B-182614, DEC 16, 1974

B-182614: Dec 16, 1974

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WAS NOT ENOUGH TO VERIFY THE TIMELINESS OF ITS CLAIM FOR THE APPLICABLE TRANSPORTATION CHARGES AND THEREFORE THE CLAIM IS BARRED. HAS REQUESTED RECONSIDERATION OF THE ACTION OR OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) IN RETURNING ITS BILL FOR PAYMENT FOR TRANSPORTATION CHARGES BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE (GAO) WITHIN 3 YEARS OF THE DATE OF DELIVERY OF THE SHIPMENT AS PROVIDED IN 49 U.S.C. 66 (1970). ALLEGES THAT GAO ORIGINALLY WAS BILLED ON JANUARY 3. THAT THIS FIRST BILLING WAS NOT IN EXCESS OF THE 3 YEAR LIMITATION. THIS "B" BILL WAS RECEIVED IN GAO ON JUNE 12. TCD DENIED THE CARRRIER'S CLAIM BECAUSE IT WAS TIME-BARRED. CLAIMS FOR TRANSPORTATION SERVICES PERFORMED BY CARRIERS SUBJECT TO THAT STATUTORY PROVISION ARE BARRED UNLESS RECEIVED BY THIS OFFICE WITHIN 3 YEARS OF THE DATE OF ACCRUAL OF THE CLAIM.

B-182614, DEC 16, 1974

ALTHOUGH AN AIR CARRIER SUBMITTED A COPY OF AN ALLEGED BILL IT HAD SENT TO THIS OFFICE TO TOLL THE 3-YEAR STATUTE OF LIMITATIONS UNDER 49 U.S.C. 66, THE COPY ALONE, WITHOUT OTHER SUBSTANTIATING EVIDENCE, WAS NOT ENOUGH TO VERIFY THE TIMELINESS OF ITS CLAIM FOR THE APPLICABLE TRANSPORTATION CHARGES AND THEREFORE THE CLAIM IS BARRED.

CONTINENTAL AIR LINES, INC.:

CONTINENTAL AIR LINES, INC., HAS REQUESTED RECONSIDERATION OF THE ACTION OR OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) IN RETURNING ITS BILL FOR PAYMENT FOR TRANSPORTATION CHARGES BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE (GAO) WITHIN 3 YEARS OF THE DATE OF DELIVERY OF THE SHIPMENT AS PROVIDED IN 49 U.S.C. 66 (1970).

CONTINENTAL, BY LETTER DATED AUGUST 15, 1974, ALLEGES THAT GAO ORIGINALLY WAS BILLED ON JANUARY 3, 1973, UNDER ITS FIRST CARRIER'S BILL NO. 12720, AND THAT THIS FIRST BILLING WAS NOT IN EXCESS OF THE 3 YEAR LIMITATION. THE COPY FORWARDED WITH ITS LETTER DOES NOT APPEAR TO BE ON THE STANDARD FORM PRESCRIBED FOR THAT PURPOSE BY GAO. CONTINENTAL FURTHER STATES THAT SINCE IT DID NOT RECEIVE PAYMENT ON ITS FIRST BILLING, IT OBTAINED A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING IN MAY 1974, WHICH IT BILLED TO THE NAVY REGIONAL FINANCE CENTER (NRFC) UNDER CARRIER'S BILL NO. 12720-B ON MAY 5, 1974. THIS "B" BILL WAS RECEIVED IN GAO ON JUNE 12, 1974. IN ACCORDANCE WITH ESTABLISHED PROCEDURE, TCD DENIED THE CARRRIER'S CLAIM BECAUSE IT WAS TIME-BARRED. UNDER 49 U.S.C. 66 (1970), CLAIMS FOR TRANSPORTATION SERVICES PERFORMED BY CARRIERS SUBJECT TO THAT STATUTORY PROVISION ARE BARRED UNLESS RECEIVED BY THIS OFFICE WITHIN 3 YEARS OF THE DATE OF ACCRUAL OF THE CLAIM.

CONTINENTAL MAINTAINS THAT SINCE IT ORIGINALLY BILLED GAO FOR TRANSPORTATION CHARGES BY BILL NO. 12720, ON JANUARY 3, 1973, IT TOLLED THE 3-YEAR STATUTE OF LIMITATIONS. IN SUPPORT OF ITS CLAIM, CONTINENTAL HAS SUBMITTED A COPY OF THE ALLEGED BILL SENT TO GAO REQUESTING ADVICE ON COLLECTING PAYMENT.

