Platinum Services, Inc. v. United States

In the United States Court of Federal Claims

No. 20-456C

(Filed: July 25, 2025)

**************************

PLATINUM SERVICES, INC.,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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Anthony J. Marchese, Washington, D.C., for plaintiff. Carol L.

O’Riordan, of counsel.

Stephanie A. Fleming, Trial Attorney, United States Department of

Justice, Commercial Litigation Branch, for defendant, with whom were

Sheryl L. Floyd, Trial Attorney, Daniel D. Falknor, Trial Attorney, Michael

D. Snyder, Trial Attorney, Yaakov M. Roth, Acting Assistant Attorney

General, Patricia M. McCarthy, Director, and Martin F. Hockey, Jr., Deputy

Director. Todd P. Federici, of counsel.

OPINION

BRUGGINK, Senior Judge.

This is an action for breach of contract brought against the United

States, acting through the Department of Defense (“DoD”). Plaintiff,

Platinum Services, Inc. (“Platinum”), alleges it contracted with the

government to transport 45 shipments of household goods for military

servicemembers during the summer months of 2016, 2017, and 2018.

Plaintiff claims the services contracted for included line-haul freight (i.e.,

long-distance transportation) as well as accessorial services (i.e., additional

moving services beyond standard long-distance transportation). According

to plaintiff, the parties agreed to plaintiff’s rates listed on its freight tenders,

justifying $17,651,695 in total charges. Plaintiff asserts it performed those

transportation services yet has not been paid and is thus entitled to the full

contract amount in damages. In response, the government agrees that it asked

for line-haul shipping, but argues that it never requested that plaintiff perform

any accessorial services and, in any event, never agreed to the rates reflected

on plaintiff’s freight tenders. As a result, the government claims plaintiff is

only entitled to, at most, $400,612 in quantum meruit damages for the value

of the shipping. Trial was held November 12–15, 2024. Following post-trial

briefing and closing arguments, we conclude that plaintiff has established its

breach of contract claim only with respect to its line-haul freight services.

Plaintiff has not established its breach of contract claim for its accessorial

services but is entitled on a quantum meruit basis to recover for those services

actually performed. We conclude that plaintiff is owed $801,424.90 in total

damages, as explained below.

BACKGROUND

When military personnel are deployed or relocated, the United States

Transportation Command (“USTRANSCOM”), a command under the DoD,

is responsible for managing the transportation of servicemembers’ household

goods. The command operates through regional shipping offices scattered

around the country. The offices contract out to private shippers the actual

work of packing, loading, storing, shipping, and unloading. It became

apparent during trial that there are multiple contractual vehicles available to

the local offices in obtaining these services, and that the contracts can engage

private companies to do some or all of the steps in moving servicemembers’

goods. If this case is an accurate depiction of how military members’ goods

are shipped, one cannot help but observe that a new method could usefully

be devised.

Some of the contract vehicles available are subject to procedures

unique to the military—the Military Freight Traffic Unified Rules

(“MFTURP-1”). Others are subject to the Federal Acquisition Regulations

(“FAR”). A single move may involve both FAR-based and MFTURP-1-

based contracts. 1

1

FAR-based contracts are not, by default, subject to the MFTURP-1, as the

scope of the MFTURP-1 “does not include the transportation of . . . Federal

Acquisition Regulation (FAR) contracts . . . unless the [MFTURP-1] is

specifically incorporated into the contract or agreement.” MFTURP-1

2

This case involves 45 shipments of military servicemembers’

household goods undertaken by Platinum, a transportation and storage

company, on behalf of a single, local government shipping office, the Joint

Personal Property Shipping Office (“JPPSO”) for the Mid-Atlantic (“JPPSO-

MA”), which operates out of Fort Belvoir in the Washington, D.C. area.

Platinum has long performed shipping services for the military and was well

known to JPPSO-MA.

Transportation of household goods is frequently undertaken through

what is known as the Direct Procurement Method (“DPM”). MFTURP-1

App. D, § J at 264; JX 63 at App. 265; see also Trial Tr. vol. 2, 402–03, 408

(all subsequent trial transcript references are to “Tr.”). For the shipments in

question, however, Platinum’s performance did not follow the DPM method,

but instead followed a modified, impromptu method devised by JPPSO-MA

for use during busy seasons. The parties refer to this as the “hybrid method,”

although it has no explicit regulatory provenance. Before describing how the

parties tried to use that hybrid method for the disputed shipments, it is

necessary to lay out the components of the more typical DPM, because the

hybrid method was cobbled together from parts of the DPM.

I. A Standard Move under the Direct Procurement Method

Under the DPM, transportation is divided into three phases,

potentially involving multiple contractual arrangements. Tr. at 402–03, 611.

During the first DPM phase, under a FAR-based contract with

USTRANSCOM, an Origin DPM Contractor picks up the servicemember’s

goods from their residence and transports the goods to its warehouse, where

the goods are then packed and crated. 2 Id. at 402–03, 550.

During the second DPM phase, a Transportation Service Provider

(“TSP”) picks up the goods from the Origin DPM Contractor’s loading dock

and performs line-haul freight services, transporting the goods over long

§ A.I.D.1.c; Joint Ex. (“JX”) 63 at App. 7–8. Thus, multiple contractual

vehicles exclusively subject to either set of regulations may be involved in a

single move.

2

The FAR is a set of regulations governing the federal government’s

procurement of goods and services. 48 C.F.R. § 1.101. These regulations

outline processes by which the government should solicit competition and

administer contracts. See generally 48 C.F.R. § 1.102.

3

distances, to the receiving dock of a Destination DPM Contractor. Id. at 371,

611. Plaintiff is one such TSP. Id. at 71, 95–96, 105.

Line-haul freight services provided by TSPs are not provided pursuant

to FAR-based contracts. 3 Instead, an entity becomes a TSP by first

submitting a Tender of Freight Services (“tender”) to the Global Freight

Management (“GFM”) system, a creature of MFTURP regulations. Id. at 74–

75; MFTURP-1 §§ A.II.B.3, A.IV.A.2. The GFM system is managed by the

Surface Deployment and Distribution Command (“SDDC”), a sub-command

of the USTRANSCOM, and operates as a digital repository of tenders. Tr. at

84, 786, 828–29. A tender operates as a TSP’s offer to perform certain

transportation services for the DoD and includes the TSP’s rates for those

services, chief among which is the TSP’s offer to perform line-haul freight

services. Pl.’s Ex. (“PX”) 46 at 3; PX 50 at 3; PX 55 at 3.

A TSP’s tender may also include rates for performing additional

moving services beyond line-haul freight, known as “accessorial” services,

which are not normally performed by TSPs in a DPM movement. Tr. at 95–

97, 416, 765. These accessorial services include, but are not limited to,

expedited delivery, loading and unloading of goods, and handling freight not

adjacent to the vehicle. PX 46 at 4; PX 50 at 4; PX 55 at 4.

The MFTURP allows a TSP to charge for expedited service only when

“the requested [d]elivery [d]ate” for a particular shipment “is less than the

standard transit time.” MFTURP-1, Item 35; Joint Ex. (“JX”) 63 at App. 96.

The MFTURP calculates the standard transit time for a shipment based on

the number of drivers assigned to that shipment, as well as the distance to the

destination. MFTURP-1, Item 5; JX 63 at App. 84. If a TSP is requested to

deliver a shipment before the calculated standard transit time for that

shipment, the TSP may charge for expedited service. MFTURP-1, Item 35;

JX 63 at App. 96.

The MFTURP also allows a TSP to charge for loading and/or

unloading services if the TSP performs loading and/or unloading services for

a particular shipment “unassisted by shipper or consignee.” MFTURP-1,

Item 51; JX 63 at App. 101. Additionally, a TSP may charge for handling

3

FAR Part 47, governing the federal government’s acquisition of

transportation-related services, exempts freight transportation acquired

through bills of lading from the FAR. 48 C.F.R. § 47.200(b)(2). Bills of

lading are discussed later in this opinion.

4

freight at positions not adjacent to the vehicle if the TSP moves freight

shipments “from or to a position that is not immediately adjacent to the

vehicle.” MFTURP-1, Item 49; JX 63 at App. 100. If the vehicle is merely

separated by an intervening sidewalk or walkway from the loading or

unloading position, the TSP cannot charge for this service. MFTURP-1, Item

49; JX 63 at App. 100.

Under phase two of the DPM, the SDDC operates through regional

JPPSOs which contract directly with TSPs to perform line-haul freight

services. Tr. at 377–81. In contracting for line-haul freight services, JPPSOs

first manually enter each TSP’s tender information into the electronic

Transportation Operation Personal Property Standard System (“eTOPS”).

See generally Defense Transportation Regulation (“DTR”) 4 Part IV, Ch. 406;

see also Tr. at 419–20, 758–59. That tender information includes the TSP’s

name, address, and line-haul freight rates. Id. at 505. JPPSOs then use eTOPS

to review and compare prices between TSPs and select a particular TSP for

a shipment. Id. at 769–70, 791–93. Tender information in the GFM system

is not automatically populated into eTOPS, as the two systems are not

integrated, and thus, cannot communicate with one another. Id. at 791–92.

As a result, tender information must be manually entered into eTOPS. Id. at

504–05, 791. Unlike the GFM system, eTOPS does not include information

pertaining to accessorial services, and thus, does not include rates for those

services. Id. at 505, 547, 769.

When selecting a TSP for line-haul freight services, a JPPSO

Transportation Officer (“TO”), or a Transportation Agent (“TA”) designated

by a TO, 5 creates and issues a Government Bill of Lading (“GBL”) to that

4

The DTR applies to all modes of transportation for the DoD generally, while

the MFTURP applies to TSPs specifically. See generally DTR Parts I–VII;

MFTURP-1 § A.1.A. Since Platinum is a TSP, this opinion will primarily

focus on the MFTURP’s application with some references to DTR Part IV

(relating to “Personal Property”).

5

Under the MFTURP, a TO is a “[p]erson designated by the commander of

a military activity to perform traffic management functions,” including

managing personal property shipments and storage. MFTURP-1, App. E, § J

at 277; JX 63 at App. 277; PX 49. A TA can be designated or appointed by

the TO to perform traffic management functions, including signing off on the

expenditure of government funds for the execution of personal property

shipments and storage. MFTURP-1, App. E, § J at 277; JX 63 at App. 277;

PX 49.

5

TSP through eTOPS. Tr. at 442, 545, 792. The GBL contains information

such as the TSP’s name and tender number, the delivery address, and the

required delivery date. E.g., JX 1 at 11. That GBL then operates as an

acceptance of certain transportation services offered on the TSP’s tender. Tr.

at 385–86. If there are any errors in the GBL, a TA can issue a Standard

Form 1200 Government Bill of Lading Correction Notice (“1200 Correction

Notice”) to manually correct those errors. MFTURP-1, Item 419; JX 63 at

App. 233; Tr. at 120–21, 442; see also, e.g., JX 1 at 13–14.

The shipping office involved in this case, JPPSO-MA, was reliant on

TSPs sending their tenders directly to the office, in which a JPPSO-MA clerk

would then manually enter the tender information into eTOPS. Tr. at 416–

20, 750, 758–59; PX 46 at 1; PX 55 at 1. Although JPPSOs have access to

the GFM system, Tr. at 787, 819, there is no evidence JPPSO-MA relied on

the GFM system to access tenders. Additionally, once JPPSO-MA issued a

GBL and/or 1200 Correction Notice to a TSP for a particular shipment, if for

any reason that TSP needed to charge for additional accessorial services

beyond typical line-haul freight, JPPSO-MA had an internal procedure where

it required the TSP to prepare and submit in advance an accessorial request

form for approval. Tr. at 416, 537–45. When completing an accessorial

request form, TSPs were required to indicate which additional accessorial

services it would perform, as well as furnish an estimated cost for those

services. Id. at 542.

Under a normal DPM movement, phase two concludes with the TSP

delivering the goods to the receiving dock of a Destination DPM Contractor.

Id. at 611. Phase three involves a Destination DPM Contractor operating

under a FAR-based contract with USTRANSCOM. The Destination DPM

Contractor unloads and unpacks the crated shipments and delivers them

directly to the servicemember’s new residence. Id. at 611–13.

