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B-180076, DEC 12, 1973

B-180076 Dec 12, 1973
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ARE BARRED BY SECTION 322 OF TRANSPORTATION ACT OF 1940. INCORPORATED: WE HAVE RECEIVED YOUR LETTER OF NOVEMBER 14. FOR $743 WITH ADVICE THAT THE CLAIM WAS BARRED. THE AUTHORITY RELIED ON FOR BARRING THE CLAIM IS SECTION 322 OF THE TRANSPORTATION ACT OF 1940. WHICHEVER IS LATER.". WERE SUBMITTED BY EASTERN AIR LINES TO THE DEPARTMENT OF THE ARMY ON JUNE 13. THAT IT WAS PROHIBITED UNDER 49 U.S.C. 66 FROM MAKING PAYMENT ON THE REMAINING $743. IN THAT MORE THAN 3 YEARS HAD ELAPSED FROM THE DATES ON WHICH TRAVEL WAS SUPPLIED. YOUR CORPORATION'S CLAIM WAS BEING FORWARDED TO THIS OFFICE. OR DEDUCTIONS HAVE BEEN MADE ON A CLAIM. THAT THE CLAIM WILL BE FOREVER BARRED IF NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS OF ACCRUAL OF THE CAUSE OF ACTION.

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B-180076, DEC 12, 1973

CLAIMS FOR TRANSPORTATION SERVICE FURNISHED BY AIR CARRIER UNDER GOVERNMENT TRANSPORTATION REQUEST, FILED IN TIMELY MANNER WITH DEPARTMENT OF ARMY BUT NOT PRESENTED TO GENERAL ACCOUNTING OFFICE FOR SETTLEMENT WITHIN 3 YEARS OF DATE ON WHICH CLAIM ACCRUED BY REASON OF DELAYED HANDLING BY ARMY, ARE BARRED BY SECTION 322 OF TRANSPORTATION ACT OF 1940, 49 U.S.C. 66 AND MAY NOT BE CONSIDERED BY GENERAL ACCOUNTING OFFICE FOR PAYMENT.

TO EASTERN AIR LINES, INCORPORATED:

WE HAVE RECEIVED YOUR LETTER OF NOVEMBER 14, 1973, IN WHICH YOU REQUEST FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION WHICH BY LETTER OF AUGUST 29, 1973, RETURNED YOUR CORPORATION'S CLAIM UNDER ITS BILL NO. 665-05-05-A, FOR $743 WITH ADVICE THAT THE CLAIM WAS BARRED. THE AUTHORITY RELIED ON FOR BARRING THE CLAIM IS SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, WHICH PROVIDES IN PERTINENT PART:

"... THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER."

THE RECORD SHOWS THAT CLAIMS FOR TRANSPORTATION FURNISHED THE GOVERNMENT BETWEEN MAY 1 AND MAY 29, 1969, UNDER 32 GOVERNMENT TRANSPORTATION REQUESTS (GTR'S), AMOUNTING TO $4,574, WERE SUBMITTED BY EASTERN AIR LINES TO THE DEPARTMENT OF THE ARMY ON JUNE 13, 1969; THAT EASTERN FREQUENTLY CONTACTED THE DEPARTMENT OF THE ARMY FOR PAYMENT OF ITS CLAIMS; AND THAT ON APRIL 24, 1972, ALMOST 3 YEARS AFTER THE CLAIMED TRAVEL, THE ARMY FINANCE CENTER PAID EASTERN FOR 26 GTR'S AMOUNTING TO $4,494, LEAVING A BALANCE OF $743 REPRESENTING SIX GTR'S WHICH NEEDED SUPPLEMENTARY DOCUMENTATION PRIOR TO PAYMENT. THE DEPARTMENT OF THE ARMY SUBSEQUENTLY ADVISED EASTERN, UPON ITS SUPPLYING THEM WITH THE NECESSARY PAPERS FOR PAYMENT, THAT IT WAS PROHIBITED UNDER 49 U.S.C. 66 FROM MAKING PAYMENT ON THE REMAINING $743, IN THAT MORE THAN 3 YEARS HAD ELAPSED FROM THE DATES ON WHICH TRAVEL WAS SUPPLIED, AND THAT CONSEQUENTLY, YOUR CORPORATION'S CLAIM WAS BEING FORWARDED TO THIS OFFICE.

WE RECEIVED THE CLAIM ON AUGUST 28, 1972, WELL AFTER THE EXPIRATION OF THE 3-YEAR STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS FOR TRANSPORTATION CHARGES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE. THIS STATUTE EXPRESSLY PROVIDES WHERE NO PRIOR PAYMENTS, REFUNDS, OR DEDUCTIONS HAVE BEEN MADE ON A CLAIM, THAT THE CLAIM WILL BE FOREVER BARRED IF NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS OF ACCRUAL OF THE CAUSE OF ACTION. A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON COMPLETION OF THE SERVICE REQUESTED ON EACH TRANSPORTATION REQUEST AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. UNITED STATES V. WILDER, 13 WALL. 254 (U.S. 1871); ARKANSAS OAK FLOORING CO. V. LOUISIANA & ARKANSAS RY. CO., 166 F.2D 98 (5TH CIR. 1948), CERT. DENIED 334 U.S. 828; HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F. SUPP. 373 (1953).

YOU STATE THAT EASTERN AIR LINES' CLAIMS ON THE SIX SEPARATE TRANSPORTATION REQUESTS SHOULD NOT BE BARRED BY THE STATUTE OF LIMITATIONS SINCE THEY WERE PRESENTED TO THE DEPARTMENT OF THE ARMY IN A TIMELY FASHION, AND EASTERN REPEATEDLY SOUGHT COLLECTION FROM THAT AGENCY. HOWEVER, THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT DOES NOT MEET THE REQUIREMENTS OF THE STATUTE. 51 COMP. GEN. 201 (1971); 46 ID. 436 (1966); 4 CFR 54.6A. MOREOVER, WE HAVE NO AUTHORITY OR DISCRETION TO WAIVE ANY OF THESE REQUIREMENTS. COMPARE MUNRO V. UNITED STATES, 303 U.S. 36 (1938); UNITED STATES V. GARBUTT OIL CO., 302 U.S. 528 (1938); FINN V. UNITED STATES, 123 U.S. 227 (1887).

WE APPRECIATE YOUR VIEW THAT THE DEPARTMENT OF THE ARMY SHOULD HAVE ACTED MORE PROMPTLY WITH RESPECT TO THE CLAIM. WE SHOULD POINT OUT, HOWEVER, THAT YOUR CORPORATION COULD HAVE PROTECTED ITSELF, IN THAT 4 CFR 54.6(A) PERMITS A CARRIER, WHERE IT APPEARS THAT THE STATUTE OF LIMITATIONS WILL SHORTLY EXPIRE DUE TO PROCESSING TIME OR DELAY IN PAYMENT OF CARRIER'S BILL ON THE PART OF THE PROCURING AGENCY, TO FILE ITS CLAIM DIRECTLY WITH THE GENERAL ACCOUNTING OFFICE SO AS NOT TO JEOPARDIZE ITS RIGHTS BY THE RUNNING OF THE STATUTORY PERIOD.

IN THIS CASE, HOWEVER, SINCE WE DID NOT RECEIVE YOUR CLAIM WITHIN THE 3- YEAR PERIOD ESTABLISHED FOR ADMINISTRATIVE SETTLEMENT, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION APPEARS PROPER AND IS SUSTAINED.

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