B-131939, NOVEMBER 4, 1959, 39 COMP. GEN. 352

B-131939: Nov 4, 1959

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WHICH PROVIDES THAT THE TENDER WHEN ACCEPTED BY THE GOVERNMENT BY MAKING ANY SHIPMENT WILL CONSTITUTE A TRANSPORTATION AGREEMENT. IS NOT A CONTINUING CONTRACT UPON ACCEPTANCE OF VOLUNTARILY MAKING AVAILABLE ITS TRUCKS AT SPECIFIED POINTS ON A REGULARLY SCHEDULED BASIS. REGARDLESS OF WHETHER ANY FREIGHT IS SHIPPED. INSTEAD IS A CONTINUING OFFER TO ENTER INTO A SERIES OF CONTRACTS GOVERNING EACH SHIPMENT AS TENDERED. THERE IS NO CONSIDERATION MOVING TO THE GOVERNMENT TO PAY THE HIGHER CHARGE UNDER THE TENDER FOR SHIPMENTS FROM ATLAS. FOR PARTIAL LOADING AND IS NOT FOR APPLICATION WHERE THE ENTIRE SHIPMENT IS LOADED AT ATLAS. 1959: REFERENCE IS MADE TO YOUR REQUESTS FOR REVIEW OF OUR AUDIT ACTION.

B-131939, NOVEMBER 4, 1959, 39 COMP. GEN. 352

TRANSPORTATION - SECTION 22 MOTOR CARRIER TENDERS - OFFER AND ACCEPTANCE - CONTINUING OFFER V. CONTINUING CONTRACT A SECTION 22 MOTOR CARRIER TENDER FOR GOVERNMENT SHIPMENTS OF EXPLOSIVES BETWEEN ROMULUS, NEW YORK, AND MADISON, INDIANA, WHICH PROVIDES THAT THE TENDER WHEN ACCEPTED BY THE GOVERNMENT BY MAKING ANY SHIPMENT WILL CONSTITUTE A TRANSPORTATION AGREEMENT, IS NOT A CONTINUING CONTRACT UPON ACCEPTANCE OF VOLUNTARILY MAKING AVAILABLE ITS TRUCKS AT SPECIFIED POINTS ON A REGULARLY SCHEDULED BASIS, REGARDLESS OF WHETHER ANY FREIGHT IS SHIPPED, BUT INSTEAD IS A CONTINUING OFFER TO ENTER INTO A SERIES OF CONTRACTS GOVERNING EACH SHIPMENT AS TENDERED; THEREFORE, THE CARRIER BEING UNDER NO OBLIGATION TO MAKE SERVICES AVAILABLE ON A REGULAR BASIS, EXCEPT TO THE EXTENT REQUIRED UNDER THE INTERSTATE COMMERCE ACT AND ITS CERTIFICATE OF AUTHORITY, THERE IS NO CONSIDERATION MOVING TO THE GOVERNMENT TO PAY THE HIGHER CHARGE UNDER THE TENDER FOR SHIPMENTS FROM ATLAS, OHIO, TO MADISON, INDIANA. A MOTOR CARRIER WHO VOLUNTARILY FILES A SECTION 22 QUOTATION WITH A GOVERNMENT AGENCY AND MAKES TRUCKS AVAILABLE AT THE DESIGNATED POINTS SPECIFIED IN THE TENDER ON A REGULARLY SCHEDULED BASIS CANNOT PRECLUDE THE GOVERNMENT FROM MAKING ITS SHIPMENTS AT THE LOWER PUBLISHED TARIFF RATES, THERE BEING NO AUTHORITY IN THE INTERSTATE COMMERCE ACT OR ELSEWHERE WHEREBY CARRIERS MAY CONTRACT TO FURNISH SERVICES TO THE UNITED STATES AT RATES OR CHARGES HIGHER THAN THOSE IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. A SECTION 22 MOTOR CARRIER TENDER WHICH OFFERS THE GOVERNMENT TRANSPORTATION SERVICES FOR SHIPMENTS OF EXPLOSIVES AND AMMUNITION FROM ROMULUS, NEW YORK, TO MADISON, INDIANA, WITH A STOP TO PARTIALLY LOAD AT ATLAS, OHIO, MUST BE CONSTRUED AS CONTEMPLATING A LOAD OF FREIGHT ORIGINATING AT ROMULUS, NEW YORK, WITH ONLY A STOP AT ATLAS, OHIO, FOR PARTIAL LOADING AND IS NOT FOR APPLICATION WHERE THE ENTIRE SHIPMENT IS LOADED AT ATLAS, OHIO, THE TENDER HAVING BEEN DRAFTED BY THE CARRIER WITHOUT INDICATING THAT THE RATE WOULD BECOME APPLICABLE UPON MERELY MAKING THE VEHICLE AVAILABLE AT ROMULUS, NEW YORK, WHETHER OR NOT LOADED WITH FREIGHT, MUST BE CONSTRUED MOST STRONGLY AGAINST THE CARRIER AND ANY QUESTION CONCERNING THE INTERPRETATION RESOLVED IN FAVOR OF THE GOVERNMENT.