II. Non-Temporary Storage

In addition to the DPM, another tool the DoD may use when in the

process of transporting servicemembers’ goods is Non-Temporary Storage

(“NTS”). Id. at 152; DTR Part IV, Attach. V.J.1. NTS is ordinarily used to

place servicemembers’ goods in long-term storage when they do not

currently have a long-term residential address in the United States, such as

when the servicemember is stationed overseas for an extended period and

will not require their household goods. Id. at 152, 403. The goods placed in

NTS remain in storage until the servicemember returns from overseas

deployment and obtains a new residence in the United States. Id. at 403. At

6

that point, the last two phases of the DPM commence, starting with the TSP

picking up the goods from the NTS provider. Tr. at 549–50. Like line-haul

freight services, NTS services do not involve FAR-based contracts; instead,

NTS providers offer these services under NTS tenders of service, which

JPPSOs can accept. Id. at 149–50; see generally JX 55–58. In addition to

being a TSP, Platinum is also an NTS provider. JX 55–58.

Yet another contractual mechanism for arranging the movement of

servicemembers’ household goods came up at trial, the 400 NG Tariff

Program, which is discussed in more detail later in this background section.

III. Peak Season, Short-Term Storage, and the “Hybrid” Method

In the household goods transportation industry, demand peaks during

May, June, July, and August. Tr. at 513–14. Due to the high concentration of

movements during this period, JPPSOs regularly experience a shortage of

available TSPs and DPM providers. Id. at 469–71. As a result, the NTS

option was often used by JPPSO-MA to store household goods temporarily

until transportation to the servicemember’s new residence could be arranged.

Id. at 406.

As a further response to pressure during these peak seasons, JPPSO-

MA developed an alternative to the standard DPM move, which the TO at

JPPSO-MA, Frank Thomas, characterized as the “hybrid” shipping method.

Id. at 429–30, 613. Instead of using an Origin DPM Contractor, a TSP, and

a Destination DPM Contractor to deliver a servicemember’s household

goods, the hybrid method eschewed the use of DPM contractors. Mr. Thomas

and his office instead required TSPs to pick up the goods from NTS service

providers at the origin and to then perform both line-haul shipping and

destination delivery to each servicemember. Id. at 548–49. Under the hybrid

method, the servicemember’s goods would be picked up by the NTS

contractor and placed at its warehouse for indefinite storage. Tr. at 490, 492–

93. When the time came for delivery, a TSP (1) picked up the goods from the

NTS dock, packed, and loaded the goods onto its own truck for line-haul

transportation; (2) performed line-haul transportation; and (3) instead of

handing the goods off to a Destination DPM Contractor, unloaded and itself

delivered the household goods to the servicemember’s new residence. Id. at

408–09, 495–97, 503–04, 548–49.

The hybrid shipping method was a more streamlined method of

delivering servicemembers’ household goods than the DPM during peak

seasons when DPM contractors were in short supply. This is because,

7

notwithstanding the pricing problems discussed below, the hybrid shipping

method allowed a TSP already holding goods in its NTS facility to perform

the latter two phases of the DPM without JPPSO-MA having to go through

multiple other contractors. Tr. at 429–32, 469–70.

IV. JPPSO-MA’s Requests to Platinum

The case at hand involves 45 household moves performed by

Platinum for JPPSO-MA during the peak summer months of 2016, 2017, and

2018—all of which were performed under this hybrid method. The parties’

dispute involves contract formation and, in some instances, performance, of

certain accessorial services. We lay out the pertinent facts below.

A. 2016 Shipments

During the 2016 peak season, JPPSO-MA was experiencing such a

high volume of movements that there were not enough TSPs or DPM

contractors available to transport servicemembers’ goods. Id. at 102, 404; JX

27 at 899. As a result, on July 13, 2016, Mr. Thomas contacted Mario Smoot,

CEO of Platinum, to help facilitate movements. Tr. at 414–15, 660–61. Mr.

Smoot had known Mr. Thomas for almost two decades, and Platinum had

been involved in numerous moves for JPPSO-MA as a TSP and as a NTS

provider. Id. at 414–15, 609–10, 622. Platinum, however, was not an Origin

or Destination DPM Contractor, nor had it previously performed moving

services under the hybrid method. Id. at 611–15, 618, 681.

Mr. Smoot first became aware of the hybrid method during that July

13 phone call with Mr. Thomas, in which Mr. Thomas informed him that

various shipments needed to be moved, and that Platinum could, under the

accessorial services listed on its freight tender, transport household goods

already placed in its NTS warehouse directly to the servicemembers’

addresses. Id. at 428–29, 621–22, 660–61. Below is Mr. Thomas’

recollection of that discussion:

Q. . . . in your discussion with Mr. Smoot, did you talk about

how accessorial services may be used to facilitate the hybrid

method?

A. What we discussed is that as part of the service, it might be

needed depending on the member’s situation or need, yes, sir.

8

Q. And for [the shipments], were you reaching out to Platinum

and asking them if they had some availability to work with you

to assist using the hybrid method?

A. Correct.

Id. at 428.

Comporting with Mr. Thomas’s testimony, below is Mr. Smoot’s

recounting of that conversation:

THE WITNESS: I talked to Frank. He said, “You can move

these shipments.” I said, “How?” He said, “You can move

them under your freight tender.” I said, “How in the hell can I

get paid for loading and unloading and do what I got to do?”

He says, “You have it underneath your tender. Send me your

tender.”

Id. at 621.

Following that discussion, at 9:04 AM that same morning, Ms. Carie

Lewis, Platinum’s Office Manager, emailed Platinum’s GFM-registered

2016 tender, number 114191, at the direction of Mr. Smoot, to Mr. Thomas.

PX 46; PX 55; Tr. at 88–89. Mr. Smoot did not review Platinum’s tender

before sending it to Mr. Thomas—nor did Mr. Thomas review Platinum’s

tender once it was received. Tr. at 416–17, 622. Although a JPPSO-MA clerk

was responsible for manually entering Platinum’s tender information into the

eTOPS system, including Platinum’s name and line-haul freight rate,

Platinum’s tender information was never entered into eTOPS. See id. at 419,

504–05; see also, e.g., JX 1 at 11, 13–14. Platinum’s tender included its rate

for line-haul freight services as well as its rates for additional accessorial

services, including “EXP” (expedited service), “URC” (loading and

unloading), and “HHB” (handling freight not adjacent to the vehicle). JX 46.

In addition to Platinum’s line-haul rate per mileage and weight, 6

Platinum’s rates for its accessorial services at that time were $400 per mile

6

The MFTURP allows a TSP to charge a percentage of baseline freight rates

set by the SDDC. MFTURP-1 § A, Tbl. D; JX 63 at App. 44. The SDDC’s

baseline rates, which are periodically published, are calculated based on

mileage and weight. SDDC Class Rate Publication No. 100A; MFTURP-1,

App. G, ¶ 84; JX 63 at App. 287. A TSP may list a percentage on its tender,

9

per vehicle for expedited service; $400 per hundredweight for loading and

unloading services, subject to a minimum charge of $1,000; and $500 per

hundred pounds, subject to a minimum charge of $500 per shipment, for

handling freight not adjacent to the vehicle, with a maximum charge of $900

per shipment. Id. at 4. Platinum’s accessorial prices were dramatically higher

than those of other GFM-registered providers. See generally Def.’s Ex.

(“DX”) 245 at 2, Attach. 7. For example, the next highest rate for expedited

service in 2016 was only $8 per mile per vehicle. Id. at Attach. 7-c. Therein

lies this lawsuit.

Almost immediately thereafter, at 11:46 AM, Mr. Thomas sent Mr.

Smoot an email asking whether Platinum could perform transportation

services under the hybrid method for five servicemembers: Arthur Graham,

Paul Darling, Jeffery Buck, John Harrison, and Jonathan Ortiz. JX 1 at 29–

30. Approximately two hours later, Mr. Smoot replied that Platinum could

service four of the five shipments—Graham, Darling, Buck, and Harrison—

but added that the “GBL’s will need to authorize . . . HHB (loading and

unloading not adjacent to vehicle) EXP (expedited service) and URC 1 (for

both loading and offloading by the TSP).” Id. at 29. Mr. Smoot requested

that Mr. Thomas “[p]lease respond ASAP so that we can coordinate with the

customers.” Id. There was no response to that email by Mr. Thomas.

Nonetheless, on July 18, 2016, Mr. Melvin Stalls, an employee of

JPPSO-MA, copied Mr. Thomas on an email to Mr. Smoot, stating: “Mario,

here is the paper work for the shipments that you and Mr. Thomas discussed

. . . . This will be a two-part email since I will not be able to send all the

attachments.” JX 3 at 137. Attached to those emails were, among other

things, GBLs and 1200 Correction Notices for five shipments: Graham,

Darling, Harrison, Scott Liftman, and Nathan Mitchell. JX 86; JX 1 at 31,

36; JX 2 at 82–85; JX 3 at 138–40; JX 4 at 166–67, 172, 201; JX 5 at 13, 16,

indicating a rate above, below, or equal to the SDDC’s baseline freight rates

(e.g., 100% would be equal). MFTURP-1 § A, Tbl. D; JX 63 at App. 44. In

2016, Platinum had listed minimum freight charges of 999% of the SDDC’s

baseline rates. JX 46 at 3. The MFTURP alternatively allows a TSP to charge

freight per hundredweight, MFTURP-1 § A, Tbl. D; JX 63 at App. 43–44,

which Platinum did in 2017 and 2018, JX 47 at 3; JX 48 at 3. In 2017,

Platinum listed a freight rate at $58 per hundredweight, subject to a minimum

weight of 1,000 pounds, and in 2018, listed its freight rate at $80 per

hundredweight, once again subject to a minimum weight of 1,000 pounds.

JX 47 at 3; JX 48 at 3.

10

39. Correction notices were issued because the original GBLs listed the

incorrect tender number and/or vendor, listed a Destination DPM

Contractor’s address instead of the servicemember’s residential address as

the delivery point, and failed to include any accessorial services. E.g., JX 1

at 11 (indicating errors). These mistakes or omissions occurred because

Platinum’s tender information was never inputted by a JPPSO-MA clerk into

JPPSO-MA’s eTOPS system, and because the eTOPS system does not

contain input fields for accessorial services. Tr. at 440–41, 448–52. As a

result, JPPSO-MA issued correction notices to correct the omissions,

reflecting Platinum as the TSP, the servicemember’s new residential address

as the destination delivery address, and authorized accessorial services,

including loading and unloading and expedited service. 7 E.g., JX 1 at 13

(indicating corrections). The 1200 Correction Notices, however, did not

amend the GBLs to include Platinum’s correct tender number, nor did they

include handling freight not adjacent to the vehicle as an authorized

accessorial service. E.g., compare JX 1 at 11, with JX 1 at 13.

As an illustrative example, the original GBL for the Graham shipment

listed “Continental Transportation” as the “Transportation Company” with a

0002891 tender number. JX 1 at 11 (blocks 1 and 31). It also listed

“American Safety Movers, Inc” at “5250 Old Louisville Road” in Pooler,

Georgia as the “destination delivery address.” Id. (block 18). The 1200

Correction Notice for the Graham shipment amended the GBL to include

“Platinum Services” as the “Transportation Company” and Graham’s new

residential address, “8 White Ibis Lane” in Savannah, Georgia, as the

“destination delivery address.” Id. at 13 (amending blocks 1 and 18). It also

included the following language with respect to accessorial services:

“Loading and Unloading Authorized . . . Expedited Service Authorized.” Id.

Following those five shipments, through a series of phone calls and

emails, Platinum and JPPSO-MA agreed to 12 additional shipments in

2016—all involving GBLs and 1200 Correction Notices issued by JPPSO-

MA, which corrected the same omissions and authorized the same

accessorial services. Tr. at 412–13; JX 6 at 93–96; JX 7 at 169–72; JX 8 at

230–38; JX 9 at 31–35; JX 10 at 83–94; JX 11 at 115–22, 167–68; JX 12 at

177–82, 200–01; JX 13 at 258–61; JX 14 at 29–30, 35; JX 15 at 59–64, 81–

85; JX 16 at 133–39, 168; JX 17 at 215–19, 243–48; JX 86. Many of the

7

The GBLs also authorized packing and unpacking and exclusive use

services, which are not pertinent to this dispute. Exclusive use services are

briefly discussed later in the background section.

