B-154665, DEC. 11, 1964

B-154665: Dec 11, 1964

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TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. THE RECORD SHOWS THAT GOVERNMENT BILL OF LADING AT-172287 WAS ISSUED TO COVER THE TRANSPORTATION OF ONE CARLOAD OF TRAINING MATERIAL WEIGHING 1. GOVERNMENT BILL OF LADING AT-172282 WAS ISSUED TO COVER THE TRANSPORTATION OF ONE CARLOAD OF TRAINING MATERIAL WEIGHING 7. FOR THE LINE HAUL TRANSPORTATION OF THE TRAINING MATERIAL IN CONNECTION WITH GOVERNMENT BILL OF LADING AT-172287 YOU WERE ORIGINALLY PAID $68.40 ON YOUR BILL NO. 27842. WHICH AMOUNT WAS PAID ON VOUCHER NO. 1991 IN THE APRIL 1960 ACCOUNTS OF C. IT WAS DETERMINED THAT THE APPLICABLE CHARGE SHOULD BE $51.86. YOU WERE REQUESTED TO REMIT THE RESULTANT OVERCHARGE OF $16.54 AND UPON YOUR FAILURE TO DO SO.

B-154665, DEC. 11, 1964

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1964, FILE 5 GS-27842, IN EFFECT, REQUESTING REVIEW OF SETTLEMENT CERTIFICATE OF JUNE 19, 1962, WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 27842 FOR ADDITIONAL TRANSPORTATION CHARGES OF $17.58 FOR SERVICES RENDERED UNDER GOVERNMENT BILL OF LADING AT-172287. YOU ALSO REQUEST RECONSIDERATION OF OUR AUDIT ACTION ON VOUCHER NO. 1991 IN THE APRIL 1960 ACCOUNTS OF DISBURSING OFFICER C. E. EVANS (YOUR BILL NO. 27842) AS TO SERVICES RENDERED UNDER GOVERNMENT BILL OF LADING AT-172282.

THE RECORD SHOWS THAT GOVERNMENT BILL OF LADING AT-172287 WAS ISSUED TO COVER THE TRANSPORTATION OF ONE CARLOAD OF TRAINING MATERIAL WEIGHING 1,732 POUNDS IN CAR NO. USAX G-26, FROM ST. FRANCIS, TEXAS, TO RICKY, COLORADO, ON FEBRUARY 22, 1960. GOVERNMENT BILL OF LADING AT-172282 WAS ISSUED TO COVER THE TRANSPORTATION OF ONE CARLOAD OF TRAINING MATERIAL WEIGHING 7,413 POUNDS IN CAR NO. USAX G-24, FROM ROCKY, COLORADO, TO EDGOTAN, KENTUCKY, AND RETURN, ON FEBRUARY 22, 1960. THE BILLS OF LADING BEAR THE FOLLOWING ANNOTATIONS, RESPECTIVELY:

BILL OF LADING AT-172287

"AUTH: JOINT MILITARY PASSENGER AGREEMENT, SEC. 25 AND AEC SEC. 22 DATED JULY 1, 1951. ROUTE: ATSF (FRT) TO AMARILLO, FWD-CS TO DENVER, DRGW (FRT) SPECIAL SWITCH TO ROCKY.'

BILL OF LADING AT-172282

"AUTH: JOINT MILITARY PASSENGER AGREEMENT, SEC. 25 AND AEC SEC. 22 DATED JULY 1, 1951. ROUTE: D AND RGW SPEC. SW. TO DENVER, ATSF TO LAJUNTA, ATSF (MAIL) TO KANSAS CITY, WAB TO ST. LOUIS, L AND N TO NASHVILLE, TC/FRT) TO EDGOTEN (STOPOVER) TC/FRT) TO NASHVILLE, L AND N TO ST. LOUIS, WAB TO KANSAS CITY, ATSF TO LAJUNTA, ATSF TO DENVER, D AND RGW SPECIAL SW. TO ROCKY.'

