In the Matter of UNION PACIFIC RAILROAD

May 5, 2010

CBCA 1317-RATE

In the Matter of UNION PACIFIC RAILROAD

Rebecca B. Gregory and Raymond J. Hasiak of Union Pacific Railroad, Omaha, NE,

appearing for Claimant.

Mary C. Bates, Acting Director, Transportation Audits Division, Office of Travel,

Motor Vehicles & Card Services, Federal Acquisition Service, General Services

Administration, Arlington, VA; and Aaron J. Pound, Office of General Counsel, General

Services Administration, Washington, DC, appearing for General Services Administration.

John M. Dowling, Office of the Staff Judge Advocate, Headquarters, Military Surface

Deployment and Distribution Command, Department of the Army, Scott Air Force Base, IL,

appearing for Department of Defense.

GILMORE, Board Judge.

The General Services Administration (GSA) has moved for reconsideration of the

Board’s decision refunding to Union Pacific Railroad (UP) the amounts deducted from UP’s

accounts for alleged rate overcharges for services provided to the Department of Defense.

Union Pacific Railroad, CBCA 1317-RATE, 10-1 BCA ¶ 34,312 (2009). In that case, the

Board concluded that deductions for “overcharges” for transportation services are required

under 31 U.S.C. § 3726(d) to be made no later than three years after the bills were paid.

Because the deductions in issue were taken by GSA after the three-year period had run, the

Board determined that the deductions were untimely and that the amounts should be refunded

to UP. The Board rejected GSA’s argument that if deductions were not taken under 31

U.S.C. § 3726(d) within the three-year period, the amounts could still be offset under

31 U.S.C. § 3716 within the ten-year period provided under that statute for administrative

offsets.

2

CBCA 1317-RATE

GSA contends that the Board in its decision did not address GSA’s argument that

there are two distinct methods for effecting an offset and that the three-year deduction period

applies only to the external “deduction” method set forth in 41 CFR 102-118.640(b). GSA

argues that if it uses the internal “administrative offset” method under 41 CFR 102­

118.640(a) to effect an offset, it has ten years to do so. UP asks the Board to deny the motion

for reconsideration, stating that the Board addressed the statute and regulations in issue and

concluded that they required the Government to “offset” or “deduct” rate overcharges within

three years after the bills were paid. UP contends that GSA is merely reiterating its argument

that there is a distinction between an “offset” and a “deduction.” We deny GSA’s request

for reconsideration because GSA has not presented sufficient grounds to warrant

reconsideration under the Board’s rules.

Discussion

As we have held in the context of appeals of contracting officer decisions,

“[a]rguments already made and reinterpretations of old evidence are not sufficient grounds

for granting reconsideration.” Tidewater Contractors, Inc. v. Department of Transportation,

CBCA 50-R, 07-2 BCA ¶ 33,618. Nor is reconsideration to be used to retry a case or

introduce arguments that could have been made previously. Beyley Construction Group

Corp. v. Department of Veterans Affairs, CBCA 5-R, et al., 08-1 BCA ¶ 33,784.

GSA is again asking the Board to accept its interpretations of various regulations

relating to administrative offsets while ignoring the plain language in 31 U.S.C. § 3726(d)

which clearly limits the Government’s right to offset any rate “overcharge” to three years

after the bill is paid. The language in 31 U.S.C. § 3726(d) does not distinguish between

making a deduction by an internal method or an external method. GSA also ignores the

decisions of the Comptroller General, who decided these claims prior to the GSA Board of

Contract Appeals and this Board, in which the Comptroller General concluded that the

Government is precluded from deducting overcharges once the three-year period has run.

GSA wants the Board to recognize a regulatory scheme that establishes two distinct offset

methods for rate “overcharges” that have two different time limits to effect an offset. As we

previously decided, this would be contrary to 31 U.S.C. § 3726(d), in which Congress carved

out transportation rate “overcharges” as a special category of debt, to be handled in a

different manner than ordinary debt, by placing a three-year limit on the time the Government

could effect an offset once the bill was paid.

3

CBCA 1317-RATE

Decision

In conclusion, GSA has not provided sufficient grounds for the Board to reconsider

its decision. Accordingly, GSA’s motion for reconsideration is denied.

BERYL S. GILMORE

Board Judge