11

1200 Correction Notices administered in 2016 were issued by JPPSO-MA at

the request of Platinum. JX 1 at 37–50; JX 86. At no point with respect to

any of these shipments, however, did the 1200 Correction Notices amend the

GBLs to include Platinum’s correct tender number, Tr. at 108–09, 111, 193,

466–67, or to include handling freight not adjacent to the vehicle as an

authorized accessorial service, e.g., JX 1 at 36 (showing absence). In

addition, although accessorial services, including expedited service and

loading and unloading, were requested on the 1200 Correction Notices, at no

point did either the GBLs or 1200 Correction Notices include Platinum’s

rates for any of its accessorial services. E.g., JX 1 at 11, 13 (showing absence

of rates). Furthermore, the GBLs and 1200 Correction Notices for four out

of the 17 shipments were issued after Platinum had already begun

performance. JX 86.

B. 2017 Shipments

JPPSO-MA had difficulty meeting its shipping needs the following

year as well. On June 12, 2017, Dennis Beougher, Chief of JPPSO-MA’s

Personal Property Management Division, forwarded an email to Mr. Smoot,

stating that “all TSP[’s] are blacked out,” and that Mr. Beougher would like

to “give tried and true TSP[s] the opportunity to identify any shipments they

can handle.” JX 18 at 328–29. Attached to that email was a spreadsheet

containing a list of available shipments, including servicemembers’ names,

origin and destination locations, and other shipping details. Id. at 330–69.

Later that same day, at Mr. Smoot’s direction, Ms. Lewis responded to Mr.

Beougher, informing him that “[w]e have highlighted all the shipments that

we have availability for,” and attached a spreadsheet highlighting the

shipments Platinum could move. Id. at 370–407.

On June 20, 2017, Ms. Lewis sent a follow up email to Mr. Thomas,

notifying him that “I’ve attached a list of the GBLs we will need—some

sooner than others,” and that the GBLs would need to include authorization

for, among other things, loading and unloading and expedited service. Id. at

408. On June 30, 2017, Mr. Thomas sent an email to Ms. Lewis and Mr.

Smoot, stating that he would get the paperwork to Ms. Lewis by that

following Monday. JX 42 at 58. According to Platinum’s GFM-registered

2017 tender, Platinum’s rates for its accessorial services were $1,000 per

mile per vehicle for expedited service; $400 per hundredweight, subject to a

minimum charge of $2,400, for loading and unloading services; and $400 per

hundred pounds, subject to a minimum charge of $400 per shipment and no

maximum charge for handling freight non-adjacent to the vehicle. JX 47 at

12

4. In the aggregate, Platinum’s 2017 accessorial rates were even higher than

its 2016 accessorial rates. Compare JX 46 at 4, with JX 47 at 4.

It was not until July 13, 2017 that Mr. Darren Addison, a

Transportation Assistant at JPPSO-MA, sent Ms. Lewis an email containing

the GBLs and 1200 Correction Notices for five shipments Platinum had

indicated it could move—Matthew Dehl, Thomas Mackey, Jonathan

Mozingo, Tabitha Perez, and Michael Ringer. JX 18 at 418. Between July 26

and December 28, JPPSO-MA sent Platinum GBLs and 1200 Correction

Notices for 21 additional shipments. JX 86. Like the 2016 shipments, the

GBLs for the 2017 shipments were corrected by 1200 Correction Notices to

include servicemembers’ residential addresses as the delivery point, as well

as authorization for loading and unloading and expedited service. Tr. at 448–

52, 466; e.g., JX 42 at 98 (showing correction notice for accurate delivery

address and inclusion of accessorial services). Unlike the 2016 GBLs, the

2017 GBLs included Platinum’s name and GFM-registered 2017 tender,

number 114451, because a JPPSO-MA clerk had manually entered

Platinum’s 2017 tender into eTOPS. JX 21 at 263 (showing Platinum’s

correct tender number in GBL block 31). Neither the GBLs nor 1200

Correction Notices, however, included handling non-adjacent freight as an

authorized accessorial service or Platinum’s rates for any of its accessorial

services. E.g., JX 23 at 449, 451 (showing absences). The GBLs and 1200

Correction Notices for 25 out of the 26 shipments performed by Platinum in

2017 were issued after Platinum had already begun performance. JX 86.

C. 2018 Shipments

During the following peak season, on June 14, 2018, JPPSO-MA

reached out to Platinum to inquire whether it could provide moving services

for two shipments: Patrice Johnson and Justin Silverman. JX 44 at 221; JX

45 at 346. Unlike the 2016 and 2017 shipments, however, Platinum was

asked to deliver these two shipments from its NTS warehouse to a

Destination DPM Contractor—not to the servicemembers’ addresses. JX 44

at 290, 298; JX 45 at 361; JX 87; JX 88 at 23, 38. JPPSO-MA sent Platinum

the GBL and 1200 Correction Notice for the Johnson shipment on July 11,

2018, and the GBL and 1200 Correction Notice for the Silverman shipment

on July 13, 2018. JX 86. Because the GBLs contained incorrect pickup

addresses (citing a different vendor’s warehouse altogether) and did not

include expedited or loading services, 8 those issues were corrected in the

8

Because Platinum was delivering the 2018 shipments to a Destination DPM

Contractor’s warehouse rather than the servicemembers’ residential

13

1200 Correction Notices. JX 44 at 256; JX 45 at 360. Additionally, because

a JPPSO-MA clerk had not entered Platinum’s information from its GFM-

registered 2018 tender, number 114472, in the eTOPS system, the GBLs

included Platinum’s inactive 2017 tender—an error which was not

subsequently corrected in the 1200 Correction Notices for either shipment.

JX 44 at 255–56; JX 45 at 360–61. Like the 2016 and 2017 shipments,

although the 1200 Correction Notices issued by JPPSO-MA included

authorization for Platinum to perform expedited and loading services, neither

of the GBLs nor the 1200 Correction Notices contained Platinum’s rates for

those services. E.g., JX 44 at 297–98 (showing absence of rates). The GBLs

and 1200 Correction Notices for both shipments were executed after

Platinum had already begun performance. JX 86.

Notably, at no point between 2016 and 2018 did JPPSO-MA receive

or approve an accessorial request form—which would have included

Platinum’s rates for its accessorial services—for Platinum to perform and

charge for any other services than line-haul freight. Tr. at 327. Instead,

plaintiff relies on the fact that its 2016, 2017, and 2018 tenders, which

contained Platinum’s pricing for its accessorial services, were registered in

the GFM system during the relevant times, and that the 1200 Correction

Notices issued by JPPSO-MA for all 45 shipments authorized Platinum to

perform accessorial services.

V. Platinum’s Performance

All 45 shipments between 2016 and 2018 originated in Platinum’s

NTS warehouse under NTS contracts between Platinum and JPPSO-MA

before Platinum began performing moving services under the hybrid method.

JX 86 (showing that standard form 1164s were completed for handling out

shipments from NTS); JX 13 at 223, 227 (showing that the pickup location

was corrected to reflect Platinum’s NTS); JX 14 at 10, 12–13; JX 39 at 376,

378, 380; JX 43 at 110, 112, 114. Platinum’s NTS tender included a price for

“handling out” services, which included removing the goods from storage

and placing the goods onto the warehouse platform. JX 56 at 14548–57; JX

57 at 14560–70; JX 58 at 14573–84. Correspondingly, the “removal actions”

section of each NTS service order directed Platinum to release the goods “to

addresses, Platinum is not claiming unloading services or handling freight

not adjacent to the vehicle for either shipment. We thus only address

expedited and loading services for the 2018 shipments. Additional details are

discussed later in this background section.

14

dock.” JX 60 at 219–61. Platinum’s performance under the NTS contracts

for these origin point storage services has been paid for and is not in dispute.

Tr. at 145–46.

Once the goods were released to the NTS warehouse platform,

Platinum shipped the goods in one of two ways: (1) using its own trucks and

drivers; or (2) contracting with third-party freight haulers and destination

agents. JX 86; Tr. at 351–53. When Platinum used its own trucks and drivers,

the servicemembers’ goods were packed—but not crated—and loaded from

the NTS loading dock into one of Platinum’s trucks or trailers. Tr. at 352–

53. Those goods were then directly transported to each servicemember’s

address. Id. at 353; JX 86; JX 88. When Platinum used third-party freight

haulers and destination agents, Platinum would pack, crate, and load the

goods into the trucks or trailers of third-party freight haulers. Tr. at 670–71.

Once the goods were loaded, the third-party freight haulers would transport

the goods to the warehouses of third-party destination agents, or, for the two

2018 shipments, to the warehouse of a Destination DPM Contractor. 9 Id. at

668–69; JX 88 at 23, 38. For the 2016 and 2017 shipments, the third-party

destination agents would then transport the goods to each servicemember’s

address. Id. at 669.

For the 2016 and 2017 shipments, once the goods reached the

servicemembers’ addresses, either Platinum or a third-party destination agent

would park the moving truck on a street, parking lot, or driveway, unload the

goods, and carry the goods into the servicemembers’ homes (which Platinum

later characterizes as handling freight not adjacent to the vehicle). Id. at 633–

34. Out of the 45 shipments, 18 shipments were delivered by Platinum before

the standard delivery date. JX 86 (comparing stipulated delivery dates with

standard delivery dates). Overall, 14 shipments were performed directly by

Platinum, while 31 were performed by contracted third parties. JX 86.

Platinum paid for all services performed by its third-party contractors. Tr. at

720–22.

9

To be clear, for these 2016 and 2017 shipments, the destination agents were

not DPM government-contracted providers. They were agents of Platinum,

and thus, Platinum charged the government for their services.

15

VI. Platinum’s Billing

It was not until September 22, 2017, that Platinum submitted its

invoices for the 17 2016 shipments to the Defense Finance and Accounting

Service (“DFAS”). JX 87; Tr. at 650. Subsequently, on December 15, 2017,

Platinum submitted its invoices for 24 of the 26 2017 shipments. JX 87. In

December 2018, as Platinum’s invoices were being reviewed, DFAS reached

out to Mr. Thomas to inquire whether Platinum’s charges were valid for a

particular shipment, that of Andrew Chubb. Tr. at 559–60. Although Mr.

Chubb’s shipment had a required delivery date of August 3, 2017, it did not

reach the servicemember’s home until December 19, 2017. Id. at 560–63; JX

86. At that point, for the first time, Mr. Thomas was made aware of

Platinum’s extremely high charges for its accessorial services. Tr. at 474–75.

On January 10, 2020, Platinum submitted its invoices for the two 2018

shipments, and on February 25, 2020, submitted its invoices for the two

remaining 2017 shipments. JX 87.

For all 45 shipments, in addition to the $317,627.90 charged for line-

haul freight services, Platinum charged JPPSO-MA $34,082,000 for

expedited service, $2,305,240 for origin loading, $2,132,560 for destination

unloading, and $1,312,268 for handling freight not adjacent to the vehicle.

Id. This is an average of nearly $900,000 per servicemember. 10 DFAS denied

payment of Platinum’s invoices for all 45 shipments. JX 1–45 at Tab A. For

each shipment, DFAS prepared and issued a Statement of Difference

(“SOD”), a prepayment audit informing Platinum “of an apparent error,

defect or impropriety in an invoice received by the Government.” Id. Each

SOD also contained the following language:

Invoice is being rejected for the following reasons . . . No

supporting documentation was provided with the invoice

showing that the services billed were performed. Request is

being made to [Platinum] to provide a corrected invoice for a

Direct Pick UP and Delivery (not a DPM) shipment with all

10

Plaintiff’s complaint supplements this amount with charges for two other

accessorial services, exclusive use and holiday and/or Sunday delivery,

which we discuss in the next sub-section, ballooning the average to nearly

$1.7 million per servicemember, although some of those charges are no

longer at issue.

16

supporting documentation including authority for billed

charges to the U.S. Government.

Id.

VII. Procedural History

On April 17, 2020, Platinum filed its complaint, seeking

$76,176,619.54 for breach of contract. In addition to line haul, expedited

service, loading and unloading, and handling freight non-adjacent to the

vehicle, this amount included charges for two other accessorial services:

$44,603,000 for exclusive use for all 45 shipments (in which a TSP dedicates

an entire vehicle to transporting a single shipment); and $6,000 for one

holiday and/or Sunday delivery surcharge.

