_________________________________ GRANTED IN PART: October 31, 1996 _________________________________ GSBCA 12296 TMD U.S.A., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Vincent Schickler, President of TMD U.S.A., Inc., Smithtown, NY, appearing for Appellant. John E. Cornell and Wendy Nevett Bazil, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), WILLIAMS, and VERGILIO. VERGILIO, Board Judge. The respondent, the General Services Administration (GSA), had received from TMD U.S.A., Inc. a tender of rates for ocean freight forwarding services for a one-year period through January 31, 1993. After selecting TMD, the agency placed orders under the tender agreement. Before the one-year period of the tender expired, the agency noted various problems with the services and billings provided by TMD. It placed TMD in non-use status, retroactively notifying TMD of the determination. On February 10, 1993, the Board received this appeal from TMD; TMD maintains that the agency breached the agreement by placing it in non-use status and by placing orders with other forwarders. Further, as amended, TMD seeks damages of $49,999.99. TMD prevails in its challenge of the agency's non-use determination. The agency has failed to meet its burden of proof--that is, despite some inefficiencies and errors by TMD, the record does not support the determination of the agency to place TMD in non-use status. Some documentation does not support agency conclusions (the agency misinterprets the requirements of the agreement); for other conclusions, documentation is absent from the record. Also, undated, unsworn statements by agency personnel do not demonstrate facts, particularly when signed discovery responses by TMD take issue with the contents and conclusions of the statements. Apart from the factual failings in the agency's case, a legal basis mandates the reversal of the determination. The agency has failed to follow its regulations in placing TMD in non-use status--it placed TMD in non-use status for several months without prior notice and without providing TMD an opportunity to correct any agency-perceived problems, and, without explanation or justification, it extended the period of non-use status beyond the ninety days authorized by regulation. Accordingly, the Board grants the appeal to the extent that it challenges the agency's actions relating to its determination of non-use. While TMD has demonstrated its entitlement to some relief due to the agency's actions, TMD has provided scarce useful information for a determination of the appropriate amount of recovery. TMD has kept its request to $49,999.99 and has not submitted a certified claim or an affidavit in support of the amount it requests. The Board concludes that TMD is entitled to recover $395. Findings of Fact Tender agreement 1. By letter dated January 28, 1992, the GSA, Region 3, Federal Supply Service Bureau, requested from ocean freight forwarders a new tender or a supplement to current tenders. The letter suggests that a single freight forwarder will be selected: "The qualifying low cost forwarder will be selected on January 31, 1992 from the tenders received, that will provide services consistent with the enclosed agreement for the one year period beginning February 1, 1992 and ending January 31, 1993." Exhibit 1 (unless noted otherwise, all referenced exhibits are from the appeal file). 2. By referencing primary and secondary carriers, the agreement enclosed with the letter is equivocal in suggesting that more than one forwarder may be selected: The carrier selected will remain in service for the period of February 1, through January 31. Tenders of Carriers which are not selected will be retained and evaluated for future use in the event either the primary or secondary carriers (1) withdraw their tender (2) the volume of service required exceeds the capabilities of the forwarder in service, or (3) is removed by the Government for any cause. Exhibit 1, Enclosure at 2. 3. The agreement specifies that the agency seeks uniform rates and/or charges for transportation services for freight forwarder handling services of overseas shipments. The freight forwarder must provide a per shipment unit cost (not in consideration of weight or cubic measurement) which must include six enumerated elements: continental United States long distance telephone calls, electronic messages, regular postage, photocopies, general office supplies, and three hours of manpower. Six items are identified as "add-on" costs when approved by the shipping agency: expedited mail service, marine insurance, blank consular forms, legalization fees, domestic transportation or pickup and delivery charges, and any cost not covered in the unit price agreement. Exhibit 1, Enclosure at 1. The agreement does not specify how these "add-on" costs are to be priced, e.g., with or without a mark-up. 4. With the submission of a tender, the forwarder expressly agrees to comply with a supplemental specification/work statement, as well as the tender agreement. Exhibit 1, Enclosure at 2. The form the forwarder submits with its tender of rates and/or charges contains a "description of service and governing publication" paragraph which states in full: Ocean freight forwarding services: In accordance with: TITLE 48 FEDERAL ACQUISITION REGULATIONS SYSTEM Parts 47.500 thru 507 and 52.247-64, and TITLE 41 Chapter 101-40.302 thru 304. GENERAL SERVICES ADMINISTRATION'S Ocean Freight Forwarding Agreement-SPECIFICATION/WORK STATEMENT. Exhibit 1, Optional Form 280 ( 17B). 5. The specification/work statement identifies the services to be provided by the freight forwarder. Among various obligations, the freight forwarder is required to review and follow agency instructions, confirm space reservations, book cargo, as well as perform the normal freight forwarding functions. The freight forwarder is required to issue shipping instructions and dock receipts to the supplier for shipping from origin to port of embarkation within two working days after receipt of assignment of shipment except when availability date requires delaying booking. Dock receipts will contain complete, easy to understand delivery instructions and appropriate evidence of delivery will accompany shipment to pier. Exhibit 1, Specification/Work Statement at 1-2 ( A.1, Shipment Planning). 6. The specification/work statement identifies additional responsibilities of the freight forwarder, including: monitor the delivery of shipments to the port of embarkation, and report promptly to the shipping agency any situation requiring immediate action (such as the substitution of a vessel and any incident of loss and/or damage). Exhibit 1, Specification/Work Statement at 2 ( A.2, Scheduling and Monitoring Cargo to Port). 7. Regarding the preparation and distribution of shipping documentation, the freight forwarder is required to: Prepare and process delivery orders and/or dock receipts forwarding originals to origin and a copy to the shipping agency. If a second mailing is required this will be done at the forwarder's expense. Retain a receipted copy for the forwarder's file. On FAS Vessel shipments from commercial suppliers, provide an additional receipted copy of the dock receipt, or, in lieu thereof, a signed copy of the onboard ocean bill of lading for prompt despatch to the supplier. Prepare instructions to truckmen or lightermen or arrange for such service to effect delivery to shipside, provided any such service incurring out-of-pocket costs to be reimbursed by the Government is expressly authorized by the shipping agency. When telephonic authorization is given written confirmation shall be furnished by the shipping agency. Invoices for reimbursement of funds advanced must be supported by certified paid bills. Exhibit 1, Specification/Work Statement at 3-5 ( A.3, Shipping Documentation Preparation and Distribution). 8. The specification/work statement dictates requirements regarding the preparation and distribution of final documents, including the following: a. Upon receipt of Ocean Bill of Lading the forwarder will prepare and distribute documents in accordance with the request of the shipping agency. One major method of notifying the forwarder of distribution requirements will be through use of the "Document Distribution and Shipping Instructions Sheet". In the absence of this form the shipping agency will provide other instruction. Copies of shipping documents will be distributed in sufficient time to assure receipt of documents by consignee prior to arrival of the vessel at the port of discharge. b. GSA Form 1917, Export Invoice, (See Exhibit B) provided by the General Services Administration to be completed by the forwarder and included with final documentation. Charges billed to the finance office will not be paid in the absence of this completed form. Exhibit 1, Specification/Work Statement at 5 ( A.4, Final Document Preparation and Distribution). 