B-196447.OM, L/M, MAR 3, 1980

B-196447.OM, L/M, MAR 3, 1980

SUBJECT: CLAIM OF RANDALL E. RICHARDS - OVERSEAS POV SHIPMENT - B-196447 O.M.

CHIEF, CLAIMS DIVISION:

RETURNED HEREWITH IS CLAIM FILE NO. Z-2623712, IN THE CASE OF MR. RANDALL E. RICHARDS CONCERNING HIS CLAIMED ENTITLEMENTS TO BE REIMBURSED FOR THE COST OF SHIPPING HIS PRIVATELY OWNED VEHICLE (POV).

MR. RICHARDS, UPON DISCHARGE FROM THE ARMY IN THE CANAL ZONE, WAS EMPLOYED AS A CIVILIAN BY THE DEPARTMENT OF THE ARMY. DUE TO AN ADMINISTRATIVE ERROR HE WAS NOT OFFERED AN OVERSEAS TOUR AGREEMENT BUT WAS CLASSIFIED AS A LOCAL HIRE NOT ELIGIBLE FOR TRANSPORTATION BACK TO THE UNITED STATES.

ALMOST A YEAR AFTER EMPLOYMENT BY THE ARMY (ON AUGUST 3, 1975), MR. RICHARDS TRANSPORTED A NEWLY PURCHASED AUTOMOBILE TO THE CANAL ZONE BY COMMERCIAL MEANS ABOARD A FOREIGN FLAG CARRIER. ON AUGUST 28, 1975, HE RECEIVED A TRANSPORTATION AGREEMENT FROM THE DEPARTMENT OF THE ARMY, CONFIRMING THE DATE OF OCTOBER 1, 1974, AS THE INCEPTION DATE OF HIS 2 YEAR CONTRACTUAL PERIOD.

WE CONCUR WITH YOUR VIEW THAT THERE IS NO BASIS IN LAW AND REGULATIONS FOR THE ALLOWANCE OF ANY PORTION OF THE CLAIM. THE INCURRENCE OF COST BY AN INDIVIDUAL BECAUSE OF ADMINISTRATIVE ERROR DOES NOT PROVIDE A LEGAL BASIS FOR REIMBURSEMENT EVEN AFTER IT WOULD BE OFFICIALLY ADMITTED THAT THE ERROR WAS MADE. IT IS WELL SETTLED THAT THE GOVERNMENT CANNOT BE BOUND BY THE ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE GERMAN BANK V. UNITED STATES, 148 U.S. 573 (1893) AND FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380 (1947).

BECAUSE OF THE FOREGOING, IT HAS BEEN SUGGESTED BY YOUR DIVISION THAT IT MIGHT BE APPROPRIATE TO HAVE THIS MATTER REPORTED TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, CITING TO DECISION B-183408, MAY 3, 1976, AS AUTHORITY.

THE DECISION IN QUESTION WAS RENDERED AS A RECONSIDERATION OF DECISION B-183408, SEPTEMBER 4, 1975, WHICH DENIED A GOVERNMENT EMPLOYEE THE RIGHT TO BE REIMBURSED FOR ANY PORTION OF THE COST OF COMMERCIAL SHIPMENT OF A POV, WHICH BUT FOR ADMINISTRATIVE ERROR WOULD HAVE BEEN SHIPPED ON A SPACE AVAILABLE REIMBURSABLE BASIS UNDER A GOVERNMENT BILL OF LADING (GBL). RECONSIDERATION, THE DENIAL WAS SUSTAINED, BUT SINCE IT WAS FOUND THAT THE ADMINISTRATIVE ERROR CAUSED THE INDIVIDUAL CONCERNED TO PAY SUBSTANTIALLY MORE THAN IT WOULD HAVE COST BY GBL, WHICH COST WOULD HAVE BEEN BORNE BY THE INDIVIDUAL, THE EXCESS COST WAS REPORTED TO CONGRESS FOR RELIEF.

WHILE THERE EXIST SIMILARITIES BETWEEN THE TWO CASES, THERE IS NO BASIS FOR A CONGRESSIONAL REPORTING IN THE PRESENT CASE.

MR. RICHARDS' ENTITLEMENT TO SHIPMENT OF A POV AT GOVERNMENT EXPENSE, EVEN IF NO ERROR HAD BEEN MADE WITH RESPECT TO HIS ENTITLEMENTS, IS QUESTIONABLE. IN THAT CONNECTION PARAGRAPH 12 6D(3)(A) OF ARMY REGULATION 55-71 "TRANSPORTATION OF PERSONAL PROPERTY AND RELATED SERVICES" INDICATES THAT INDIVIDUALS IN MR. RICHARDS' CIRCUMSTANCES WERE ENTITLED TO SHIPMENT ON A "SPACE REQUIRED, REIMBURSABLE BASIS," THAT IS GOVERNMENT FACILITIES MAY BE USED BUT THE COST MUST BE PAID BY THE EMPLOYEE.

THIS SITUATION IS SIMILAR TO THAT FOUND IN B-183408, SUPRA, HOWEVER, IN CHECKING ON RATES FOR "SPACE REQUIRED" TRANSPORTATION WE LEARNED THAT THE COST OF SUCH TRANSPORTATION WOULD HAVE EXCEEDED THE COST PAID BY MR. RICHARDS. IN THE CIRCUMSTANCES MR. RICHARDS WAS NOT ADVERSELY AFFECTED BY THE ADMINISTRATIVE ERROR AND THERE IS NO BASIS FOR SUBMITTING A MERITORIOUS CLAIM IN HIS CASE.