On July 10, 2020, we granted the government’s motion to remand the

case to the General Services Administration (“GSA”) to consider Platinum’s

claims. On November 29, 2021, the government filed GSA’s final remand

decision, which made the following findings: (1) Platinum’s delivery

services were more in line with the 400 NG Tariff program 11 than the freight

program and should thus be billed under the 400 NG rates; (2) Platinum

applied “‘hidden’ costs that were exorbitant and unnecessary,

notwithstanding with industry practices, and not proven to be provided as

billed”; and (3) as a result, Platinum was only entitled to receive $673,326.87

for all 45 shipments. DX 195 at App. 1175–78. GSA arrived at this amount

by applying the average rates from other transportation providers offering

similar services in the 400 NG program, including packing and unpacking

and other destination service charges (i.e., “elevator service, stair and excess

11

The 400 NG Tariff program is a separate method used by USTRANSCOM

for transporting military household goods. DX 195 at App. 1143; Tr. at 241,

402, 880. Under that program, instead of having three separate contractors

perform moving services as required by the DPM, a single contractor would

pick up the goods from the servicemember’s old residence and deliver those

goods directly to the servicemember’s new residence. DX 195 at App. 1143–

44; Tr. at 241, 610–11. Providers under the 400 NG Tariff program are tasked

with origin packing, destination unpacking, special handling of goods, and

arranging third-party services. DX 195 at App. 1143. Platinum was not a

participant in the 400 NG Tariff program at the time. Tr. at 611, 682, 740–

41, 886, 911.

17

distance carriers and additional transportation charges”), to the shipments at

issue. Id. at App. 1151.

Thereafter, the parties filed cross-motions for summary judgment.

Plaintiff argued that its services were contracted for under the hybrid method,

and that the accessorial services provided were billed in accordance with the

MFTURP. In response, the government argued that no contracts were

formed, that GSA’s decision should be given deference, that the JPPSO-MA

TO, Mr. Thomas, did not have authority to enter contracts for hybrid services

with Platinum, that the GBLs and 1200 Correction Notices at issue were

defective, and that Platinum’s billings were not in fact in accordance with the

MFTURP. In our August 10, 2023 summary judgment order, we denied those

motions in part, determining that there were unresolved factual issues

regarding contract formation and performance. We determined, however,

that Mr. Thomas could obligate the government to the type of services

performed by Platinum, that the GBLs issued were not defective merely

because they required Platinum to deliver the goods directly to the

servicemembers’ home addresses, and that Platinum’s charges for exclusive

use, amounting to $44,603,000, were not compliant with the MFTURP, and

thus, not recoverable. Platinum v. United States, No. 20-456 (Fed. Cl. Aug.

10, 2023), ECF No. 63.

At trial, we took testimony from Platinum employees Mr. Smoot and

Ms. Lewis, as well as from government employees Mr. Thomas, Mark Rice,

Thomas’s successor as JPPSO-MA’s TO, David Walker, the Freight

Management Branch Chief within the SDDC, David Jones, the Senior Traffic

Management Specialist within the USTRANSCOM, Linda Hum, a Traffic

Management Specialist within the USTRANSCOM, Terry Fisher, a

Transportation Systems Analyst within the SDDC, and Yvonne Robertson,

the Chief of the Disputes Resolution Branch within GSA. Testimony was

also heard from Mark Gmyr, the government’s expert witness on damages.

Plaintiff filed a motion in limine seeking to exclude the testimony of Messrs.

Gmyr, Walker, Jones, and Fisher, which we address later in this opinion.

In its post-trial brief, plaintiff withdrew its claim for the $6,000 charge

for one holiday and/or Sunday delivery, as well as its claim for expedited

service charges for 27 of the 45 shipments, amounting to $22,498,000. As a

18

result, plaintiff now seeks $17,651,695.90 in total damages, 12 consisting of

$317,627.90 for line-haul freight, $11,584,000 for expedited service for 18

shipments, $2,305,240 for origin loading for all 45 shipments, $2,132,560

for destination unloading for 43 shipments, and $1,312,268 for handling

freight not adjacent to the vehicle for 43 shipments. For the government’s

part, it claims in its post-trial brief that Platinum is only entitled to quantum

meruit damages of $400,612, or alternatively, $673,326.87—the amount

GSA calculated for all 45 shipments—because no express contracts were

formed.

DISCUSSION

The Tucker Act grants this court jurisdiction over certain claims for

money damages against the United States founded upon the United States

Constitution, federal statutes, executive regulations, or contracts. 28 U.S.C.

§ 1491(a)(1); United States v. Mitchell, 463 U.S. 206, 215–18 (1983).

Specifically, in a contract case, “the money-mandating requirement for

Tucker Act jurisdiction normally is satisfied by the presumption that money

damages are available for breach of contract, with no further inquiry being

necessary.” San Antonio Hous. Auth. v. United States, 143 Fed. Cl. 425, 444

(2019) (internal citations omitted). Even when a plaintiff provides goods or

services to the government pursuant to an invalid or unenforceable express

contract, this court may still “utilize[] quantum meruit as a basis for awarding

the plaintiff the fair market value of what it supplied to the government.”

Perri v. United States, 340 F.3d 1337, 1344 (Fed. Cir. 2003).

At the outset, we recognize that Platinum is entitled to contract

damages for its line-haul freight services. The government concedes that

valid contracts were formed between Platinum and JPPSO-MA for Platinum

to perform line-haul freight services for all 45 shipments per defendant’s

closing argument on Friday, March 7, 2025:

The Court: [A]re you saying there was no agreement [and] that

the government didn’t ask for any kind of shipment?

12

Although plaintiff’s post-trial brief claims $17,645,695.90 in total

damages, according to the parties’ stipulation on Platinum’s billing (JX 87),

Platinum’s total claim is actually $17,651,695.90 ($6,000 more) for the

services at issue.

19

Defendant’s Counsel: I’m saying there is no evidence we

mutually agreed on which accessorial services would be

offered and what the government would pay for those.

The Court: So, what that tells me is that there was [an]

agreement for line-haul shipping as to 45 shipments?

Defendant’s Counsel: Yes, your honor.

The Court: Okay

Defendant’s Counsel: We agree on that.

Closing Arg. at 9:53–10:19, Platinum v. United States, No. 20-456 (Fed. Cl.

March 7, 2025). The government also does not dispute that Platinum indeed

performed these line-haul services at the request of JPPSO-MA. Def.’s Post-

Trial Br. at 2 (“Platinum indisputably performed line-haul or shipping

services for 45 household goods shipments moving as freight between 2016

through 2018, and they performed these shipments at the request of [JPPSO-

MA].”). Since Platinum has not been compensated for any line-haul freight

it performed under valid contracts for those services, it is entitled to contract

damages for line-haul freight, amounting to $317,627.90. This is the amount

the parties have jointly stipulated Platinum has billed according to its freight

tenders. JX 87. The rest of our discussion thus focuses on Platinum’s contract

breach claim for the remaining $17,334,068, encompassing Platinum’s

accessorial services.

Here, the parties’ arguments are directed at three issues: (1) whether

valid contracts were formed between Platinum and JPPSO-MA for Platinum

to perform and charge for accessorial services under its freight tenders; (2)

whether Platinum in fact performed those services; and (3) whether, and to

what extent, Platinum is entitled to payment for its services—either under

the prices listed on its freight tenders or under a quantum meruit calculation.

We address each issue in turn.

I. Contract Formation

Plaintiff primarily argues that, after the initial conversation between

Mr. Thomas and Mr. Smoot on July 13, 2016, in which Mr. Thomas inquired

whether Platinum could perform movements under the hybrid method by

effectuating the accessorial services on its freight tender, valid express,

20

written contracts for all 45 shipments—via the GBLs and 1200 Correction

Notices—were formed between Platinum and JPPSO-MA for Platinum to

perform accessorial services. According to plaintiff, the 1200 Correction

Notices, which were issued by JPPSO-MA, clearly indicate that JPPSO-MA

authorized expedited service, loading and unloading, and handling freight

not adjacent to the vehicle for the 2016 and 2017 shipments, and that the

1200 Correction Notices for the two 2018 shipments include JPPSO-MA’s

authorizations for expedited and loading services. Plaintiff points out that,

for the 2016 and 2017 shipments, the 1200 Correction Notices include the

annotations “EXP” for expedited service and “URC” for loading and/or

unloading. The 2018 shipments also include the annotations “URC” for

loading services and “EXP” for expedited service. Moreover, because the

1200 Correction Notices for the 2016 and 2017 shipments correct the

destination delivery address to each servicemember’s residential address,

Platinum claims that it was expected to deliver each servicemember’s

household goods into their residences, thus authorizing handling freight not

adjacent to the vehicle.

Plaintiff further claims that JPPSO-MA and Platinum agreed on

Platinum’s rates for its accessorial services. Plaintiff highlights the fact that

Platinum’s rates for its accessorial services are explicitly listed on its 2016,

2017, and 2018 freight tenders. For the 2016 shipments, at the request of Mr.

Thomas, Platinum sent its 2016 tender directly to Mr. Thomas before JPPSO-

MA issued the GBLs and 1200 Correction Notices. Although the 2016 and

2018 GBLs and correction notices do not reference Platinum’s correct tender

number for those years (some referencing another TSP’s tender or an expired

and/or cancelled Platinum tender), Platinum’s active tenders were at all

relevant times present in the GFM system, which JPPSO-MA has access to.

Thus, Platinum argues that the incorrect tender numbers listed on the GBLs

and correction notices for the 2016 and 2018 shipments were merely clerical

errors. According to Platinum, both parties intended to contract pursuant to

Platinum’s active tenders. Furthermore, Platinum’s correct tender number in

2017 was listed on the GBLs and 1200 Correction Notices for the 2017

shipments. As a result, Platinum asserts its rates for its accessorial services

were made plain to JPPSO-MA when the GBLs and correction notices were

issued, and that any clerical errors should be corrected by the court through

equitable reformation.

21

In response, the government argues there is no evidence Platinum was

requested by JPPSO-MA to perform these shipments under the so called

“hybrid” method, and that, even if Platinum was asked to perform these

shipments under this method, there was no meeting of the minds regarding

which accessorial services the hybrid method would entail. The government

claims that Platinum cannot rely on the GBLs and 1200 Correction Notices

to support its contract formation claim because those documents are

defective. First, the defendant highlights the fact that neither the GBLs nor

correction notices for the 19 shipments that took place in 2016 and 2018

referenced an active Platinum tender number—instead, they referenced

either an expired and/or withdrawn Platinum tender number or a tender

number from a different vendor altogether. Thus, those GBLs and 1200

Correction Notices do not reflect JPPSO-MA’s intent to contract for

Platinum’s accessorial services. Second, the government draws attention to

the fact that, for 30 of the 45 shipments, including 25 of the 26 2017

shipments, the GBLs and 1200 Correction Notices were issued after Platinum

had already begun performance, which is contrary to the procedures set out

in the U.S. Government Freight Transportation Handbook, which prohibit

issuance of GBLs after performance. DX 20 at 6.

Alternatively, defendant argues that, even if the parties intended for

Platinum to perform these hybrid movements using Platinum’s accessorial

services, there was no meeting of the minds between the parties on price for

any of those services. The government relies on the testimony of Mr. Thomas

and Mr. Smoot, which we address below, to show that neither man was aware

of Platinum’s accessorial rates when Mr. Smoot agreed to perform these

shipments. The government further points out that eTOPS—the system used

by JPPSO-MA to compare freight rates, select a transportation provider, and

generate GBLs and 1200 Correction Notices—does not contain any

information on accessorial services, including the TSP’s prices for those

services. Therefore, according to the government, there could not have been

a meeting of the minds regarding how much Platinum could charge for

accessorial services. Thus, no valid contracts formed for the accessorial

services at issue: expedited service, loading and unloading, and handling

freight not adjacent to the vehicle, per defendant.

22

A. Price is an Essential Term

It is well established that “[t]he requirements for a valid contract with

the United States are: a mutual intent to contract including offer, acceptance,

and consideration; and authority on the part of the government representative

who entered or ratified the agreement to bind the United States in contract.”

Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir.

1997). Since we have already determined that Mr. Thomas, as JPPSO-MA’s

TO, had authority to bind the government in contract, Platinum Services, Inc.

v. United States, 20-456 (Fed. Cl. Aug. 10, 2023), ECF No. 63 (order

granting in part and denying in part summary judgment), we focus on

whether there was mutual intent to contract between the parties.

Mutual intent—otherwise known as “meeting of the minds”—must

involve “an unambiguous offer to contract upon specific terms, an

unambiguous acceptance of that offer, and an intent to contract.” LaMirage,

Inc. v. United States, 44 Fed. Cl. 192, 197 (1999), aff’d, 232 F.3d 912 (Fed.

Cir. 2000). In determining whether parties have formed a contract through a

meeting of the minds, we look at the “totality of the factual circumstances.”

Texas Instruments Inc. v. United States, 922 F.2d 810, 815 (Fed. Cir. 1990),

opinion modified on reh’g (Mar. 19, 1991). This is an objective

determination—not one in which the “prospective contracting parties are . . .

expected to engage in telepathy.” Firth Const. Co. v. United States, 36 Fed.

Cl. 268, 276 (1996).

A meeting of the minds requires an offer and acceptance to specific

terms. LaMirage, 44 Fed. Cl. at 197. While this “does not mean than an offer

must have certainty as to all terms, it does require a ‘meeting of the minds on

[all] essential terms,’ which typically includes price.” STG Int’l, Inc. v.

United States, 165 Fed. Cl. 577, 583 (2023) (quoting Keehn v. United States,

110 Fed. Cl. 306, 327 (2013)). Indeed, in a related case also involving

Platinum, we found price to be an essential term when contracting for

Platinum’s transportation services under its freight tender. Platinum Servs.,

Inc. v. United States, 168 Fed. Cl. 130, 137 (2023) (Case No. 19-1714).

Where Platinum and the government “were in effect relying on different

systems of tender management,” leading to different assumptions concerning

price, we found no meeting of the minds with regards to price, and thus, no

valid contracts. Id. As a result, we defaulted to quantum meruit to find the

reasonable value of the services received. Id.

23

As we explain below, we find that, although the parties intended to

enter into agreements for Platinum to perform these 45 shipments under

JPPSO-MA’s “hybrid” method, there was no meeting of the minds on

Platinum’s prices for its accessorial services. Thus, we find no contracts were

formed for accessorial services for all 45 shipments.

B. There was no Meeting of the Minds on Price

First, it is clear from the record that JPPSO-MA intended for Platinum

to perform these 45 shipments under the “hybrid” method, including

accessorial services. Mr. Thomas testified that JPPSO-MA had been using

the hybrid method during peak seasons since at least 2008, involving delivery

from an NTS warehouse to the servicemembers’ residential addresses. Tr. at

408–10. He also testified that for a TSP to actually delivery goods under the

hybrid method, it was necessary to procure accessorial services, although he

did not specify which ones. Id. at 428. Both Mr. Thomas and Mr. Smoot

testified that they had a conversation regarding whether Platinum could

perform moving services under the hybrid method, and Mr. Smoot stated

that, upon learning about the hybrid method from Mr. Thomas, he was told

he could effectuate the hybrid method through the accessorial services listed

on Platinum’s GFM-registered tender.

Platinum’s offers for its line-haul freight and accessorial services,

which were both necessary to effectuate hybrid movements, were listed on

its freight tenders between 2016 and 2018 and were registered in the GFM

system during the relevant periods. JX 46; JX 47; JX 48. JPPSO-MA

attempted to accept Platinum’s offers on its freight tenders when it issued the

GBLs and 1200 Correction Notices for each shipment. All the 1200

Correction Notices issued by JPPSO-MA for the 2016 and 2017 shipments

revised the delivery destination on the original GBLs from a DPM

contractor’s storage facility to the servicemembers’ residential addresses, 13

13

JX 1 at 29–31, 36; JX 2 at 82, 85; JX 3 at 137, 140; JX 4 at 201, 204; JX 5

at 15, 39; JX 6 at 69, 93; JX 7 at 169–71; JX 8 at 230–31; JX 9 at 31–32, 35;

JX 10 at 61, 83–84; JX 11 at 122; JX 12 at 181, 200; JX 13 at 228, 258; JX

14 at 15–16, 29; JX 15 at 62, 81–85; JX 16 at 186, 206; JX 17 at 244, 285;

JX 18 at 328–69, 411, 422; JX 19 at 678, 680; JX 20 at 119, 129; JX 21 at

264–68; JX 22 at 419–23; JX 23 at 447, 449; JX 24 at 590, 595; JX 25 at

728, 733; JX 26 at 851, 855; JX 27 at 984, 987; JX 28 at 1110, 1115; JX 29

at 154, 159; JX 30 at 288, 292; JX 31 at 421; JX 32 at 488, 494; JX 33 at

622, 628; JX 34 at 741, 745; JX 35 at 56–59, 63; JX 36 at 118–21, 125; JX

24

which is consistent with the hybrid method. Additionally, the 1200

Correction Notices for all 45 shipments revised the original GBLs to include

expedited service and loading and unloading, 14 which reflect some of the

additional services Platinum claims it performed to effectuate the hybrid

method. 15

Although the government points out that the 2016 and 2018 GBLs and

1200 Correction Notices do not reference Platinum’s active tender numbers,

this does not change the fact that JPPSO-MA intended to contract with

Platinum for its accessorial services. All the 1200 Correction Notices in 2016

and the GBLs in 2018 reference Platinum as the TSP selected to perform

these shipments. 16 Moreover, even when the GBLs and 1200 Correction

Notices referenced another TSP’s tender number altogether, according to Mr.

Thomas’s testimony, JPPSO-MA nevertheless intended to contract with

Platinum for the shipments at issue:

Q. Do you know why—do you know why the original GBL

was issued to a company called Continental?

37 at 275; JX 38 at 298, 355; JX 39 at 499–502, 509; JX 40 at 631–33, 636;

JX 41 at 782, 786; JX 42 at 58, 94, 98; JX 43 at 185.

14

JX 1 at 36; JX 2 at 85; JX 3 at 140; JX 4 at 204; JX 5 at 15; JX 6 at 69; JX

7 at 171; JX 8 at 231; JX 9 at 35; JX 10 at 61; JX 11 at 117–18; JX 12 at 181;

JX 13 at 228; JX 14 at 13; JX 15 at 60–61; JX 16 at 189; JX 17 at 285; JX

18 at 422; JX 19 at 680; JX 20 at 129; JX 21 at 268; JX 22 at 423; JX 23 at

449; JX 24 at 595; JX 25 at 733; JX 26 at 855; JX 27 at 987; JX 28 at 1115;

JX 29 at 159; JX 30 at 292; JX 31 at 417, 421; JX 32 at 494; JX 33 at 628;

JX 34 at 745; JX 35 at 63; JX 36 at 125; JX 37 at 275; JX 38 at 298; JX 39

at 509; JX 40 at 636; JX 41 at 786; JX 42 at 98; JX 43 at 185.

15

The accessorial service, handling freight not adjacent to the vehicle, is

discussed further in the “Performance” section of our discussion.

Additionally, as discussed in that section, although expedited service is

annotated on all 45 correction notices, JPPSO-MA included a required

delivery date necessitating expedited service in only three shipments.

16

JX 1 at 36; JX 2 at 85; JX 3 at 140; JX 4 at 204; JX 5 at 41; JX 6 at 96; JX

7 at 171; JX 8 at 231; JX 9 at 39; JX 10 at 92; JX 11 at 117–18; JX 12 at

181–82; JX 13 at 228–31; JX 14 at 679–80; JX 15 at 62; JX 16 at 137–38;

JX 17 at 218–19; JX 44 at 192; JX 45 at 321.

25

A. When I started seeing this later on, I went back to the branch

and division chief and say, “Well, why are we having to do a

correction notice to change the GBL?” And from what was

explained to me, they [were] having some issues and were

trying to get these out, so to get them out, they went ahead on

and generated the one showing whoever was on the GBL and

did a correction notice to change it to who should be directly

on the GBL.

Q. Thank you. So what did this do with respect to—

A. So what [the Transportation Agent] did here, he . . .

generated this—it might have been Mr. Stalls—it came out

under Continental, but he knew it [was] going to be going to

Platinum to do the service for the Government. So he did the

correction to read Platinum Services . . . .

....

Q. And in Block 31, do you know whose tender number that

is?

....

A. Ah, the—for Block 31 showing that Platinum—what

Platinum tender number should have been. Based on the

original GBL, they had Continental.

....

Q. And would that be a mistake that needs to be corrected?

A. Yes, uh-huh.

Tr. at 448–50, 452. We thus do not find that incorrect tender numbers on the

2016 and 2018 GBLs and 1200 Correction Notices vitiates JPPSO-MA’s

intent to contract for Platinum’s accessorial services.

While we find the parties clearly intended to contract for Platinum to

perform accessorial services pursuant to the hybrid method, we do not find,

however, a meeting of the minds regarding Platinum’s pricing for those

services. While the 1200 Correction Notices were issued by JPPSO-MA,

containing JPPSO-MA’s authorization for expedited service, loading and

26

unloading, and, arguably, handling non-adjacent freight (which we address

later in this discussion), this is only evidence that JPPSO-MA requested these

services, not that it was aware of Platinum’s pricing. Mr. Thomas testified

that he never reviewed Platinum’s tenders, which contained Platinum’s

pricing for its accessorial services, but instead forwarded all tender-related

emails to his staff. Id. at 416–17. Although Platinum’s tenders were present

in the GFM system, and although JPPSO-MA had access to that system,

JPPSO-MA’s TAs relied on eTOPS—not the GFM system—to compare

rates between TSPs and issue GBLs. Id. at 420, 434, 769–70, 791–92. The

record shows that eTOPS does not contain any information regarding

accessorial services—including rates—since eTOPS is intended to house

information pertaining to line-haul freight only. Id. at 505, 547, 769. Nor

were there any accessorial request forms submitted by Platinum for any of

these 45 shipments that would have contained Platinum’s accessorial rates.

Id. at 327.

Critically, Mr. Smoot himself was not aware of Platinum’s accessorial

charges. When asked about Platinum’s high accessorial charges, Mr. Smoot

responded: “[a]t that point in time, when I was asked to do these shipments,

I didn’t look at what was in my tender. I didn’t even know I could do it. I

sent it to [Mr. Thomas], and he said I could do it.” Id. at 622. Later, when

asked whether Mr. Smoot and Mr. Thomas, during their conversations, knew

what Platinum was charging for its accessorial services, Mr. Smoot

responded: “Quite honestly, no.” Tr. at 645–46. After performing all 45

shipments, and before sending his bills to DFAS, Mr. Smoot testified he

compiled his billing and sent it to a third-party individual to “review my

billing to make sure it was accurate according to the documentation.” Id. at

652. When asked whether Mr. Smoot had gone through a third-party audit of

his billing before, Mr. Smoot responded “no,” and when asked whether it

was done because the high charges caught him by surprise, Mr. Smoot

responded: “[w]ell, quite honestly, they’re pretty steep, yeah.” Id. at 653.

Most telling, Mr. Smoot testified that, if he had known what

Platinum’s accessorial prices were at the time, he would not have used them:

THE COURT: What do you think you likely would have

proposed if the parties—if you and Mr. Thomas had spotted

this problem back then?

27

THE WITNESS: I can say this, it would have been much more

reasonable. I would like to—since you—I mean, I don’t

know—if I could have done it for the members and for Frank

at a better price, if I would have realized what the full price was

at the time, all I did was bill according to my tender.

....

THE COURT: Well, assuming you had the freedom to kind of

name your price—

THE WITNESS: Well, yeah, if I had freedom to name my

price, I would have based it on a—to be honest, I would have

probably been around . . . 200 percent of the tariff, the 400 NG,

not a discounted tariff, at 200 percent, because I have done that

before.

THE COURT: All right. That’s for the hauling.

THE WITNESS: That’s for the hauling, the packing, the

loading, that’s for everything, whatever the—well, that’s for

the—the carrier rate— . . . .

Id. at 741–42.