9. The specification/work statement requires the freight forwarder to maintain adequate records "reflecting the status of each shipment, and recording the receipt, processing, handling and distribution of documents." The records shall include: (3) name of the steamship line and vessel, and (10) the date the vessel sailed. Exhibit 1, Specification/Work Statement at 7-8 ( A.5, Maintenance of Records and Reports). 10. The agreement specifies obligations of the freight forwarder with respect to finance. The freight forwarder shall submit invoices to the Government finance office designated on the delivery order. A proper invoice must include specific information, including copies of any receipts required to support charges not covered by the freight forwarding agreement. Exhibit 1, Specification/Work Statement at 8-9 ( B, Finance). 11. The agreement identifies responsibilities of the shipping agency. The agency shall furnish specific instructions on each shipment and, as required, provide: (1) copies, purchase orders, project orders, etc.; (2) request for shipping instructions and notice of availability (for information only); (3) export shipping, marking, and document distribution instructions; (4) booking instructions, when not previously booked and included in other documentation; (5) written authorization for booking with other than United States flag commercial vessels when necessary; (6) instructions for scheduling (booking) shipments when vessels are missed; (7) amendment of shipping instructions or cancellation of shipment; (8) United States Government bills of lading; (9) written authorization for incurring out-of-pocket costs for accessorial services; (10) instructions for arranging marine or Cargo War Risk insurance; (11) discrepancy in shipment report; (12) instructions to govern billing for prepaid ocean freight; (13) export shipping report forms; and (14) any other Government forms the contractor will be required to use in support of Government shipping. Exhibit 1, Specification/Work Statement at 9-10 ( C). TMD 12. TMD provided the agency with a completed form, "Uniform Tender of Rates and/or Charges for Transportation Services," for the period of February 1, 1992, through January 31, 1993. Exhibit 2. TMD specifies its charge as $19.75 per shipment. Id. ( 17A). On the face of the tender, the agency has marked "received" with a stamped annotation over the signature of an agency employee: "This tender/supplement will be used in the best interest of the United States Government." Exhibit 2. The record is devoid of other communications from GSA to TMD regarding the "acceptance" of the TMD tender. The agency has not contended that it did not select TMD as the (primary) ocean freight forwarder. 13. Despite the Board's comments in denying the agency's motion for summary relief, TMD U.S.A., Inc. v. General Services Administration, GSBCA 12296, 96-1 BCA 27,953 at 139,629, the parties have not placed in the record documents from each of the ocean freight forwarding shipments handled by TMD or all documents relating to any shipment. However, it appears that the agency utilized TMD for nineteen or twenty shipments between February 1 and June 30, 1992, and none thereafter. TMD Submission of Eight Pages (Feb. 10, 1993). Agency actions 14. In a July 1993 meeting, the agency informed TMD that the agency and others were experiencing problems with the services and billings of TMD. Exhibits 4, 5, 7. An undated, unsigned agency memorandum states that the agency expressed to the president of TMD concerns about the level of TMD's service: failure to provide copies of 1917's, and other pertinent shipping documentation to not only us, but our customer agencies; overcharges on overnight express shipments; and his constant complaints to GSA Finance that he had not been paid when in essence, after checking, 9 times out of 10, finance had mailed a check to TMD weeks prior. Further, our technicians had become frustrated over the numerous repetitive problems associated with TMD shipments, and were spending entirely too much time sorting/straightening out these problems. Exhibit 4. The record contains no other reference to or support for the alleged TMD complaints to GSA Finance. The memorandum concludes: At the end of the meeting, I let [TMD's president] know, under no uncertain terms, that I was strongly considering utilizing the next freight forwarder in line if the problems continued. The meeting ended on a good note, and I sincerely hope that [TMD] will immediately correct the service failures that we talked about. Id. The record does not demonstrate that the agency informed TMD of any problems prior to July or that it provided TMD with a copy of this memorandum prior to this appeal. 15. Other than the July meeting, the record demonstrates that the agency and TMD engaged in conversations regarding agency-perceived problems only on October 28 and perhaps in November 1992. The conversations are referenced in TMD letters. Exhibits 5, 6. Other than the undated memorandum, Finding 14, and the TMD letters, Exhibits 5, 6, the record contains no record of GSA conversations with TMD regarding dissatisfaction with TMD performance. For the period February 1, 1992, through January 1, 1993, the record contains a single piece of correspondence from GSA to TMD relating to dissatisfaction: a letter explaining the formal, retroactive determination of non-use status discussed below. Exhibit 7. Formal determination of non-use status 16. In a letter to TMD dated December 4, 1992, the agency reveals and explains its decision to place TMD formally in non- use status, with a retroactive effective date of October 1: [O]ur Traffic Management Specialists, responsible for overseas shipping, were experiencing problems with your company. These problems were failure to provide documentation to this office and/or our customers, constant errors in billing submissions, and overcharges for overnight express mail. The problems were becoming extremely frustrating and time consuming not only to our staff and the GSA Finance Center in Kansas City, MO, but to our customer agencies as well. You were also informed that because of these ongoing problems, we were strongly considering utilizing other freight forwarders on file with GSA. Based upon the seriousness and repetitive problems associated with 80% of the shipments consigned to TMD, this office has placed your company in a 90 day non-use status effective October 1, 1992. Exhibit 7 at 1. The record does not contain examples of TMD's billing submissions, hence, it does not demonstrate the agency- asserted errors. In twelve subparagraphs (described in findings below[foot #] 1), the letter contains a reference to eleven shipments (9950, 9966, 9967, 9981, 9983, 9991, 9992, 9994, 9995, 9996, and 9997) and a synopsis of the perceived problems which formed the basis of the decision to place TMD in non-use status. Id. at 1-4 (a-l). 17. Following the subparagraphs of alleged problems, the letter states: Because of the enormous workload in our Traffic Program, our technicians do not have time to spend correcting shipments that should have been handled by your company. Additionally, we feel that the errors in shipment are an embarrassment to GSA. We also, feel that TMD's performance in the handling of the above shipments certainly was not in accordance with the standards and procedures for which you have an obligation. More importantly, your attitude regarding the agreement between your company and GSA is of great concern to me [the Chief, Traffic and Travel Services Branch]. As an approved Freight Forwarder of the General Services Administration, you are bound by the ----------- FOOTNOTE BEGINS --------- [foot #] 1 The subparagraphs are quoted in the Board's opinion denying the agency's motion for summary relief, TMD U.S.A., Inc. v. General Services Administration, ----------- FOOTNOTE BEGINS --------- GSBCA 12296, 96-1 BCA 27,953. ----------- FOOTNOTE ENDS ----------- terms and conditions of the GSA/FF Agreement which you have repeatedly violated. Accordingly, GSA, Region 3 has placed TMD in a non-use status for a period of 90 days effective October 1, 1992 per instructions contained in Title 41 of the Code of Federal Regulations, Subpart 101.40.4. During this non-use period, offers will not be solicited from your company, nor will your company be permitted to arrange transportation for shipments routed by this regional office. Exhibit 7 at 4-5. The letter is silent on the agency's failure to place any orders with TMD for July, August, and September. Id. 18. The record contains scant information relating to the statements and conclusions relied upon by the agency in reaching its determination of non-use. What follows by shipment number are references to "contract records," subparagraphs from the letter of formal determination of non-use status, and TMD responses to requests for admission. A "contract record" is a GSA form 2429, found in Exhibit 3. All contract records are signed by the same agency employee, specify the shipment number and commodity shipped, and contain handwritten comments and markings. Every reference by the agency employee to contacting a courier (express mail services) relates to conversations which are said to have occurred on July 8, 1992. The agency employee utilized one conversation with each referenced individual to discuss, if appropriate, multiple billings. One conversation to discuss multiple billings consumed less than ten minutes. Exhibit 3 at 7, 10, 12, 14, 18, 22, 26. Actual time expenditures of agency personnel are not indicated for any actions. Exhibit 3. The record contains no affidavit or statement, by an agency employee involved in the freight forwarding process, which affirms the accuracy of the documentation or attempts to explain the actions of the agency. 