, 1996
TITLE:  Canupp Trucking, Inc.

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Matter of:Canupp Trucking, Inc.

File:     B-261127

Date:     February 15, 1996

DIGEST

A guaranteed traffic solicitation issued by the Military Traffic 
Management Command (MTMC) specified that charges for local services 
are to be calculated on a "shipment" basis; however, the solicitation 
did not define the word "shipment." The carrier's interpretation of a 
"shipment" as consisting of the articles under each transportation 
control number (TCN) listed on an individual government bill of lading 
governs when the TCN method of billing is a reasonable interpretation 
of the contract, experienced and competent traffic officials of the 
government approved the TCN method of billing before the carrier 
submitted any bills, and the contractor billed on that basis without 
any objection by the government for more than 3 years after the 
contract began.

DECISION

The General Services Administration (GSA) requests a decision on the 
validity of the Notices of Overcharge[1] it issued against Canupp 
Trucking, Inc. (Canupp) at the request of the Navy Material 
Transportation Office (NAVMTO) for excess amounts paid to Canupp under 
note 12 to items 23-26 of its guaranteed traffic tender 600029.  GSA 
also requests a decision concerning Canupp's claims under note 14 of 
items 23-26, where the issue is whether payment of these claims would 
duplicate payment for identical or overlapping services under note 12.

As discussed below, we conclude that Canupp's charges under note 12 
are valid, but we deny Canupp's claims for additional amounts under 
note 14.

BACKGROUND

In its solicitation to the industry dated March 26, 1990, the Military 
Traffic Management Command (MTMC), on behalf of the Navy Material 
Transportation Office (NAVMTO), sought guaranteed traffic offers for 
the transportation of Freight All Kinds (FAK) commodities[2] between 
the following locations:  the QUICKTRANS Terminal in Norfolk, 
Virginia; the Norfolk, Virginia Commercial Zone; the QUICKTRANS 
Terminal in Jacksonville, Florida; the carrier's terminal in 
Charleston, South Carolina; and the QUICKTRANS Terminal in Charleston, 
South Carolina.

Canupp submitted the winning proposal in its tender 600029.  Canupp's 
tender 600029 contained all of the NAVMTO-directed terms, conditions 
and charges of the MTMC solicitation, and Canupp's proposed "per 
vehicle used" charges as specified in items 23-26 of the tender.  
Tender 600029 and the March 26, 1990, solicitation form the contract 
between Canupp and NAVMTO.

The excess charges and additional claims disputes between Canupp and 
NAVMTO depend on the definition of the word "shipment" found in notes 
12 and 14 to items 23-26 of the tender.  Note 12 provides for charges 
of $2.00 per hundred weight (cwt) for pickup and deliveries in the 
Charleston area, with a minimum charge of $25.00 per shipment.  Note 
12 further states that the charge includes "handling, consolidation, 
and break bulk."  Note 14 requires the carrier to perform terminal 
services, including distribution and consolidation of shipments to 
include transloading of local Charleston pickups destined for other 
points.  Note 14 also states that "the cost of this is as provided in 
NOTE 12."

In August 1990, shortly after the award but before presentation of the 
first billings, Canupp's representatives met with several NAVMTO 
representatives, including the NAVMTO division head and the 
contracting officer's technical representative, to review proper 
billing procedures.  Specifically, Canupp sought guidance as to the 
meaning of the word "shipment" in note 12.  The division head 
responded that each transportation control number (TCN)[3] on a GBL 
should be billed as a shipment.  Canupp billed on a TCN basis from 
August 1990 until late in 1993.  According to Canupp, it billed 1,062 
GBLs on a TCN basis before NAVMTO objected to this form of billing.

In November 1993, NAVMTO notified Canupp that the word "shipment" as 
used in note 12 should derive its meaning from item 1001 of MTMC's 
Freight Traffic Rules Publication  (MFTRP) 1A, in that, for billing 
purposes, a single shipment should be tied to, or be equated with, a 
single GBL.  Thus, NAVMTO concluded, Canupp should have computed its 
note 12 charges based on the total weight of the articles listed on 
each GBL and not based on the weight of the articles listed under each 
TCN.

In cooperation with NAVMTO, GSA conducted a postpayment audit of 
Canupp's bills, and it applied note 12 charges on a GBL basis.  Canupp 
then asked GSA to reconsider.  After reviewing Canupp's contentions, 
GSA asked us to resolve the dispute.

The difference between TCN and GBL billing can be considerable due to 
the rate of $2.00 per cwt and the $25.00 minimum charge per shipment 
specified in note 12.  For example, on GBL No. C-8,141,261, a shipment 
from a shipping activity to the carrier's terminal made in 1992, 
Canupp billed 63 individual TCNs listed on the GBL at the minimum 
charge of $25.00 each, since the article or articles included under 
each of these 63 TCNs weighed less than the breakpoint weight of 1,250 
lbs., and it also billed for two TCNs that weighed more than the 
breakpoint weight, for charges of $28.50 and $55.90, respectively, or 
a total charge of $1,659.40 on the GBL.  Under NAVMTO's interpretation 
of a "shipment" as one GBL, the charge would be $286.40, based on a 
total GBL weight of 14,320 lbs.