It was not until December 2018, well after the shipments had been

performed, that Mr. Thomas became aware of Platinum’s accessorial

charges, which he determined were “extremely high” and “night and day”

from typical charges. Id. at 474–76. It is thus clear from the record that

neither JPPSO-MA nor Mr. Smoot knew what Platinum was charging for

accessorial services when they attempted to contract for these 45 shipments.

It is also clear that Mr. Smoot would not have charged, and JPPSO-MA

would not have agreed to, Platinum’s listed accessorial prices if those prices

had been known beforehand. As a result, we find there was no meeting of the

minds between Mr. Smoot and JPPSO-MA regarding pricing for accessorial

services.

28

Price being an essential term for contract formation, we conclude that

no valid contracts were formed for Platinum’s accessorial services. 17

Because no valid contracts were formed regarding Platinum’s accessorial

services, it is unnecessary to address defendant’s formation argument

regarding the timely issuance of GBLs and 1200 Correction Notices for these

shipments. For the same reason we find it unnecessary to address plaintiff’s

equitable reformation argument, as we cannot reform contracts that were

never formed. 18

II. Performance

Although there was no meeting of the minds between the parties on

pricing for Platinum’s accessorial services, the government must pay

plaintiff for whatever accessorial services Platinum actually performed.

Platinum has not been compensated by the government for any services other

than those paid under its NTS contracts. See generally JX 1–45 at Tab A.

Platinum alleges that it performed expedited service for 18 shipments,

performed origin loading for 45 shipments, performed destination unloading

for 43 shipments, and handled freight not adjacent to the vehicle for 43

shipments. To the extent that accessorial services were performed and

accepted, we rely on quantum meruit to calculate the fair market value of

those services. We begin by determining which services were performed by

Platinum in accordance with the MFTURP, as the parties agree that

17

We recognize a seeming tension between finding fully formed contracts

for line-haul services but not for accessorial services, as both were offered

and performed by Platinum concurrently. This seeming tension is immaterial,

however, as the parties have agreed that valid contracts were formed with

respect to line-haul services, despite the dispute over accessorial services. In

effect, the parties have agreed to treat the two types of services differently

for purposes of resolving this dispute.

18

We need not address Platinum’s alternative attempt to cobble together oral

contracts through phone conversations or informal written contracts through

email communications between JPPSO-MA and Platinum. Because there

was no meeting of the minds on Platinum’s rates for its accessorial services,

no valid contracts were formed for accessorial services regardless of the

alleged mode of contract. For the same reason we find it unnecessary to

address plaintiff’s argument that the GBLs and 1200 Correction Notices

ratified these alleged prior agreements.

29

Platinum’s performance is subject to those regulations. Pl.’s Post-Trial Br. at

2, 28–32; Def.’s Post-Trial Br. at 22, 24–25, 29, 33–34; see also United

States v. Amdahl Corp., 786 F.2d 387, 393 (Fed. Cir. 1986) (“[A] contractor

may recover at least on a . . . quantum meruit basis for the value of the

conforming goods or services received by the government . . . .”) (emphasis

added).

A. Expedited Service

According to the MFTURP, expedited service is an “accessorial

service [where] shippers can request a TSP to guarantee delivery before the

required Standard Transit Time.” MFTURP-1, Item 35; JX 63, App. 96. The

MFTURP calculates the Standard Transit Time for each shipment based on

the number of miles to the destination, as well as the number of drivers

assigned to each shipment. MFTURP-1, Item 5; JX 63, Apps. 83–85.

Expedited service charges can only apply where “the requested [d]elivery

[d]ate is less than [the] standard transit time,” and where “EXP” is annotated

on the GBL. MFTURP-1, Item 35; JX 63, App. 96. Here, the parties have

stipulated to the required delivery date, the standard transit time, and the

actual delivery date for each shipment. JX 86. Additionally, the 1200

Correction Notices, which operate to amend the GBLs for the 18 shipments

at issue, all include the expedited service annotation. JX 3 at 140; JX 4 at

204; JX 8 at 231; JX 10 at 61; JX 15 at 60–61; JX 17 at 285; JX 18 at 422;

JX 21 at 268; JX 22 at 423; JX 23 at 449; JX 30 at 292; JX 33 at 628; JX 34

at 745; JX 37 at 275; JX 38 at 298; JX 40 at 636; JX 41 at 786; JX 45 at 360.

Platinum argues that it should be compensated for performing

expedited service on 18 shipments, because it delivered those shipments

before the standard transit time calculated for each shipment. In response, the

government avers that, because JPPSO-MA never requested that Platinum

deliver before the standard transit time for 15 of the 18 shipments, expedited

service for those shipments were not actually performed, and Platinum is not

entitled to compensation. We agree with the government.

The MFTURP clearly requires that expedited service be “requested”

for it to be charged. MFTURP-1, Item 35; JX 63 at App. 96.

Correspondingly, JPPSO-MA included a “required” delivery date on each

GBL. JX 86; see also, e.g., JX 1 at 32 (indicating required delivery date in

block eight of GBL). According to the parties’ stipulations, for all but three

30

shipments, the required delivery date designated for each shipment was either

on or after the standard delivery date calculated for each shipment—not

before. JX 86. For example, although the actual delivery date for the Darling

shipment was July 21, 2016, five days earlier than the standard delivery date

of July 26, 2016, JPPSO-MA only requested that Platinum deliver the

shipment by July 28, 2016, which was two days after the standard delivery

date. Id.; see also JX 3 at 117–32, 138. As a result, we exclude expedited

service for 15 of these 18 shipments, as it was not actually performed. In

effect, where the government did not request expedited service, plaintiff was

a volunteer. Platinum is thus only entitled to compensation for expedited

service for three shipments: Adrian Silvera, Jeffrey Buck, and Tedd

Wilkerson. Those are the only shipments for which JPPSO-MA requested a

delivery date before the standard delivery date, and in which Platinum in fact

delivered before that standard date. JX 86; see also JX 15 at 68–78, 104–05;

JX 17 at 221–40, 283, 285; JX 40 at 527–40, 636–37.

B. Origin Loading and Destination Unloading Services

Under the MFTURP, a TSP is permitted to charge for loading and/or

unloading services if those services are performed “unassisted by shipper or

consignee.” MFTURP-1, Item 51; JX 63, App. 101. Platinum argues it

indeed performed “unassisted” loading with respect to all 45 shipments and

unloading for 43 shipments, because the hybrid method involves neither an

Origin DPM Contractor to perform loading services nor a Destination DPM

Contractor to perform unloading services. Platinum therefore asserts that it

is entitled to compensation for the loading and unloading services it properly

performed.

The government, on the other hand, claims that NTS services already

include loading services, and, because Platinum has been compensated for

its NTS services for these 45 shipments, requiring the government to pay for

separate loading charges would compensate Platinum twice for the same

work. The government alternatively argues that because loading and/or

unloading only appears once as “URC 1”—and not twice—on each of the

1200 Correction Notices for each shipment, loading and/or unloading

services were intended to be priced together as a single charge. As a result,

according to the government, Platinum is double charging by billing for

loading and unloading accessorial services separately. We disagree.

31

By requiring Platinum to deliver these 45 shipments directly from its

NTS warehouse to the servicemembers’ residential addresses, JPPSO-MA

was necessarily requesting that Platinum perform both loading and unloading

services—loading from the NTS warehouse dock to the freight truck and

unloading from the freight truck to the destination location. Since the hybrid

method did not call for Origin DPM Contractors to perform loading services

or Destination DPM Contractors to perform unloading services, Platinum has

shown that it performed these services “unassisted.”

Additionally, Platinum’s loading services were not already included

in its NTS services as the government contends. According to Mr. Thomas’

testimony, NTS services do not include loading onto a freight truck:

THE COURT: The NTS contractor puts it in the warehouse

and leaves it there right?

THE WITNESS: Um-hum.

THE COURT: Is that the end of the NTS process?

THE WITNESS: Yes, sir, until we ask for it to be released out.

THE COURT: And is that part of—has the Government

already paid for that?

THE WITNESS: We pay for everything going in, and then the

only thing we pay the NTS contractor is to handle out to the

dock to be picked up by the next TS[P]—

Tr. at 550–51. Mr. Thomas’s testimony makes it clear that JPPSO-MA’s

payments under NTS contracts cover all storage services up to the point at

which goods are “handl[ed] out to the dock”—which, by definition, does not

include loading onto a freight truck. Id. at 551. Indeed, Mr. Thomas’s

testimony comports with the documentary evidence. As plaintiff points out,

the line item, “Handling Out,” on its NTS tender is defined as “[h]andling

out, labor and equipment required to remove from storage and place onto

warehouse platform.” JX 56 at 14548–57; JX 57 at 14560–70; JX 58 at

14573–84 (emphasis added). “Handling Out” services under Platinum’s NTS

tender does not include loading onto a freight truck. As a result, the NTS

payment did not include the loading accessorial services performed by

Platinum.

32

We also find that the annotation, “URC1,” does not pertain to the

number of times loading and/or unloading can be charged, nor does it imply

that loading and unloading services are charged together. It simply references

the rate at which those services are charged. As plaintiff notes, the MFTURP

states that “[l]oading and/or unloading service[s] will be subject to a charge

of: URC(1) $_____ per hunderedweight, subject to a minimum charge of

URC(2) $_____.” MFTURP-1, Item 51; JX 63, App. 101. The inclusion of

“URC1” on the 1200 Correction Notices merely means that, whenever

loading and/or unloading services are performed, JPPSO-MA would be

charged a certain rate per hundredweight. Thus, entering “URC1” twice

would be superfluous, as it would be tantamount to listing the same price

twice. Moreover, the inclusion of “and/or” between “loading” and

“unloading” indicates that loading and unloading services may be charged

either separately or together. Therefore, loading and unloading services were

not meant to be priced as a single charge merely because “URC1” was listed

once on the 1200 Correction Notices.

Further, the government also claims that TSPs do not normally charge

for loading services when picking up goods from an NTS warehouse and thus

Platinum is not entitled to compensation for loading services for these 45

shipments. We note, however, that according to Mr. Thomas, in a normal

DPM movement, the Origin DPM Contractor charges for loading the goods

onto the freight truck. Tr. at 550. By contrast, under the hybrid method, there

is no Origin DPM Contractor to charge for loading services. If loading is

neither covered by an Origin DPM Contractor nor by an NTS contract, then

loading must necessarily be performed by the TSP as an additional charge.

Thus, we find that Platinum is entitled to the value of origin loading for 45

shipments and destination unloading for 43 shipments.

C. Handling Freight at Positions Not Immediately Adjacent to Vehicle

The MFTURP allows a TSP to bill for “mov[ing] freight on shipments

from or to a position that is not immediately adjacent to the vehicle.”

MFTURP-1, Item 49; JX 63 at App. 100. A TSP cannot charge for this

accessorial service if the vehicle is merely “separated by an intervening

sidewalk or walkway” from the unloading position. MFTURP-1, Item 49; JX

63 at App. 100.

Plaintiff argues that, by requesting that Platinum deliver the goods to

each servicemember’s residence, Platinum was expected to deliver the goods

33

into each servicemember’s home. Indeed, the government does not contend

that plaintiff failed to deliver the goods into servicemembers’ homes or that

it left the goods in driveways, on curbs, or on doorsteps. According to

plaintiff, the interior of a home is “not immediately adjacent” to the truck, as

it is separated by more than an intervening sidewalk and/or walkway. As a

result, Platinum claims it should be compensated additionally for handling

non-adjacent freight for 43 shipments.

The government disputes all of Platinum’s charges associated with

handling freight non-adjacent to the vehicle. It argues that JPPSO-MA never

requested this service. There were no annotations on the GBLs or 1200

Correction Notices for handling non-adjacent freight, and there is no

evidence this specific accessorial service was requested in any

communications between JPPSO-MA and Platinum. In addition, the

government questions whether the interior of servicemembers’ residences

are indeed separated by more than an “intervening sidewalk or walkway”

from the delivery trucks.

The mere fact that neither the GBLs nor 1200 Correction Notices

show the annotation, “HHB,” for handling freight non-adjacent to the vehicle

is not dispositive as to whether JPPSO-MA implicitly asked for this

accessorial service. As plaintiff notes, contrary to expedited service, where

the MFTURP states that “EXP is required to be annotated on [the GBL]” and

that the “TSP must ensure [the GBL] is annotated with EXP . . . for charges

to apply,” MFTURP-1, Item 35; JX 63 at App. 96, the MFTURP places no

such requirement for charging for handling freight not adjacent to the

vehicle, see generally MFTURP-1, Item 49; JX 63 at App. 100.

