B-183226, MAY 5, 1975

B-183226: May 5, 1975

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EMPLOYEE WAS ERRONEOUSLY ISSUED A GOVERNMENT BILL OF LADING (GBL) FOR MOVEMENT OF HOUSEHOLD GOODS AND WAS REIMBURSED ON AN ACTUAL EXPENSE BASIS INSTEAD OF UNDER THE COMMUTED RATE SYSTEM AS REQUIRED BY FTR PARA. 2- 8.3C(4)(A) (MAY 1973). HE IS REQUIRED TO REFUND TO THE GOVERNMENT THE AMOUNT PAID IN EXCESS OF WHAT IT WOULD HAVE COST THE GOVERNMENT IF THE PAYMENT WAS MADE UNDER THE COMMUTED RATE SYSTEM SINCE ISSUANCE OF GBL WAS ERRONEOUS AND IT IS A WELL ESTABLISHED RULE THAT THE GOVERNMENT IS NOT LIABLE FOR THE UNAUTHORIZED ACTS OF ITS AGENTS. BUCKLEY - REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD GOODS: THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE DIRECTOR. THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE DIRECTOR.

B-183226, MAY 5, 1975

EMPLOYEE WAS ERRONEOUSLY ISSUED A GOVERNMENT BILL OF LADING (GBL) FOR MOVEMENT OF HOUSEHOLD GOODS AND WAS REIMBURSED ON AN ACTUAL EXPENSE BASIS INSTEAD OF UNDER THE COMMUTED RATE SYSTEM AS REQUIRED BY FTR PARA. 2- 8.3C(4)(A) (MAY 1973). HE IS REQUIRED TO REFUND TO THE GOVERNMENT THE AMOUNT PAID IN EXCESS OF WHAT IT WOULD HAVE COST THE GOVERNMENT IF THE PAYMENT WAS MADE UNDER THE COMMUTED RATE SYSTEM SINCE ISSUANCE OF GBL WAS ERRONEOUS AND IT IS A WELL ESTABLISHED RULE THAT THE GOVERNMENT IS NOT LIABLE FOR THE UNAUTHORIZED ACTS OF ITS AGENTS.

ROBERT E. BUCKLEY - REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD GOODS:

THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE DIRECTOR,

THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY THE DIRECTOR, FINANCIAL MANAGEMENT DIVISION, U.S. CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY, LOS ANGELES, CALIFORNIA, AS TO THE PROPER METHOD OF REIMBURSEMENT OF MR. ROBERT E. BUCKLEY FOR EXPENSES INCURRED IN CONNECTION WITH THE SHIPMENT OF HIS HOUSEHOLD GOODS FROM U.S. CUSTOMS REGION I, NEW YORK, TO REGION VII, ARIZONA, UPON THE TRANSFER OF HIS OFFICIAL DUTY STATION.

IT APPEARS FROM THE SUBMISSION THAT THE EMPLOYEE WAS INADVERTENTLY ISSUED A GOVERNMENT BILL OF LADING (GBL) BY U.S. CUSTOMS, REGION I, PERSONNEL WITHOUT PREDETERMINATION BEING MADE AS TO COSTS AS REQUIRED BY FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-8.3C(4)(A) (MAY 1973) WHICH PROVIDES AS FOLLOWS:

"(4) CIRTERIA FOR USE OF THE ACTUAL EXPENSE METHOD.

"(A) INDIVIDUAL TRANSFERS. AGENCY EXPERIENCE WITH THE ACTUAL EXPENSE METHOD HAS SHOWN THAT SHIPMENT BY GOVERNMENT BILL OF LADING DOES NOT RESULT IN SAVINGS SIMPLY BECAUSE A LINE-HAUL DISCOUNT IS AVAILABLE. THEREFORE, THE COMMUTED RATE SYSTEM SHALL BE USED FOR INDIVIDUAL TRANSFERS WITHOUT CONSIDERATION BEING GIVEN THE ACTUAL EXPENSE METHOD, EXCEPT THAT THE ACTUAL EXPENSE METHOD MAY BE USED IF THE ACTUAL COSTS TO BE INCURRED BY THE GOVERNMENT FOR PACKING AND OTHER ACCESSORIAL SERVICES ARE PREDETERMINED (AT LEAST AS TO PRICE PER 100 POUNDS) AND IF THAT METHOD IS EXPECTED TO RESULT IN A REAL SAVINGS TO THE GOVERNMENT OF $100 OR MORE. (FOR INTRASTATE TRANSFERS, SEE 2 8.3C(4)(D)."