NAVMTO argues that the MFTRP 1A definition of "shipment" is 
controlling here.  Under that definition, a shipment is a quantity of 
freight tendered for transportation by one shipper at one point on 1 
day, on one bill of lading, for delivery to one consignee at one 
destination.  It notes that this definition is the one generally 
accepted in the industry and adopted in our decisions, citing 
B-197658, Aug. 25, 1980, and B-179944, Aug. 8, 1974.

In support of its position, Canupp argues that the usual definition of 
shipment does not apply to note 12 services since, in addition to 
pickup and delivery in the Charleston area, it was required to 
maintain a terminal and to perform terminal services for local pickups 
and deliveries, as described in notes 12 and 14.  Canupp also stresses 
the fact that it sought confirmation from NAVMTO at the time of 
contracting as to the correct method of billing, and NAVMTO confirmed 
that the TCN method of billing was correct.  It further states that 
the GAO decisions relied upon by NAVMTO for its interpretation of 
"shipment" involved an incorporation by reference of the National 
Motor Freight Classification, which incorporation by reference does 
not exist here.  Finally, Canupp states that it would not have agreed 
to extend its tender until the fall of 1993, if it had known in 
advance that NAVMTO disagreed with the TCN method of billing.

MTMC supports Canupp's position.  It does so on the basis that Canupp 
did seek clarification of the form of billing for note 12, the 
government drafted the contract, and the government had experienced 
and competent traffic managers approve TCN billing.  MTMC states that 
a court would find for Canupp under these circumstances.

DISCUSSION OF NOTE 12 CHARGES

Generally, rules governing the construction of statutes also are 
applicable to the construction of contracts and tariffs.  See 
Pillsbury Flour Mills Co. v. Great Northern Ry. Co., 25 F.2d 66, 68 
(8th Cir. 1928).  It is a rule of contract construction that unnatural 
or strained constructions should be avoided.  Moreover, in deciding 
the meaning of any one provision of the contract all provisions of the 
contract should be considered.  The interpretation that should prevail 
is the one that gives reasonable meaning to all provisions and does 
not render any part absurd, surplus or creates conflicts.  If an 
ambiguity is found to exist that is not resolved by applying other 
rules of interpretation, it is construed against the drafter.  See 
Southern Pac. Transp. Co. v. United States, 596 F.2d 461, 464-465 (Ct. 
Cl. 1979).  Moreover, where an agreement involves repeated occasions 
for performance by either party with knowledge of the nature of the 
performance and opportunity for objection to it by the other party, 
any course of performance accepted or acquiesced in without objection 
is given great weight in the interpretation of the agreement.  See 
RESTATEMENT (SECOND) CONTRACTS  sec.  202(4) (1981).

Applying these rules of construction, we do not see how Canupp could 
be charged with actual or constructive knowledge of NAVMTO's 
interpretation of the word shipment in note 12, either from the terms 
of the contract or from NAVMTO's actions, before the present dispute 
arose.  Item 15 of Canupp's tender specifically states that it is 
self-contained unless otherwise indicated (see, for example, item 39 
that incorporates the solicitation).  While the tender contains 
specific instances in which it incorporated the definitions of MFTRP 
1A, see for example, items 40 (Signature and Tally Record Service) and 
41 (DOD Constant Surveillance Service), there is no such incorporation 
in note 12.  Further, as Canupp notes, the GAO decisions cited by 
NAVMTO for its definition of shipment, involved situations where the 
definition was incorporated by reference.

We recognize that there is a significant difference in the price 
charged for each of these movements, depending on whether the TCN 
billing method or the GBL billing method is used.  Charges for the 
movement of the shipments (per GBL) will generally be higher if billed 
on the basis of TCNs rather than on GBLs.  While the record does not 
permit us to measure the magnitude of these differences, it is 
apparent, particularly in view of acceptance of the TCN billing 
practice by NAVMTO for a significant period of time, that the charges 
based on TCN billings are not so high as to be clearly out of line.  
Thus, we cannot say that Canupp should have known that its definition 
of a shipment, and thus its billing method, was unreasonable.  As GSA 
states in its submission, the agreements and understandings have to be 
considered to resolve this dispute.

Under this contract, Canupp billed a charge for local pickup and 
delivery service, as provided in note 12, and a line-haul charge to 
cover a consolidated truckload movement from the carrier's terminal to 
destination, as provided in items 23-26.  As required by note 12, 
Canupp would pick up a load (shipment) from a Navy shipper moving on 
the basis of a single GBL, and consisting of numerous packages going 
to different destinations.  When the vehicle returned to Canupp's 
terminal, it would sort packages in the load by destination.  When a 
sufficient volume of cargo for a particular destination, or for 
destinations along the route where a stop off can be made, had 
accumulated, Canupp would load the cargo onto a truck.  The load on a 
particular truck could involve several freight bills moving to several 
destinations under another GBL.  The line-haul charges associated with 
different articles shipped to Canupp's terminal were billed under 
separate GBLs.  The pickup-to-terminal GBLs involved many different 
TCN numbers, most with only one article per TCN, although some 
involved multiple articles per TCN.  Articles under different TCNs 
usually had different ultimate destinations.

