B-29349, NOVEMBER 30, 1942, 22 COMP. GEN. 503

B-29349, NOVEMBER 30, 1942, 22 COMP. GEN. 503

TRANSPORTATION OF HOUSEHOLD EFFECTS OF CIVILIAN EMPLOYEES WHERE A CIVILIAN EMPLOYEE PERSONALLY ARRANGES FOR THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS UPON CHANGE OF STATION--- AS DISTINGUISHED FROM A SITUATION WHERE THE GOVERNMENT ITSELF EFFECTS THE ARRANGEMENTS--- THE EMPLOYEE IS NOT REQUIRED, IN REQUESTING BIDS FROM MOTOR FREIGHT CARRIERS, TO NOTIFY BIDDERS THAT PAYMENT CANNOT EXCEED PUBLISHED TARIFF RATES, BUT SUCH A REQUIREMENT WOULD SEEM TO BE WITHIN THE ADMINISTRATIVE AUTHORITY IF FOUND TO BE EXPEDIENT, (22 COMP. GEN. 22, AMPLIFIED); IN ANY EVENT, AS TO A COMMON CARRIER WHOSE PUBLISHED RATES COVER THE SHIPMENT REQUIRED, THE NOTICE WOULD BE DECLARATORY ONLY, SINCE SUCH CARRIER, IN DEALING PRIVATELY WITH THE EMPLOYEE, IS RESTRICTED BY LAW TO ITS PUBLISHED RATES. WHERE A CIVILIAN EMPLOYEE PERSONALLY ARRANGES FOR THE SHIPMENT OF HIS HOUSEHOLD EFFECTS UPON PERMANENT CHANGE OF STATION BY OBTAINING BIDS FROM MOTOR FREIGHT CARRIERS, AND SHIPMENT IS MADE ON A GOVERNMENT BILL OF LADING ISSUED BY PROPER AUTHORITY, CONDITION NO. 3 OF THE BILL OF LADING-- - TO THE EFFECT THAT THE SHIPMENT SHALL TAKE NO HIGHER RATE THAN WOULD BE CHARGED HAD "SHIPMENT BEEN MADE UPON THE UNIFORM STRAIGHT BILL OF LADING"- -- MIGHT BE REGARDED AS ACCOMPLISHING THE PURPOSE OF NOTIFYING THE CARRIER WHOSE BID IS ACCEPTED THAT PAYMENT MAY NOT EXCEED LAWFUL TARIFFS, BUT, TO AVOID DOUBT, A SPECIFIC NOTICE TO THAT EFFECT IN THE BID INVITATION WOULD SEEM TO BE DESIRABLE. 22 COMP. GEN. 22, AMPLIFIED. WHERE A CIVILIAN EMPLOYEE, IN PERSONALLY ARRANGING FOR THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS UPON CHANGE OF STATION, ACCEPTS THE LOWEST MOTOR VAN BID FOR THE SHIPMENT, HE MAY BE REIMBURSED THE AMOUNT PAID BY HIM UNDER THE BID IF HIS CLAIM IS OTHERWISE PROPER AND IF MOTOR VAN SHIPMENT WAS FOUND, UPON COMPARISON, TO BE THE MOST ECONOMICAL MEANS OF SHIPMENT, EVEN THOUGH IT BE FOUND THAT THE AMOUNT SO PAID IS HIGHER THAN THE AMOUNT ALLOWABLE UNDER PUBLISHED TARIFFS--- RECOVERY FROM THE CARRIER OF ANY EXCESS PAYMENTS TO BE UNDERTAKEN AFTER THE PAYMENTS HAVE BEEN AUDITED IN THIS OFFICE AND CHECKED AGAINST PUBLISHED TARIFFS, FOLLOWING THE PROCEDURE FOR COMMON CARRIERS CONTEMPLATED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940. WHERE A CIVILIAN EMPLOYEE, UPON CHANGE OF STATION, SHIPPED HIS HOUSEHOLD EFFECTS BY A MOTOR FREIGHT CARRIER ON A GOVERNMENT BILL OF LADING AT A PUBLISHED TARIFF RATE IN EXCESS OF A TARIFF RATE AVAILABLE VIA ANOTHER SUCH CARRIER, THE CARRIER EFFECTING THE SHIPMENT SHOULD BE PAID AT ITS PUBLISHED RATE, AND THE EMPLOYEE IS REQUIRED TO ACCOUNT TO THE GOVERNMENT FOR THE EXCESS OVER THE LOWER RATE. WHERE A CIVILIAN EMPLOYEE, UPON CHANGE OF STATION, SELECTS AS BEING THE MOST ECONOMICAL A PARTICULAR METHOD OF TRANSPORTING HIS HOUSEHOLD EFFECTS, AFTER A COMPARISON OF COSTS BY THE VARIOUS METHODS OF TRANSPORTATION BASED ON AN ESTIMATE OF THE WEIGHT TO BE PACKED AND CRATED, HAULED, TRANSPORTED, ETC., ARRIVED AT BY AVERAGING THE ESTIMATED WEIGHTS OF THE SEVERAL BIDDERS, BUT DUE TO VARIANCE BETWEEN ACTUAL AND ESTIMATED WEIGHTS, THE SELECTION IS FOUND TO HAVE BEEN ERRONEOUS, THE EMPLOYEE SHOULD NOT BE CHARGED WITH EXCESS COSTS RESULTING FROM FAILURE TO SHIP BY THE MOST ECONOMICAL MEANS (AS DISTINGUISHED FROM COSTS DUE TO EXCESS WEIGHT) IN THE ABSENCE OF A DISPARITY BETWEEN ESTIMATED AND ACTUAL WEIGHTS SO GREAT AS TO SUGGEST BAD FAITH OR CAPRICE. WHERE A CIVILIAN EMPLOYEE KNOWINGLY AND FOR HIS PERSONAL CONVENIENCE SELECTS A PARTICULAR METHOD OF TRANSPORTING HIS HOUSEHOLD EFFECTS UPON CHANGE OF STATION WHICH, ON THE BASIS OF ESTIMATED WEIGHTS AVAILABLE AT THE TIME, IS A SUPERIOR OR MORE EXPENSIVE SERVICE AS COMPARED WITH OTHER AVAILABLE METHODS OF TRANSPORTATION, HE IS REQUIRED TO ASSUME THE RISK OF UNCERTAINTY ARISING OUT OF THE DIFFERENCE BETWEEN ESTIMATED AND ACTUAL WEIGHTS AND HIS LIABILITY FOR ACTUAL EXCESS COSTS IS REQUIRED TO BE BASED UPON THE TRUE WEIGHT OF THE GOODS SHIPPED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 30, 1942:

THERE HAVE BEEN CONSIDERED THE QUESTIONS PRESENTED IN YOUR LETTER OF OCTOBER 2, 1942, AS OLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JULY 11, 1942, (B-24097), ADDRESSED TO THE SECRETARY OF AGRICULTURE IN WHICH THERE WAS CONSIDERED THE QUESTION OF ALLOWABLE COSTS IN CONNECTION WITH THE SHIPMENT OF HOUSEHOLD GOODS OF EMPLOYEES OF THAT DEPARTMENT. BRIEFLY YOUR DECISION IS CONSTRUED TO HOLD AS FOLLOWS:

(1) THAT IN DETERMINING THE APPLICABLE MOTOR VAN RATE, BY WHICH THE RIGHTS OF THE EMPLOYEE ARE FIXED, UNDER THE PROVISIONS OF SECTION 5 OF EXECUTIVE ORDER NO. 8588, AS AMENDED BY EXECUTIVE ORDER NO. 9122 OF APRIL 6, 1942, THE RESULT MAY BE ARRIVED AT EITHER BY OBTAINING COMPETITIVE BIDS OR BY CONSULTING PUBLISHED TARIFFS.

(2) THAT THE COST TO THE EMPLOYEE, DETERMINED AS ABOVE TO BE THE APPLICABLE COST, IS THE AMOUNT WHICH IS FOR COMPARISON WITH THE COST BY OTHER FORMS OF TRANSPORTATION.

(3) THAT WHERE AMOUNTS PAID, AS DETERMINED IN ACCORDANCE WITH (1) ABOVE, ARE HIGHER THAN THE COST WOULD HAVE BEEN, HAD THE APPLICABLE PUBLISHED TARIFF RATE BEEN USED, COLLECTION OF THE DIFFERENCE WILL BE EFFECTED FROM THE CARRIER.

