B-192834, AUG 8, 1979

B-192834, AUG 8, 1979

DIGEST: PAYMENT OF CARRIER'S CHARGE FOR TRUCK DRIVER'S HELP IN LOADING SHIPMENT IN ADDITION TO CHARGE FOR FORKLIFT TRUCK AND OPERATOR HIRED BY CARRIER AS SHIPPER'S AGENT NOT AUTHORIZED WHERE SHIPPER DID NOT REQUEST HELP OR ANNOTATE REQUEST IN SOME MANNER ON SHIPPING DOCUMENTS AS REQUIRED BY TENDER AND TARIFF.

A.B. JAMES FREIGHT LINES - RECONSIDERATION:

A.B. JAMES FREIGHT LINES (ABJ) REQUESTS RECONSIDERATION OF OUR DECISION OF APRIL 4, 1979, B-192834, IN WHICH WE SUSTAINED THE GENERAL SERVICES ADMINISTRATION'S (GSA) DEDUCTION ACTION TO RECOVER OVERCHARGES MADE TO THE CARRIER. WE HELD THAT CHARGES BILLED BY ABJ FOR ITS TRUCK DRIVER'S HELP IN LOADING A GOVERNMENT SHIPMENT WERE NOT ALLOWABLE BECAUSE THE GOVERNMENT DID NOT REQUEST HELP OR ANNOTATE A REQUEST FOR HELP IN SOME MANNER AS REQUIRED BY THE TENDER AND TARIFF. WE BELIEVE THAT ABJ'S TENDER WHICH INCORPORATED BY REFERENCE SEVERAL PROVISIONS IN CALIFORNIA PUBLIC UTILITIES COMMISSION MINIMUM RATE TARIFF NO. 2 (MRT) RESOLVED THE MATTER. ITEM 140 OF THE MRT REQUIRED THE SHIPPER, IN THIS CASE THE GOVERNMENT, TO REQUEST OR ORDER BY ANNOTATION ON THE SHIPPING DOCUMENTS, THE USE OF THE DRIVER AS A HELPER. SINCE THE ALLEGED HELP WAS NOT AUTHORIZED BY THE SHIPPER AS REQUIRED BY THE TARIFF NO RIGHT TO PAYMENT OF THE ADDITIONAL CHARGE WAS ESTABLISHED.

ABJ QUESTIONS THIS POSITION, STATING THAT ITEM 140 IS NOT APPLICABLE TO ITS SITUATION BECAUSE, ACCORDING TO ABJ, THE PROVISION DOES NOT CONTROL WHERE THE GOVERNMENT HAS GIVEN UP ITS RIGHT TO LOAD AND UNLOAD IN A COLLECTIVE BARGAINING AGREEMENT. INSTEAD, SAYS ABJ, THE CARRIER IS RESPONSIBLE FOR LOADING AND UNLOADING AND ITEM 140 ONLY OPERATES WHERE THE GOVERNMENT (SHIPPER) LOADS AND UNLOADS.

WE DO NOT FIND THIS ARGUMENT LEGALLY SOUND. ITEM 140 EXPRESSLY DEALS WITH ACCESSORIAL SERVICES, SUCH AS THE HIRING OF HELPERS, AND PERMITS PAYMENT FOR THOSE SERVICES IF MADE AT THE "SHIPPER'S OR RECEIVER'S REQUEST OR ORDER." THE PROVISION STATES THAT: "THE REASON FOR SUPPLYING HELPERS SHALL BE RECORDED ON SHIPPING AND ACCESSORIAL SERVICE DOCUMENTS." ITEM 140 DOES NOT APPEAR TO BE LIMITED IN APPLICABILITY TO THE SITUATION ABJ DESCRIBES WHERE HELPERS ARE HIRED TO ASSIST THE GOVERNMENT (SHIPPER). THE FACT THAT THE CARRIER, NOT THE GOVERNMENT, IS ACTUALLY DOING THE LOADING OR UNLOADING SHOULD NOT AFFECT THE TERMS IN THE TARIFF OR THE TENDER. THE CARRIER REQUESTS PAYMENT FOR SERVICES PERFORMED, BUT IT HAS NOT MET THE REQUIREMENTS FOR PAYMENT CONTAINED IN THE GBL.

