B-147611, SEP. 25, 1962

B-147611, SEP. 25, 1962

TO MR. E. F. MACMILLAN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1962, WHICH, IN EFFECT, IS A REQUEST FOR THE FURTHER CONSIDERATION OF DECISION OF MAY 31, 1962, B- 147611, SUSTAINING THE ACTION OF OUR TRANSPORTATION DIVISION IN REQUESTING THE RETURN OF $1,339.26 ERRONEOUSLY ALLOWED YOU IN ADDITION TO THE AMOUNT PREVIOUSLY PAID FOR THE TRANSPORTATION OF CERTAIN ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILES FROM FORT ESTILL, KENTUCKY, TO MILAN, TENNESSEE, IN JUNE 1951.

WITH YOUR PRESENT SUBMISSION YOU PRESENT NO ADDITIONAL OR NEW EVIDENCE IN SUPPORT OF YOUR CONTENTIONS WITH RESPECT TO THE PROPER INTERPRETATION OF THE MINIMUM WEIGHT PROVISION OF HUGHES TRANSPORTATION, INC., U.S. GOVERNMENT QUOTATION NO. 34 DESIGNATED AS A "SPECIAL QUOTATION ON U.S. GOVERNMENT FREIGHT MOVING ON U.S. GOVERNMENT BILLS OF LADING.' IT IS MERELY A RESTATEMENT OF YOUR CONTENTIONS WHICH HAVE, PREVIOUSLY, ALL BEEN THOROUGHLY CONSIDERED BY OUR OFFICE.

IN THE INSTANT CASE, HUGHES TRANSPORTATION, INC., SUBMITTED ITS QUOTATION NO. 34, EFFECTIVE JUNE 22, 1951, TO THE GOVERNMENT, APPARENTLY IN CONTEMPLATION OF THIS VERY MOVEMENT. IT IS ADMITTED IN A LETTER FROM HUGHES TRANSPORTATION, INC., DATED FEBRUARY 27, 1962, A COPY OF WHICH IS A PART OF THE PRESENT RECORD, THAT QUOTATION NO. 34 WAS INTENDED TO PLACE THIS CARRIER IN A COMPETITIVE POSITION WITH RAIL CARRIERS' RATES. THE MOVEMENT BEGAN ON JUNE 23, 1951, AND APPARENTLY ENDED JUNE 28, 1951. WAS ON JULY 20, 1951, THAT HUGHES TRANSPORTATION, INC., PREPARED ITS BILL NO. 1083 FOR THE SERVICE, AND THE CHARGES CLAIMED THEREIN WERE IN ACCORDANCE WITH THE GOVERNMENT'S UNDERSTANDING OF THE OFFER WHICH HAD BEEN MADE.

THE MINIMUM-WEIGHT PROVISION OF QUOTATION NO. 34 HAS BEEN CAREFULLY RECONSIDERED AND YOUR POSITION STILL APPEARS TO BE UNTENABLE. FOR INSTANCE, IN THE THIRD PARAGRAPH OF YOUR LETTER OF JULY 20, 1962, YOU URGE THAT "THERE IS ONLY ONE BASIC MINIMUM WEIGHT * * * THE VOLUME MINIMUM OF 50,000 POUNDS WITH A PROVISO THAT EACH VEHICLE WILL EARN REVENUE ON AT LEAST 20,000 POUNDS.' THIS DOES NOT SEEM TO BE THE CASE. THE MINIMUM- WEIGHT PROVISION IN THE QUOTATION FIRST SAYS "VOLUME MINIMUM WEIGHT OF 50,000 POUNDS SUBJECT TO TRUCKLOAD MINIMUM OF 20,000 POUNDS," AND THAT STATEMENT IS SUBJECT TO THE QUALIFICATION "WHEN QUANTITY TENDERED FOR SHIPMENT AT ANY ONE TIME IS LESS THAN 50,000 POUNDS IN WEIGHT.' WE AGREE THAT THE BASIC MINIMUM VOLUME WEIGHT IS 50,000 POUNDS, BUT THE QUOTATION CLEARLY PROVIDES THAT THE TRUCKLOAD MINIMUM OF 20,000 POUNDS APPLIES ONLY "WHEN QUANTITY TENDERED FOR SHIPMENT AT ANY ONE TIME IS LESS THAN 50,000 POUNDS IN WEIGHT.'

IMMEDIATELY AFTER QUOTATION NO. 34 BECAME EFFECTIVE (JUNE 22, 1951), THE ADMINISTRATIVE OFFICE TENDERED TO THE CARRIER VARIOUS SHIPMENTS WEIGHING APPROXIMATELY 23,400 POUNDS EACH, APPARENTLY MAKING NO ATTEMPT TO COMBINE VARIOUS SHIPMENTS TENDERED ON THE SAME OR ON SUCCESSIVE DAYS INTO ONE OR MORE SHIPMENTS OF 50,000 POUNDS EACH. THE CARRIER PROMPTLY CLAIMED AND WAS PAID CHARGES ON THESE SHIPMENTS WHICH WERE BASED ON THE QUOTATION RATE AT THE TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS, OR THE ACTUAL WEIGHT IF GREATER. THUS, AT THE TIME THE SHIPMENTS MOVED UNDER THIS QUOTATION, BOTH THE CARRIER AND THE GOVERNMENT APPEAR TO HAVE PLACED THE SAME INTERPRETATION UPON THE TERMS THEREOF. IN THIS SITUATION, EVEN IF A CONTRARY INTERPRETATION WERE POSSIBLE UNDER THE LITERAL TERMS OF THE QUOTATION, THE PRACTICAL CONSTRUCTION WHICH THE PARTIES PUT ON THE TERMS OF THEIR OWN CONTRACT DURING THE PERFORMANCE OF THE WORK MUST PREVAIL OVER THE LITERAL MEANING OF THE CONTRACT. MARIETTA MANUFACTURING COMPANY V. UNITED STATES, 73 CT.CL. 528. ALSO, THE INTERPRETATION OF A CONTRACT BY THE PARTIES TO IT BEFORE IT BECOMES THE SUBJECT OF CONTROVERSY IS DEEMED BY THE COURTS TO BE OF GREAT, IF NOT CONTROLLING WEIGHT. CENTRAL ENGINEERING AND CONSTRUCTION COMPANY V. UNITED STATES, 59 F.SUPP. 553.

ACCORDINGLY, SINCE NOTHING HAS BEEN FOUND IN YOUR REQUEST FOR RECONSIDERATION WHICH SEEMS TO REQUIRE REVERSAL OR MODIFICATION OF THE ACTION OF OUR TRANSPORTATION DIVISION, THE DECISION OF MAY 31, 1962, IS AFFIRMED.