(4) THAT WHERE BIDS ARE INVITED FOR MOTOR VAN TRANSPORTATION IT IS ADVISABLE TO INSERT, IN THE BID INVITATIONS, A PROVISO THAT PAYMENTS MADE ON THE CONTRACT WILL BE SUBJECT TO CHECK AGAINST PUBLISHED TARIFFS, AND THAT ANY PAYMENTS MADE IN EXCESS OF SUCH RATES WILL BE REQUIRED TO BE REFUNDED.

IT APPEARS THAT IN THE DEPARTMENT OF AGRICULTURE THE DEPARTMENT ITSELF NEGOTIATES THE CONTRACTS FOR THE HAULING OF EMPLOYEES' EFFECTS; WHILE IN THIS ADMINISTRATION IT IS THE PERSONAL OBLIGATION OF THE EMPLOYEE TO MAKE ARRANGEMENTS WITH CARRIERS. WITH THIS IN MIND, TAKING INTO CONSIDERATION THE CITED DECISION AND ALSO INSTRUCTIONS (COPY ATTACHED) ISSUED BY THIS ADMINISTRATION UNDER DATE OF MAY 28, 1942, FOR THE GUIDANCE OF EMPLOYEES WHEN MAKING SHIPMENTS INCIDENT TO TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER, YOUR FURTHER DECISION IS DESIRED ON THE FOLLOWING POINTS:

(A) WHEN AN EMPLOYEE OF THIS ADMINISTRATION REQUESTS BIDS FROM MOTOR FREIGHT CARRIERS IS IT REQUIRED THAT THE EMPLOYEE PUT THE PROSPECTIVE BIDDERS ON NOTICE THAT PAYMENT CANNOT BE MADE IN AN AMOUNT IN EXCESS OF PUBLISHED APPLICABLE TARIFF RATES? ALSO, IS IT REQUIRED THAT WHERE GOVERNMENT BILLS OF LADING ARE USED BY EMPLOYEES IN OBTAINING SERVICES FROM CARRIERS, A SIMILAR NOTICE AS TO LIMITATION OF ALLOWABLE PAYMENT BE SHOWN THEREON?

(B) WHERE AN EMPLOYEE ACCEPTS THE LOWEST BID FOR TRANSPORTATION BY MOTOR VAN (FOLLOWING PROCEDURE OUTLINED IN VETERANS' ADMINISTRATION INSTRUCTIONS) AND THE AMOUNT PAID BY HIM IN ACCORDANCE WITH SUCH BID IS FOUND TO BE HIGHER THAN THE AMOUNT ALLOWABLE UNDER PUBLISHED TARIFFS, IS IT TO BE UNDERSTOOD FROM YOUR DECISION THAT THIS ADMINISTRATION MAY REIMBURSE THE EMPLOYEE IN THE FULL AMOUNT WHICH HE PAID THE CARRIER; AND THAT IT WOULD THEN BE INCUMBENT UPON THIS ADMINISTRATION TO UNDERTAKE TO EFFECT RECOVERY OF THE EXCESS AMOUNT FROM THE CARRIER? INFORMATION IS REQUESTED AS TO WHETHER OR NOT THIS UNDERSTANDING IS CORRECT.

(C) IF THE PRECEDING QUESTION IS ANSWERED IN THE AFFIRMATIVE AND THERE ARE TWO APPLICABLE TARIFFS, WOULD THE AMOUNT TO BE RECOVERED BE ACCORDING TO THE LOWEST TARIFF RATE REGARDLESS OF WHETHER OR NOT THE CARRIER INVOLVED PARTICIPATED IN THE LOWER TARIFF?

(D) IN THE CASE OF AN EMPLOYEE WHO SHIPPED 5,560 POUNDS OF EFFECTS ON GOVERNMENT BILL OF LADING FROM WASHINGTON, D.C., TO HUNTINGTON, WEST VIRGINIA, VIA UNITED VAN LINES AT ITS PUBLISHED TARIFF RATE OF $3.86 PER CWT. WHEN THERE ALSO WAS AVAILABLE, AT TIME OF SHIPMENT, THE INDEPENDENT MOVERS' AND WAREHOUSEMEN'S TARIFF RATE OF $3.072 PER CWT IS IT REQUIRED THAT PAYMENT TO THE CARRIER SHALL BE MADE AT THE LOWER RATE? IF SO, SHALL PAYMENT AT SUCH LOWER RATE BE ON THE GOVERNMENT'S SHARE ONLY--- 5000 POUNDS--- OR ON THE ENTIRE WEIGHT, OF WHICH 560 POUNDS IS NECESSARILY SHIPPED AT THE PERSONAL EXPENSE OF THE EMPLOYEE?

