Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405

                                        
                       ___________________

                        September 29, 2006
                       ____________________


                         GSBCA 16865-RATE


              In the Matter of CINCO STAR FORWARDING


     Bob Mueller, Vice President of Cinco Star Forwarding, Katy, TX, appearing for
Claimant.

     James F. Fitzgerald, Director, Audit Division, Office of Transportation and Property
Management, Federal Supply Service, Arlington, VA, appearing for General Services
Administration.

      Col. Scott Kilgore, Staff Judge Advocate, Headquarters, Surface Deployment and
Distribution Command, Department of the Army, Alexandria, VA, appearing for Department
of the Army.

PARKER, Board Judge.

     Cinco Star Forwarding has asked the Board to review the General Services
Administration Audit Division's (GSA's) settlement of Government Bill of Lading (GBL)
No. AP689325, concerning a shipment of household goods.  For the reasons discussed
below, we agree with GSA that Cinco Star's claim was filed after the statutory deadline and,
thus, was properly dismissed by GSA as untimely filed.

                            Background

     On June 8, 2001, Cinco Star picked up a shipment containing a military service
member's household goods.  The goods were to be delivered on October 2, 2001, to the
member's new residence in Naples, Italy.  Cinco Star completed the delivery on time and
became entitled to payment but says that it was unable to bill for the transportation charges
"because the paperwork had been missing until a certified copy of the GBL had been
received in November of that year [2004]."

     Cinco Star filed a claim for payment with the Department of Defense (DoD) on
November 23, 2004, three years and fifty-one days after the date of delivery.  DoD
forwarded the claim -- disputed because it had been filed more than three years after the
claim accrued -- to GSA for settlement in December 2004.  In October 2005,  GSA
disallowed the claim as untimely filed.

                            Discussion

     By statute, a carrier or freight forwarder which transports an individual or property
for the Government may make a claim to the Administrator of General Services for payment
for its services.  31 U.S.C.  3726(c)(1) (2000).  The claim may only be made, however:

     if it is received by the Administrator not later than 3 years (excluding time of
     war) after the later of the following dates:

          (A) The date of accrual of the claim.
          (B) The date payment for the transportation is made.
          (C) The date a refund for an overpayment for the transportation
          is made.
          (D) The date a deduction under subsection (d) of this section is
          made.

Id.  3726(c)(2).

     Only the first event listed above, accrual of the claim, is relevant here.  A claim
includes an unpaid original bill requiring direct settlement by GSA, including one such as
this which the agency doubts should be paid.  41 CFR 102-118.450(d) (2004); Apollo Van
Lines, Inc., GSBCA 16074-RATE, 03-2 BCA  32,330.  The burden is on the carrier to
establish that either GSA or the agency received the claim within the period set out in the
statute.  Id.

     Cinco Star acknowledges that it did not file a claim within three years of the claim's
accrual but argues that the claim was not subject to the statutory three-year limitation period
because the transaction took place during a "time of war."  Cinco Star maintains that the
actions of the United States following the terrorist attacks on September 11, 2001,
constituted a "time of war" within the meaning of the statute and that, because the delivery
of the shipment and processing of the subsequent paperwork occurred during that time, the
three-year statutory period for filing transportation claims did not apply.

     Cinco Star is wrong.  GSA's predecessor in settling and reviewing settlements of
transportation claims such as this one, the General Accounting Office (GAO), made it clear
long ago that the tolling of the statute "would begin when the Congress of the United States
exercised its power to declare war under the Constitution of the United States, Article 1,
Section 8, Clause 11."  Langer Transportation Corp. - Claim for Transportation Charges,
B-182444-O.M. (Jan. 13, 1975).  Holding that the Vietnam conflict was not a "time of war"
for purposes of giving effect to the three-year statute of limitations for filing transportation
claims, GAO opined that "Congress probably intended the phrase '(not including any time
of war)' to mean 'time of declared war.'"  Id.  We think GAO's interpretation, which GAO
said gave "certainty of application to the Act," id., made good sense then and even better
sense in today's world of varying levels of undeclared military actions in various parts of the
world.  Accordingly, because Congress has never exercised its power to declare war under
the Constitution in connection with the responses of the United States to the terrorist attacks
of September 11, 2001, the statute of limitation applies, and Cinco Star's claim was thus
filed too late.

                             Decision

     GSA correctly decided that Cinco Star's claim is time-barred by statute.  Because the
Board lacks jurisdiction to consider matters relating to transportation services which were
not previously presented in a timely fashion to GSA, Arpin International Group, GSBCA
16471-RATE, 04-2 BCA  32,795, the claim is dismissed for lack of jurisdiction.




                                   ____________________
                                   ROBERT W. PARKER
                                   Board Judge