B-157962, DEC. 30, 1965

B-157962, DEC. 30, 1965

TO STATES STEAMSHIP COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19, 1965, REQUESTING ADVICE AS TO THE METHODS USED IN DETERMINING THE 72.5-PERCENT FACTOR APPLIED TO YOUR CLAIMS PAID BY OFFICE SETTLEMENT APPROVED SEPTEMBER 28, 1965, IN THE AMOUNT OF $3,684.12. SUCH PAYMENT COVERED YOUR INVOICES DATED JUNE 17, 1963, TENDERED FOR REIMBURSEMENT OF EXCESS OVERTIME DIFFERENTIAL CHARGES PAID BY YOUR COMPANY UNDER MILITARY SEA TRANSPORTATION SERVICE (MSTS) CONTRACTS FOR OVERTIME WORK PERFORMED BY CERTAIN CIVIL-SERVICE EMPLOYEES AT THE OAKLAND (CALIFORNIA) TERMINAL IN CONNECTION WITH THE LOADING OR UNLOADING OF SHIPS.

THE OAKLAND TERMINAL WAS THE SITUS INVOLVED IN APPEAL OF STATES STEAMSHIP COMPANY, ASBCA NO. 5721, WHEREIN THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA) RULED THAT THE "OVERTIME DIFFERENTIAL COSTS" PROVIDED IN THE MSTS CONTRACT, UNDER WHICH ASSESSMENT FOR OVERTIME WORK PERFORMED BY CERTAIN CIVIL-SERVICE EMPLOYEES OF THE OAKLAND 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. IN A SUBSEQUENT CLAIM MADE BY YOUR COMPANY TO THE UNITED STATES ARMY SUPPLY AND MAINTENANCE COMMAND COVERING ASSESSMENTS WITHIN THE PERIOD JANUARY 1, 1956, THROUGH SEPTEMBER 30, 1957, THAT ORGANIZATION STATED THAT IT WAS VIRTUALLY IMPOSSIBLE TO DETERMINE THE EXACT AMOUNT DUE YOUR COMPANY BECAUSE OF TIME INVOLVED, THE METHODS USED IN DETERMINING THE OVERTIME DIFFERENTIAL RATES AND THE NUMBER OF CLAIMS. IT WAS POINTED OUT THAT THE ARMY HAD TO DETERMINE THE ASSIGNMENT OF EACH CIVIL-SERVICE EMPLOYEES AND THE OVERTIME HOURS APPLICABLE TO SPECIFIC VESSELS OWNED BY YOUR COMPANY AND THAT RECORDS ON THIS BASIS MAY NOT HAVE BEEN PREPARED; OR IF SUCH RECORDS WERE IN EXISTENCE MAY BE IN STORAGE OR DESTROYED. IN CONSIDERING YOUR CLAIMS AT THAT TIME THE OAKLAND ARMY TERMINAL STATED, BY 3RD INDORSEMENT DATED NOVEMBER 24, 1964, FROM HEADQUARTERS, UNITED STATES TERMINAL COMMAND, PACIFIC, THAT IT HAD RECOMPUTED THE OVERTIME DIFFERENTIAL BY USE OF A 5-MONTH EXPERIENCE FACTOR AND ASCERTAINED THAT THE OVERTIME DIFFERENTIAL COSTS ASSESSED BY THE GOVERNMENT WERE OVERCHARGED BY 72.5 PERCENT IN CONTRAST TO YOUR CLAIM THAT THERE WAS AN 85-PERCENT OVERCHARGE. IT WAS ALSO STATED THAT A THOROUGH SEARCH OF ITS RECORDS DISCLOSED NO WORKSHEETS SIMILAR TO THOSE USED IN THE 5-MONTH EXPERIENCE FACTOR FOR THE PERIOD JANUARY 1, 1956, THROUGH SEPTEMBER 30, 1957. IT RECOMMENDED 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, UNITED STATES ARMY SUPPLY AND MAINTENANCE COMMAND, RECOMMENDED 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 WAS EXPLAINED THAT COMPUTATION OF THE ACTUAL AMOUNT OF REFUND IS IMPOSSIBLE BECAUSE RECORDS WERE 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.'