FOR THE LINE HAUL TRANSPORTATION OF THE TRAINING MATERIAL IN CONNECTION WITH GOVERNMENT BILL OF LADING AT-172287 YOU WERE ORIGINALLY PAID $68.40 ON YOUR BILL NO. 27842, COMPUTED ON THE BASIS OF A LESS-CARLOAD RATE OF $3.97 PER 100 POUNDS ON 1,723 POUNDS, WHICH AMOUNT WAS PAID ON VOUCHER NO. 1991 IN THE APRIL 1960 ACCOUNTS OF C. E. EVANS. IN OUR AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE APPLICABLE CHARGE SHOULD BE $51.86, BASED UPON A THROUGH LESS CARLOAD RATE OF $3.01 PER 100 POUNDS FROM ST. FRANCIS, TEXAS, TO ROCKY, COLORADO, AUTHORIZED BY SOUTHWESTERN LINES FREIGHT TARIFF NO. SW/W 1006, I.C.C. NO. 3999; JOINT MILITARY PASSENGER AGREEMENT NO. 29, SECTION 25 PARAGRAPHS (D) AND (E) AND SECTION 22 QUOTATION OF JULY 1, 1951. YOU WERE REQUESTED TO REMIT THE RESULTANT OVERCHARGE OF $16.54 AND UPON YOUR FAILURE TO DO SO, THIS SUM WAS COLLECTED IN AUGUST 1961 BY DEDUCTION FROM AN OTHERWISE PAYABLE BILL. THEREAFTER, WITH YOUR LETTER OF FEBRUARY 12, 1962, YOU PRESENTED SUPPLEMENTAL BILL NO. 27842 IN THE AMOUNT OF $17.58, SUCH CHARGE BEING BASED UPON A LESS-CARLOAD RATE OF $4.99 PER 100 POUNDS ($3.97 TO DENVER PLUS $1.02 BEYOND), $85.98 LESS $68.40 PAID ON YOUR ORIGINAL BILL. APPARENTLY AT THE TIME SUCH SUPPLEMENTAL BILL WAS RENDERED THE COLLECTION OF THE OVERCHARGE OF $16.54 WAS OVERLOOKED OR HAD NOT COME TO YOUR ATTENTION. SUCH SUPPLEMENTAL BILL WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 19, 1962 (CLAIM NO. TK-733288).

WITH RESPECT TO THE TRANSPORTATION OF THE TRAINING MATERIAL UNDER GOVERNMENT BILL OF LADING AT-172282 YOU WERE ORIGINALLY PAID $1,387.71 ON YOUR BILL NO. 27842 COMPUTED ON THE BASIS OF A LESS-CARLOAD RATE OF $18.72 PER 100 POUNDS ON 7,413 POUNDS. SUCH AMOUNT WAS PAID ON VOUCHER NO. 1991 IN THE APRIL 1960 ACCOUNTS OF C. E. EVANS. IN OUR AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE APPLICABLE CHARGES SHOULD BE $810.98, BASED UPON A LESS-CARLOAD RATE OF $10.94 PER 100 POUNDS FROM ROCKY, COLORADO, TO EDGOTEN, KENTUCKY, AND RETURN, AUTHORIZED BY WESTERN TRUNK LINES FREIGHT TARIFF W/S 1001, I.C.C. NO. A-3930; JOINT MILITARY PASSENGER AGREEMENT NO. 29, SECTION 25 PARAGRAPHS (D) AND (E) AND SECTION 22 QUOTATION OF JULY 1, 1951. YOU WERE REQUESTED TO REMIT THE RESULTANT OVERCHARGE OF $576.73 AND UPON YOUR FAILURE TO DO SO, THIS SUM WAS COLLECTED BY DEDUCTION ON DECEMBER 1, 1960, FROM MONIES OTHERWISE DUE YOU. BY LETTER OF FEBRUARY 15, 1961, YOU PROTESTED THE ISSUANCE OF THE STATEMENT OF OVERCHARGE IN THE AMOUNT OF $593.27 CONSISTING OF THE SUM OF $576.73 ON BILL OF LADING AT-172282 PLUS $16.54 ON BILL OF LADING AT- 172287. YOU WERE ADVISED BY LETTERS OF JUNE 20 AND AUGUST 29, 1961, THAT THE NOTICE OF OVERCHARGE WAS CONSIDERED PROPER BUT THAT YOU MIGHT FILE CLAIM FOR ANY AMOUNT BELIEVED DUE UPON NOTIFICATION OF COLLECTION OF THE OVERCHARGE. ALTHOUGH YOUR SUPPLEMENTAL BILL NO. 27842 MENTIONED ABOVE, MAKING CLAIM IN THE AMOUNT OF $17.58 ON BILL OF LADING AT-172287 WAS RECEIVED NO RECORD OF ANY SUPPLEMENTAL BILL (CLAIM) HAVING BEEN FILED AS TO THE AMOUNT COLLECTED BECAUSE OF THE OVERCHARGE OF $576.73 ON BILL OF LADING AT-172282 HAS BEEN LOCATED AND IT DOES NOT APPEAR SUCH CLAIM WAS MADE. SINCE THE SHIPMENT WAS COMPLETED IN FEBRUARY 1960 AND THE OVERCHARGE OF $576.73 ON THIS ITEM WAS DEDUCTED ON DECEMBER 1, 1960, ANY CLAIM THEREON APPEARS NOW TO BE BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 26, 1958, 72 STAT. 859, 860, 49 U.S.C. 66, PROVIDING THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THAT SECTION NOT RECEIVED WITHIN THREE YEARS OF THE OCCURRENCE OF CERTAIN SPECIFIED EVENTS WHICHEVER IS LATER SHALL BE FOREVER BARRED.