A DETERMINATION OF SHIPMENT COSTS AFTER THE TRANSPORTATION WAS COMPLETED INDICATED THAT HAD THE COMMUTED RATE SYSTEM BEEN USED AS PRESCRIBED BY GSA BULLETIN FPMR A-2, SUPPLEMENT 47, JANUARY 23, 1974, INCLUDING THE 6 PERCENT FUEL SURCHARGE, THE COST TO THE GOVERNMENT WOULD HAVE BEEN $2,202.26 INSTEAD OF $2,378.81 FOR WHICH THE U.S. CUSTOMS SERVICE WAS BILLED AND WHICH IT HAS PAID. IT WOULD HAVE RESULTED IN A SAVINGS TO THE GOVERNMENT OF $176.55.

THE QUESTIONS PRESENTED TO THIS OFFICE FOR DETERMINATION ARE AS FOLLOWS:

"*** (1) WHETHER THE EMPLOYEE SHOULD REFUND THE DIFFERENCE OF $176.55 TO THE GOVERNMENT OR SHOULD THE GOVERNMENT ABSORB THE TOTAL COST OF THE SHIPMENT? (2) DOES THE ISSUANCE OF A GBL IN ERROR, CONSTITUTE TACIT APPROVAL FOR AN EMPLOYEE TO MOVE HIS HOUSEHOLD GOODS AT THE ACTUAL EXPENSE METHOD?"

SINCE THE FACTS AS REPORTED BY THE AGENCY INDICATE THE GBL WAS ISSUED INADVERTENTLY, IT IS NECESSARY TO CONSIDER THE SECOND QUESTION FIRST IN ORDER TO ANSWER THE FIRST QUESTION.

PARA. 2-8.3C(4)(A) OF THE FEDERAL TRAVEL REGULATIONS EXPRESSLY PRESCRIBES THE METHOD UNDER WHICH EMPLOYEES IN MR. BUCKLEY'S CIRCUMSTANCES ARE TO BE REIMBURSED. THE CITED PARAGRAPH PROVIDES THAT AN EMPLOYEE MAY BE AUTHORIZED SHIPMENT OF HIS HOUSEHOLD GOODS BY GBL ONLY WHEN THE ACTUAL COSTS TO BE INCURRED FOR PACKING AND OTHER ACCESSORIAL SERVICES ARE PREDETERMINED AND THE ACTUAL EXPENSE METHOD IS EXPECTED TO RESULT IN A SAVINGS TO THE GOVERNMENT. SINCE THE AUTHORIZATION OF A GBL IN ERROR WOULD BE IN CONTRAVENTION OF THE PERTINENT CONTROLLING REGULATION, THE SECOND QUESTION MUST BE ANSWERED IN THE NEGATIVE. SEE B-181311, AUGUST 21, 1974.

IN THE INSTANT CASE THERE IS NO INDICATION THAT A PREDETERMINATION WAS MADE THAT SHIPMENT BY GBL WOULD RESULT IN A REAL SAVINGS TO THE GOVERNMENT. ON THE CONTRARY WE WERE ADVISED THAT THE GBL WAS ISSUED INADVERTENTLY. WE RECOGNIZE THAT WE HAVE HELD THAT ONCE AN ADMINISTRATIVE DECISION IS MADE AS TO THE METHOD OF REIMBURSEMENT FOR THE SHIPMENT OF THE HOUSEHOLD GOODS OF AN EMPLOYEE, I.E., ON THE ACTUAL EXPENSE OR COMMUTED RATE BASIS, IT BECOMES MANDATORY THAT THE EMPLOYEE BE REIMBURSED BY SUCH METHOD. B-174642, MARCH 6, 1972. HOWEVER, THAT DECISION IS NOT FOR APPLICATION IN THIS CASE SINCE NO DETERMINATION, AS REQUIRED BY THE GOVERNING REGULATION, HAS BEEN MADE.

WHILE THE ERRONEOUS ISSUANCE OF A GBL IS REGRETTABLE, IT PROVIDES NO BASIS FOR ALLOWING REIMBURSEMENT OF THE EXPENSES UNDER THE ACTUAL EXPENSE METHOD. THIS IS SO SINCE IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942); 44 ID. 337 (1964); 46 ID. 348 (1966); B-177565, FEBRUARY 9, 1973.

ACCORDINGLY, THE EXCESS TRANSPORTATION COST IS AN OVERPAYMENT AND COLLECTION ACTION SHOULD BE TAKEN TO RECOUP THE OVERPAYMENT OF $176.55 FROM MR. BUCKLEY.