B-121660, APR. 6, 1956

B-121660, APR. 6, 1956

TO JOHN J. MOYLAN AND CO.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1956, TRANSMITTING A BRIEF FROM YOUR ATTORNEYS WHEREIN THERE ARE SET FORTH CERTAIN LEGAL ARGUMENTS IN SUPPORT OF YOUR CONTENTION THAT YOU PROPERLY ARE ENTITLED TO REIMBURSEMENT FOR FREIGHT FORWARDING SERVICES RENDERED THE GENERAL SERVICES ADMINISTRATION DURING THE PERIOD JULY 1951 TO AUGUST 1953, UPON THE BASIS OF 1 1/4 PERCENT OF THE OCEAN FREIGHT CHARGES ON THE SHIPMENTS HANDLED BY YOU, WHICH IS THE RATE OF BROKERAGE ESTABLISHED FOR FREIGHT FORWARDING SERVICES IN THE PACIFIC WESTBOUND CONFERENCE.

INASMUCH AS THE FREIGHT FORWARDING SERVICES HERE INVOLVED WERE RENDERED BY YOU AT THE REQUEST OF THE GENERAL SERVICES ADMINISTRATION WITHOUT BENEFIT OF CONTRACT, IT IS CONCEDED THAT YOU ARE ENTITLED TO REIMBURSEMENT THEREFOR UPON A QUANTUM MERUIT BASIS, AND FOR THE PURPOSE OF ARRIVING AT A PROPER EVALUATION OF THE SERVICES SO PERFORMED BY YOU, THERE WERE ADOPTED AND APPLIED BY THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF YOUR CLAIM THE RATES ESTABLISHED FOR IDENTICAL SERVICES IN CONTRACT NO. EC-TS- 791, DATED JUNE 20, 1950, COVERING THE PERIOD WHICH IMMEDIATELY PRECEDED RENDITION OF THE SERVICES HERE IN CONTROVERSY.

YOUR CLAIM TO THE FULL BROKERAGE RATE OF 1 1/4 PERCENT OF THE OCEAN FREIGHT PAID ON THESE SHIPMENTS IS PREDICATED, OF COURSE, UPON THE PACIFIC WESTBOUND CONFERENCE RATE APPLICABLE TO FREIGHT FORWARDERS WHO, UNDER RULE 30 (C) OF THE CONFERENCE LOCAL TARIFF I-V, EFFECTIVE MARCH 12, 1951, HOLD POWERS OF ATTORNEY FROM THE SHIPPERS AUTHORIZING THEM TO ACTUALLY BOOK THE SHIPMENTS FOR THE CONSIGNORS. IN THE INSTANT MATTER, NO SUCH POWER OF ATTORNEY WAS FURNISHED YOU SINCE THE SHIPPER- - THE GENERAL SERVICES ADMINISTRATION--- RESERVED TO ITSELF THE RIGHT TO BOOK THESE SHIPMENTS, AND HENCE, MADE ONLY LIMITED USE OF THE FREIGHT FORWARDER'S SERVICES.

THEREFORE, WHILE PUBLIC LAW 498, APPROVED MAY 14, 1942, 56 STAT. 171, AND PERTINENT REGULATIONS OF THE UNITED STATES MARITIME COMMISSION (GENERAL ORDER 70, AMENDMENT 2, SECTION 243.2 REGULATIONS), AUTHORIZED THE USE BY VARIOUS GOVERNMENTAL AGENCIES OF THE SERVICES OF PRIVATE FREIGHT FORWARDERS, WHERE PRACTICABLE, IN THE INSTANT MATTER IT HAS BEEN REPORTED BY THE STORAGE AND TRANSPORTATION DIVISION, EPS, GENERAL SERVICES ADMINISTRATION, THAT THEY FOUND IT IMPRACTICABLE TO MAKE MORE THAN A LIMITED USE OF YOUR FREIGHT FORWARDER'S SERVICES, THEREBY RELIEVING THE ADMINISTRATION, IN PART, FROM THE REQUIREMENTS OF THE SAID REGULATIONS.

IN VIEW THEREOF, AND SINCE IT IS CONSIDERED THAT THE FAIR AND REASONABLE VALUE OF THE FREIGHT FORWARDING SERVICES PERFORMED BY YOU AT THE REQUEST OF THE GENERAL SERVICES ADMINISTRATION DURING THE PERIOD MENTIONED IS AS SET FORTH IN OUR REVISED SETTLEMENT OF AUGUST 16, 1955, WE ARE LEFT WITH NO ALTERNATIVE IN THE CIRCUMSTANCES BUT TO AFFIRM OUR PREVIOUS DECISIONS OF OCTOBER 25, 1955, AND JULY 20, 1955, TO YOU.