IN CONNECTION WITH THE MATTER OF PROPER ALLOWANCES FOR SHIPMENT OF HOUSEHOLD GOODS, ATTENTION IS INVITED TO THE ENCLOSED COPY OF LETTER, DATED JULY 7, 1942, SIGNED BY THE ASSISTANT CHIEF, CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, REGARDING A SHIPMENT OF HOUSEHOLD GOODS BY DR. C. F. MUELLER. IT IS NOTED THAT IN COMPUTING THE CONSTRUCTIVE COST OF RAIL FREIGHT SHIPMENT IN THIS CASE, YOUR OFFICE HAS CONSIDERED THE AVERAGE ESTIMATED GROSS WEIGHT OF THE GOODS 4,033 POUNDS, INCREASED BY 25 PERCENT, OR 5,041 POUNDS AT $5.12 PER CWT. ($2.62 RAIL FREIGHT, $2.50 PACKING, CRATING, ETC.) AS REPRESENTING THE FIGURE UPON WHICH THE ESTIMATED COSTS OF RAIL FREIGHT SHIPMENT ARE PROPERLY TO BE BASED. THE ESTIMATED GROSS WEIGHT OF THE SHIPMENT WAS AVERAGED ON THE BASIS OF THREE ESTIMATES OF BIDDERS ON MOTOR FREIGHT SHIPMENT. NEVERTHELESS, THE ACTUAL WEIGHT OF THE GOODS SHIPPED BY THE EMPLOYEE INVOLVED WAS ONLY 3,300 POUNDS, AND IF MOVED BY RAIL FREIGHT, THE WEIGHT WOULD HAVE BEEN 4,125 POUNDS, WHICH WOULD HAVE INVOLVED A COST OF $211.20 (OR $190.58 IF PACKING AND CRATING COSTS WERE COMPUTED ON THE BASIS OF GROSS WEIGHT OF GOODS)AS COMPARED WITH THE ACTUAL COST OF $253.85 INCURRED BY THE EMPLOYEE FOR VAN SHIPMENT. YOUR DECISION IS REQUESTED AS TO WHETHER, IN THE FUTURE, COMPUTATION OF EXCESS COSTS, IF ANY, OF MOTOR FREIGHT SHIPMENTS OF PERSONAL PROPERTY BY VETERANS' ADMINISTRATION EMPLOYEES IN CONNECTION WITH CHANGES OF OFFICIAL STATION, IS TO BE BASED UPON THE INCREASED (COMBINED) WEIGHT OR UPON THE GROSS (ACTUAL) WEIGHT OF THE PROPERTY WHEN ESTIMATED WEIGHTS GIVEN BY MOTOR FREIGHT COMPANY REPRESENTATIVES ARE AT VARIANCE WITH THE WEIGHTS AS ASCERTAINED WHEN SHIPMENTS ARE ACTUALLY MADE.

YOUR EARLY DECISION IN REGARD TO THE FOREGOING QUESTIONS WILL BE APPRECIATED.

(A) THAT PORTION OF THE DECISION OF JULY 11, 1942, 22 COMP. GEN. 22, WHICH IS SUMMARIZED UNDER SUB-PARAGRAPH "/3)" OF THE FIRST PARAGRAPH OF YOUR LETTER WAS PREDICATED UPON THE RULE,"WELL SETTLED AND OF LONG STANDING THAT GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICE ON THE BASIS OF HIGHER CHARGES THAN THOSE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS" QUOTING FROM THE CITED DECISION. THE FIRST PARAGRAPH OF THE REFERRED-TO VETERANS' ADMINISTRATION LETTER OF INSTRUCTIONS ADVISES THAT:

THE MATTER OF SHIPPING HOUSEHOLD GOODS AND PERSONAL EFFECTS IS THE PERSONAL OBLIGATION OF THE EMPLOYEE AND SHOULD BE ARRANGED FOR BY HIM AND NOT BY THE PERSONNEL OF THE FACILITY IN THEIR OFFICIAL CAPACITIES. PARENTHETICALLY, THERE IS SUGGESTED CERTAIN DOUBT WHETHER THE LANGUAGE JUST QUOTED IS IN FULL ACCORD WITH THE GOVERNING REGULATIONS, WHICH DIRECT THAT:

SHIPMENT SHALL BE MADE ON GOVERNMENT BILL OF LADING OR PURCHASE ORDER WHENEVER POSSIBLE; OTHERWISE REIMBURSEMENT SHALL BE MADE TO THE EMPLOYEE FOR TRANSPORTATION EXPENSES ACTUALLY AND NECESSARILY INCURRED WITHIN THE LIMITATIONS PRESCRIBED BY THESE REGULATIONS. * * * ( SECTION 6 OF EXECUTIVE ORDER NO. 8588 AS AMENDED APRIL 6, 1942, BY EXECUTIVE ORDER NO. 9122.) ANY QUESTION IN RESPECT THERETO, HOWEVER, IS ONE OF ADMINISTRATION RATHER THAN OF ACCOUNTING; ACCORDINGLY, NO OPINION THEREON IS HERE INDICATED. BUT, WITH SUCH ADMINISTRATIVE INSTRUCTIONS IN FORCE, IT IS EVIDENT THAT WHEN THE EMPLOYEE PERSONALLY ARRANGES FOR THE SHIPMENT OF HIS EFFECTS, WITHOUT AUTHORITY TO BIND THE GOVERNMENT TO PAY THE CARRIER, THE UNITED STATES IS NOT A PARTY TO THE TRANSACTION AND NO QUESTION CAN ARISE AS TO THE LIMITS OF HIS AUTHORITY. ACCORDINGLY, THE FIRST PART OF QUESTION "/A)"--- WHETHER IT IS "REQUIRED" THAT THE EMPLOYEE NOTIFY BIDDERS THAT PAYMENTS CANNOT EXCEED PUBLISHED RATES--- IS ANSWERED IN THE NEGATIVE BUT WITH THE OBSERVATION, HOWEVER, THAT SUCH REQUIREMENT WOULD SEEM TO BE WITHIN THE ADMINISTRATIVE AUTHORITY IF FOUND TO BE EXPEDIENT. AS TO COMMON CARRIERS WHOSE PUBLISHED RATES COVER THE SHIPMENT REQUIRED, WHO MIGHT BE ASKED TO FURNISH BIDS TO THE EMPLOYEE, THE NOTICE WOULD BE DECLARATORY ONLY, SINCE SUCH CARRIER, IN DEALING PRIVATELY WITH THE EMPLOYEE, IS RESTRICTED BY LAW TO ITS PUBLISHED TARIFF RATES. ACME FAST FREIGHT, INC., ETC., 17 M.C.C. 549, 554.

WHERE A GOVERNMENT BILL OF LADING IS ISSUED BY PROPER AUTHORITY AND FURNISHED TO THE CARRIER, A CONTRACT WITH THE UNITED STATES RESULTS (21 COMP. GEN. 265; OREGON-1WASHINGTON RAILROAD AND NAVIGATION V. UNITED STATES (1923), 58 C.1CLS. 645), NOTWITHSTANDING A LIMITATION IN THE AUTHORITY OF THE EMPLOYEE USING IT (5 COMP. GEN. 134), AND ITS OBLIGATIONS ARE GOVERNED BY THE TERMS OF THE BILL. AMERICAN RAILWAY EXPRESS COMPANY V. UNITED STATES (1926), 62 C.1CLS. 615, 631. CONDITION NO. 3 PRINTED ON THE BILL OF LADING (8 COMP. GEN. 699) MIGHT BE REGARDED AS ACCOMPLISHING THE PURPOSE OF NOTIFYING THE CARRIER WHOSE BID IS ACCEPTED THAT PAYMENT MAY NOT EXCEED LAWFUL TARIFFS, BUT, TO AVOID DOUBT, A SPECIFIC NOTICE TO THAT EFFECT IN THE BID INVITATION WOULD SEEM TO BE DESIRABLE.