ALTHOUGH YOU HAVE EXPLAINED AT SOME LENGTH YOUR REASONS FOR DISPUTING OUR SETTLEMENT BASIS, APPARENTLY, THE REAL CONTENTION SEEMS TO BE THAT THE THROUGH RATES OF $3.01 AND $10.94 ARE NOT APPLICABLE VIA THE ACTUAL ROUTES OVER WHICH THE SHIPMENT MOVED IN PASSENGER TRAIN SERVICE. IN EFFECT YOU URGE THAT THE BASIS FOR THE FREIGHT CHARGES PROVIDED BY THE EFFECTIVE AGREEMENTS, SECTION 22 QUOTATION OF JULY 1, 1951, AND JOINT MILITARY PASSENGER AGREEMENT NO. 29, SECTION 25 PARAGRAPHS (A) THROUGH (H) IN THE ABSENCE OF THROUGH RATES OVER WHICH THE SHIPMENT MOVED, CONTEMPLATE THE USE OF COMBINATION LOCAL FREIGHT RATES OVER THE JUNCTION POINTS VIA WHICH THE SHIPMENT MOVED IN PASSENGER TRAIN SERVICE. IN THIS CONNECTION, IT IS FOR NOTING THAT A SIMILAR ISSUE RAISED BY THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY RELATIVE TO TRAFFIC BETWEEN ROCKY, COLORADO, AND ST. FRANCIS, TEXAS, WAS THE SUBJECT OF A DECISION PUBLISHED IN 42 COMP. GEN. 203. MOREOVER, THIS ISSUE HAS LIKEWISE BEEN THE SUBJECT OF MANY DECISIONS TO YOU.

IN YOUR LETTER OF JUNE 29, 1964, YOU ALSO STATE THAT JOINT MILITARY PASSENGER AGREEMENT NO. 29 IS CONCERNED "WITH TROOP MOVEMENTS" OR SHIPMENTS MOVING "WITH TROOPS" AND, WITHOUT INDICATING THE SIGNIFICANCE YOU PLACE ON SUCH REFERENCES, ASK WHY OUR OFFICE REFUSES TO CONSIDER SUCH WORDS. WE HAVE CONSIDERED THE EFFECT OF SUCH WORDS AND HAVE CONCLUDED THAT THEY DO NOT ALTER THE BASIS OF CHARGES WHICH WE DEEM PROPER. SEE OUR DECISION OF DECEMBER 16, 1963, B-149821, AND MORE RECENTLY, B-151820, NOVEMBER 25, 1964, WHICH WE TRUST FULLY EXPLAINS OUR POSITION NOT ONLY AS TO THE INTERPRETATION AND EFFECT OF THE WORDS "WITH TROOP MOVEMENTS" AND "WITH TROOPS" BUT RELATIVE TO THE ENTIRE QUESTION OF "TRAINING MATERIAL" MOVING IN PART OVER THE LINES OF YOUR COMPANY FOR THE UNITED STATES ATOMIC ENERGY COMMISSION IN GOVERNMENT-OWNED CARS.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF JUNE 19, 1962, DISALLOWING YOUR CLAIM FOR $17.58 IS SUSTAINED AND WE FIND NO PROPER BASIS FOR MODIFYING THE AUDIT ACTION TAKEN WITH RESPECT TO BILL OF LADING AT-172287 AS TO WHICH AN OVERCHARGE OF $576.73 WAS STATED AND COLLECTED THROUGH DEDUCTION. MOREOVER, AS POINTED OUT ABOVE, ANY CLAIM FOR THE SUM OF $576.73 APPEARS TO BE FOREVER BARRED.