B-190610, JUN 13, 1978

B-190610, JUN 13, 1978

DIGEST: 1. WHERE CARRIER PRESENTS NO EVIDENCE THAT SHIPPER AGREED IN ADVANCE TO APPLY TO A GROUP OF SHIPMENTS RATES IN A TENDER ISSUED BY CARRIER ASSOCIATION, GAO SUSTAINS GSA FINDING THAT LOWER RATES IN CARRIER'S INDIVIDUAL TENDER APPLIED. 2. RATES IN CARRIER'S INDIVIDUAL TENDER APPLIED TO SHIPMENTS WHERE THE DOCUMENT DID NOT CLEARLY AND UNAMBIGUOUSLY SHOW THAT RATES WERE RESTRICTED TO SHIPMENTS TENDERED VIA A COLLECT TELEPHONE CALL TO A PARTICULAR AGENT. 3. GAO WILL NOT RESTRAIN GSA FROM EXERCISING STATUTORY RIGHT TO COLLECT OVERCHARGES BY DEDUCTION. 4. SINCE REVIEW OF GSA SETTLEMENTS IS BASED ON THE WRITTEN RECORD, REQUEST FOR OPPORTUNITY TO PRESENT EVIDENCE AT ORAL HEARING IS DENIED.

VON DER AHE VAN LINES, INC.:

VON DER AHE VAN LINES, INC. (VON DER AHE), IN A LETTER RECEIVED HERE OCTOBER 26, 1977, FROM ITS ATTORNEY, REQUESTS REVIEW OF THE GENERAL SERVICES ADMINISTRATION'S (GSA) ACTION ON 28 OF ITS BILLS FOR TRANSPORTATION SERVICES. SEE SECTION 201(3) OF THE GENERAL ACCOUNTING OFFICE ACT OF 1974, 49 U.S.C. 66(B) (SUPP. V, 1975). AFTER AUDITING THE BILLS, GSA NOTIFIED VON DER AHE OF OVERCHARGES TOTALING $22,250.85, WHICH IN THE ABSENCE OF REFUND WERE COLLECTED BY DEDUCTION FROM MONEYS OTHERWISE DUE THE CARRIER. 49 U.S.C. 66(A) (SUPP. V, 1975). UNDER REGULATIONS IMPLEMENTING SECTION 201(3) OF THE ACT, DEDUCTION ACTIONS ARE REVIEWABLE SETTLEMENT ACTIONS (4 C.F.R. 53.1(B)(1) AND 53.2 (1977)); VON DER AHE'S LETTER COMPLIES WITH THE CRITERIA FOR REQUESTS FOR REVIEW OF THOSE ACTIONS. 4 C.F.R. 53.3 (1977).

GSA REPORTS THAT ITS ACTION WAS TAKEN ON 28 SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED DURING JUNE AND JULY 1976 BY VON DER AHE ON GOVERNMENT BILLS OF LADING (GBL) PREPARED BY THE U.S. NAVAL RESEARCH LABORATORY, WASHINGTON, D.C. (19 GBLS), THE U.S. NAVAL OCEANOGRAPHIC OFFICE, SUITLAND, MARYLAND (8 GBLS), AND THE DAVID TAYLOR MODEL BASIN, CARDEROCK, MARYLAND (1 GBL).

VON DER AHE COLLECTED ON THE 28 SHIPMENTS TRANSPORTATION CHARGES BASED ON RATES IN GOVERNMENT RATE TENDER I.C.C. NO. 1-X (TENDER 1-X), PUBLISHED BY THE MOVERS' & WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC. DURING GSA'S AUDIT, VON DER AHE WAS NOTIFIED OF OVERCHARGES TOTALING $22,250.85. THE OVERCHARGES ARE BASED ON GSA'S DETERMINATION THAT LOWER RATES DERIVED FROM VON DER AHE'S RATE TENDER ICC-300-76-E (TENDER 300-76-E) APPLIED TO THE 28 SHIPMENTS. IN THE ABSENCE OF REFUND THE $22,250.85 WAS COLLECTED BY DEDUCTION. VON DER AHE REQUESTS REVIEW OF GSA'S ACTIONS.

