B-144209, OCT. 21, 1960

B-144209: Oct 21, 1960

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INC.: WE HAVE YOUR LETTER OF OCTOBER 4. OUR AUDIT ACTION WAS BASED ON THE INTERSTATE COMMERCE COMMISSION'S DECISION IN UPJOHN V. ENCLOSED IS A COPY OF OUR DECISION OF JANUARY 7. WHICH IN THE CASE OF A SIMILAR SHIPMENT HELD THAT THE LOWER RELEASED VALUE CLASSIFICATION RATING BASIS IS REQUIRED TO BE APPLIED WHEN THE ENGINES WERE LOWER RATING. SIMILAR ISSUE NOW IS BEING CONSIDERED IN T.I.M.E. THE FACT THAT AN ISSUE IN A CLAIM BEFORE OUR OFFICE FOR SETTLEMENT IS SIMILAR TO AN ISSUE PENDING IN LITIGATION ORDINARILY PROVIDES NO VALID BASIS FOR THE PAYMENT OF A CLAIM. THE FILING OF A SUIT IS NOT A FINAL JUDICIAL DETERMINATION OF THE ISSUE INVOLVED NOR DOES IT NECESSARILY INDICATE THAT A FINAL JUDICIAL DETERMINATION WILL BE REACHED.

B-144209, OCT. 21, 1960

TO TEXAS-ARIZONA MOTOR FREIGHT, INC.:

WE HAVE YOUR LETTER OF OCTOBER 4, 1960, WITH WHICH YOU ENCLOSED YOUR CLAIM, ON SUPPLEMENTAL BILL NO. 7356-A, FOR $321.09, REPRESENTING ADDITIONAL TRANSPORTATION CHARGES ALLEGEDLY DUE ON CERTAIN SHIPMENTS OF JET-TYPE INTERNAL COMBUSTION ENGINES, MOVING BETWEEN UNITED STATES AIR FORCE BASES UNDER GOVERNMENT BILLS OF LADING DURING OCTOBER 1958. INFORMATION IN YOUR CLAIM INDICATES THAT THE CLAIM RESULTS FROM THE COLLECTION BY DEDUCTION OF OVERCHARGES FOUND DURING OUR AUDIT OF YOUR BILL NO. 7356, COVERING THE FREIGHT CHARGES ORIGINALLY CLAIMED AND COLLECTED BY YOU ON THE SHIPMENT.

AS YOU POINT OUT IN YOUR LETTER, OUR AUDIT ACTION WAS BASED ON THE INTERSTATE COMMERCE COMMISSION'S DECISION IN UPJOHN V. PENNSYLVANIA RAILROAD CO., ET AL., 306 I.C.C. 325. ENCLOSED IS A COPY OF OUR DECISION OF JANUARY 7, 1960, B-140079 (39 COMP. GEN. 501), WHICH IN THE CASE OF A SIMILAR SHIPMENT HELD THAT THE LOWER RELEASED VALUE CLASSIFICATION RATING BASIS IS REQUIRED TO BE APPLIED WHEN THE ENGINES WERE LOWER RATING. SIMILAR ISSUE NOW IS BEING CONSIDERED IN T.I.M.E., INC. V. UNITED STATES, NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, CIVIL ACTIONS NOS. 2628, 2629, 2637 AND 2638. WHILE NOT ENTIRELY CLEAR IN YOUR LETTER, YOU SEEM TO SUGGEST THAT WE SHOULD PAY YOUR CLAIM AND HOLD IN ABEYANCE ANY FURTHER ACTION ON OUR PART PENDING THE DECISIONS IN THE T.I.M.E. CASES.

THE FACT THAT AN ISSUE IN A CLAIM BEFORE OUR OFFICE FOR SETTLEMENT IS SIMILAR TO AN ISSUE PENDING IN LITIGATION ORDINARILY PROVIDES NO VALID BASIS FOR THE PAYMENT OF A CLAIM, NOR, UNLESS SPECIAL CIRCUMSTANCES EXIST, FOR THE WITHHOLDING OF SETTLEMENT ACTION. THE FILING OF A SUIT IS NOT A FINAL JUDICIAL DETERMINATION OF THE ISSUE INVOLVED NOR DOES IT NECESSARILY INDICATE THAT A FINAL JUDICIAL DETERMINATION WILL BE REACHED, BECAUSE THE SUIT MAY BE DISCONTINUED OR THE ITEMS INVOLVED IN THE ISSUES MAY BE WITHDRAWN. WE THEREFORE ARE SENDING YOUR CLAIM TO OUR TRANSPORTATION DIVISION WHERE IT WILL BE MADE THE SUBJECT OF A CERTIFICATE OF SETTLEMENT. IF YOU DISAGREE WITH THE CONCLUSION REACHED IN THE SETTLEMENT, YOU ARE ENTITLED TO PURSUE EACH LEGAL REMEDIES AS ARE AVAILABLE FOR THE RECOVERY OF ANY AMOUNT BELIEVED TO BE DUE, INCLUDING REVIEW OF THE SETTLEMENT UNDER THE PROVISIONS OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, 1960 SUPPLEMENT, SUBCHAPTER D, SECTIONS 55.1 AND 55.2. FOR YOUR READY REFERENCE, WE QUOTE SECTIONS 55.1 AND 55.2:

"55.1 PROTEST TO SETTLEMENT ACTION. IF A CLAIMANT DISAGREES WITH THE ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON ITS CLAIM, A LETTER MAY BE ADDRESSED TO THE DIRECTOR, TRANSPORTATION DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., REQUESTING RECONSIDERATION OF SUCH ACTION. SUCH LETTERS SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL DATA AND FURNISH SUCH ADDITIONAL INFORMATION AND DOCUMENTATION AS IS RELIED UPON TO RAISE SUBSTANTIVE DOUBT AS TO THE CLAIM SETTLEMENT ACTION.

"55.2 REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES. IF THE CLAIMANT DESIRES A REVIEW OF THE FINAL ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON SETTLEMENT, HE MAY REQUEST REVIEW BY THE COMPTROLLER GENERAL. THE REQUEST SHOULD BE ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., AND SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL REASONS URGED AS WARRANTING REVISION OF THE ACTION TAKEN.'