(B) THE FIRST PART OF QUESTION "/B)" IS ANSWERED IN THE AFFIRMATIVE, ASSUMING, OF COURSE, THAT THE CLAIM OTHERWISE COMPLIES WITH THE STATUTE AND EXECUTIVE REGULATIONS (AS TO WEIGHT, DISTANCE, AUTHORITY, AND THE LIKE) AND THAT MOTOR VAN SHIPMENT WAS FOUND, UPON COMPARISON, TO BE THE MOST ECONOMICAL MEANS OF TRANSPORTATION. 22 COMP. GEN. 22. THE SECOND PART OF THE QUESTION IS ANSWERED IN THE NEGATIVE; THAT IS TO SAY, RECOVERY FROM THE CARRIERS OF ANY EXCESS PAYMENTS WILL BE UNDERTAKEN AFTER THE PAYMENTS MADE HAVE BEEN AUDITED IN THIS OFFICE AND CHECKED AGAINST PUBLISHED TARIFFS, FOLLOWING THE PROCEDURE FOR COMMON CARRIERS CONTEMPLATED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955.

(C) QUESTION "/C)" CANNOT BE ANSWERED WITHOUT REFERENCE TO THE EXACT STATUS OF THE PARTICULAR CARRIER AND, IF THE TRANSPORTATION WAS INTERSTATE, TO THE TERMS OF ITS CERTIFICATE OR PERMIT ISSUED UNDER PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S. CODE, CHAPTER 8.

(D) IF--- AS ASSUMED--- $3.86 IS THE PUBLISHED AND ESTABLISHED COMMON CARRIER RATE OF THE UNITED VAN LINES FOR THE SHIPMENT EFFECTED, NO GREATER AMOUNT MAY BE CHARGED TO THE GOVERNMENT, NOR ANY LESSER SUM WITHOUT A SPECIAL AGREEMENT OR CONCESSION TO THE GOVERNMENT BY THAT CARRIER. COMP. DEC. 421, 425; 23 ID. 564; SECTION 217 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 317 (B). UPON THAT BASIS, THE $3.86 RATE WOULD APPLY, AND THE EMPLOYEE WOULD BE REQUIRED TO ACCOUNT TO THE GOVERNMENT FOR THE EXCESS OVER THE APPARENTLY LOWEST AVAILABLE TARIFF RATE. SEE 20 COMP. GEN. 793; AND SECTION 5 OF EXECUTIVE ORDER NO. 8588, AS AMENDED BY EXECUTIVE ORDER NO. 9122, EFFECTIVE APRIL 6, 1942, READING:

SECTION 5. MEANS OF SHIPMENT. SHIPMENT SHALL BE BY THE MOST ECONOMICAL MEANS, TAKING INTO CONSIDERATION THE COSTS OF PACKING, CRATING, DRAYAGE, UNPACKING, AND UNCRATING: PROVIDED, HOWEVER, THAT THE EMPLOYEE MAY HAVE HIS EFFECTS MOVED BY SOME MEANS OTHER THAN THAT DETERMINED TO BE MOST ECONOMICAL BY PAYING THE DIFFERENCE BETWEEN THE LOWEST AVAILABLE CHARGES AND THE CHARGES BY THE PREFERRED MEANS: AND PROVIDED FURTHER, THAT, WHEN THE HEAD OF THE DEPARTMENT OR AGENCY DETERMINES IT TO BE IN THE INTEREST OF THE GOVERNMENT, HE MAY SPECIFICALLY AUTHORIZE THE SHIPMENT BY EXPRESS OF ARTICLES REQUIRED FOR IMMEDIATE USE AT THE NEW OFFICIAL STATION (SUCH AS PROFESSIONAL BOOKS, WEARING APPAREL, BEDDING OR KITCHEN UTENSILS, BUT NOT FURNITURE OR JEWELRY), WHICH SHALL IN NO CASE EXCEED A WEIGHT OF 500 POUNDS FOR EMPLOYEES HAVING DEPENDENTS LIVING WITH THEM OR 250 POUNDS FOR EMPLOYEES HAVING NO DEPENDENTS LIVING WITH THEM. IN CONSIDERING COMPARATIVE TRANSPORTATION COSTS AS REQUIRED BY THIS SECTION, THE LOWEST AVAILABLE MOTOR VAN CHARGES MAY BE DETERMINED BY CONSULTING PUBLISHED TARIFFS OR BY SECURING COMPETITIVE BIDS, THE USE OF EITHER METHOD TO BE CONSTRUED AS BEING DETERMINATIVE OF THE LOWEST AVAILABLE RATE FOR MOTOR TRANSPORTATION.