VON DER AHE'S FIRST ARGUMENT IS THAT THE OWNER AND MANAGER OF O.K. MOVING AND STORAGE COMPANY, INC. (O.K.), AN AGENT OF VON DER AHE, AGREED WITH THE TRANSPORTATION OFFICERS AT THE NAVAL RESEARCH LABORATORY AND THE NAVAL OCEANOGRAPHIC OFFICE THAT THE RATES IN TENDER 1-X WOULD BE APPLIED TO THE 28 SHIPMENTS. IN SUPPORT OF THIS ARGUMENT, VON DER AHE CITES JET FORWARDING, INC. V. UNITED STATES, 437 F.2D 987 (CT.CL. 1971). ADDITION TO SUGGESTING THAT THE 28 SHIPMENTS WERE PART OF A MASS TRANSPORTATION MOVEMENT TO BAY ST. LOUIS, MISSISSIPPI, THE CARRIER ALSO ALLEGES THAT AT THE REQUEST OF THE NAVAL INSTALLATIONS, O.K. FURNISHED EXCLUSIVE USE OF VEHICLE AND EXPEDITED SERVICE ON THE 28 SHIPMENTS.

VON DER AHE'S FIRST ARGUMENT IS WITHOUT MERIT. IT HAS THE BURDEN OF PROVING THE CORRECTNESS OF THE FREIGHT CHARGES ORIGINALLY COLLECTED ON THESE SHIPMENTS. 57 COMP.GEN. 155 (1977). HERE, PART OF THAT PROOF IS THE EXISTENCE OF AN AGREEMENT BETWEEN THE NAVAL INSTALLATIONS AND VON DER AHE THAT THE RATES IN TENDER 1-X WERE TO BE APPLIED TO THE 28 SHIPMENTS. AS POINTED OUT BY GSA, VON DER AHE PRESENTS NO EVIDENCE THAT THE NAVAL INSTALLATIONS CONDUCTED RATE NEGOTIATIONS WITH O.K. OR VON DER AHE ON ANY OF THE 28 SHIPMENTS. AND WE HAVE BEEN ADVISED INFORMALLY BY THE NAVAL INSTALLATIONS THAT THERE WAS NO AGREEMENT OR UNDERSTANDING WITH O.K. ABOUT THE RATES TO BE APPLIED TO THOSE SHIPMENTS.

WE NOTE ALSO THAT THE GBL'S SHOW THAT ONLY 12 OF THE 28 SHIPMENTS WERE PICKED UP AT ORIGIN BY O.K. AS VON DER AHE'S AGENT, THAT THERE IS NO REFERENCE ON THE GBL'S TO TENDER 1-X, AND THAT CONTRARY TO VON DER AHE'S CONTENTION, THERE IS NO EVIDENCE - SUCH AS GBL NOTATIONS - THAT THE INSTALLATIONS REQUESTED EXCLUSIVE USE OF VEHICLE OR EXPEDITED SERVICE.

THE JET FORWARDING CASE IS INAPPOSITE; IT CONCERNED TWO MASS TRANSPORTATION MOVEMENTS OF HOUSEHOLD GOODS FROM JAPAN TO FLORIDA. THE CHARGES ON THE GBLS WERE BASED ON RATES AND A VOLUME MINIMUM WEIGHT SUBMITTED BY THE LOW BIDDER WHICH BECAME THE SOLE CARRIER FOR THE TRANSPORTATION. THE COURT FOUND THAT AN AGREEMENT EXISTED BETWEEN THE PARTIES AS TO THE METHOD USED TO CROSS-REFERENCE GBLS TO TAKE ADVANTAGE OF THE VOLUME MINIMUM WEIGHT FOR TRANSPORTATION RATING PURPOSES, A SITUATION NOT INVOLVED HERE.

VON DER AHE'S SUGGESTION THAT THE 28 SHIPMENTS WERE PART OF A MASS TRANSPORTATION MOVEMENT IS UNTENABLE. THE NAVAL INSTALLATIONS DENY THE SUGGESTION AND SAY THAT SIMILAR SHIPMENTS WERE TRANSPORTED BY OTHER CARRIERS DURING THE SAME TIME. FURTHER, THE GBLS THEMSELVES DISPROVE THE SUGGESTION: THEY SHOW SEVEN DIFFERENT ORIGINS AND 11 DIFFERENT DESTINATIONS.

