B-156533, MAY 17, 1965

B-156533, MAY 17, 1965

TO BROOKS TRANSFER AND STORAGE CO., INC.:

YOUR LETTER OF APRIL 5, 1965, REFERRING TO YOUR CLAIM FOR $1,162.69, REQUESTS RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE ISSUED AUGUST 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR THE COST OF RETURNING TO YOUR WAREHOUSE ERRONEOUSLY SHIPPED LOTS OF HOUSEHOLD GOODS OF STAFF SERGEANT JAMES J. BINKLEY AND AIRMAN FIRST CLASS HOMER W. SAULS, BOTH OF THE U.S. AIR FORCE.

OUR RECORDS INDICATE THAT EACH MAN HAD TWO LOTS OF GOODS STORED AT YOUR WAREHOUSE UNDER BASIC AGREEMENT NO. DA-189-SS/HHG/-21, SUPPLEMENT 3, ENTERED INTO BY YOUR COMPANY AND THE UNITED STATES. IN THE CASE OF SERGEANT BINKLEY, TWO LOTS WERE STORED ON MAY 16, 1962--- ONE FOR 6 MONTHS (TEMPORARY STORAGE) UNDER SERVICE ORDER NUMBER 07-25000 AND ONE FOR 24 MONTHS (NON-TEMPORARY STORAGE) UNDER SERVICE ORDER NUMBER 07 2501. AIRMAN SAULS HAD TWO LOTS STORED ON JUNE 19, 1962--- ONE FOR 6 MONTHS UNDER SERVICE ORDER NUMBER 07-2588 AND ONE FOR 36 MONTHS UNDER SERVICE ORDER NUMBER 07-2589.

IT IS GENERALLY AGREED THAT ON AUGUST 7, 1962, THE TRANSPORTATION MANAGEMENT OFFICE AT LANGLEY AIR FORCE BASE, VIRGINIA, VERBALLY ORDERED THAT PART OF SERGEANT BINKLEY'S GOODS BE RELEASED AND THE ORDER WAS CARRIED OUT WITHOUT WAITING FOR THE RECEIPT OF A WRITTEN SERVICE ORDER WHICH WAS TO FOLLOW. ON SEPTEMBER 5, 1962, THE SAME THING OCCURRED WITH RESPECT TO AIRMAN SAUL'S STORED GOODS. IN BOTH CASES YOUR COMPANY RELEASED AND SHIPPED THE HOUSEHOLD GOODS THAT WERE SCHEDULED TO BE STORED FOR THE LONGER PERIODS (24 MONTHS AND 36 MONTHS). WHEN THE SERVICE ORDER COVERING SERGEANT BINKLEY'S GOODS ARRIVED, IT WAS NUMBERED 07-2500 (A) DATED AUGUST 24, 1962, AND COVERED THE 6-MONTH SHIPMENT, IN AIRMAN SAUL'S CASE, SERVICE ORDER NUMBER 07-2588 (A) DATED SEPTEMBER 12, 1962, WAS ISSUED AND ALSO COVERED THE 6-MONTH SHIPMENT. ALTHOUGH THESE SERVICE ORDERS LISTED THE SAME WEIGHTS AS FOR THE GOODS IN LONGER STORAGE, THIS WAS CORRECTED BY SERVICE ORDERS NUMBERS 07-2500 (B) AND 07-2588 (B), RESPECTIVELY, WHICH SHOWED THE TRUE WEIGHTS. UPON DISCOVERY OF THE ERROR, YOU RETURNED THE GOODS FROM SAN FRANCISCO, CALIFORNIA, TO YOUR WAREHOUSE AND BILLED ACCORDINGLY, THUS GIVING RISE TO THIS CLAIM.