YOUR FINAL QUESTION IS AFFECTED BY A RECENT EXECUTIVE REGULATION. COMPARING RAIL AND MOTOR COSTS (WHETHER BEFORE OR AFTER SHIPMENT), THE COST OF PACKING, CRATING, DRAYAGE, UNPACKING AND UNCRATING REQUIRED FOR RAIL SHIPMENT THERETOFORE COULD BE CONSIDERED ONLY UP TO THE AMOUNT OF $2.50 PER CWT. 20 COMP. GEN. 793. SINCE APRIL 6, 1942, HOWEVER, THAT LIMITATION NO LONGER IS IN FORCE ( EXECUTIVE ORDER 9122, SUPRA). YOUR LETTER REQUESTS DECISION FOR COMPUTATIONS "IN THE FUTURE," EVIDENTLY REFERRING TO CASES ARISING AFTER APRIL 6, 1942. BIDS OR ESTIMATES FOR THE FULL, ACTUAL COST OF PACKING, ETC., WILL THEREFORE BE FOR CONSIDERATION. IF ALL FIGURES (MOTOR VAN BIDS OR TARIFFS, PACKING, ETC., BIDS OR ESTIMATES, AND RAIL FREIGHT RATES) CAN BE OBTAINED ON THE WEIGHT BASIS, THE ENTIRE OPERATION WILL BE MUCH SIMPLIFIED, SINCE AN ACCURATE AND DEFINITIVE COMPARISON COULD BE MADE FROM THE RATES ALONE, WITHOUT REFERENCE TO THE WEIGHT MOVED OR TO BE MOVED. THUS, FOR EXAMPLE: CHART

RATE PER CWT. LOWEST MOTOR VAN BID OR TARIFF (WHICHEVER BE UTILIZED) -- $6.00

RAIL FREIGHT RATE (LESS PICK UP AND DELIVERY ALLOWANCE,

IF APPLICABLE--- B-28260, OCT. 24, 1942) --------$2.40

PLUS 25 PERCENT TARE, FOR WEIGHT OF PACKING --------- .60

----- $3.00 LOWEST BID OR ESTIMATE FOR PACKING, DRAYAGE, ETC.

($3.60 PLUS 25 PERCENT TARE) --------------------- 4.50

LOWEST TOTAL COST PER CWT. FOR SHIPMENT BY RAIL ----- 7.50

HOWEVER, WHEN IT IS FOUND NOT POSSIBLE TO ASSEMBLE THE MOTOR VAN AND THE PACKING CHARGES ON A WEIGHT BASIS, AND THEY ARE OBTAINABLE IN LUMP SUMS ONLY, THE WEIGHT TO BE MOVED IS A NECESSARY FACTOR TO ARRIVE AT THE TOTAL COMPARABLE RAIL COSTS. THE AVERAGE OF THE ESTIMATED WEIGHTS IS USED (20 COMP. GEN. 793), BUT SUCH FIGURES FURNISHED BY MOTOR VAN LUMP-SUM BIDDERS SHOULD BE CONSIDERED WITH CIRCUMSPECTION BECAUSE THERE IS AN OBVIOUS SELF- INTEREST IN EXAGGERATING THE ESTIMATES WHEN THEY ARE GIVEN FOR THE SOLE PURPOSE OF ARRIVING AT THE COMPARABLE RAIL FREIGHT COST. FOR AN EXAMPLE COMPUTED ON ESTIMATED WEIGHTS, SEE 18 COMP. GEN. 792, 794 (WHERE THE MOTOR VAN CHARGE AND THE CONSTRUCTIVE PACKING AND DRAYAGE COSTS WERE IN LUMP SUMS). IT MAY OCCUR THAT THE ONLY OBTAINABLE MOTOR VAN CHARGE IS IN A LUMP SUM, WHILE THE PACKING AND DRAYAGE BIDS ARE GIVEN PER HUNDREDWEIGHT. SUCH BIDS, PRESUMABLY, WOULD REFER TO THE TOTAL WEIGHT OF THE GOODS WHEN PACKED, IN CONTEMPLATION THAT THE WEIGHING ORDINARILY TAKES PLACE AFTER THE GOODS ARE PACKED. IF SO, THE COMPUTATION WOULD BE, FOR EXAMPLE:

CHART LOWEST MOTOR VAN BID (LUMP SUM) ----------------------------- --- $250

RAIL FREIGHT RATE (PER CWT.) -------------$2.00

LOWEST BID OR ESTIMATE FOR PACKING,

CRATING, DRAYAGE, UNPACKING AND

UNCRATING (PER CWT.) --------------------- 5.00

----- $7.00

AVERAGE ESTIMATED WEIGHT ----- 2,400 LBS.