Furthermore, there is testimony from Mr. Thomas that JPPSO-MA

expected Platinum to deliver each servicemember’s goods into their

residence:

THE COURT: What do you understand is going to happen

when they get to Major Graham’s house?

THE WITNESS: That they were going to deliver [the goods]

to the customer.

THE COURT: And leave it in the road or the sidewalk or his

front yard?

34

THE WITNESS: No, to the residence, because that’s what they

actually did.

THE COURT: Yeah, take it into his house, unpack

everything—

THE WITNESS: Deliver it to—yes, sir, deliver it to—

THE COURT: —take the shrink wrap off.

THE WITNESS: —take the boxes and material things, um-

hum.

Tr. at 535. We are persuaded that JPPSO-MA expected Platinum to deliver

each servicemember’s goods into and throughout their residence.

We also agree with plaintiff that, for these 43 shipments, delivering

the servicemembers’ goods into their residences qualifies as handling freight

“not immediately adjacent” to the delivery truck. Perhaps if Platinum had

merely left the goods on each servicemember’s front porch, driveway, or

curb, the distance between the delivery position and the vehicle would be

“immediately adjacent.” But, at trial, Mr. Smoot testified that Platinum’s

process for delivering goods into the servicemembers’ homes involved

taking the goods “off the truck, into the house, plac[ing] it where the member

wants it, upstairs, downstairs, in the attic, whatever they want—or even in

the garage with some items.” Id. at 628–29. Accordingly, when Platinum (or

one of Platinum’s third-party contractors) delivered into each

servicemember’s residence, its truck was not only separated from each

delivery position “by an intervening sidewalk or walkway,” but also by

additional space within and throughout the home. As a result, we find that

Platinum has established that it handled freight “not immediately adjacent to

the vehicle” within the contemplation of the MFTURP. Platinum is

accordingly entitled to quantum meruit for handling non-adjacent freight for

43 shipments.

III. Quantum Meruit

As we mention above, per the government’s concessions, we find that

the parties contracted for Platinum’s line-haul freight services for all 45

shipments; as a result, Platinum is entitled to contract damages amounting to

$317,627.90. JX 87. On the other hand, because we do not find a meeting of

the minds between the parties on Platinum’s rates for its accessorial services

35

for any of the shipments at issue, we now address the extent Platinum can

recover in quantum meruit for those additional services.

A. The Quantum Meruit Standard

“A recovery in quantum meruit is based on an implied-in-law

contract. That is, a contract in which there is no actual agreement between

the parties, but the law imposes a duty in order to prevent injustice.” Int’l

Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007).

Although generally this court lacks jurisdiction over implied-in-law

contracts, there is a limited exception where “a benefit has been conferred by

the contractor on the government in the form of goods or services, which is

accepted,” and those goods or services are “received by the government prior

to the rescission of the contract for invalidity.” Amdahl, 786 F.2d at 393; see

also United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1329–30 (Fed. Cir.

2006). In those cases, “the contractor ‘may recover at least on a . . . quantum

meruit basis for the value of the conforming goods or services.’” Seh Ahn

Lee v. United States, 895 F.3d 1363, 1374 (Fed. Cir. 2018) (quoting

Amadahl, 786 F.2d at 393)); see also Perri v. United States, 340 F.3d 1337,

1344 (Fed. Cir. 2003) (“[C]ourts utilize[] quantum meruit as a basis for

awarding the plaintiff the fair value of what it supplied to the government.”).

Since Platinum’s accessorial services—expedited service, loading

and unloading, and handling freight non-adjacent to the vehicle—were

rendered to and accepted by the government, it is only appropriate for

Platinum to recoup the fair market value of those services. Dureiko v. United

States, 62 Fed. Cl. 340, 358 (2004) (finding where services were rendered

pursuant to an invalid express contract, “it would be unfair to permit the

government to retain the benefits of the bargain it had made with the plaintiff

without paying for them,” and that quantum meruit is used “as a basis for

awarding the plaintiff the fair value of what is supplied to the government.”),

aff’d, 162 F. App’x 976 (Fed. Cir. 2006). As a result, Platinum is entitled to

be reimbursed on a quantum meruit basis for the accessorial services it

performed. Seh Ahn Lee, 895 F.3d at 1374.

B. Mr. Gmyr’s Expert Report and Plaintiff’s Motion in Limine

The government’s expert witness on damages, Mr. Gmyr, prepared a

report purporting to calculate the value of accessorial services rendered to

36

the government. See generally DX 245. Plaintiff has filed a motion in limine

to exclude Mr. Gmyr’s testimony and report from evidence.

Mr. Gmyr’s report relies on the “stepped approach” to calculate

Platinum’s quantum meruit damages, which is a recommended approach in

the litigation cost-accounting industry. Id. at 12. That approach (1)

determines the type of claim at issue; (2) determines potential financial

impacts; (3) determines the approach to quantifying damages based on the

facts at issue; (4) reviews, in detail, the relevant documentation; (5)

quantifies the financial impacts based on the relevant documentation; and (6)

quantifies damages and/or applies adjustments to damages. Id. at 13.

Using the stepped approach, Mr. Gmyr determined that (1) Platinum’s

claim is for unpaid freight transportation charges, including charges for

accessorial services, for which Platinum submitted bills for payment; and (2)

the potential financial impact is lost revenues for the unpaid bills. Id. Mr.

Gmyr then (3) determined that the approach for quantifying damages would

involve (a) assessing what other TSPs would have charged the government

for the same services and (b) inquiring which services Platinum properly

performed in accordance with applicable freight rules and regulations. Id. at

13, 27. To pursue this approach, Mr. Gmyr (4) reviewed the relevant

documentation pertinent to this case, including the GBLs and 1200

Correction Notices, reviewed deposition testimony, reviewed historical price

data from other TSPs in the GFM system, and held conversations with

defendant’s counsel and government personnel from USTRANSCOM,

MSDDC, GSA, and JPPSO-MA about the interpretation and application of

rules and regulations governing the shipments at issue. Id. at 13–14, 27–28.

In (5) quantifying the financial impact of Platinum’s unpaid bills, Mr.

Gmyr calculated the average market rate per service for the shipments at

issue by drawing from historical data in the GFM system. More specifically,

Mr. Gmyr gathered freight tender data between 2016 and 2018 from all

registered TSPs that offered the services charged by Platinum and applied

those rates to the shipments at issue. DX 245 at 27–29. Based on those rates,

Mr. Gmyr calculated an average market price for each accessorial service per

shipment. Id. at 29, Attach. 7-b. Mr. Gmyr excluded Platinum’s accessorial

rates and the loading and unloading accessorial rates from one other TSP,

Meadow Lark Transportation, Inc. (“Meadow Lark”), from his calculation,

as Mr. Gmyr deemed their rates to be outliers. Tr. at 1044; DX 245 at 30–31.

37

After determining the average market rate per service for the

shipments at issue, Mr. Gmyr then (6) applied deductions to the damages

amount based on his application of the government’s contract formation and

performance arguments provided to him by defendant’s counsel and agency

personnel. 19 Tr. at 942, 1041, 1048. Those arguments were: (a) contracts

could not be formed where JPPSO-MA issued a GBL or 1200 Correction

Notice after Platinum began performance and where those documents did not

reference Platinum’s correct tender number; (b) expedited service could not

be charged when it was not requested in accordance with the MFTURP; (c)

loading services were already covered under Platinum’s NTS contracts with

JPPSO-MA; (d) handling non-adjacent freight could not be charged where it

was not annotated on the GBL or 1200 Correction Notice; and (e) the

delivery positions for most of the shipments Platinum performed were

“immediately adjacent” to the delivery vehicle. DX 245 at 15–25.

Based on Mr. Gmyr’s market calculations and subsequent deductions

based on the government’s arguments, Mr. Gmyr ultimately concluded that

Platinum’s quantum meruit damages amounted to $400,612, including

$176,889 for line-haul for all 45 shipments, $3,990 for origin loading for

only two shipments, 20 and $219,733 for destination unloading for 43

shipments. Id. at 33.

Plaintiff’s motion in limine argues that Mr. Gmyr is not qualified to

calculate the value of Platinum’s accessorial services, because although Mr.

Gmyr has experience in financial analysis and forensic accounting, he has no

specialized experience in the transportation industry, let alone in the

movement of household goods under the DPM. Plaintiff also argues that Mr.

Gmyr’s expert report is irrelevant to the calculation of damages, because it

does not include TSP availability during the relevant peak seasons and

19

Although Mr. Gmyr describes the bases for his deductions as “regulatory

assumptions,” we decline to adopt this label. The “assumptions” Mr. Gmyr

adopts are not based exclusively on regulations but are, more accurately, Mr.

Gmyr’s application of the government’s contract formation and performance

legal arguments.

20

Mr. Gmyr’s damages total for origin loading encompassed only two

shipments, Tratchell and McNally, as Mr. Gmyr believed those shipments

were not handled under NTS contracts with Platinum. DX 245 at Attach. 5.

38

unreasonably excludes Platinum’s and Meadow Lark’s accessorial rates from

the damages calculation. Additionally, plaintiff alleges the report lacks a

reliable methodology, because it fails to reference any recognized expert

applying the same method for calculating damages. It describes Mr. Gmyr’s

methodology as “nothing more than a work plan by which he assembles and

reviews data.” Pl.’s Mot. at 13. Plaintiff also argues that Mr. Gmyr’s

deductions methodology merely involves adopting defendant counsel’s

arguments about whether Platinum should be compensated for the work it

performed, and that Mr. Gmyr lacks any independent legal expertise in this

matter. Thus, according to plaintiff, Mr. Gmyr’s expert testimony should be

excluded.

In response, the government argues that Mr. Gmyr needs no expertise

in the transportation industry to value the accessorial services rendered to the

government, because the task only requires expertise in cost-accounting. The

government also claims Mr. Gmyr’s valuation methodology is reliable as Mr.

Gmyr based his calculations on the “stepped approach,” which is commonly

used in the litigation cost-accounting industry. Furthermore, defendant

asserts that an expert’s assessment of damages is not any less relevant or

reliable just because it involves simple mathematical calculations. Defendant

also argues that, although Mr. Gmyr is not allowed to provide his own legal

interpretations, he should be able to apply arguments given to him by

counsel. According to defendant, plaintiff merely disagrees with the manner

in which Mr. Gmyr prepared his expert report, and plaintiff’s objections

pertain to the weight of the evidence—not admissibility.

Generally, the proponent of disputed evidence “bears the burden of

proving the evidence’s admissibility by a preponderance of the evidence.”

Spectre Corp. v. United States, 160 Fed. Cl. 486, 492 (2022). Federal Rule

of Evidence 702, which governs the admissibility of expert testimony,

provides:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

39

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and

methods; and

(d) The expert has reliably applied the principles and methods

to the facts of the case.

Fed. R. Evid. 702(a)–(d).

Rule 702 “is premised on an assumption that the expert’s opinion will

have a reliable basis in the knowledge and experience of his discipline.”

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). Thus, “a

trial judge must determine ‘at the outset’ whether an expert is qualified.”

Gilead Scis., Inc. v. United States, 160 Fed. Cl. 330, 336 (2022) (quoting

Daubert, 509 U.S. at 592). We note, however, that “[w]hile the court may

require that an expert witness be ‘a member of a particular profession,’ in

order for [them] to be qualified, generally it is not necessary for an individual

to be ‘a specialist in a particular branch of a discipline or profession.’” Zoltek

Corp. v. United States, 95 Fed. Cl. 681, 684 (2010) (internal citation

omitted). Indeed, we have held that, where a damages expert has ample

expertise in cost-accounting, especially in previous litigation matters, yet

lacks specific expertise in the subject matter at hand, that expert is

nonetheless qualified to provide a reliable opinion on damages. Gilead Scis.,

160 Fed. Cl. at 339. The damages expert’s lack of industry-specific expertise

instead pertains to the weight we give their opinion—not admissibility. Id.

