B-163547, OCT. 20, 1970

B-163547, OCT. 20, 1970

FREIGHT CHARGES - BARRED CLAIM CLAIM FOR FREIGHT CHARGES BY CHEMICAL CARRIERS, INC. IS BARRED BY 31 U.S.C. 71A. WHERE THE COMPLIANCE WITH THE LIMITATION PROVISIONS OF THE STATUTE IS A CONDITION PRECEDENT TO HAVING CLAIMS CONSIDERED, THE GAO IS PROHIBITED FROM MAKING EXCEPTIONS AND THE CLAIM FOR NONPAYMENT OF BASIC FREIGHT CHARGES MUST BE BARRED. THE FACT THAT THE ORIGINAL BILLING MAY HAVE BEEN TIMELY DOES NOT AFFECT THE TIMELINESS OF CLAIMS ARISING OUT OF OMISSIONS IN THE ORIGINAL BILL.

TO CHEMICAL CARRIERS, INC., LIQUIDATING TRUST:

THIS IS IN REPLY TO YOUR LETTER OF JULY 15, 1970, OFFERING TO TAKE PAYMENT OF YOUR INVOICE NO. OB-738 IN THE AMOUNT OF $2,049.38 AS FULL SETTLEMENT AND COMPROMISE OF ALL YOUR OUTSTANDING CLAIMS FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES IN CONNECTION WITH THE SERVICES INVOLVED.

WE ARE UNABLE TO ACCEPT YOUR OFFER BECAUSE, UPON THE PRESENT STATE OF THE RECORD, INVOICE NO. OB-738 FOR $2,049.38 IN LINE-HAUL TRANSPORTATION CHARGES IS BARRED FROM OUR CONSIDERATION BY 31 U.S.C. 71A, PREVIOUSLY MENTIONED IN OUR DECISION OF MAY 5, 1969. THE LIMITATION PROVISION OF THIS STATUTE IS NOT MERELY A DEFENSE IN EQUITY ARBITRARILY ASSERTED AGAINST YOUR CLAIM, BUT COMPLIANCE WITH IT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC CO. V MALLON, 56 F. 2D 154 (1932), AND CARPENTER V UNITED STATES, 56 F. 2D 828 (1932). WE ARE PRECLUDED BY LAW FROM MAKING ANY EXCEPTIONS TO THE PROVISIONS OF THE STATUTE, REGARDLESS OF THE MERITS OF THE CLAIM OR OF OTHER ADMINISTRATIVE PROBLEMS THAT MAY HAVE OCCURRED BEFORE THE CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE.

ALTHOUGH WE FULLY APPRECIATE THAT PAYMENT OF THE DEMURRAGE CHARGES AND NONPAYMENT OF THE BASIC FREIGHT CHARGE BECAUSE OF A TIME BAR IS UNUSUAL, IT DOES OCCUR OCCASIONALLY IN WATER AS WELL AS RAIL TRANSPORTATION CASES WHEN THE CHARGES ARE BILLED OR HANDLED SEPARATELY. THE RESULT MAY BE PRODUCTIVE OF HARDSHIP IN SOME CASES, BUT IT IS REQUIRED BY 31 U.S.C. 71A AND OUR PUBLISHED REGULATIONS WHICH DEFINE PARTICULARLY THE NATURE OF TRANSPORTATION CLAIMS.

ON PAGE 3 OF YOUR LETTER OF SEPTEMBER 26, 1968, YOU INDICATE THAT YOU CONSIDER YOUR DEMURRAGE "CLAIM," RECEIVED IN OUR OFFICE OCTOBER 28, 1964, TO GIVE NOTICE OF AND INCLUDE YOUR "CLAIM" FOR THE BASIC FREIGHT CHARGES, WHICH OUR RECORDS ESTABLISH WAS RECEIVED IN OUR OFFICE FEBRUARY 12, 1968. SECTION 54.2 OF PART 54 OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, CONCERNING CLAIMS AGAINST THE UNITED STATES RELATING TO TRANSPORTATION SERVICES, IN 1964 AND NOW, STATES IN PERTINENT PART:

"THE WORD 'CLAIMS' AS USED IN THIS PART MEANS:

"(A) REQUESTS BY CLAIMANTS FOR AMOUNTS NOT INCLUDED IN THE ORIGINAL BILLING. *** "

THIS SECTION INDICATES THAT AMOUNTS NOT INCLUDED IN THE ORIGINAL BILLING ARE TREATED AS SEPARATE, INDEPENDENT CLAIMS. CONSEQUENTLY, EACH OF THESE "CLAIMS" WOULD HAVE TO INDEPENDENTLY SATISFY THE LIMITATION REQUIREMENTS OF 31 U.S.C. 71A. SEE 36 COMP. GEN. 360 (1956). YOUR LETTER OF FEBRUARY 7, 1968, WITH ACCOMPANYING MATERIAL, WAS A "CLAIM" FOR THE BASIC FREIGHT CHARGES ACCORDING TO THE ABOVE MENTIONED SECTION 54.2. IT COULD NOT BE CONSIDERED AS INCLUDED IN YOUR ORIGINAL BILLING FOR DEMURRAGE CHARGES, AND WAS THEREFORE EXCLUDED FROM OUR CONSIDERATION BY 31 U.S.C. 71A.

CONCERNING YOUR STATEMENT THAT MR. DANIEL HAYES VISITED THE GENERAL ACCOUNTING OFFICE IN JULY OF 1966 AND PRESENTED COMPLETE RECORDS PERTAINING TO THE BASIC FREIGHT CHARGE OF $2,049.38 TO AN EMPLOYEE OF OUR TRANSPORTATION DIVISION, MR. THOMAS MCNEILL, THAT WOULD SATISFY THE REQUIREMENT OF 31 U.S.C. 71A, THE DIVISION HAS CAREFULLY CHECKED ITS FILES BUT HAS NOT FOUND ANY RECORD OF SUCH A MEETING.

YOU HAVE ALSO INDICATED THAT, DURING THE MEETING WITH MR. MCNEILL IN 1966, HE MADE NOTATIONS IN HIS HANDWRITING ON YOUR FILE PAPERS. IF YOU HAVE THE PAPERS ON WHICH SUCH NOTATIONS WERE MADE, IT IS SUGGESTED THAT YOU SUBMIT THEM TO US FOR EXAMINATION, IN ORDER THAT WE MAY CONSIDER THEIR SIGNIFICANCE AND ADEQUACY AS A RECORD OF A CLAIM. ABSENT ANY ADDITIONAL SUBSTANTIVE DOCUMENTATION, THE DECISION OF MAY 5, 1969, STATING OUR INABILITY BECAUSE OF THE TEN-YEAR LIMITATION TO CONSIDER YOUR CLAIM ON THE MERITS, MUST BE AND IS SUSTAINED.