In these circumstances, there is little significance to the identity 
of the vehicle that picked up the cargo, the date of pick up, or how 
many pieces of cargo were on one bill of lading at origin.  The pieces 
of cargo that the shipper included under each TCN could be considered 
the only recognizable unit of cargo that might otherwise have been 
included as the "shipment" if the transportation had occurred in 
common carriage.  In so doing, the customary meaning of "shipment" as 
all pieces of cargo tendered to a carrier by one shipper at one place 
at one time for delivery to one consignee at one place on one bill of 
lading, loses significance.  A definition that ties "shipment" to the 
TCN could be deemed appropriate.

In any event, before submitting any bills, Canupp sought guidance 
from, in MTMC's words, experienced and competent government traffic 
managers as to the proper method of billing under note 12.  They 
informed Canupp that TCN billing was proper.

NAVMTO argues that its employees erroneously advised Canupp and that 
it is not bound by their unauthorized interpretation.  An agency, 
however, is not entirely free to repudiate the statements of its 
representatives when they are entrusted by the agency to provide 
guidance to the contractor concerning the contract.  The contractor is 
entitled to rely on their guidance.  In Kraus v. United States, 366 
F.2d 975, 981 (Ct. Cl. 1966), a government inspector agreed with the 
contractor's interpretation of the technical specifications.  As here, 
the government later contended that this interpretation was incorrect.  
The court found that where contract language is ambiguous and the 
plaintiff's interpretation is reasonable, even if the inspector did 
not have authority to bind the government with his interpretation, his 
actions "constituted highly persuasive evidence of the reasonableness 
of plaintiff's interpretation."

As MTMC states, the facts here are even more compelling in favor of 
the contractor's position.  Contrary to NAVTMO's contention, we 
believe it is bound to its employees' interpretation.  Max Drill, Inc. 
v. United States, 427 F.2d 1233 (Ct. Cl. 1970).  We find for Canupp on 
note 12.

ADDITIONAL CHARGES UNDER NOTE 14

The carrier also claims certain charges billed under note 14, relating 
to terminal services it provided.  NAVMTO and GSA contend that Canupp 
cannot bill under both note 12 and note 14 because note 14 duplicated 
the charges for services in note 12.

It does not appear to us that separate additional services are 
provided for in note 14.  Canupp interprets note 12 as the charges for 
pickup and delivery services in the Charleston area, and it interprets 
note 14 as the charges for the transloading of shipments, data 
capturing, rearrangement of articles for subsequent movement, and 
storage pending transportation.  However, note 12 specifically states:  
"Charge includes handling, consolidation, and break bulk"; most of 
these services were performed at the carrier's terminal.  While it may 
have been more appropriate to consolidate the content of notes 12 and 
14, into one note, note 14 merely added detail about Canupp's duties 
in the Charleston area, particularly with respect to terminal 
services.

Read together, the import of notes 12 and 14 was that, in exchange for 
the charge in note 12, the carrier had to do what was necessary to 
assure that articles picked up in the Charleston area would be 
segregated by destination at its terminal and then combined with 
articles from other shippers going to the same destination.  The only 
activity that does not appear to be covered specifically by the 
terminology "handling, consolidation, and break bulk" is storage, but 
this service was necessarily implied by the nature of the carrier's 
duties under the contract.  As NAVMTO states, the language in the last 
sentence of note 14, "the cost of this is provided in Note 12," 
clearly suggests that note 12 and note 14 involved the same service at 
one charge.

Accordingly, we deny Canupp's claim for additional amounts under note 
14.

/s/ Lowell Dodge
for Robert P. Murphy
General Counsel

1. A Notice of Overcharge, GSA Form 7925, is a written statement sent 
by GSA to the carrier which notifies that it charged, and the 
government paid, too much money for a transportation service.  The 
notice specifies, among other things, the amount paid to the carrier, 
the amount that the government should have paid, and the basis for 
GSA's calculation of the charge.

2. These commodities were defined in this solicitation as all types of 
commodities except Classes A and B explosives, ammunition, fireworks, 
etc.; Class C explosives, ammunition or fireworks requiring a 
Department of Defense (DOD) transportation protective service; and 
Class C explosives, fireworks or ammunition in excess of 1,000 pounds.

3. A transportation control number is a 17-position number assigned to 
control a shipment unit throughout the transportation cycle within the 
Defense Transportation System.  See NAVMTO letter to GSA dated January 
25, 1995 and Reporting of Transportation Discrepancies in Shipments, 
Glossary 1, NAVSUPINST 4610.33C.