PLUS 25 PERCENT TARE --------- 600

----- 3,000 CONSTRUCTIVE RAIL COST (30 CWT. AT $7.00) ------------------- ----- $210

YOUR QUESTION APPEARS TO CONTEMPLATE A SITUATION WHERE, PURSUANT TO A COMPARISON OF COSTS SUCH AS JUST GIVEN, THE APPARENTLY MORE ECONOMICAL METHOD IS SELECTED AND THE SHIPMENT MADE, BUT DUE TO VARIANCE BETWEEN ACTUAL AND ESTIMATED WEIGHTS, THE SELECTION IS FOUND TO HAVE BEEN ERRONEOUS. THUS, IN THE ABOVE EXAMPLE, IF THE ACTUAL PACKED WEIGHT WERE FOUND TO BE OVER 3,600 POUNDS, THE ACTUAL RAIL COSTS WOULD EXCEED THE MOTOR VAN BID. CONVERSELY WHEN A MOTOR VAN BID IS ACCEPTED, AS THE ECONOMICAL METHOD OF SHIPMENT, BUT THE ESTIMATED WEIGHT IS EXCESSIVE, IT MIGHT EVENTUATE, UPON THE FACTS AFTERWARDS KNOWN, THAT RAIL SHIPMENT WOULD HAVE BEEN CHEAPER. IN DETERMINING WHETHER EXCESS COSTS SHOULD BE CHARGED TO THE EMPLOYEE, PURSUANT TO THE AUTHORITIES MENTIONED ABOVE, FOR FAILURE TO SHIP BY THE MOST ECONOMICAL MEANS (AS DISTINGUISHED FROM COSTS DUE TO EXCESS WEIGHT), TO USE THE ACTUAL WEIGHT (ASCERTAINED ONLY AFTER THE SHIPMENT BEGINS) IN EFFECT WOULD REQUIRE THE EMPLOYEE TO GUARANTEE THE BIDDERS' WEIGHT ESTIMATES, WHICH IS NOT REQUIRED. UNLESS, AT LEAST, THE DISPARITY BETWEEN ESTIMATED AND ACTUAL WEIGHTS WERE SO GROSS AS TO SUGGEST BAD FAITH OR CAPRICE, NO BASIS APPEARS TO RAISE A CHARGE AGAINST THE EMPLOYEE ARISING OUT OF THE SELECTION OF A PARTICULAR MEANS OF SHIPMENT WHICH, UPON THE FACTS AVAILABLE, IS THE MOST ECONOMICAL, BUT WHICH, SUBSEQUENTLY, WAS FOUND NOT TO BE THE MOST ECONOMICAL MEANS, B-15308, MARCH 28, 1941. IF, HOWEVER, YOUR QUESTION REFERS TO THE SITUATION WHERE THE EMPLOYEE KNOWINGLY AND FOR HIS PERSONAL CONVENIENCE SELECTS A MEANS OF TRANSPORTATION WHICH, UPON THE ESTIMATED WEIGHTS THEN AVAILABLE, IS A SUPERIOR OR MORE EXPENSIVE SERVICE, THE TERMS OF THE EXECUTIVE ORDER CITED WOULD APPEAR TO REQUIRE THAT HE BEAR THE ACTUAL EXCESS COST BASED UPON THE TRUE WEIGHT OF THE GOODS SHIPPED. IN OTHER WORDS, THE EMPLOYEE WHO KNOWINGLY SELECTS THE MORE EXPENSIVE MEANS WOULD BE REQUIRED TO ASSUME THE RISK OF UNCERTAINTY ARISING OUT OF THE DIFFERENCE BETWEEN ESTIMATED AND ACTUAL WEIGHTS. SINCE EACH SUCH CASE DEPENDS MORE OR LESS UPON ITS PARTICULAR FACTS, IT IS SUGGESTED, AS A POSSIBLY PREFERABLE PROCEDURE, THAT THE VETERANS' ADMINISTRATION FORWARD ANY SUCH CASES TO THIS OFFICE FOR COMPUTATION AND COLLECTION, BEFORE UNDERTAKING SETTLEMENT WITH THE EMPLOYEE.