19. For any courier charge challenged by the agency, TMD has not provided for the record a copy of a bill or receipt (with charges included) or any other evidentiary support for the billed amount--for example, a reliable explanation of the hours expended in processing the shipment. TMD does not contend that it submitted supporting documentation with any of the agency- challenged TMD bills for courier services. TMD has provided no documentation in response to an agency request that, for any amount billed to the agency, TMD produce and deliver one copy of each bill showing an amount billed to TMD from any shipper, courier, insurance company, or any other business used in forwarding shipments under the tender agreement. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 19 ( 4), B at 11 (second paragraph). Shipment 9950 20. An undated contract record for shipments 9950 and 9981 (under the two, sixteen jeeps were shipped in total) states that for shipment 9950, with form 1917, TMD sought costs for sixteen jeeps, not fifteen (the actual number shipped). Further, it states that TMD did not provide a receipt for courier services charged at $51. A note specifies that the agency employee spoke with two individuals at the courier service. The first stated that she could not reveal the charges without the permission of TMD, but that the charges were less than the agency was billed. The second indicated that the cost for a shipment between the origin and destination should be $41, although prices sometime vary. Exhibit 3 at 8-10 (Contract Record D). Additional remarks regarding the shipment state: "American Embassy did not receive advanced [documents]. Requested they be faxed or sent by [courier] on 3/3/92. Did not receive copy of courier AB for this service." Id. at 8. The record contains no supporting statement from an individual at the embassy or an indication of the point in time when advance documentation was not received. 21. The letter with the formal determination of non-use references this shipment. It reiterates what is found in the contract record--the embassy did not receive a copy of advanced documents, TMD submitted a form 1917 reflecting a cost for sixteen jeeps, not the actual number shipped, and TMD did not provide a receipt for courier services, for which the agency concludes TMD overcharged. Further, the letter states: "Over a 3 day period, approximately 4 additional hours were spent on this shipment." Exhibit 7 at 2 ( d). 22. In response to a request for admission that TMD prepared GSA form 1917 showing that the shipment was of 16 jeeps when, in fact, the shipment was only of 15 jeeps, TMD makes a denial and adds: On WCA 9950 we followed the instructions of GSA on there Form 500-1A copy attached which stated that their were 16 1992 Jeeps also on GSA's Form 1611 hand written in the middle of the form states 16 units Jeep (copy enclosed) and on the copy of the original master ocean bill of lading which TMD processed with the ocean carrier it shows 16 Jeep's (copy attached). Yet the line only received 15 Jeeps from the suppl[i]er delivery and were put on board the vessel Patricia Rickmeo voyage 10 as booked by GSA and instructed by TMD and GSA to be 15 Jeeps. TMD do[e]s not understand this question related to the truth of the matter. TMD did as TMD was instructed and completed this shipment under our contract agreement with GSA. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 13), B at 4 ( 13) (This and all quotations are verbatim from the record, with the exception of bracketed material). TMD further responded: Copy of GSA form on WCA9950 showing 16 Jeeps, another form from GSA showing 16 Jeeps and our dock receipt showing 16 Jeeps to be shipped. It seems that GSA on their forms of WCA 9981 on the top of form number 1611 they crossed out their number WCA9950 which did call for 16 Jeeps and made it WCA 9981 which called for one (1) Jeep. These problems of GSA in their mistakes, misunderstand, communication and their changes have caused us to work allot of hours well over the three man hours allotted on individual shipments under this contract. TMD has been accused unnecessarily of not following their instructions do some thing fraudulent and many other things !. Id., Attachment B at 5 ( 13). Shipment 9962 23. As to shipment 9962, in a contract record dated May 28, 1992, at 1025 hours (also with an entry dated May 29), the agency employee relates the contents of her actions after receiving an incoming call from an individual at a shipping line, who reported that TMD had failed to pay unloading charges. The agency employee then spoke with an individual at TMD who claimed that TMD had not received payment from the agency on the February bill. On May 29, the agency employee learned that the TMD had been paid by the agency. TMD, however, replied that it had not received an invoice from the shipper for the amount in question. The shipper agreed to fax TMD a copy of the invoice. Exhibit 3 at 2-3. The agency does not reference this shipment or TMD actions or inactions in support of the agency's formal determination to place TMD in non-use status. Shipment 9966 24. Regarding shipment 9966, an undated contract record states "Steamship lines did not receive copy of 1917. Faxed by this office on 5/19/92." Exhibit 3 at 19 (Contract Record H). 25. In the letter with the formal determination of non-use status, the agency restates the alleged problem described in the contract record. It further states: "A technician spent approximately 1 additional hours on this shipment which consisted of logging the complaint from the steamship company, telephoning TMD, and faxing information. Exhibit 7 at 3 ( h). 26. In response to a request for admission, for this shipment, TMD denies both that it overbilled GSA for courier services or that it failed to send the steamship line a copy of form 1917. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 10, 11), B at 3-4 ( 10, 11). For this, and other shipments (Findings 45, 51, 55), TMD has not provided evidence that it timely submitted a copy of the form to the steamship line; the agency has provided no statement from any individual at the steamship line that it failed to timely receive from TMD a copy of the form in question. Shipment 9967 27. The agency form, request for dock receipt, dated March 24, 1992, states "no booking necessary for vehicles . . . . Bi- weekly sailings. Please process as expeditiously as possible." TMD Responses to Discovery (Oct. 24, 1994). 28. A contract record dated April 23, 1992, regarding shipment 9967, is said to summarize a telephone conversation of the agency employee with an individual from Knapp Chevrolet regarding a particular shipment. Allegedly, the individual called TMD seeking the vessel name and voyage number for a shipment; allegedly, TMD referred the individual to the agency office to obtain the information. The agency employee did not contact TMD; instead, she contacted the steamship line and obtained the vessel name, voyage number and sailing date (April 17). In the "remarks" portion of the "contract record" the agency employee writes: "This is a violation of the specification/work statement for the ocean freight f[orwarder]; page 7, para. 5(a)3 + 10." Exhibit 3 at 1 (Contract Record A). 29. Regarding the same shipment, a separate undated contract record states: "Had to issue GBL . . . to ship from Miami, FL to Santo Domingo. Had to fax 1917 to Finance on 5/29/92. No receipt for courier service. Charges are for $60.00. Requested copy by fax on 7/8/92; received same day. See attached copy. Spoke with [courier] 1430 hrs 7/8/92: Charges for shipping letter, next day svc, from this origin to destination is $10.00. Charged to us: $60.00." The referenced, attached courier receipt reveals no charges; rather, it is a shipping label. Exhibit 3 at 13-14 (Contract Record A). 