B-156292, JUL. 12, 1965

B-156292: Jul 12, 1965

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IF THE PROPRIETY OF PASSING ON SUCH FORMULA IS NOT A MATTER UPON WHICH OUR CLAIMS DIVISION IS AUTHORIZED TO COMMENT. THE FILE FORWARDED WITH YOUR LETTER SHOWS THE CLAIMS WERE PREPARED BY STATES STEAMSHIP COMPANY AUGUST 21 AND 22. THAT ALTHOUGH SOME QUESTION ORIGINALLY WAS RAISED AS TO WHETHER SUCH CLAIMS WERE ALLOWABLE. SUCH CLAIMS WERE THE SUBJECT OF NUMEROUS MEMORANDA OF VARIOUS OFFICIALS OF THE DEPARTMENT OF DEFENSE AND THAT SIMILAR CLAIMS FOR REFUND OF CHARGES ASSESSED IN EXCESS OF THOSE PROPERLY DUE AS CONSTRUED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS BUT FOR LATER PERIODS WERE SETTLED ADMINISTRATIVELY. THERE IS SOME DOUBT AS TO THE APPROPRIATION OR FUND TO BE CHARGED. OUR CLAIMS DIVISION IS NOT AUTHORIZED TO RENDER AN AUTHORITATIVE DECISION ON SUCH MATTERS WHICH MORE PROPERLY MIGHT BE MADE THE SUBJECT OF A REQUEST TO THE COMPTROLLER GENERAL FOR AN ADVANCE DECISION BY THE HEAD OF THE DEPARTMENT INVOLVED.

B-156292, JUL. 12, 1965

TO LIEUTENANT COLONEL J. C. KELLY, FINANCE CORPS:

YOUR LETTER OF MARCH 4, 1965, FINCY-T, ADDRESSED TO THE DIRECTOR OF OUR CLAIMS DIVISION, FORWARDED, FOR ADVICE AS TO THE PROPRIETY OF SETTLEMENT ON A FORMULA BASIS, APPROXIMATELY 47 CLAIMS IN THE AMOUNT OF $9,704.03 MADE BY STATES STEAMSHIP COMPANY, 320 CALIFORNIA STREET, SAN FRANCISCO 4, CALIFORNIA, FOR REFUND OF AMOUNTS COLLECTED DURING THE FISCAL YEARS 1955 AND 1956 FROM THAT COMPANY OR THE PACIFIC TRANSPORT LINES, 262 CALIFORNIA STREET, SAN FRANCISCO, CALIFORNIA. YOUR LETTER ASKS, IF THE PROPRIETY OF PASSING ON SUCH FORMULA IS NOT A MATTER UPON WHICH OUR CLAIMS DIVISION IS AUTHORIZED TO COMMENT, THAT THE FILE BE RETURNED TO YOU WITH ADVICE AS TO WHAT ACTION SHOULD BE TAKEN TO RESOLVE THE CLAIMS.

THE FILE FORWARDED WITH YOUR LETTER SHOWS THE CLAIMS WERE PREPARED BY STATES STEAMSHIP COMPANY AUGUST 21 AND 22, 1962, AND REPRESENT CLAIMS FOR THE DIFFERENCE BETWEEN THE FULL OVERTIME COST OF CERTAIN CIVIL SERVICE EMPLOYEES ASSESSED DURING THE 1955 AND 1956 FISCAL YEARS FOR TERMINAL SERVICES IN CONNECTION WITH THE LOADING OF BERTH CARGO ON STATES STEAMSHIP OR PACIFIC TRANSPORT LINES VESSELS AT THE OAKLAND (CALIFORNIA) ARMY TERMINAL AND THE OVERTIME DIFFERENTIAL COSTS AS CONSTRUED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN ASBCA DECISION NO. 5721 DATED JUNE 13, 1960. COPIES OF THE CORRESPONDENCE ENCLOSED WITH YOUR LETTER INDICATE THE LIKELIHOOD THAT OTHER STEAMSHIP COMPANIES WHICH BERTHED AT ARMY TERMINALS MAY PRESENT SIMILAR CLAIMS; THAT ALTHOUGH SOME QUESTION ORIGINALLY WAS RAISED AS TO WHETHER SUCH CLAIMS WERE ALLOWABLE, SUCH CLAIMS WERE THE SUBJECT OF NUMEROUS MEMORANDA OF VARIOUS OFFICIALS OF THE DEPARTMENT OF DEFENSE AND THAT SIMILAR CLAIMS FOR REFUND OF CHARGES ASSESSED IN EXCESS OF THOSE PROPERLY DUE AS CONSTRUED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS BUT FOR LATER PERIODS WERE SETTLED ADMINISTRATIVELY; AND THAT, IN ADDITION TO THE PROPRIETY OF SETTLING THE 47 CLAIMS ON THE FORMULA BASIS PROPOSED, THERE IS SOME DOUBT AS TO THE APPROPRIATION OR FUND TO BE CHARGED.