TO LESTER M. BRIDGEMAN, NOVEMBER 4, 1959:

REFERENCE IS MADE TO YOUR REQUESTS FOR REVIEW OF OUR AUDIT ACTION, FILES NOS. OC-10,780; OC-10,752; OC-10,753; OC-10,755; OC-10,798; OC 10,964; OC- 10,875; OC-10,756; OC-10,614; OC-10,757; OC-10,781; OC 10,779; OC-10,751; OC-11,164, OC-11,165; OC-11,603; OC-12,270; AND OC 12,269, BY WHICH OVERPAYMENTS IN THE AGGREGATE AMOUNT OF $6,958.54 WERE STATED AGAINST 18 BILLS PRESENTED BY AND PAID TO RISS AND COMPANY, INC., FOR THE TRANSPORTATION OF 44 SHIPMENTS OF EXPLOSIVES, AMMUNITION, AND PARTS FROM RAVENNA ARSENAL, ATLAS, OHIO, TO JEFFERSON PROVING GROUND, MADISON, INDIANA, AT VARIOUS TIMES DURING 1953.

FOR THE SERVICE PERFORMED, THE CARRIER CLAIMED AND WAS PAID TRANSPORTATION CHARGES COMPUTED ON THE BASIS OF A RATE OF 217 CENTS PER 100 POUNDS AND AT A MINIMUM TRUCKLOAD WEIGHT OF 20,000 POUNDS, AS PROVIDED IN RISS AND COMPANY SECTION 22 TENDER NO. 272-52. ON AUDIT OF THE PAYMENT VOUCHERS IN OUR OFFICE IT WAS DETERMINED THAT TENDER NO. 272-52 HAD NO APPLICATION TO THE SHIPMENTS WHICH ORIGINATED AT ATLAS, OHIO, BUT, AT MOST, COULD APPLY ONLY TO SHIPMENTS WHICH ORIGINATED AT SENECA ORDNANCE DEPOT, ROMULUS, NEW YORK, AND WHICH WERE STOPPED AT ATLAS, OHIO, TO PARTIALLY LOAD OTHER MATERIAL. CONSEQUENTLY, THE CHARGES WERE RECOMPUTED ON THE BASIS OF LOWER RATES, PUBLISHED IN TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION OR RISS AND COMPANY SECTION 22 TENDER NO. 2C-52, FOR APPLICATION TO COMMODITIES SHIPPED FROM ATLAS, OHIO, TO MADISON, INDIANA, RESULTING IN THE OVERPAYMENT ASSESSMENTS WHICH YOU NOW PROTEST.