30. The letter with the formal determination of non-use status references problems with this shipment, with a recapitulation of information found in the contract record, namely TMD's alleged failure to provide an individual from Knapp Chevrolet with the vessel name and voyage number assigned to the shipment. The letter states, without support in the record, that one GSA technician spent over two hours making long distance phone calls to obtain, then relay to the individual, this information. The letter states that "TMD's failure to provide this information was a violation of para. 5(a)3 and 10 of the specification/work statement procedures contained in the GSA Ocean Freight Forwarder Agreement [Finding 9]." Exhibit 7 at 1-2 ( a). 31. TMD denies the request for an admission that TMD failed to keep a record of the vessel name and voyage number. In its response, TMD both references the request for dock receipt which specifies that no booking is necessary, and continues: Attached copy of our letter of instructions to GSA's supplier from GSA's instructions to us, a copy of the "Dock Receipt" to the supplier for their delivery at their cost and truck to the pier of export as instructed by GSA a copy of the "Shipping Instruction and Documentation Distribution" with a copy of the on board ocean bill of lading on this shipment which showed the vessel "Guayama voyage 1375 and the (OBL) Ocean bill of lading number once the shipment was on board by the steamship line. How can TMD fail to keep a record of the vessel name and voyage number if it was never booked by GSA or was TMD requested to book the freight by GSA ?. Once the freight was at the pier from the supplier at their cost and trucking; TMD processed the necessary documentation in order of GSA's instructions and once the ocean bills of lading [w]ere ready from the ocean carrier TMD related this information within our contract to the distribution of documentation as instructed by GSA copies attached as stated above. TMD never was requested by GSA to book any "Ocean Freight" on any past shipments; we did the documentation within this contract as their "Ocean Freight Forwarder["] and if they requested us in writing to book freight or do anything else we did it as to their instructions and our contract. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 6), B at 2-3 ( 6). 32. With the following explanation, TMD denies that it billed GSA $60 for courier service when the charge to TMD was $10: where as we had additional expenses to courier the documents by our personnel to bring the courier documents to the courier and had worked over the allotted 3 hours as agreed within the contract for us to also invoice for our expenses. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 8), B at 3 ( 8). TMD has neither provided a copy of a bill from the courier or documentary support for the hours expended on the shipment or its basis of calculating any charges. Finding 19. Shipment 9979 33. In an undated contract record for shipment 9979, the agency employee writes: "Advanced documentation mailed by [courier]. Charges are $40.00. What is the big difference in other doc[ument]s sent to Jamaica that is resulting in higher charges?" Exhibit 3 at 15 (Contract Record F). 34. The agency does not reference in support of the non-use determination this shipment or related alleged problem. Exhibit 7. Shipment 9981 35. For shipment 9981, an undated contract record states that TMD charged $68 for courier services. After the agency requested a copy of the receipt, TMD provided a shipping label which lacks pricing. The agency individual contacted the courier service. The contract record states "Estimate cost = $39.00. Could not locate this particular AWB [?]." Exhibit 3 at 8, 11-12 (Contract Record D). The existing record does not indicate the actual charge or what information the agency employee may have related in the conversation. 36. In support of the formal non-use determination, the agency references a problem with this shipment (in part, connected with shipment 9950--under which fifteen jeeps were shipped; under shipment 9981 the remaining jeep was shipped). The sole problem raised related to alleged overcharging for courier services. Exhibit 7 at 2 ( d). 37. In its submissions, TMD references this shipment, but not the alleged overcharging. Findings 19, 22. Shipment 9982 38. An undated contract record specifies that, for shipment 9982, TMD failed to provide a receipt for courier services charged at $68. TMD faxed a "receipt" in response to a request; however, the shipping document contains no charges. The agency employee contacted the courier, which refused to reveal actual charges, but indicated that charges were less than those said to be charged. The contract record notes state that in a subsequent inquiry with a different individual, the agency employee was told that the charge for a shipment between "this origin to destination should be $30. Prices sometimes vary." Exhibit 3 at 16-18 (Contract Record G). 39. In the same contract record, the agency employee writes that she had to issue a Government bill of lading because, according to a named (but otherwise unidentified) individual, TMD lacks a line of credit with a given shipper. Exhibit 3 at 16 (Contract Record G). 40. The agency makes no reference to this shipment in support of its formal determination of non-use status. Shipment 9983 41. An undated contract record for shipment 9983 states that TMD provided no receipt for a courier service charged at $100. The agency employee requested that TMD fax a receipt; TMD faxed a shipping label which contains blanks for charges. The agency employee continues, "Spoke with [individual at courier] 1430 hrs, 7/8/92: charges for shipping letter, international air [service], from this origin to destination (zone 912) is $75.00. Charged to us: $100.00." Exhibit 3 at 20-22 (Contract Record I). 42. In support of its formal determination of non-use status, the agency references TMD's alleged overcharging relating to the courier services. Without further support in the record, the letter states that the agency expended one additional hour on this shipment. Exhibit 7 at 3 ( i). Shipment 9991 43. In an undated contract record, the agency employee writes, regarding shipment 9991, that the steamship lines did not receive a copy of form 1917, which the agency office faxed on May 26. Further, TMD provided no receipt for courier service charged at $68. The agency requested a copy of a receipt; the material faxed by TMD contains blanks in spaces provided for charges. The agency employee notes that she spoke with two individuals at the courier service. The first stated that she could not reveal the charges without the permission of TMD, but that the charges were less than the agency was billed. The contract record notes state "Spoke with [second individual], 1340 hrs. 7/8/92; Cost for this origin and destination should be $41, Prices sometime vary." Exhibit 3 at 24-26 (Contract Record B). 44. In two subparagraphs in support of its formal determination of non-use status, the agency references this shipment. One subparagraph reiterates the problems discussed in the contract record--the steamship line did not receive from TMD a copy of the form and TMD allegedly overcharged for courier services. Without support in the record, the letter states that the agency expended two additional hours on this shipment. Exhibit 7 at 3 ( f). In a second subparagraph, the agency states that TMD billed $68, an amount not supported by a receipt. Further, it states that contact with the courier service revealed that the charge was $30. The subparagraph also specifies: "We also had to issue a GBL for this shipment because TMD does not have a line of credit with the steamship line. A total of 4 additional hours were expended on this shipment." Exhibit 7 at 3 ( g). 45. In response to a request for admission, for this shipment, TMD denies both that it overbilled GSA for courier services and that it failed to send the steamship line a copy of form 1917. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 10, 11), B at 3-4 ( 10, 11). Shipment 9992 46. The agency issued a request for dock receipt for shipment 9992, dated April 22, 1992, requiring TMD to obtain insurance in the amount of 120% of the goods shipped. TMD Responses to Discovery (Oct. 24, 1994). 