B-29349, OCTOBER 25, 1943, 23 COMP. GEN. 308

B-29349, OCTOBER 25, 1943, 23 COMP. GEN. 308

TRANSPORTATION OF HOUSEHOLD EFFECTS OF CIVILIAN EMPLOYEES WHERE A CIVILIAN EMPLOYEE, IN PERSONALLY ARRANGING FOR THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS UPON CHANGE OF STATION, DETERMINES THE LOWEST AVAILABLE MOTOR VAN CHARGE BY SECURING COMPETITIVE BIDS, RATHER THAN BY THE ALTERNATIVE METHOD OF CONSULTING PUBLISHED TARIFFS AS PERMITTED BY PARAGRAPH 5 OF EXECUTIVE ORDER NO. 9122 ISSUED PURSUANT TO THE UNIFORM HOUSEHOLD EFFECTS TRANSPORTATION STATUTE OF OCTOBER 10, 1940, AND A CONTRACT FOR SUCH SHIPMENT IS AWARDED TO THE LOWEST BIDDER, THE EMPLOYEE MAY NOT BE CHARGED WITH THE DIFFERENCE BETWEEN THE LOWEST BID AND LOWEST AVAILABLE TARIFF RATE. 22 COMP. GEN. 503, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 25, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1943, AS FOLLOWS:

REFERENCE IS MADE TO EXECUTIVE ORDER NO. 9122, DATED APRIL 6, 1942, AMENDING THE PROVISIONS OF EXECUTIVE ORDER NO. 8588, ENTITLED: " PRESCRIBING REGULATIONS GOVERNING THE PAYMENT OF EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CERTAIN CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES," PARAGRAPH 5 OF WHICH READS IN PART AS FOLLOWS:

"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 CONSTRUCTED AS BEING DETERMINATIVE OF THE LOWEST AVAILABLE RATE FOR MOTOR TRANSPORTATION.'

THE EMPLOYEES OF THE VETERANS' ADMINISTRATION WHO ARE TRANSFERRED BETWEEN STATIONS OF THE VETERANS' ADMINISTRATION ARE COMPLYING LITERALLY WITH THIS ORDER AND ARE IN MANY INSTANCES SECURING COMPETITIVE BIDS TO DETERMINE THE LOWEST RATE FOR MOTOR TRANSPORTATION WITHOUT CONSULTING PUBLISHED TARIFFS.

WHEN THE CLAIMS ARE RECEIVED IN THE ADMINISTRATION AND PRIOR TO CERTIFICATION, COMPUTATION IS MADE TO DETERMINE THE LOWEST AVAILABLE RATE AND ACTION IS TAKEN TO EFFECT COLLECTION FROM THE EMPLOYEE OF COSTS RESULTING FROM EXCESS WEIGHTS AND EXCESS COSTS IN THOSE CASES WHERE SHIPMENT WAS MADE BY THE MOST ECONOMICAL MEANS. THE EXCESS COSTS ARE ARRIVED AT BY DETERMINATION OF THE LOWEST AVAILABLE RATES, TAKING INTO CONSIDERATION RATES OF CARRIERS NOT BIDDING, BUT HAVING PUBLISHED RATES, EVEN THOUGH THESE CARRIERS ARE IN A DIFFERENT ASSOCIATION. THIS PROCEDURE IS BASED UPON YOUR DECISION B-29349 OF NOVEMBER 30, 1942, WHICH STATES IN PART," * * * THE EMPLOYEE WOULD BE REQUIRED TO ACCOUNT TO THE GOVERNMENT FOR THE EXCESS OVER THE APPARENTLY LOWEST TARIFF RATE.'

THERE ARE CITED FOR YOUR CONSIDERATION THE FACTS IN A SPECIFIC CASE WHICH COVERS THE POINT AT ISSUE.

THE SHIPMENT IN THIS CASE CONSISTED OF 4,180 POUNDS. THE CONTRACT WAS AWARDED TO A PARTICIPATING CARRIER OF THE HOUSEHOLD GOODS CARRIERS' BUREAU, THE AERO MAYFLOWER TRANSIT COMPANY, THE LOWEST OF THREE BIDDERS, AND PAYMENT IN THE AMOUNT OF $290.90 WAS MADE FOR TRANSPORTING THE GOODS. COMPARATIVE SHIPMENT COSTS OF $250.77 WERE COMPUTED FROM RATES QUOTED FOR LIKE SERVICES, PUBLISHED IN INDEPENDENT MOVERS' AND WAREHOUSEMEN'S ASSOCIATION, INCORPORATED, TARIFF 1-B MF-1ICC NO. 7, THE DIFFERENCE BEING $40.13, WHICH IS THE AMOUNT THE EMPLOYEE WAS CALLED UPON TO REMIT.

EMPLOYEES WHO ARE CALLED UPON TO REMIT THE EXCESS COST NATURALLY ARE VERY GREATLY DISTURBED IN VIEW OF THE FACT THAT THEY HAVE ACTED IN GOOD FAITH AND HAVE COMPLIED WITH THE LITERAL READING OF THE PROVISIONS OF THE EXECUTIVE ORDER. WITH A VIEW TO AFFORDING RELIEF TO THESE EMPLOYEES, IT IS REQUESTED THAT YOU RECONSIDER DECISION B-29349 OF NOVEMBER 30, 1942, IN THE LIGHT OF THE FACTS HERE PRESENTED.