IN SUPPORT OF YOUR REQUEST FOR REVIEW YOU ALLEGE THAT UPON ACCEPTANCE OF SECTION 22 TENDER NO. 272-52 BY MAKING THE FIRST SHIPMENT UNDER ITS TERMS, THE TENDER BECAME A CONTINUING CONTRACT, THE ESSENCE OF WHICH WAS THE AVAILABILITY OF TRUCKS AT ROMULUS, NEW YORK, AND AT ATLAS, OHIO, ON A REGULARLY SCHEDULED BASIS, AND THAT PAYMENT UNDER THE CONTRACT BECAME DUE UPON SO MAKING THE TRUCKS AVAILABLE WHETHER OR NOT ANY FREIGHT ACTUALLY MOVED. AS EVIDENCE THAT THE TRUCKS WERE MADE AVAILABLE AT ROMULUS, NEW YORK, AND THEN AT ATLAS, OHIO, IN ACCORDANCE WITH THE TERMS OF THE TENDER, YOU SUBMITTED COPIES OF YOUR MANIFESTS, FREIGHT BILLS, AND THE CANCELED CHECKS MADE OUT TO YOUR TRUCK DRIVERS IN PAYMENT OF THEIR SERVICE.

IN CONNECTION WITH THE EVIDENCE SUBMITTED, HOWEVER, MANIFEST NO. RO 171- MA-A, COVERING THE MOVEMENTS OF TRAILER BEARING PENNSYLVANIA LICENSE NO. 55 P 5, UNDER GOVERNMENT BILL OF LADING NO. WY-2365962, INDICATES THAT THE SUBJECT TRAILER WAS AUTHORIZED TO DEADHEAD DIRECT FROM BRISTOL, PENNSYLVANIA, TO RAVENNA ARSENAL, ATLAS, OHIO, AND THE ORIGIN POINT ON THE RISS SYSTEM MANIFEST IS SHOWN AS RAVENNA, OHIO. MANIFEST NO. RV-768-MA, COVERING THE MOVEMENTS OF THE SAME TRAILER UNDER GOVERNMENT BILL OF LADING NO. WY-2553341, INDICATED THAT THE TRAILER WAS AUTHORIZED TO DEADHEAD DIRECT FROM CHAMBERSBURG, PENNSYLVANIA, TO RAVENNA, OHIO, AND THE ORIGIN POINT IS SHOWN AS RAVENNA, OHIO. THE FREIGHT BILLS, NOS. E-783272 AND E- 825763, CROSS REFERENCED TO THESE MANIFESTS AND BILLS OF LADING, SUBSTANTIATE THE INFORMATION SHOWN ON THE MANIFESTS. CONSEQUENTLY, EVEN IF THE SECTION 22 TENDER HAD THE EFFECT YOU ASSERT, RISS AND COMPANY WOULD NOT BE ENTITLED TO THE HIGHER CHARGE ON THESE TWO SHIPMENTS, SINCE THE EVIDENCE SUBMITTED SHOWS THAT THE TRUCKS WERE NOT, IN FACT, MADE AVAILABLE AT ROMULUS, NEW YORK, IN ACCORDANCE WITH THE TERMS OF THE TENDER.

THE MANNER AND EFFECT OF ACCEPTANCE OF THE TENDER IS SET FORTH IN ITEM 10, WHICH PROVIDES AS FOLLOWS:

THIS TENDER, WHEN ACCEPTED BY THE GOVERNMENT BY MAKING ANY SHIPMENT OR SETTLEMENT UNDER THE TERMS HEREOF OR OTHERWISE, WILL CONSTITUTE AN AGREEMENT BETWEEN THE PARTIES HERETO AS TO THE TRANSPORTATION SERVICES HEREIN DESCRIBED. * * * ( ITALICS SUPPLIED.)

NOTHING IS SAID ABOUT ENTERING INTO A CONTINUING CONTRACT UPON TENDER OF THE FIRST SHIPMENT. THE WORDS OF THIS PROVISION DO NOT DIFFER FROM THOSE USED IN SIMILAR PROVISIONS OF OTHER QUOTATIONS, WHICH CONSTITUTE CONTINUING OFFERS TO ENTER INTO A SERIES OF CONTRACTS GOVERNING EACH SHIPMENT AS TENDERED. SEE 37 COMP. GEN. 753, 754. CONSEQUENTLY, THE CARRIER WAS NEVER, IN FACT, UNDER A CONTINUING OBLIGATION TO MAKE EQUIPMENT AVAILABLE AT ROMULUS, NEW YORK, AND AT ATLAS, OHIO, ON A REGULARLY SCHEDULED BASIS, EXCEPT TO THE EXTENT THAT IT WAS OBLIGATED UNDER THE INTERSTATE COMMERCE ACT AND ITS CERTIFICATE OF AUTHORITY. THEREFORE, THERE COULD BE NO CONSIDERATION FOR THE ALLEGED UNDERTAKING OF THE GOVERNMENT TO PAY A HIGHER CHARGE UNDER THE SECTION 22 TENDER NO. 272- 52.