47. For shipment 9992, an undated contract record states that TMD did not have insurance listed on its original billing, which was amended to include insurance. The record specifies: "Shipment sailed 5/6/92; insurance issued 5/8/92." Exhibit 3 at 4 (Contract Record B). The statement also notes that TMD failed to provide a receipt for courier service, which was received after several attempts. Further, "Requested advanced docs [documents] be remailed to Controller . . . because first mailing was never received. 6/19/92 Docs were mailed to wrong address . . . on 6/19/92. Requested they be mailed again to correct address . . . which they were on . . . 6/24/92. Steamship lines did not receive copy of 1917. Faxed by this [office] on 5/19/92." Id. 48. The agency references this shipment in a subparagraph in support of its formal determination of non-use status. In part, the agency reiterates what is found in the contract record- -the shipment was not insured for two days, TMD failed to provide a receipt for courier services, documents were misaddressed and TMD failed to provide the steamship line with a copy of a form. The subparagraph also concludes, without other support in the record, that a technician spent a total of six hours on the problems associated with this shipment. Exhibit 7 at 2 ( b). 49. TMD denies a request for admission that the shipment was uninsured for two days, with the following explanation: The value as stated and instructed on GSA's "Application for Shipping Instructions and Notice of Availability" dated 4/22/92 copy enclosed in the box stated: Value of Shipment $8,500.00 times 120 per cent requested on GSA's "Request for Dock Receipt" and for Man Roland Inc to deliver shipment to CCT 2801 NW 74 Ave Miami, Fl by May 6, 1992 (05/06/92) (copy enclosed) and in the Miscellaneous box: (second line) Obtain insurance in the amount of 120%. These instructions came directly from GSA Carol Curtis to us to handle this shipment under our contract as their ocean freight forwarder. The $8,500.00 value of the shipment times 120 per cent is $10,200.00 as agreed and insured under the inclosed copy of a policy with our insurance company Washington International Insurance Company No. 249914. It would seem that the shipment arrived early from the supplier on 4/30/92 yet made the booking for the vessel Amassador voyage 88 as GSA instructed and booked with the line CCT. Enclosed copy of letter from Insurance Agent dated October 26, 1994. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 9), B at 3 ( 9). 50. In response to discovery, TMD submitted a copy of what it represents to be the insurance policy applicable to this shipment. The policy specifies that on May 8, 1992, the insurance policy came into effect. TMD Amended Responses to Discovery (Oct. 26, 1994). A letter dated Oct. 26, 1994, signed by the purported president of the company issuing the insurance policy states that TMD had an open cargo policy with the insurance company, and that if the terms and conditions were "pier to pier" then the goods were insured from the time they were placed on the pier awaiting on-board of the vessel. Id. 51. In response to a request for admission, for this shipment, TMD denies both that it overbilled GSA for courier services or that it failed to send the steamship line a copy of form 1917. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 10, 11), B at 3-4 ( 10, 11). Shipment 9994 52. An undated contract record for shipment 9994 indicates that the steamship line did not receive a copy of form 1917, which the agency faxed. Further, TMD did not provide a receipt for courier services charged at $68. The faxed copy received from TMD fails to contain prices. The employee contacted the courier, which indicated that the charges for shipping a letter from the given origin to destination would be $55. Exhibit 3 at 5-7 (Contract Record C). 53. In a subparagraph in support of its formal determination of non-use, the agency restates what is raised in the contract record--the steamship line informed the agency that it did not receive a copy of a form from TMD, which the agency faxed, and TMD overcharged for courier services. The subparagraph concludes with the statement, which lacks support in the record: "3 additional hours were spent on this shipment." Exhibit 7 at 2 ( c). 54. TMD denies an agency request for an admission of overbilling on this shipment, and provides an explanation: TMD incurred additional expenses to courier the documents to the consignee in using our personnel to bring the courier documents to the courier and the 3 working hours on this shipment as allowed under contract terms was used. This is the reason as explained in past conversations with GSA for the $13.00 time for our messenger to get the documents courier. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 7), B at 3 ( 7). 55. In response to a request for admission, for this shipment, TMD denies both that it overbilled GSA for courier services and that it failed to send the steamship line a copy of form 1917. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 10, 11), B at 3-4 ( 10, 11). Shipment 9995 56. For shipment 9995, in an undated contract record, the agency states both that it had to issue a Government bill of lading and that TMD lacked a line of credit with the only company that services the given destination. Exhibit 3 at 23 (Contract Record J). 57. A subparagraph in support of the formal determination of non-use status reiterates that the agency had to issue a Government bill of lading to the steamship line on this shipment because TMD does not have a line of credit with the company. Exhibit 7 at 4 ( j). Shipment 9996 58. A subparagraph in support of the formal determination of non-use status specifies problems with what appears to be shipment 9996: TMD submitted several duplicate billings on this shipment which resulted in many hours of additional work and frustration for not only this office, but GSA's Finance Office in Kansas City, MO. After several days, and 9 long distance phone calls, it was finally determined that TMD erred by not submitting a supplemental bill in lieu of duplicates. Exhibit 7 at 4 ( l); Exhibit 6; TMD Submission of Eight Pages (Feb. 10, 1993) at 6. No contract record or other material supports the assertions made by the agency; rather, in a letter to the agency dated November 16, 1992, TMD explains that it did not submit duplicate bills (although invoices for the shipment used the same invoice numbers), although it submitted multiple bills for the shipment because of agency actions which required TMD to redo documentation and incur additional messenger charges. Exhibit 6. Shipment 9997 59. In a subparagraph in support of the formal determination of non-use status, the agency references problems with what appears to be shipment 9997: TMD did not provide the consignee in Cairo, Egypt the necessary documents on this shipment which caused numerous problems at the Egyptian port. The agency's headquarters office in Atlanta, GA contacted TMD to request a copy of the Ocean Bill of Lading in order to claim the vehicle which was being held at the port. TMD informed the agency that there would be an additional charge for these documents. Enraged, the agency coordinator contacted this office for an explanation and immediate action on our part to have this vehicle released at once. After a thorough search of our files, it was discovered that TMD also failed to submit a copy of the shipment documentation to this office as well. Several phone calls were made to TMD (to request that this information be faxed to us), and the customer agency (to reassure them that we would take care of the problem). We were able to fax a copy of the Ocean Bill to Cairo the following day and the vehicle was released a few days later. The agency requested that GSA not consign any future shipments to TMD. Additionally, there were numerous billing problems associated with this shipment. (Three technicians spent a total of 6 hours over the course of 4 days on all the problems associated with this move). Exhibit 7 at 4 ( k); Exhibit 6; TMD Submission of Eight Pages (Feb. 10, 1993) at 5. The agency has transposed the final two digits of the identifying number of the shipment, changing 61823 to 61832. TMD Accounting Claim for Damages (Sept. 2, 1994), Request for Dock Receipt, Shipment 9997. No contract record or other material supports the assertions made by the agency regarding shipment 61823 (or 61832). 60. In response to a request for admission, that it failed to provide either GSA or the consignee the shipment documentation, including the ocean bill of lading, TMD states: TMD will be very happy to answer this question the only thing is theirs TMD has no reference to #RPN-E-61832 what is the WCA number from GSA may be this is a shipment GSA has given to another Freight Forwarder. Comply with more information as to what the shipment was how many pieces, weight, from what vendor/supplier to the final destination etc. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 9 ( 12), B at 4 ( 12). Other shipments utilizing TMD 61. In addition to the shipments discussed above, TMD undertook additional ocean shipments pursuant to the agreement with the agency (shipments 9964, 9993, 10033, 10035 (listed twice by TMD), and 10040). For each, TMD references a request for dock receipt from the agency--all are said to have a date prior to July 1, 1992. TMD Submission of Eight Pages (Feb. 10, 1993). Thus, the agency placed no shipment with TMD after its July meeting with TMD, Finding 14. The record contains no reference to agency-perceived problems regarding any of these shipments. 62. TMD maintains that other agencies placed orders under the TMD-GSA tender agreement. TMD Response to Agency's Objections for Discovery and Information (Sept. 10, 1994) at 2 and Exhibit 1. Although it appears that other agencies utilized the services of TMD for $19.75, the record does not demonstrate that the agencies utilized the TMD-GSA agreement, or that those agencies were required to utilize the agreement. Shipments utilizing another ocean freight forwarder 63. Beginning at least as early as May 21, 1992, the agency placed shipments with an ocean freight forwarder other than TMD. The agency has concluded that it placed a total of twenty-eight shipments after January 31, 1992, and prior to February 1, 1993. Agency Record Submission at 8 ( 9), 9 ( 11). The record contains documentation from twenty-four such shipments, at least seven between May 21 and September 30, 1992, and at least thirteen between October 1, 1992, and January 31, 1993. The ocean freight forwarding charge is $29. The billing information included in the record contains no copies of invoices from couriers or others. The documentation specifies what was shipped, when, and between what locations, and includes agency general, miscellaneous, and special instructions to the freight forwarder. Exhibits 13, 16. For two shipments (one invoiced in June 1992, the other in July 1992), the freight forwarder has billed for insurance charges, although the documentation from the agency does not request or require insurance. Exhibit 16 (shipments 10008, 10009). For a shipment with an agency request for dock receipt dated July 1, 1992, the agency required insurance of 120%; however the forwarder's export invoice and its bill contain no charge for insurance coverage and do not indicate that insurance was obtained. Id. (shipment 10039). Claims 64. In a filing received on February 10, 1993, TMD challenges the agency's determination to place TMD in non-use status. TMD maintains that the agency has unnecessarily without due cause given to other freight forwarders business which it should have given to TMD. TMD claims to have suffered a loss of business in the amount of $57,000. Exhibit 11. 65. Perhaps recognizing that its request for $57,000 had not been a certified claim submitted to the contracting officer for a decision, by letter dated January 3, 1994, TMD asserted a claim for $49,999.99, as damages incurred by the alleged agency breach of the tender agreement. 66. In a decision dated February 9, 1994, a contracting officer denies any amounts claimed for the period of October 1, 1992 through January 1, 1993, during which time TMD was in a non-use status. . . . In accordance with 41 CFR 101.40.4, the very definition of temporary non-use provides that a carrier be removed from participation in shipments for a period of up to 90 days. TMD is, therefore, not entitled to damages for non receipt of shipments during the stated period of non-use. Exhibit 17. Concluding further that TMD has not supported its claim for $49,999.99, the contracting officer denies the full amount of the claim. However, the contracting officer decides that the agency is obligated to pay TMD $158 for eight shipments tendered to an ocean freight forwarder other than TMD prior to October 1 and the commencement of the formal period of non-use status; the amount is calculated at TMD's rate of $19.75 per shipment. Id. 67. By letter dated May 1, 1994, TMD amended this appeal to include its claim for $49,999.99, which the contracting officer denied. TMD's understanding of tender agreement 68. TMD maintains that the agency misinterprets the obligations of TMD to perform under the agreement at the rate of $19.75. In particular, in response to an interrogatory, TMD reveals its interpretation, in part, which reflects the substance of some of the disagreements between the parties: TMD was not required on these individual Ocean Freight Shipments to do the following even, though the contract so provided us to do bookings, transportation etc, within 3 man power hours of work and invoice for additional cost which was so approved and provided for under our contract with GSA. A. Book any ocean cargo for export on board an ocean going vessel. B. Pay or do any trucking of cargoes. C. Pay for Ocean Freight to the carriers they " GSA " used and directed us to do the ocean bills of lading as their Ocean Freight Forwarder under contract. Agency Motion to Compel (Nov. 9, 1994), Attachments A at 10 ( 1), B at 6 ( 1). Evidence relating to TMD damages 69. TMD has indicated that it earns commissions which are percentages "depending on the destination of the ocean freight charges only." Agency Motion to Compel (Nov. 9, 1994), Attachments A at 13 ( 26), B at 9 ( 26). The record provides no reliable information on how percentages were calculated or what commissions TMD may have anticipated from the identified shipments given to another ocean freight forwarder. 70. Although TMD claims that it incurred greater damages, TMD seeks $49,999.99 which it attributes to "loss of expenses, loss of personnel, salary, buy out of lease, move office, loss of business profits, commissions and damages." It breaks out its damages as follows: $ 1,100 buy out of lease 20,400 loss of employee and drop in president's salary 3,000 business loans from president to TMD 2,558 lost profits and commissions (discussed below) 24,400 other estimated lost profits (without explanation) 2,950 moving office and preparation of new office space 232 new office supplies (e.g., letter heads, envelopes) 1,806 installation of new telephone system 425 rental of moving truck and cost of movers 130 charge for new telephone lines and numbers TMD Accounting Claim for Damages (Sept. 2, 1994) at 10 of 11 and Exhibit 3. The referenced $2,558 is said to reflect lost profits and commissions on twenty-three shipments given to the other freight forwarder. The record contains no explanation as to how TMD arrived at this figure. TMD did not avail itself of the opportunities to respond to discovery or to put information in the record regarding its calculation of damages. Memoranda of Conferences (Mar. 13, and Dec. 4, 1995); Agency Motion to Compel (Nov. 9, 1994), Attachments A at 13, 18-19 ( 27, 44-46), B at 9-11 ( 27, 44-46). Discussion TMD maintains that the agency breached the underlying agreement by improperly placing TMD in non-use status. Further, TMD claims entitlement to $49,999.99 as damages resulting from the alleged breach. The agency asserts three alternate reasons to deny TMD recovery: there existed between the agency and TMD no contract obligating the Government or the agency to utilize TMD; the agency properly placed TMD in non-use status; and TMD has not presented sufficient evidence of recoverable damages. The agency bears the burden of proof to demonstrate that it properly placed TMD in non-use status. TMD bears the burden of proof to demonstrate entitlement to and the amount of recovery. A contract The agency asserts that it could not breach the tender agreement because the agreement is too vague to be enforceable as a requirements contract. The agency notes that the agreement does not reference the universe of work to be covered by the agreement. It continues: Arguably, both parties intended to enter into some sort of guaranteed Tender. However, they have failed horribly by neglecting to make concrete a crucial and material term. If the Tender fails as a guaranteed tender or requirements-type contract, this is nothing more than a common tender intended to remain on file for the Government's occasional use at its discretion. Not only would the latter characterization deprive Appellant of its breach argument, it would deprive this Board of jurisdiction. Agency Record Submission at 11-12. Guidance for making the legal determination of interpreting the agreement is provided in A-Transport Northwest Co. v. United States, 36 F.3d 1576 (Fed. Cir. 1994). The request for tenders specifies that the qualifying low cost forwarder will provide ocean freight services for one year. Finding 1. The agreement also utilizes the