OUR CLAIMS DIVISION IS NOT AUTHORIZED TO RENDER AN AUTHORITATIVE DECISION ON SUCH MATTERS WHICH MORE PROPERLY MIGHT BE MADE THE SUBJECT OF A REQUEST TO THE COMPTROLLER GENERAL FOR AN ADVANCE DECISION BY THE HEAD OF THE DEPARTMENT INVOLVED. SEE 26 COMP. GEN. 797 AND 993; 41 ID. 767 AND 43 ID. 227. ACCORDINGLY, AND SINCE UNLESS PROMPTLY CONSIDERED BY THE GENERAL ACCOUNTING OFFICE, SOME PORTIONS OF THE INSTANT CLAIMS AS WELL AS SIMILAR CLAIMS WHICH MAY BE FILED WITH YOUR FINANCE CENTER MAY BECOME BARRED UNDER 31 U.S.C. 71 (A) AND THE RECORD REQUIRES DEVELOPMENT (1) AS TO THE FUND TO WHICH THE EXCESSIVE COLLECTIONS WERE DEPOSITED SO THAT THE APPROPRIATION INVOLVED MAY BE ASCERTAINED AND (2) OF THE AUTHORITY OF STATES STEAMSHIP COMPANY TO BE PAID REFUNDS OF EXCESS COLLECTIONS MADE FROM PACIFIC TRANSPORT LINES, WE HAVE TODAY INSTRUCTED OUR CLAIMS DIVISION TO CONSIDER AND SETTLE THE 47 CLAIMS AFTER DEVELOPING SUCH INFORMATION. FOR USE IN THE PROMPT DISPOSITION OF THESE CLAIMS, WE WOULD APPRECIATE YOUR FURNISHING A REPORT AS TO THE FUND TO WHICH THE EXCESS COLLECTIONS IN THE APPROXIMATELY 47 CASES WAS CREDITED AND YOUR RECOMMENDATION AS TO THE FUND TO BE CHARGED.

AS TO THE FORMULA, THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN APPEAL OF STATES STEAMSHIP COMPANY, ASBCA NO. 5721, RULED THAT THE "OVERTIME DIFFERENTIAL COSTS" PROVIDED IN THE CONTRACT UNDER WHICH ASSESSMENT FOR OVERTIME WORK PERFORMED BY CERTAIN CIVIL SERVICE EMPLOYEES OF THE OAKLAND (CALIFORNIA) ARMY TERMINAL IN CONNECTION WITH THE LOADING OF SHIPS WAS MADE, WAS THE DIFFERENCE BETWEEN THE STRAIGHT TIME RATE AND THE OVERTIME RATE. THE BOARD RULED THAT THE APPELLANT THERE WAS ENTITLED TO A REFUND OF THE OVERTIME ASSESSMENT TO THE EXTENT THAT IT EXCEEDED THIS DIFFERENCE. IT IS CONCEDED THAT THE CLAIMS BASED ON THIS RULING ARE PROPERLY FOR PAYMENT, HOWEVER, THE INSTANT CLAIMS WERE SUBMITTED "SUBJECT TO ANY INCREASE OR DECREASE IN THE AMOUNT DUE THAT MAY BE REVEALED BY A DETAILED AUDIT OF RECORDS AT THIS INSTALLATION" AND BY LETTER OF JUNE 28, 1963, FILE AMSSM-JA, HEADQUARTERS, U.S. ARMY SUPPLY AND MAINTENANCE COMMAND, STATES THAT IT IS VIRTUALLY IMPOSSIBLE TO DETERMINE THE EXACT AMOUNT DUE THE CLAIMANT BECAUSE OF TIME INVOLVED, THE METHODS USED IN DETERMINING THE OVERTIME DIFFERENTIAL RATES, AND THE NUMBER OF CLAIMS. IS POINTED OUT THAT UNDER THE ASBCA DECISION NO. 4721

