B-160730, JAN. 30, 1967

B-160730: Jan 30, 1967

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18. SUCH BILL WAS RETURNED WITH NOTICE THAT IT WAS BARRED AND COULD NOT BE CONSIDERED INASMUCH AS IT WAS NOT RECEIVED HERE WITHIN THE THREE-YEAR PERIOD SPECIFIED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940. WHICHEVER IS LATER.'. WAS TENDERED TO YOUR COMPANY FOR TRANSPORTATION ON FEBRUARY 27. THAT THE SHIPMENT WAS RECEIVED AT BROOKLYN. YOUR CLAIM FOR CHARGES OF $16.55 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 8. WHICH WAS MORE THAN THREE YEARS AFTER THE ACCRUAL OF THE CLAIM ON COMPLETION OF THE TRANSPORTATION SERVICE ON MARCH 15. YOU TAKE THE POSITION THAT THE REJECTION IS NOT APPROPRIATE STATING THAT YOUR BILL DOES NOT CONSTITUTE A CLAIM AND THAT THE DELAY IN PRESENTING THE BILL FOR PAYMENT WAS NOT YOUR FAULT SINCE YOU SUBMITTED YOUR BILL A NUMBER OF TIMES EARLIER TO THE DEPARTMENT OF THE NAVY.

B-160730, JAN. 30, 1967

TO MERCURY MOTOR EXPRESS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1967, FILE W/B 101 605224 DATED FEBRUARY 27, 1963, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF THE ACTION BY OUR TRANSPORTATION DIVISION WHICH BY LETTER DATED NOVEMBER 7, 1966, T-TK-837783, RETURNED YOUR BILL NO. MM 8177 IN THE AMOUNT OF $16.55 AND RELATED PAPERS, FOR CHARGES FOR TRANSPORTATION SERVICES RENDERED UNDER GOVERNMENT BILL OF LADING NO. B 5471870. SUCH BILL WAS RETURNED WITH NOTICE THAT IT WAS BARRED AND COULD NOT BE CONSIDERED INASMUCH AS IT WAS NOT RECEIVED HERE WITHIN THE THREE-YEAR PERIOD SPECIFIED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, WHICH PROVIDES IN PERTINENT PART:

"* * * THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER.'

THE RECORD SHOWS THAT THE SHIPMENT IN QUESTION, CONSISTING OF ONE BOX OF RADIO TRANSMITTING SETS IN BOXES, WAS TENDERED TO YOUR COMPANY FOR TRANSPORTATION ON FEBRUARY 27, 1963, AT PATRICK AIR FORCE BASE, FLORIDA, AND THAT THE SHIPMENT WAS RECEIVED AT BROOKLYN, NEW YORK, ON MARCH 15, 1963. YOUR CLAIM FOR CHARGES OF $16.55 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 8, 1966, WHICH WAS MORE THAN THREE YEARS AFTER THE ACCRUAL OF THE CLAIM ON COMPLETION OF THE TRANSPORTATION SERVICE ON MARCH 15, 1963.

YOU TAKE THE POSITION THAT THE REJECTION IS NOT APPROPRIATE STATING THAT YOUR BILL DOES NOT CONSTITUTE A CLAIM AND THAT THE DELAY IN PRESENTING THE BILL FOR PAYMENT WAS NOT YOUR FAULT SINCE YOU SUBMITTED YOUR BILL A NUMBER OF TIMES EARLIER TO THE DEPARTMENT OF THE NAVY.

YOUR BILL FOR PAYMENT FOR TRANSPORTATION SERVICES RENDERED CONSTITUTES A CLAIM OR DEMAND AGAINST THE UNITED STATES FOR MONEYS ASSERTED TO BE DUE AND IS FOR SETTLEMENT OR ADJUSTMENT, IF OTHERWISE PROPER, IN THE GENERAL ACCOUNTING OFFICE. 31 U.S.C. 71. THE TERMS OF THE STATUTE OF LIMITATIONS QUOTED ABOVE CLEARLY PROVIDE THAT, UNLESS SUCH A CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE THREE-YEAR PERIOD THERE PRESCRIBED, SUCH CLAIM IS FOREVER BARRED. STATUTES OF THIS KIND ARE JURISDICTIONAL AND CANNOT BE WAIVED BY OFFICERS OR AGENTS OF THE UNITED STATES. FINN V. UNITED STATES, 123 U.S. 227 (1887); MUNRO V. UNITED STATES, 303 U.S. 36 (1938).

PUBLISHED REGULATIONS OF OUR OFFICE, 4 C.F.R. 54.6 (A), PROVIDE:

"THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WILL NOT MEET THE REQUIREMENTS OF THIS STATUTE. THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

ALSO 4 C.F.R. 54.6 AS TO WHERE CLAIMS SHOULD BE FILED WHILE INDICATING GENERALLY THAT ACTION WILL BE EXPEDITED IF CLAIMANTS FILE THEIR CLAIMS WITH THE DEPARTMENT OR AGENCY OUT OF THE ACTIVITIES OF WHICH THE CLAIM AROSE STATES "HOWEVER, A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION DIVISION, GENERAL ACCOUNTING OFFICE, PARTICULARLY IF THE APPLICABLE STATUTE OF LIMITATIONS IS ABOUT TO EXPIRE.' COMPARE UNITED STATES V. UTZ, 80 FED. 848 (1897); KENNEDY V. UNITED STATES, 79 FED. 893, AFFIRMED 95 FED. 127 (1899).

SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS AS REQUIRED BY LAW, CONSIDERATION OF THE CLAIM IS NOW BARRED BY THE PROVISIONS OF THE STATUTE. THE ACTION OF OUR TRANSPORTATION DIVISION IN SO ADVISING YOU IS, ACCORDINGLY, AFFIRMED.