singular in stating: "The carrier selected will remain in service for the period of February 1, through January 31." Finding 2. Although an ambiguity could arise from the reference in the agreement to primary and secondary carriers, thereby suggesting that the agency will select multiple forwarders or carriers, Finding 2, no ambiguity materialized. In selecting TMD as the apparent qualifying, low-cost forwarder, the agency makes no reference to primary or secondary status. Finding 12. The record suggests that the agency (region 3 of GSA) utilized only TMD as the ocean freight forwarder for shipments it routed for the initial months of the contract. Findings 13, 16, 63. Moreover, well after the period of the agreement expired and when this matter was in litigation, the agency (through a contracting officer) treated the agreement as representing a requirements contract for the region--it paid TMD for shipments given to another forwarder prior to October 1992. Finding 66. While the record demonstrates that a contract existed that obligated the agency (region 3 of GSA) to utilize the TMD agreement for ocean freight forwarding, the record does not demonstrate that this agreement was binding upon others--the agreement guarantees TMD no shipments routed through other agencies or GSA regions. TMD has suggested that it performed freight forwarding for other agencies under the agreement; however, the record does not support that allegation or the requisite other aspect of TMD's assertion, that other agencies were obligated to utilize the agreement. Finding 62. The regulations Part 101-40 of the Federal Property Management Regulations (FPMR) deals with transportation and traffic management. 41 CFR Part 101-40 (1992). The part prescribes regulations that apply to the freight (and household goods) transportation and traffic management activities of executive agencies. The regulations are designed to ensure that all transportation and traffic management activities will be carried out in a manner (or method) most advantageous to the Government in terms of service, economy, and efficiency. Id. 101-40.000. The tender agreement expressly references only particular paragraphs of the FPMR, Finding 4. Section 303 details the application of the standard routing principle. Subparagraph 303- 1 specifies seven factors the agency is to consider in determining whether a carrier can meet the agency's transportation service requirements for each individual shipment. "Record of past performance of the carrier" is one factor. Subparagraph 303-2, aggregate delivered costs, specifies: When comparing aggregate delivered costs to determine the most economical routing of shipments consistent with service requirements, consideration will be given to all factors which increase costs to the shipping or receiving activity. In addition to the actual transportation rates and charges, other cost factors, such as packing, blocking, bracing, dunnage, drayage, loading, and unloading, should be considered where these items affect overall costs. The agency contends that, in placing TMD in non-use status and in denying TMD's claim for relief, it relied upon FPMR provisions not expressly referenced in the agreement, in particular, section 408 (temporary nonuse). Findings 4, 66. The provisions provide guidance as well as dictate actions of the parties. The section states in its "general" or introductory paragraph: The agency's authorized transportation officer may, in the best interest of the Government, place a carrier in temporary nonuse for a period not to exceed 90 consecutive days for any of the causes contained in 101-40.408-2 using the procedures in 101-40.408-3, except that if a carrier fails within the period specified to correct the cause(s) for which temporary nonuse was imposed, the period of nonuse will be extended an additional 30 days for debarment referral. The existence of a cause for temporary nonuse under 101-40.408-2 does not necessarily require that a carrier be placed in temporary nonuse; the seriousness of the carrier's acts or omissions and any mitigating factors should be considered in making a temporary nonuse decision. A carrier placed in temporary nonuse is excluded from participating in the agency's transportation activities and programs to the extent and for the period specified. The extent or scope of temporary nonuse may be limited to those agency transportation facilities which have experienced the problems leading to the imposition of temporary nonuse o[r] which may be reasonably expected to experience similar problems. Temporary nonuse shall not be extended to unaffected facilities solely for punitive reasons or to damage the carrier's operations. 41 CFR 101-40.408-1. As to the procedures the agency is to follow when placing a carrier in non-use status, the regulations state, in part: (a) Investigation and referral. Agencies shall prescribe procedures for placing a carrier in temporary nonuse. Further, the procedures shall provide that a carrier which fails, within the period of temporary nonuse, to correct the cause(s) for which temporary nonuse was imposed shall be referred to the agency's debarring official for appropriate action. (b) Notice of proposal to place a carrier in temporary nonuse. The carrier shall be notified by certified mail with return receipt requested of the following information: (1) The effective dates of the proposed temporary nonuse; (2) The extent or scope of the proposed temporary nonuse including the specific transportation facilities to which the period of exclusion will be applicable; (3) The facts relied on to support the specified cause(s) for temporary nonuse; (4) A period of 7 calendar days from the date the transportation officer's notice is received during which the carrier may submit in person, in writing, or through a representative, rebuttal information and arguments opposing the temporary nonuse; (5) A period of 5 workdays during which the transportation officer will evaluate the carrier's rebuttal information and opposing arguments and render a decision; (6) The availability of an appeal of the transportation officer's decision to a reviewing official, provided the request for review is received within 5 work days of receipt of the transportation officer's decision; (7) The corrective action required by the carrier to be removed from temporary nonuse; and (8) An additional nonuse period of 30 calendar days during which the carrier that fails to correct the cause(s) for temporary nonuse will be referred to the agency's debarring official for appropriate action. (c) Decision-making process. (1) Agencies shall prescribe procedures governing the temporary nonuse decision-making process, which shall be as informal as practicable, consistent with principles of fundamental fairness. The procedures shall afford the carrier an opportunity to submit in person, in writing, or through a representative, information and argument in opposition to a temporary nonuse status. 41 CFR 101-40.408-3. The agency has neither proffered nor referenced any prescribed procedures or internal guidance relating to the process, procedures, or practice of placing a carrier in non-use status. The regulations also deal with the period of temporary non- use, prescribing, in part: Temporary nonuse shall be for a period commensurate with the seriousness of the cause(s) for temporary nonuse, but not for more than 90 consecutive days, except that the period of temporary nonuse may be extended an additional 30 calendar days for debarment referral when the carrier fails to correct the cause(s) for which temporary nonuse was imposed. The transportation officer, for good cause, may impose temporary nonuse beginning the same day that the notice of proposed temporary nonuse is given when continued use of the carrier's services would place the Government at risk. 41 CFR 101-40.408-4. The agency's determination of non-use status By letter dated December 4, 1992, the agency revealed to TMD its formal, retroactive determination to place TMD in non-use status (meaning that offers would not be solicited from TMD and no shipments with TMD would be routed through the region three office) effective October 1, 1992, for a period of ninety days. Finding 17. The agency had not provided TMD with a written notice of the proposed determination of non-use status or with an explanation of necessary TMD corrective action to avoid being placed in such status. Findings 14-16. Contrary to the letter, the agency had placed TMD in non-use status as of July 1, prior to discussing with TMD the agency-perceived problems which prompted the determination. Findings 13, 14, 61. In placing TMD in non-use status, beginning July 1 or October 1, the agency failed to follow the minimum procedures established in the regulations. With respect to its determination, the agency did not notify TMD of: a proposed (as contrasted with already accomplished) effective date or scope of temporary non-use, the facts relied upon, the seven-day period to provide rebuttal information and argument opposing non-use, the availability of appeal, or the corrective action required. 