"THE ARMY HAS TO DETERMINE THE ASSIGNMENT OF EACH CIVIL SERVICE EMPLOYEE/S) AND THE OVERTIME HOURS APPLICABLE TO SPECIFIC VESSEL OWNED BY STATES STEAM SHIP LINES. RECORDS ON THIS BASIS MAY NOT HAVE BEEN PREPARED; OR, IF SUCH RECORDS WERE IN EXISTENCE MAY BE IN STORAGE OR DESTROYED. TO SETTLE THESE CLAIMS ON SUCH A BASIS IS A GIGANTIC TASK.'

BY 3RD INDORSEMENT DATED NOVEMBER 24, 1964, FROM HEADQUARTERS, U.S. TERMINAL COMMAND, PACIFIC, THE OAKLAND ARMY TERMINAL STATED THAT IT HAD RECOMPUTED THE OVERTIME DIFFERENTIAL BY USE OF A FIVE-MONTH EXPERIENCE FACTOR AND ASCERTAINED THAT THE OVERTIME DIFFERENTIAL COSTS ASSESSED BY THE GOVERNMENT WERE OVERCHARGED BY 72.5 PERCENT IN CONTRAST TO STATES LINE'S CLAIM THAT THERE WAS AN 85 PERCENT OVER-CHARGE. IT IS ALSO STATED THAT A THOROUGH SEARCH OF THEIR RECORDS DISCLOSES NO WORK SHEETS SIMILAR TO THOSE USED IN THE FIVE-MONTH EXPERIENCE FACTOR FOR THE PERIOD JANUARY 1, 1956, THROUGH SEPTEMBER 30, 1957. THEREFORE, IT RECOMMENDS THAT

"* * * THIS 72.5 FORMULA TYPE METHOD OF SETTLEMENT BE USED FOR THE PORTION OF THIS CLAIM COVERING THIS PERIOD, AS WELL AS FOR ALL SIMILAR CLAIMS WHICH MAY BE SUBMITTED BY STEAMSHIP COMPANIES ON THE WEST COAST. THIS WILL FACILITATE PROCESSING, EXPEDITE FINALIZING PAYMENTS OF THE CLAIMS AND THUS REDUCE COSTS IN HANDLING THE CLAIMS.'

IN 4TH INDORSEMENT DATED DECEMBER 9, 1964, HEADQUARTERS, U.S. ARMY SUPPLY AND MAINTENANCE COMMAND RECOMMENDS THAT REFUND BE MADE ON THE BASIS OF 72.5 PERCENT OF THE ORIGINAL BILLING FOR CLAIMS DURING THE PERIOD FROM JANUARY 1, 1955, THROUGH SEPTEMBER 30, 1957. IT IS EXPLAINED THAT COMPUTATION OF THE ACTUAL AMOUNT OF REFUND IS IMPOSSIBLE BECAUSE RECORDS ARE NO LONGER AVAILABLE AND THAT THE 72.5 PERCENT FACTOR WAS DERIVED FROM

"* * * EXAMINING THE WORK PAPERS THAT ARE AVAILABLE AND WERE USED IN ESTABLISHING THE $4.03 HOURLY TARIFF RATE CHARGED DURING 1 JULY 1955 THROUGH 31 DECEMBER 1955. THIS $4.03 WAS CHARGED FOR EACH STEVEDORE GANG HOUR WORKED DURING OVERTIME PERIODS AND INCLUDED TOTAL CIVIL SERVICE COSTS. UNDOUBTEDLY THE MISSING WORK PAPERS WOULD DISCLOSE THAT TOTAL CIVIL SERVICE COSTS WERE USED IN DERIVING THE OTHER TARIFF RATES CHARGED DURING 1 JANUARY 1955 THROUGH 30 SEPTEMBER 1957 BECAUSE THE TARIFF RATES VARIED A FEW CENTS. AS CIVIL SERVICE WAGES INCREASED, THE TARIFF RATES INCREASED. EXAMINATION OF EXISTING WORK PAPERS USED IN ESTABLISHING THE $4.03 TARIFF RATE DISCLOSES THAT THE TARIFF RATE SHOULD HAVE BEEN $1.11, WHICH IS 27.5 PERCENT OF THE $4.03. THE DIFFERENCE BETWEEN 100 PERCENT AND 27.5 PERCENT IS 72.5 PERCENT, OR THE PERCENTAGE RATE USATC, PACIFIC, WOULD USE IN COMPUTING THE REFUNDS DUE THE CLAIMANT.'