YOUR CLAIM WAS DENIED ORIGINALLY BECAUSE OF NONCOMPLIANCE WITH THE PROVISIONS OF THE BASIC AGREEMENT TO THE EFFECT THAT THE STORAGE COMPANY SHALL NOT RELEASE HOUSEHOLD GOODS FROM STORAGE WITHOUT WRITTEN AUTHORIZATION OF THE ORDERING OFFICER WHICH, IN THIS CASE, WAS THE TRANSPORTATION MANAGEMENT OFFICER (TMO). TO THIS, YOU ANSWER THAT THE COMMONLY ACCEPTED BUSINESS PRACTICE IN THE AREA WAS FOR THE STORAGE COMPANIES TO RELEASE THE HOUSEHOLD GOODS UPON RECEIPT OF A TELEPHONE REQUEST FROM THE TMO, WITHOUT WAITING FOR THE WRITTEN SERVICE ORDER WHICH WAS TO FOLLOW. THIS PRACTICE IS ACKNOWLEDGED BY THE ADMINISTRATIVE OFFICE BUT, EVEN IF REGARDED AS A CUSTOM OR USAGE AT THAT PLACE, EVIDENCE OF SUCH CUSTOM OR USAGE CANNOT BE USED TO VARY THE TERMS OF A WRITTEN CONTRACT. A. F. PYLANT, INC. V. ESCAMBIA TREATING CO., 276 F.2D 919 (5TH CIR. 1960); CROOKS TERMINAL WHSE. INC., V. UNITED STATES, 92 CT.CL. 401.

IN YOUR LETTER OF AUGUST 10, 1963, YOU STATE THAT IN BOTH INSTANCES THE TELEPHONE RELEASE REQUEST DID NOT INCLUDE THE SERVICE ORDER NUMBER BUT THAT IT MAY BE ASSUMED THAT BECAUSE THE SUBSEQUENTLY RECEIVED SERVICE ORDERS BORE THE SAME WEIGHT AS THE LOT SHIPPED OUT, THE TELEPHONE REQUEST INCLUDED THE NAME AND WEIGHT. THE TRAFFIC MANAGEMENT OFFICER STATES THAT IN BOTH CASES THE GOODS IN TEMPORARY STORAGE WERE ORDERED TO BE RELEASED BUT THAT THE GOODS IN NON-TEMPORARY STORAGE WERE IN FACT RELEASED. THE PROCEDURE SAID TO BE FOLLOWED IN THAT OFFICE UPON APPLICATION FROM A SERVICE MEMBER TO MOVE HIS HOUSEHOLD GOODS IS TO PULL FROM THE FILE THE FOLDER COVERING THAT LOT, WHICH FOLDER CONTAINS THE MEMBER'S NAME AND THE SERVICE ORDER NUMBER. THIS INFORMATION IS GIVEN OVER THE PHONE TO PROPERLY IDENTIFY THE LOT OF GOODS TO BE SHIPPED AND, AS THIS IS THE STANDARD PROCEDURE, THE ADMINISTRATIVE AGENCY FEELS THAT IT IS NOT POSSIBLE FOR THE ERROR TO HAVE BEEN MADE ON ITS PART. WHERE, AS HERE, THERE IS A CONFLICT IN THE FACTS, AS SET FORTH BY THE CLAIMANT AND THE ADMINISTRATIVE OFFICE, THE GENERAL ACCOUNTING OFFICE WILL ACCEPT THE CORRECTNESS OF THE ADMINISTRATIVE REPORT. SEE 37 COMP. GEN. 568; 41 COMP. GEN. 57; ID. 266; 42 COMP. GEN. 124. THUS, WE MUST PRESUME THAT THE INFORMATION GIVEN TO YOU OVER THE PHONE ADEQUATELY DESCRIBED THE 6-MONTH SHIPMENTS TO BE RELEASED FROM STORAGE AND THAT YOU ERRONEOUSLY SHIPPED THE 24 MONTH AND 36-MONTH LOTS, THEREBY FAILING TO COMPLY WITH THE INSTRUCTIONS.

IN VIEW OF THE SITUATION OUTLINED ABOVE, OUR PRIOR DISALLOWANCE OF YOUR CLAIM FOR $1,162.69 IS SUSTAINED.