YOUR EARLY ATTENTION GIVEN THIS MATTER WILL BE APPRECIATED IN VIEW OF ACCUMULATING ACCOUNTS OF THIS CHARACTER NOW PENDING DISPOSITION.

THAT PORTION OF THE DECISION OF NOVEMBER 30, 1942 (B-29349), 22 COMP. GEN. 503, 507, QUOTED IN YOUR LETTER, RELATES TO THE ANSWER MADE TO QUESTION (D) UPON THE FACTS OF A PARTICULAR CASE THERE PRESENTED AND CONSIDERED. THE FACTS AS PRESENTED IN SAID QUESTION (D) WERE AS FOLLOWS:

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--- 5,000 POUNDS--- OR ON THE ENTIRE WEIGHT, OF WHICH 560 POUNDS IS NECESSARILY SHIPPED AT THE PERSONAL EXPENSE OF THE EMPLOYEE?

THERE IS FOR OBSERVING THAT NOTHING WAS THERE PRESENTED TO INDICATE THAT THE EMPLOYEE HAD SECURED COMPETITIVE BIDS. IN ANSWERING SAID QUESTION IT WAS THE UNDERSTANDING OF THIS OFFICE THAT THE EMPLOYEE HAD NOT RESORTED TO COMPETITIVE BIDS FOR ASCERTAINING THE MOST ECONOMICAL MEANS OF TRANSPORTATION BUT RATHER, HAD RESORTED TO THE OTHER METHOD AUTHORIZED BY THE REGULATIONS TO DETERMINE THE LOWEST AVAILABLE MOTOR VAN CHARGE, NAMELY, BY CONSULTING TARIFFS. THE ANSWER UPON THAT BASIS NECESSARILY REQUIRED THE EMPLOYEE TO REFUND THE DIFFERENCE BETWEEN THE TARIFF USED AND THE LOWEST AVAILABLE TARIFF FOR THE SHIPMENT.

UNQUESTIONABLY, PARAGRAPH 5 OF THE REGULATIONS, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, AUTHORIZES THE USE OF EITHER OF TWO SEPARATE AND DISTINCT METHODS FOR DETERMINING THE LOWEST AVAILABLE RATE FOR MOTOR VAN SHIPMENT OF HOUSEHOLD GOODS. SEE, IN THAT CONNECTION, THE DECISION OF SEPTEMBER 11, 1943, B-36736, TO THE FEDERAL SECURITY ADMINISTRATOR, WHEREIN IT WAS STATED AS FOLLOWS:

SINCE IT WAS CLEAR IN THAT CASE THAT THE DETERMINATION OF THE MOST ECONOMICAL MEANS OF MOTOR VAN SHIPMENT HAD BEEN MADE BY ONE OF THE ALTERNATIVE METHODS PERMITTED BY THE EXECUTIVE ORDER, IT FOLLOWED THAT, UPON COMPLIANCE WITH THE REMAINING FORMAL REQUISITES, THE EMPLOYEE WAS ENTITLED TO REIMBURSEMENT IN FULL, NOTWITHSTANDING THAT, HAD THERE BEEN UTILIZED THE OTHER ALTERNATIVE METHOD OF SELECTION, NAMELY, THE EXAMINATION OF PUBLISHED TARIFFS, A LOWER RATE MIGHT IN THAT INSTANCE HAVE BEEN SECURED. THE ANSWER THERE GIVEN APPLIES EQUALLY TO THE SHIPMENTS ARRANGED BY THE SEVERAL BRANCHES OF THE FEDERAL SECURITY AGENCY, UNDER THE ACT OF 1940 AND THE EXECUTIVE ORDER OF 1942, SUPRA, AND THE PROPER SELECTION OF A MOTOR VAN CARRIER ON THE BASIS OF COMPETITIVE BIDS, ONLY, DOES NOT CREATE A POTENTIAL LIABILITY ON THE PART OF THE EMPLOYEE TO PAY ANY EXCESS OVER TARIFF RATES. AS A MATTER OF PRECAUTION, IT SHOULD BE EMPHASIZED THAT THE EXECUTIVE ORDER REQUIRES, WHEN TARIFFS ARE NOT CONSULTED, THAT COMPETITIVE BIDS BE SECURED, WHICH NECESSARILY IMPLIES SUCH OPEN COMPETITION AS THE NECESSITIES OF EACH CASE REASONABLY WILL PERMIT.

IN THE CASE HERE PRESENTED, IT IS UNDERSTOOD THAT THE EMPLOYEE ACTUALLY SECURED COMPETITIVE BIDS AND THAT THE CONTRACT FOR SHIPMENT OF THE HOUSEHOLD GOODS WAS LET TO THE LOWEST BIDDER. IF THOSE BE THE FACTS, THAT PORTION OF THE DECISION OF NOVEMBER 30, 1942, TO WHICH YOU REFER, HAS NO APPLICATION HERE. ON THE CONTRARY, THERE WOULD BE NO AUTHORITY TO CHARGE THE EMPLOYEE THE DIFFERENCE BETWEEN THE LOWEST BID AND THE LOWEST AVAILABLE TARIFF RATE. ANY QUESTION INVOLVING THE LIABILITY OF THE CARRIER WHO MOVED THE HOUSEHOLD GOODS FOR ANY EXCESS CHARGED OVER ITS OWN PUBLISHED TARIFF RATES WOULD BE A QUESTION FOR CONSIDERATION BY THIS OFFICE. SEE ANSWERS TO QUESTIONS (A) AND (B), INVOLVED IN THE REFERRED-TO DECISION OF NOVEMBER 30, 1942, TO YOU.