IN VIEW OF THE EXPRESS PROVISIONS OF THE MILITARY SEA TRANSPORTATION SERVICE MASTER SHIPPING CONTRACTS WHICH WERE IN EFFECT THROUGHOUT THE PERIOD COVERED BY THE CLAIM, IT IS OUR VIEW THAT THE SCHEDULES OF CHARGES AND TERMINAL TARIFFS MAY NOT BE RESORTED TO FOR THE PURPOSE OF VARYING THE TERMS OF THE CONTRACTS. USGAARD V. SILVER CREST GOLF CLUB, 127 N.W. 2D 636 (1964); MORGAN V. E. J. EVANS CO., 266 F.2D 423 (1959); LASETER V. PET DAIRY PRODUCTS CO., 246 F.2D 747 (1957); CLANCY V. DUTTON, 113 N.Y.S. 124, 126 (1908). IT IS NOT BELIEVED THAT PRINCIPLES OF EITHER ACCORD AND SATISFACTION, COMPROMISE AND SETTLEMENT, VOLUNTARY PAYMENT OR NOVATION ARE INHERENT IN THE CIRCUMSTANCES CREATED BY APPLICATION OF THE SCHEDULES OF CHARGES AND TERMINAL TARIFFS AND IT IS NOTED THAT IT IS REPORTED THE COMMANDER, MSTS, TOOK THE POSITION THAT THE GOVERNMENT WAS CONTRACTUALLY OBLIGATED UNDER ARTICLE 4 (B) OF THE SHIPPING CONTRACTS TO REIMBURSE ALL VESSEL OPERATORS FOR ALL AMOUNTS PAID BY THEM IN EXCESS OF THAT REQUIRED BY ASBCA DECISION NO. 5721.

SINCE IT IS CLEAR THAT VESSEL OPERATORS SIMILARLY SITUATED HAVE VALID CLAIMS FOR REIMBURSEMENT FOR OVERTIME DIFFERENTIAL COSTS FOR STEVEDORING CHARGES UNDER ASBCA DECISION NO. 5721 AND SINCE COMPLETE RECORDS ARE NOT AVAILABLE TO DETERMINE THE EXACT NUMBER OF OVERTIME HOURS INVOLVED AND IN VIEW OF THE TIME THAT HAS ELAPSED FROM PERFORMANCE OF AND PAYMENT FOR THE SERVICES, WE CONCUR IN THE PROPOSED FORMULA FOR SETTLEMENT OF SUCH CLAIMS INVOLVING OVERASSESSMENTS COLLECTED DURING THE PERIOD JANUARY 1, 1955, THROUGH SEPTEMBER 30, 1957, WHICH ARE OTHERWISE PROPER FOR ALLOWANCE. ORDER TO PROTECT THE INTERESTS OF CLAIMANTS, ACTION AS TO ANY CLAIM WHICH ACCRUED MORE THAN EIGHT YEARS PRIOR TO ITS SUBMISSION AND WHICH CANNOT BE APPROVED AND PAID WITHIN THE TEN-YEAR STATUTORY PERIOD IN THE FULL AMOUNT CLAIMED SHOULD IMMEDIATELY BE REFERRED TO THE CLAIMS DIVISION FOR RECORDING UNDER 4 GAO 2025.10. WHEN UNDER THE PROCEDURES THERE OUTLINED THE CLAIMS ARE RETURNED AND THE APPROPRIATION TO BE CHARGED IS KNOWN OR WHERE IT COVERS COLLECTIONS DURING THE FISCAL YEARS 1955 AND 1956 SUCH APPROPRIATION BECOMES KNOWN (AND IN THE ABSENCE OF ANY ADDITIONAL DOUBTFUL QUESTION OF LAW OR FACT) SIMILAR CLAIMS INVOLVING THE PERIOD JANUARY 1, 1955, THROUGH SEPTEMBER 30, 1957, FOR WHICH THE RECORDS ARE INCOMPLETE OR MISSING MAY BE SETTLED ON THE BASIS OF SUCH FORMULA BY YOUR DEPARTMENT.