HOWEVER, A SEARCH OF TCD RECORDS FAILED TO LOCATE THE ORIGINAL OF THAT ALLEGED BILL, OR ANY OTHER CORRESPONDENCE RELATING TO IT. MOREOVER, THE CONTINENTAL LETTER CONCLUDES WITH A REQUEST FOR AN ACKNOWLEDGMENT FROM GAO. IF THE ALLEGED BILL WAS RECEIVED BY THIS OFFICE, IT WOULD HAVE BEEN ACKOWLEDGED. IF ACKNOWLEDGED, THE CARRIER, PRESUMABLY, WOULD HAVE FURNISHED A COPY OF THE RECEIPT OR ACKNOWLEDGMENT, NOT A COPY OF ITS ALLEGED BILL.

THE QUESTION THEN IS WHAT CONSIDERATION SHOULD BE GIVEN TO THE ALLEGED BILL SUBMITTED BY CONTINENTAL WITH THE JANUARY 3, 1973 DATE. THE ISSUE OF WHETHER THE ALLEGED BILL APPARENTLY SENT TO TOLL THE STATUTE OF LIMITATIONS ACTUALLY WAS RECEIVED IN GAO ON OR BEFORE THE 3 YEAR STATUTORY PERIOD ENDED, IS A QUESTION OF FACT. IT GENERALLY HAS BEEN HELD THAT 31 U.S.C. 71, WHICH PROVIDES THAT ALL CLAIMS BY AND AGAINST THE UNITED STATES SHALL BE SETTLED BY GAO, LEAVES TO THE DISCRETION OF THIS OFFICE THE EVIDENCE REQUIRED IN SUPPORT OF SUCH CLAIMS. 22 COMP. GEN. 269 (1942). IT IS ALSO ESTABLISHED THAT

"PERSONS WHO PRESENT CLAIMS AGAINST THE UNITED STATES MUST ESTABLISH CLEARLY THE FACTS AND PRINCIPLES ON WHICH THEIR CLAIMS ARE BASED AND THE BURDEN IMPOSED BY THE RULE MUST BE MET SQUARELY IN EACH CASE IN ORDER TO JUSTIFY THE ACCOUNTING OFFICERS IN CERTIFYING SUCH CLAIMS FOR PAYMENT FROM APPROPRIATED MONEYS."

SEE 23 COMP. GEN. 907 (1944).

WE HAVE NO DIRECT KNOWLEDGE WHETHER THE ALLEGED BILL CONTINENTAL STATES WAS MAILED ON JANUARY 3, 1973, WAS RECEIVED BY TCD. THE RECORDS OF TCD, HOWEVER, FAIL TO SHOW RECEIPT OF IT. IN SUCH A FACTUAL MATTER, IT IS WELL ESTABLISHED THAT WE ARE REQUIRED TO ACCEPT THE STATEMENTS OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFIERS OF THE GOVERNMENT. SEE 45 COMP. GEN. 99 (1965); 16 ID. 325 (1936). WHILE CONTINENTAL MIGHT BE ABLE TO PRODUCE EVIDENCE OF MAILING THE ALLEGED BILL DATED JANUARY 3, 1973, CONTINENTAL APPEARS TO BE UNABLE TO ESTABLISH, IN THE FACE OF THE TCD REPORT TO THE CONTRARY, THAT IT WAS RECEIVED BY THIS OFFICE.

FINALLY, SEE 4 CODE OF FEDERAL REGULATIONS SEC. 54.5:

"EACH CLAIM SHOULD SET FORTH ALL OF THE PERTINENT FACTS AND DETAILS AND BE SUPPORTED BY SUCH EVIDENTIARY DATA AS WILL CLEARLY ESTABLISH THE LIABILITY OF THE UNITED STATES. BARE ASSERTIONS OR CONCLUSIONS AS TO AMOUNTS DUE FROM THE UNITED STATES USUALLY ARE NOT ACCORDED FORMAL CONSIDERATION."

IN VIEW OF THE SPARSE EVIDENCE SUBMITTED BY CONTINENTAL TO SUBSTANTIATE THE TIMELINESS OF ITS CLAIM, TCD'S ACTION IN RETURNING CONTINENTAL'S SUPPLEMENTAL BILL OF JUNE 22, 1974, IS SUSTAINED.