41 CFR 101-40.408-3. Thus, the agency made its determination without developing the record as required by the regulations. Further, the agency has not established good cause, with the attendant Government risk, for beginning a period of temporary non-use on the same day it gave notice. The record, as developed in this appeal, does not establish a reasonable basis to support the agency determination of non-use status. Although the record reveals some problems created by TMD (with respect to its failure to submit receipts with its bills to the agency), the record does not establish that TMD can be faulted for other agency-perceived problems, or that any of the problems could not or would not be corrected after the July meeting, which according to the agency ended on a positive note, with the agency hopeful that TMD would immediately correct all discussed problems. Finding 14. Moreover, the agency provided TMD with no opportunity to correct any of the agency-perceived problems, instead opting to place TMD in non-use status without notice for five months. Courier services The $19.75 rate of TMD does not include courier (express mail) services, which can be treated as "add-on" costs. Finding 3. The tender agreement obligates TMD to submit proper invoices which must include copies of receipts for such "add-on" costs. Findings 7, 10. Without providing supporting documentation, TMD billed the agency for what it identified as courier services. In July 1992, TMD submitted to the agency shipping labels which do not support the billed amounts because charges are not reflected in the submissions. Findings 19, 20, 29, 33, 35, 38, 41, 43, 47, 52, 54, 55. TMD did not follow the terms of its tender agreement. The agency could have simply refused to pay for unsupported charges. However, for the other ocean freight courier, the agency appears to have paid for courier services without receipts and without viewing the failure to provide such documentation as support for placing that carrier in non-use status. Finding 63. TMD explains the discrepancies between courier charges and the greater amount it billed. TMD contends without proof that it expended time in addition to the three hours provided for under the $19.75 rate, and incurred costs in addition to those it was obligated to provide under the $19.75 rate. TMD concludes that amounts it billed in excess of charges from courier services reflect amounts to which TMD is entitled. Findings 32, 45, 51, 68. Had the agency followed applicable regulations, the problems it encountered with TMD over billings for courier services could have been eliminated, or the agency could have established that TMD refused to comply with tender agreement requirements, thereby increasing agency costs to process billings. The existing record reveals that TMD did not follow requirements to submit receipts, but did appreciate the limitations on the efforts it was required to expend (up to three hours) for the $19.75 shipping fee. TMD documentation to the agency and others In support of its determination of non-use status, the agency maintains that TMD failed to provide documentation or booking information to the agency or others. The record does not establish that documentation or information was not received, or that the failure of receipt was directly or indirectly attributable to TMD. Findings 20, 26, 45, 51, 55. Government bills of lading/line of credit The tender agreement does not mandate that TMD maintain a line of credit with any shipping lines. Findings 5-10. Nor has the agency established that it provided express authorization for TMD to incur related out-of-pocket costs to be reimbursed by the agency. Finding 7. Under the agreement, the agency's issuance of a Government bill of lading can not be viewed as a TMD problem or failure of performance; rather, the agency expressly is responsible for providing Government bills of lading. Finding 11. Agency-perceived problems of TMD relating to bills of lading and lines of credit do not reflect any TMD impropriety under the terms of the agreement. Findings 29, 39, 56. Billing In support of its determination, the agency references billing problems created by TMD (apart from those related to courier services). Findings 15, 18-19, 21, 58, 59. The record does not demonstrate that such problems existed or that TMD was the cause of any such problems. Findings 16, 22, 58, 60. Insurance The agency maintains that TMD failed to obtain the requested and required insurance on one shipment. Findings 46-48. TMD responds that the necessary insurance was in place and covered the entire period of sailing; a letter from the issuer of the insurance policy supports TMD's assertion. Findings 49-50. Although, on its face, the insurance policy states its effective date as two days after the shipment left port, Findings 47, 49, because of TMD's assertion and supporting letter (stating that there existed port-to-port coverage), the record does not establish that insurance coverage was lacking or that this was a likely-to-recur problem. Agency breach The agency's placement of TMD in non-use status contravened regulations and was premised on TMD violations of the agreement, which have not been proven. Contrary to the urging of the agency, the record does not demonstrate that TMD's "past performance" (41 CFR 101-40.303-1) justified the selection of an alternative shipper. Further, again because of a failure of proof, the record does not demonstrate that the selection of the other freight forwarder resulted in a lesser overall cost to the agency than had the agency selected TMD (41 CFR 101-40.303-2). The agency breached the agreement by not routing shipping through TMD for the period July 1992 through January 1993. For July through December 4, the agency provided TMD no notice of proposed non-use status. In the December letter, the agency specified a non-use period ending December 29, 1992. Not only did the agency fail to specify the necessary TMD-corrective action, it also reached the conclusion based upon statements of fact and interpretations of the agreement, which the record does not support. That is, TMD improprieties have not been shown to have occurred or were less severe and less frequent than determined by the agency. Because the record does not support the determination of non-use status for the period specified, the agency violated the agreement by placing TMD in non-use status for the given period. The record also fails to support the agency's placing TMD in non-use status for January 1993, either as an extension of the non-use period or for independent reasons. Damages and the measure thereof TMD bears the burden of demonstrating its entitlement to recovery and the amount thereof. TMD should have received twenty-eight shipments given to another freight forwarder. Finding 63. TMD has failed to submit any information useful in determining the damages TMD may have suffered by not receiving these shipments. Findings 69-70. TMD has not attempted to utilize the shipping instructions, and knowledge of what was shipped, when, and between what points, and under given conditions, to calculate its entitlement to damages. Apart from the failure of credible proof, TMD has not addressed causation and foreseeability. The alleged costs associated with a drop in business and moving a place of business are not recoverable, foreseeable costs attributable to the agency's failure to place the twenty-eight shipments. E.g., Restatement (Second) Contracts 347, 351, 352 (1979). The agency has reimbursed TMD the rate in the tender agreement ($19.75 per shipment) for eight of the shipments not given to TMD. Finding 66. While this figure fails to subtract out costs TMD would incur in processing a shipment (including up to three hours of effort, and other costs specified in the tender, Finding 3), it is not an unreasonable amount to award. Accordingly, TMD is entitled to recover $395 (twenty shipments at $19.75 each). Decision The Board GRANTS IN PART the appeal. The Board grants the appeal to the extent that it concludes that the agency breached the tender agreement by placing TMD in non-use status and by not giving orders to TMD. Also, the Board awards TMD $395, with interest as permitted under statute, 41 U.S.C. 611 (1994). The Board denies TMD's claim to any greater relief. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ STEPHEN M. DANIELS MARY ELLEN COSTER WILLIAMS Board Judge Board Judge