THE DEPARTMENT OF THE ARMY REPORTS THAT THEIR RECORDS DO NOT INDICATE THAT TENDER NO. 272-52 WAS NEGOTIATED BY THE ARMY. IT WAS SIMPLY RECEIVED FROM THE CARRIER AND WAS FILED BY THE ARMY TOGETHER WITH A " SCHEDULE OF BALLISTICS RUN--- SENECA ORDNANCE DEPOT, ROMULUS, NEW YORK TO JEFFERSON PROVING GROUNDS MADISON, INDIANA.' THEREAFTER, THE CARRIER VOLUNTARILY MADE A TRUCK AVAILABLE AT ROMULUS, NEW YORK, AND AT ATLAS, OHIO, AT THE SCHEDULED TIMES. UNDER SECTION 216 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 316 (B), HOWEVER, AND THE PROVISIONS OF ITS CERTIFICATE OF AUTHORITY, A COMMON CARRIER BY MOTOR VEHICLE IS REQUIRED TO MAKE AVAILABLE ADEQUATE EQUIPMENT AND FACILITIES AT THE POINTS IT IS AUTHORIZED TO SERVE IN ITS CERTIFICATE OF AUTHORITY. GALVESTON TRUCK LINE CORP. V. ADA MOTOR LINES, 73 M.C.C. 617, 626. IT IS FURTHER REQUIRED BY SECTION 217, 49 U.S.C. 317, TO PUBLISH AND FILE WITH THE INTERSTATE COMMERCE COMMISSION A TARIFF NAMING RATES AND CHARGES FOR THE SERVICES OFFERED, AND IS PROHIBITED BY SECTION 217 (B), 49 U.S.C. 317 (B), FROM CHARGING, DEMANDING, COLLECTING, OR RECEIVING A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION, EXCEPT THAT, UNDER SECTION 22, 49 U.S.C. 22, THE CARRIER MAY TRANSPORT GOVERNMENT PROPERTY FREE OR AT REDUCED RATES. THERE IS NO AUTHORITY, HOWEVER, IN THE INTERSTATE COMMERCE ACT OR ELSEWHERE, WHEREBY CARRIERS MAY CONTRACT TO FURNISH SERVICES FOR THE UNITED STATES AT RATES OR CHARGES HIGHER THAN THOSE PROVIDED IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. CONSEQUENTLY, THE CARRIER CANNOT, BY VOLUNTARILY FILING A SO-CALLED SECTION 22 QUOTATION WITH A GOVERNMENT AGENCY AND MAKING EQUIPMENT AVAILABLE, PRECLUDE THE GOVERNMENT FROM MAKING EQUIPMENT AVAILABLE, PRECLUDE THE GOVERNMENT FROM MAKING ITS SHIPMENTS AT THE LOWER PUBLISHED TARIFF RATES. IN ADDITION TO THE PUBLISHED RATES, HOWEVER, RISS AND COMPANY, DURING THE ENTIRE PERIOD HERE INVOLVED, OFFERED UNDER SECTION 22 TENDER NO. 2C-52 TO TRANSPORT EXPLOSIVES AND AMMUNITION FOR THE GOVERNMENT AT A LOWER THAN TARIFF RATE " BETWEEN ALL POINTS AND PLACES RISS AND COMPANY, INC. IS AUTHORIZED TO SERVE" AMONG WHICH ARE THE SENECA ORDNANCE DEPOT, ROMULUS, NEW YORK; THE RAVENNA ARSENAL, AT ATLAS ( APCO), OHIO; AND THE JEFFERSON PROVING GROUND, AT MADISON, INDIANA; AND NO REASON APPEARS FOR DENYING THE GOVERNMENT THE BENEFIT OF THIS QUOTATION ON SHIPMENTS TENDERED AT ATLAS, OHIO.