VON DER AHE'S SECOND ARGUMENT CONCERNS GSA'S USE OF TENDER 300-76-E. THE CARRIER DOES NOT DISPUTE THE FACT THAT THE TENDER APPLIES TO THE COMMODITIES TRANSPORTED AND BETWEEN THE ORIGIN AND DESTINATIONS SHOWN ON THE GBLS; IT CONTENDS, HOWEVER, THAT THE NAMING IN THE TENDER'S ITEM 9, HEADED "ISSUING CARRIER, BUREAU, AGENCY OR CONFERENCE" OF "WORLDWIDE CONTAINER TRANSPORT AGENT, 1700 S. AMPHLETT SAN MATEO, CA. CALL DISPATCH COLLECT 415-349-8272" SERVES TO RESTRICT THE APPLICATION OF RATES TO SHIPMENTS TENDERED TO WORLDWIDE CONTAINER.

WE AGREE WITH GSA THAT TENDER 300-76-E APPLIES TO THE 28 SHIPMENTS.

RATE TENDERS LIKE TENDER 1-X AND TENDER 300-76-E ARE CONSIDERED TO BE CONTINUING OFFERS TO PERFORM TRANSPORTATION SERVICES AT NAMED RATES SUBJECT TO THE TERMS AND CONDITIONS NAMED IN THE TENDERS. SEE C & H TRANSPORTATION CO. V. UNITED STATES, 436 F.2D 480 (CT.CL. 1971); 51 COMP. GEN. 724 (1972); B-188513, APRIL 10, 1978. THE PRINCIPLES FOLLOWED IN INTERPRETING THEM ARE NO DIFFERENT IN CHARACTER FROM THOSE PRESENTED IN THE INTERPRETATION OF ANY OTHER DOCUMENT. WHENEVER POSSIBLE EFFECT MUST BE GIVEN TO EACH WORD, CLAUSE OR SENTENCE AND NONE SHOULD BE REJECTED FOR LACK OF MEANING OR AS SURPLUSAGE. AND AMBIGUITIES OR DOUBTS ARE REQUIRED TO BE RESOLVED IN FAVOR OF THE SHIPPER. 44 COMP.GEN. 419, 420 (1965).

TENDER 300-76-E NAMES VON DER AHE AS HAVING THE LAWFUL CARRIER OPERATING AUTHORITIES AND IS SIGNED FOR VON DER AHE BY R.L. VON DER AHE AS THE PARTY REPRESENTING THE CARRIER. WE FIND NOTHING IN THE TENDER WHICH CLEARLY AND UNAMBIGUOUSLY SHOWS THAT VON DER AHE'S RATES IN THE DOCUMENT ARE RESTRICTED TO SHIPMENTS TENDERED VIA A COLLECT TELEPHONE CALL TO A PARTICULAR AGENT. IT COULD BE THAT WORLDWIDE CONTAINER WAS VON DER AHE'S AGENT IN ISSUING THE TENDER. COMPARE THE INTERSTATE COMMERCE COMMISSION'S REGULATIONS CONCERNING TARIFFS FILED BY AGENTS. 49 C.F.R. 1300.26 (1976).

WE CANNOT HONOR VON DER AHE'S REQUEST THAT WE RESTRAIN GSA "FROM WITHHOLDING ANY SUMS DUE AND OWING" THE CARRIER. WHILE IN THIS CASE THE QUESTION IS MOOT WE WILL NOT INTERFERE WITH GSA'S EXERCISE OF THE RIGHT RESERVED TO THE GOVERNMENT BY 49 U.S.C. 66(A) "TO DEDUCT THE AMOUNT OF ANY OVERCHARGE BY ANY CARRIER OR FORWARDER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER OR FORWARDER." ASIDE FROM THE OVERVIEW AUTHORITY REFERRED TO IN 49 U.S.C. 66(A), WE ARE LIMITED IN THESE CASES TO A REVIEW, WHEN REQUESTED, OF GSA'S ACTION ON CARRIERS' OR FORWARDERS' CLAIMS. U.S.C. 66(B). CF. B-189436, JANUARY 25, 1978; AND 46 COMP.GEN. 63 (1966).

VON DER AHE REQUESTS THAT WE PROVIDE IT WITH THE OPPORTUNITY TO PRESENT EVIDENCE AT A HEARING. WE DO NOT BELIEVE THE CIRCUMSTANCES WARRANT SUCH A HEARING.

BASED ON THE PRESENT RECORD, GSA'S SETTLEMENT ACTIONS ON THE 28 SHIPMENTS ARE CORRECT AND ARE SUSTAINED.