We are also required under Rule 702 to ensure that expert testimony

is both relevant and reliable. Micro Chem., Inc. v. Lextron, Inc., 317 F.3d

1387, 1391 (Fed. Cir. 2003) (“The trial court acts as a ‘gatekeeper’ to exclude

expert testimony that is irrelevant or does not result from the application of

reliable methodologies or theories to the facts of the case.”). Relevance turns

on “whether the expert testimony will ‘help the trier of fact to understand the

evidence or to determine a fact in issue,’” and reliability turns on “whether

the testimony is grounded in methods and procedures that are accepted in the

expert’s discipline.” Conn. Yankee Atomic Power Co. v. United States, 169

Fed. Cl. 450, 452 (2024) (quoting Daubert, 509 U.S. at 591). Our assessment

of these factors is “a flexible one” and may “depend[] on the nature of the

40

issue, the expert’s particular expertise, and the subject of his testimony.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 (1999).

Here, we find that Mr. Gmyr is qualified to testify on the fair market

value of accessorial services performed by Platinum. Mr. Gmyr does not

purport to rely on any experience in the transportation industry (he has none)

in arriving at his damages numbers. Nor do we see any reason why he would

need transportation-specific experience to calculate quantum meruit

damages in this case. The question is whether the basic assumption on which

he operates—that the relevant source for valuing transportation services is

what other comparable transportation providers charge—is solid. We think

it is. The GFM system contains tenders from other TSPs, which include their

rates for the same accessorial services offered by Platinum. Tr. at 74–75, 111,

751, 764–65, 786–92, 817–19, 824–25. As TSP price data is already

available in the GFM system, we agree with Mr. Gmyr that an appropriate

method for determining the fair market value of accessorial services

performed by Platinum is to gather price data from other TSP tenders in the

GFM system and calculate an average rate per service. This does not require

transportation expertise, but rather expertise in cost-accounting—and Mr.

Gmyr has plenty. Mr. Gmyr attained a Bachelor of Science in Finance in

1999 and has gained more than 25 years of experience in damages analysis

in various government contracts disputes involving numerous industries. Id.

at 928–32; DX 245 at 2, Attach. A, Attach. B. As in this case, we believe his

cost-accounting expertise is sufficient for calculating the fair market value of

accessorial services performed by Platinum.

We also find Mr. Gmyr’s valuation testimony relevant. Mr. Gmyr’s

report analyzes rate data from other TSPs registered in the relevant

government system—GFM—during the relevant time periods—2016

through 2018—and for the relevant accessorial services at issue—expedited

service, loading and unloading, and handling non-adjacent freight. DX 245

at 27–29, Attach. 7-b. These data parameters give the court a picture of what

the average TSP, in a similar position as Platinum, would have charged

JPPSO-MA for the pertinent accessorial services. Although, as plaintiff

points out, Mr. Gmyr’s report does not draw data exclusively from the peak

summer months, plaintiff offers no evidence suggesting that TSPs routinely

amend their tenders during peak seasons to raise their accessorial rates.

41

Nor do we fault Mr. Gmyr’s exclusion of Platinum’s accessorial rates

and Meadow Lark’s loading and unloading rates. Mr. Smoot himself

admitted that Platinum’s listed accessorial rates were exorbitant and that he

would have charged the government a much lower rate if he were aware of

this issue beforehand. Tr. at 653, 741–42. By comparison, Meadow Lark’s

loading and unloading rates were between 100% and 400% higher than

Platinum’s rates and dwarfed every other TSP’s rates for the same services.

DX 245 at 30–32, Attach. 7-c. Thus, we do not find it unreasonable that Mr.

Gmyr excluded these data points as statistical outliers.

Additionally, we find Mr. Gmyr’s valuation testimony reliable.

Contrary to plaintiff’s assertions, the stepped approach is simply a

commonsense approach to a mathematical inquiry frequently used in the

damages accounting industry. Id. at 12–13. As Mr. Gmyr cites, there are peer

reviewed publications that feature this approach for financial experts. Id. at

12 n.55 (citing ROMAN L. WEIL ET AL., LITIGATION SERVICES HANDBOOK:

THE ROLE OF THE FINANCIAL EXPERT (6th ed. 2017)). Although plaintiff

describes this approach as merely a “work plan by which [Mr. Gmyr]

assembles and reviews data,” we do not find Mr. Gmyr’s methodology

unreliable simply because it is straightforward. Hence, we find Mr. Gmyr’s

methodology useful. Because we find Mr. Gmyr’s valuation testimony

relevant and reliable, we deny plaintiff’s motion in limine regarding Mr.

Gmyr, and we admit Mr. Gmyr’s testimony, 21 as well as his expert report,

DX 245. 22

We accord, however, no weight to Mr. Gmyr’s damages deductions

based on his application of the government’s contract formation and

performance arguments. Mr. Gmyr is in no position to instruct the court on

21

Plaintiff’s motion in limine to exclude defendant’s fact witnesses, Mr.

Walker, Mr. Jones, and Mr. Fisher, is denied as moot, as the witnesses were

not allowed to testify regarding the interpretation and application of

applicable regulations, nor about matters outside their personal knowledge.

See Tr. at 805–06, 836–39.

22

As plaintiff’s objection to DX 97 is predicated on its objection to Mr.

Gmyr’s expert report, we admit DX 97 as a summary of data rendered to Mr.

Gmyr. Accordingly, DX 2 is admitted as demonstrative evidence for the

same reason.

42

issues of law. See Sparton Corp. v. United States, 77 Fed. Cl. 1, 7 (2007) (“In

general, federal courts have found expert testimony on issues of law, either

giving a legal conclusion or discussing the legal implications of evidence, to

be inadmissible.”); Nutrition 21 v. United States, 930 F.2d 867, 871 n.2 (Fed.

Cir. 1991) (“An expert’s opinion on the ultimate legal conclusion is neither

required nor indeed ‘evidence’ at all.”). Thus, we only accord weight to his

valuation testimony without deductions.

C. Damages Calculation

We rely on Mr. Gmyr’s valuation calculations in determining

Platinum’s quantum meruit damages. 23 As we note above, Platinum is

entitled to be reimbursed for the value of expedited service for three

shipments, origin loading for 45 shipments, destination unloading for 43

shipments, and handling non-adjacent freight for 43 shipments. After

incorporating Mr. Gmyr’s calculations, in which he averaged the rates for

each accessorial service across GFM-registered TSPs (excluding outliers)

and applied those average rates to the shipments at issue here, we arrive at

the following value determinations: $1,591 for expedited service for three

shipments, 24 $247,285 for origin loading for 45 shipments, 25 $219,736 for

23

Since we apply Mr. Gmyr’s valuation in our damages assessment, we

decline to apply GSA’s valuation based on the 400 NG program, especially

since Platinum was not a participant in that program. Tr. at 611, 682, 740–

41, 886, 911. We also decline to extrapolate from Mr. Smoot’s statement that

he would have charged “200 percent of the tariff,” as he subsequently states

that there are “too many variables” involved for that rate to be certain. Id. at

742–43.

24

Mr. Gmyr’s expedited service calculations for the three applicable

shipments are $883 (Silvera), $92 (Buck), and $616 (Wilkerson), totaling

$1,591. DX 245 at Attach. 7-b.

25

Mr. Gmyr’s origin loading calculations for the 45 shipments are $2,844

(Graham), $406 (Liftman), $4,919 (Darling), $2,678 (Harrison), $4,398

(Mitchell), $3,183 (Schulte), $5,593 (Williams), $1,968 (Hurley), $1,713

(Bean), $3,510 (Bryant), $4,717 (Amerine), $478 (Anderson), $2,774

(Tratchel), $1,216 (McNally), $2,517 (Silvera), $4,312 (Langford), $5,361

(Buck), $7,184 (Diehl), $4,827 (Mackey), $1,865 (Ringer), $5,508

(Mozingo), $10,613 (Perez), $3,394 (Eaton), $8,783 (Fernandez), $2,032

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destination unloading for 43 shipments, 26 and $15,185 for handling non-

adjacent freight for 43 shipments. 27 DX 245 at Attach. 7-b. Altogether,

(Turner), $1,163 (Poole), $11,683 (Toleafoa), $5,384 (Radford), $11,191

(Blakenbaker), $8,309 (Brown), $5,576 (Green), $10,259 (Huewitt), $4,655

(Moore), $1,730 (Parsons), $4,589 (Adams), $2,197 (Brown), $9,497

(Browne), $5,275 (Carrionrodriguez), $7,954 (Bouchat), $6,115

(Wilkerson), $8,131 (Vigil), $9,600 (Weibel), $9,635 (Chubb), $15,754

(Johnson), and $11,795 (Silverman). Id. Although Mr. Gmyr’s report totals

these charges at $247,282, the actual total is $247,285 ($3 more). Id.

26

Mr. Gmyr’s destination unloading calculations for the 43 shipments are

$2,844 (Graham), $406 (Liftman), $4,919 (Darling), $2,678 (Harrison),

$4,398 (Mitchell), $3,183 (Schulte), $5,593 (Williams), $1,968 (Hurley),

$1,713 (Bean), $3,510 (Bryant), $4,717 (Amerine), $478 (Anderson), $2,774

(Tratchel), $1,216 (McNally), $2,517 (Silvera), $4,312 (Langford), $5,361

(Buck), $7,184 (Diehl), $4,827 (Mackey), $1,865 (Ringer), $5,508

(Mozingo), $10,613 (Perez), $3,394 (Eaton), $8,783 (Fernandez), $2,032

(Turner), $1,163 (Poole), $11,683 (Toleafoa), $5,384 (Radford), $11,191

(Blakenbaker), $8,309 (Brown), $5,576 (Green), $10,259 (Huewitt), $4,655

(Moore), $1,730 (Parsons), $4,589 (Adams), $2,197 (Brown), $9,497

(Browne), $5,275 (Carrionrodriguez), $7,954 (Bouchat), $6,115

(Wilkerson), $8,131 (Vigil), $9,600 (Weibel), and $9,635 (Chubb). Id.

Although Mr. Gmyr’s report totals these charges at $219,733, the actual total

is $219,736 ($3 more). Id.

27

Mr. Gmyr’s handling non-adjacent freight calculations for the 43

shipments are $338 (Graham), $252 (Liftman), $470 (Darling), $382

(Harrison), $446 (Mitchell), $398 (Schulte), $504 (Williams), $344 (Hurley),

$326 (Bean), $408 (Bryant), $469 (Amerine), $262 (Anderson), $380

(Tratchel), $298 (McNally), $376 (Silvera), $447 (Langford), $473 (Buck),

$375 (Diehl), $344 (Mackey), $223 (Ringer), $354 (Mozingo), $390 (Perez),

$282 (Eaton), $375 (Fernandez), $230 (Turner), $180 (Poole), $356

(Toleafoa), $354 (Radford), $395 (Blakenbaker), $375 (Brown), $358

(Green), $386 (Huewitt), $331 (Moore), $218 (Parsons), $328 (Adams),

$236 (Brown), $356 (Browne), $285 (Carrionrodriguez), $375 (Bouchat),

$371 (Wilkerson), $375 (Vigil), $380 (Weibel), and $380 (Chubb), totaling

$15,185. Id. Mr. Gmyr’s calculations for Johnson ($324) and Silverman

($301) were excluded from the total, as those were the two 2018 shipments

where Platinum did not handle non-adjacent freight at the servicemember’s

44

including $317,627.90 for Platinum’s line-haul services for all 45 shipments,

Platinum is entitled to a total of $801,424.90 in damages.

CONCLUSION

As we explained above, plaintiff has established its breach of contract

claim regarding its line-haul freight services. As a result, plaintiff is entitled

to contract damages for those services. We also conclude that plaintiff has

not established its breach of express contracts for its accessorial services, as

there was no meeting of the minds on plaintiff’s rates for those services.

Nevertheless, because plaintiff rendered its accessorial services to the

government, and because those services were accepted by the government,

plaintiff is entitled to quantum meruit damages for the accessorial services

rendered. Accordingly, the following is ordered:

1. The Clerk of Court is directed to enter judgment in favor of plaintiff

and against defendant in the amount of $801,424.90.

2. No costs.

s/Eric G. Bruggink

Eric G. Bruggink

Senior Judge

residence but instead delivered to a Destination DPM Contractor’s

warehouse.

45