IT WAS REPORTED AT THE TIME THE ARMY MATTER WAS BEFORE THIS OFFICE (B- 156292, JULY 12, 1965), WHEREIN WE WERE REQUESTED TO PERMIT APPLICATION OF THE ABOVE 72.5-PERCENT FORMULA, THAT THE PARTIES WERE IN AGREEMENT AND THAT YOUR COMPANY HAD ACQUIESCED AND WOULD ACCEPT SETTLEMENT ONLY IF ALL OAKLAND TERMINAL CLAIMS FOR PERIOD FROM JANUARY 1, 1955, THROUGH SEPTEMBER 30, 1957, IN THE SAME CATEGORY AS TO WHICH SUBSTANTIATING RECORDS WERE NOT READILY AVAILABLE, WERE SETTLED ON THE SAME BASIS.

IT IS ASSUMED THAT SETTLEMENT ON THE APPROVED BASIS WAS MADE IN DUE COURSE IN THE INSTANCE REFERRED TO AND IN VIEW OF OUR CONCURRENCE AT THAT TIME IT WAS ALSO ASSUMED, BROADLY, THAT SIMILARLY QUALIFIED CLAIMS INVOLVING OVERASSESSMENTS COLLECTED DURING THE PERIOD JANUARY 1, 1955, THROUGH SEPTEMBER 30, 1957, AND ARISING FROM SHIPMENTS OUT OF OAKLAND TERMINAL, WOULD BE SETTLED ON THE SAME BASIS. THE PRESENT CLAIM WAS CONSIDERED TO BE ONE OF THESE, NOTWITHSTANDING A DIFFERENT SHIPPER SERVICE WAS INVOLVED, INASMUCH AS AN IDENTICAL FACTUAL SITUATION WAS FOUND REGARDING RECORDS AND FAILURE TO SUBSTANTIATE THE ADJUSTMENTS CLAIMED MORE FULLY. HOWEVER, YOUR CLAIMS IN THIS INSTANCE WERE ADDITIONALLY PREMISED ON THE CONTENTION THAT THE UNITED STATES NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, CIVIL-SERVICE PER ANNUM AND PER DIEM PERSONNEL WHO WERE ASSIGNED TO SHIP OPERATIONS ON THE PARTICULAR NIGHTS AND SATURDAYS INVOLVED WERE ACTUALLY WORKING AT STRAIGHT TIME RATES PLUS A SHIFT DIFFERENTIAL FOR APPROPRIATE PERIODS. IN THE ABSENCE OF VERIFICATION FROM YOUR COMPANY OF THE PAY STATUS OF THE INDIVIDUALS CONCERNED THE BUREAU OF SUPPLIES AND ACCOUNTS WAS UNABLE TO ADMINISTRATIVELY APPROVE THE CLAIMS FOR PAYMENT AS PRESENTED.

WE HAVE HELD THAT A CARRIER WHICH IS UNABLE TO SUBMIT DATA SUFFICIENT FOR THE ADMINISTRATIVE OFFICE TO IDENTIFY THE RECORD FAILS TO MEET THE BURDEN OF PROOF PLACED UPON IT AS CLAIMANT TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING ITS CLAIM, AND THAT ADDITIONAL PAYMENT MAY NOT BE ALLOWED ON SUCH CLAIM. 31 COMP. GEN. 340. FURTHER, WHEN CASES ARISE WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE, THE DUTY OF THE ACCOUNTING OFFICERS IS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. 33 COMP. GEN. 394.

YOUR STATEMENT IN LETTER OF OCTOBER 19, 1965, THAT REMITTANCE IN THE AMOUNT OF $3,684.12 IS BEING ACCEPTED BY YOUR COMPANY WITHOUT PREJUDICE TO YOUR FURTHER RIGHTS OF RECOVERY IN RESPECT TO THESE CLAIMS AND, FURTHER, THAT THE METHOD USED BY THE GOVERNMENT IN DETERMINING THE AMOUNT OF OVERCHARGE IN RESPECT TO THE SUBJECT CLAIMS IS NOT DEEMED TO ESTABLISH A PRECEDENT AS TO HOW THE AMOUNT OF OVERCHARGE FOR OTHER CLAIMS OF THIS NATURE IS TO BE CALCULATED, IS NOTED. FURTHER CLAIMS BASED UPON THE ABOVE ASBCA OPINION, IN ACCORDANCE WITH EXISTING PROCEDURES, WILL REQUIRE IN EACH INSTANCE AN ADMINISTRATIVE EXAMINATION AND RECOMMENDATION AND WILL BE CONSIDERED ON THEIR MERITS AND UPON THE RECORD PRESENTED.