B-142282, APR. 1, 1960

B-142282: Apr 1, 1960

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HAWES: REFERENCE IS MADE TO YOUR LETTER OF MARCH 7. THE RECORD HERE SHOWS THAT THE CLAIM REFERRED TO IN YOUR LETTER PERTAINS TO ADDITIONAL TRANSPORTATION COSTS ALLEGED TO HAVE BEEN INCURRED BY THE CLAIMANT'S SUBCONTRACTOR. - OF GOVERNMENT BILLS OF LADING WHICH CONTAINED OUTBOUND ROUTING FROM THE CONTRACTOR'S PLANT IN CONNECTION WITH WHICH THE DEPRESSED MANUFACTURING AND RESHIPPING RATES WERE NOT AVAILABLE TO THE CONTRACTOR ON THE INBOUND SHIPMENTS MOVING INTO THE PLANT. IT WILL BE NOTED THAT IN CONNECTION WITH THE VARIOUS CONTRACTS INVOLVED IN THIS CASE THE "INVITATION TO BID" STATED IN EACH CASE. THAT SHIPMENTS SHOULD NOT BE MADE UNTIL SHIPPING INSTRUCTIONS WERE RECEIVED FROM THAT OFFICE.

B-142282, APR. 1, 1960

TO MR. ROBERT N. HAWES:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1960, RELATIVE TO A REQUEST FOR RECONSIDERATION OF THE SETTLEMENT DATED MARCH 21, 1952, WHICH DISALLOWED THE CLAIM OF THE NORTHERN HARDWOOD VENEERS, INCORPORATED, FOR $14,307.92.

THE RECORD HERE SHOWS THAT THE CLAIM REFERRED TO IN YOUR LETTER PERTAINS TO ADDITIONAL TRANSPORTATION COSTS ALLEGED TO HAVE BEEN INCURRED BY THE CLAIMANT'S SUBCONTRACTOR, PLUSWOOD, INCORPORATED, ON SHIPMENTS OF VENEER PLYWOOD SOLD TO THE GOVERNMENT FOR LEND-LEASE PURPOSES DURING THE PERIOD FROM OCTOBER 1942 TO JUNE 1944. THE ADDITIONAL TRANSPORTATION EXPENSES ALLEGEDLY RESULTED FROM THE SUBSTITUTIONS--- IN LIEU OF THE COMMERCIAL BILLS OF LADING PREVIOUSLY USED--- OF GOVERNMENT BILLS OF LADING WHICH CONTAINED OUTBOUND ROUTING FROM THE CONTRACTOR'S PLANT IN CONNECTION WITH WHICH THE DEPRESSED MANUFACTURING AND RESHIPPING RATES WERE NOT AVAILABLE TO THE CONTRACTOR ON THE INBOUND SHIPMENTS MOVING INTO THE PLANT.

IN DISALLOWING THE CONTRACTOR'S CLAIM IN THE SETTLEMENT OF MARCH 21, 1952, IT WILL BE NOTED THAT IN CONNECTION WITH THE VARIOUS CONTRACTS INVOLVED IN THIS CASE THE "INVITATION TO BID" STATED IN EACH CASE, UNDER THE HEADING OF "SPECIAL CONDITIONS," THAT SHIPPING INSTRUCTIONS WOULD BE FURNISHED BY A DESIGNATED GOVERNMENT UNIT, AND THAT SHIPMENTS SHOULD NOT BE MADE UNTIL SHIPPING INSTRUCTIONS WERE RECEIVED FROM THAT OFFICE. THUS, IN COMPUTING THE AMOUNTS BID THE POSSIBILITY OF THE GOVERNMENT ROUTING NOT BEING VIA THE LOWEST-RATED ROUTE--- OR VIA THE ROUTE AUTHORIZED IN CONNECTION WITH THE "MANUFACTURE AND RESHIPMENT RATE UNDER KIPPS TARIFF 304"--- SHOULD HAVE BEEN CONSIDERED BY THE CONTRACTOR AND ATTEMPTS MADE TO PROTECT ITSELF EITHER BY CONTRACTUAL PROVISION OR BY REFRAINING FROM ENTERING INTO ANY AGREEMENT WITH THE CARRIER FOR THE APPLICATION OF A ,MANUFACTURE AND RESHIPMENT RATE UNDER KIPPS TARIFF 304.' ALSO, THE "BID" FORMS CONTAINED THE PROVISION--- WHICH UPON ACCEPTANCE OF THE BID BECAME ONE OF THE TERMS OF THE CONTRACT--- THAT ORAL MODIFICATION OF THE CONTRACT WAS INADMISSIBLE. IN THIS SITUATION, UNDER SPECIFIC CONTRACT TERMS, ORAL ADVICE TO THE GOVERNMENT REPRESENTATIVE OF THE RATE SITUATION--- EVEN IF RESULTING IN A PROMISE TO CHANGE THE ROUTING OR METHOD OF HANDLING--- PROVIDED NO BASIS FOR REQUIRING A CHANGE IN THE GOVERNMENT ROUTING, OR THE PAYMENT OF ANY ADDITIONAL CHARGES TO THE CLAIMANT BY THE GOVERNMENT.

THE CLAIMANT NOW, APPROXIMATELY EIGHT YEARS AFTER THE DISALLOWANCE OF ITS CLAIM, REQUESTS A REVIEW OF THE SETTLEMENT BY THE COMPTROLLER GENERAL. THE REGULATIONS OF OUR OFFICE, PUBLISHED IN TITLE 4, PART 55, OF THE CODE OF FEDERAL REGULATIONS, PROVIDE THAT A CLAIMANT MAY REQUEST REVIEW BY THE COMPTROLLER GENERAL, AND WHILE SUCH REGULATIONS DO NOT PLACE ANY SPECIFIC TIME LIMITATION UPON THE FILING OF A REQUEST FOR REVIEW, IT SEEMS OBVIOUS THAT IN THE LIGHT OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SUCH REQUEST MUST BE RECEIVED WITHIN A REASONABLE TIME AFTER THE SETTLEMENT ISSUES. THE ACT OF OCTOBER 9, 1940, FOREVER BARS EVERY CLAIM OR DEMAND MADE AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, UNLESS SUCH CLAIM IS RECEIVED WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

WITHOUT ATTEMPTING TO DEFINE WHAT CONSTITUTES A REASONABLE TIME IN EVERY INSTANCE, IT DOES SEEM THAT A REQUEST FOR REVIEW MADE APPROXIMATELY EIGHT YEARS AFTER THE CLAIMANT WAS ADVISED OF THE DISALLOWANCE OF ITS CLAIM BY A NOTICE OF SETTLEMENT SHOULD NOT BE CONSTRUED AS HAVING BEEN TIMELY FILED WITH OUR OFFICE. 32 COMP. GEN. 107. ACCORDINGLY, THE INSTANT REQUEST MUST BE REGARDED AS A NEW CLAIM AND, UNDER THE ACT OF OCTOBER 9, 1940, SUPRA, CONSIDERATION ON ITS MERITSIS PRECLUDED BY THE EXPIRATION OF MORE THAN 10 YEARS SINCE THE CAUSE OF ACTION FIRST ACCRUED.