FINALLY, SECTION 22 TENDER NO. 272-52 HAS, BY ITS TERMS, NO APPLICATION TO THE SHIPMENTS HERE INVOLVED. IT OFFERS TO THE GOVERNMENT, IN SECTION 3, THE TRANSPORTATION OF EXPLOSIVES AND AMMUNITION, AS DEFINED IN SUBSECTION 3 (A), FROM SENECA ORDNANCE DEPOT, ROMULUS, NEW YORK, TO JEFFERSON PROVING GROUND, MADISON, INDIANA, DEPARTURE EACH MONDAY AND THURSDAY, WITH A STOP IN TRANSIT TO PARTIALLY LOAD AT ATLAS ( APCO), OHIO, AT A RATE OF 217 CENTS PER 100 POUNDS ON A MINIMUM TRUCKLOAD WEIGHT OF 20,000 POUNDS PER VEHICLE USED, AND SECTION 6 PROVIDES FOR A STOP CHARGE TO PARTIALLY LOAD AT ATLAS ( APCO), OHIO, OF $12.89. THE PHRASE " PARTIALLY LOAD" IMPLIES THAT SOME FREIGHT HAS ALREADY BEEN LOADED ON THE TRUCK AT THE POINT OF ORIGIN--- ROMULUS, NEW YORK. WHERE, AS HERE, NO FREIGHT IS LOADED AT ORIGIN, AND THE ENTIRE SHIPMENT IS LOADED AT APCO, IT WOULD APPEAR TO CONSTITUTE A PARTIAL LOADING AS PROVIDED BY THE TENDER. IN ADDITION, ONLY A CHARGE OF $12.89 IS PROVIDED FOR THE STOP AT APCO, OHIO. THE RATE OF 217 PER 100 POUNDS IS BASED UPON VEHICLES "USED" AT ROMULUS. A VEHICLE IS NORMALLY DEEMED "USED" WHEN FREIGHT IS LOADED. THE TENDER, THEREFORE, CONTEMPLATES A LOAD OF FREIGHT ORIGINATING AT ROMULUS, NEW YORK, WITH ONLY A ,STOP" AT APCO, OHIO, FOR "PARTIAL" LOADING. HAD IT BEEN INTENDED THAT THE RATE WOULD BECOME APPLICABLE UPON THE MERE MAKING THE VEHICLE AVAILABLE AT ROMULUS, NEW YORK, WHETHER OR NOT LOADED WITH FREIGHT, AS ALLEGED, LANGUAGE CLEARLY EXPRESSING SUCH INTENTION COULD HAVE BEEN EMPLOYED. THE INSTRUMENT WAS DRAFTED AND THE LANGUAGE USED WAS CHOSEN BY RISS AND COMPANY. CONSEQUENTLY, THE LANGUAGE SHOULD BE CONSTRUED MOST STRONGLY AGAINST RISS AND COMPANY, AND ANY QUESTION ARISING CONCERNING THE INTERPRETATION OF THE TENDER SHOULD BE RESOLVED IN FAVOR OF THE GOVERNMENT. AMERICAN SURETY COMPANY V. PAULY, 170 U.S. 133, 144; SOUTHERN RY. V. COCA-COLA BOTTLING CO., 145 F. 2D 304 AND UNION WIRE ROPE CORP. V. ATCHISON, T. AND S. F. RY., 66 F.2D 965, 967, 969.

IN VIEW OF WHAT HAS BEEN SAID ABOVE, IT APPEARS THAT OUR AUDIT ACTION WAS CORRECT, AND THE AMOUNT OF THE OVERPAYMENTS SHOULD BE REFUNDED PROMPTLY TO AVOID OTHER COLLECTION ACTION.