ABJ ASSERTS THAT ITEM 140, PARAGRAPH 2 OF THE MRT IS NOT APPLICABLE IN THIS CASE, YET IT CITES ITEM 140 AND 145A AS AUTHORITY FOR ITS CLAIM OF $29.90.

WHERE THE CONDITIONS SPECIFIED ARE SATISFIED, ITEM 140 PROVIDES THAT "ADDITIONAL CHARGES PER MAN SHALL BE ASSESSED AS PROVIDED IN ITEM 145(A)." ITEM 145(A) SETS FORTH THE CHARGES TO BE ASSESSED FOR ACCESSORIAL SERVICES "UNDER CONDITIONS SPECIFIED IN ITEM 140 ..." THE $29.90 IN DISPUTE IS CALCULATED BY APPLYING THE ITEM 145(A) CHARGES, BUT IN ORDER TO USE THE ITEM 145(A) CHARGES, ITEM 140 CONDITIONS MUST BE MET. IF WE ACCEPT ABJ'S ASSERTION THAT ITEM 140 IS NOT APPLICABLE HERE, THERE IS NO LEGAL BASIS FOR ABJ'S DEMAND FOR PAYMENT UNDER ITEMS 140 AND 145A WHICH ARE CITED AS AUTHORITY IN ITS BILL. WE BELIEVE THAT THE TERMS OF ITEM 140 AND 145A CAN ONLY APPLY IF THE PRECONDITIONS FOR PAYMENT OF THE SERVICE CONTAINED IN THE ITEMS ARE SATISFIED.

WE DO NOT AGREE THAT THE GOVERNMENT'S RELEASE OF ITS RIGHT TO LOAD AND UNLOAD UNDER THE COLLECTIVE BARGAINING AGREEMENT IS RELEVANT TO THE QUESTION WHETHER THE ACCESSORIAL CHARGES WERE LEGALLY ASSESSABLE BY THE CARRIER IN THE ABSENCE OF COMPLIANCE WITH THE CONDITIONS SET FORTH IN ITEM 140 OF THE TARIFF. SEE, FOR EXAMPLE, CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (CT.CL. 1962); 44 COMP.GEN. 799 (1965).

ABJ ALSO REQUESTS THAT WE RESPOND TO SEVERAL ALLEGATIONS IT RAISED IN ITS EARLIER REQUEST FOR REVIEW. IT QUESTIONS GENERALLY GSA'S DECISIONS CONCERNING ACCESSORIAL SERVICES, STANDBY TIME, GSA'S INTERPRETATION OF PARAGRAPH TWO ON THE REVERSE SIDE OF THE GOVERNMENT BILL OF LADING (GBL) AND LIFT RENTAL CHARGES. ABJ STATES THAT THOSE DECISIONS ARE UNREALISTIC AND UNJUST. IT ASKS US TO INITIATE AN INVESTIGATION OF THE MATTER.

BY THE GENERAL ACCOUNTING OFFICE ACT OF 1974, PUB. L. NO. 93-604, APPROVED JANUARY 2, 1975, THE ENTIRE TRANSPORTATION AUDIT FUNCTION, INCLUDING SETTLEMENT OF CLAIMS, WAS TRANSFERRED TO GSA. THE COMPTROLLER GENERAL RETAINED OVERSIGHT AUTHORITY AS WELL AS AN APPELLATE FUNCTION ENABLING CARRIERS TO REQUEST OUR REVIEW OF EXECUTIVE AGENCY ACTION ON THEIR SPECIFIC CLAIMS. SEE HEARINGS ON H.R. 12113 BEFORE A SUBCOMM. THE HOUSE COMM. ON GOVERNMENT OPERATIONS, 93RD CONG., 2D SESS. 32 (1974). THE TRANSFER WAS EFFECTIVE OCTOBER 12, 1975. OUR REVIEW POWER IS STATUTORY. 49 U.S.C. 66(B) (1976).

YOUR REQUEST TO REVIEW GENERALLY CERTAIN AREAS OF DECISION BY GSA DOES NOT SPECIFY ANY PARTICULAR CASES TO REVIEW. AS IN THIS CASE, WE CAN REVIEW GSA SETTLEMENT ACTIONS, BUT WE WILL NOT REVIEW GENERAL COMPLAINTS WHERE IT IS OBVIOUS THAT THE COMPLAINTS CONCERN SPECIFIC SHIPMENTS MOVING UNDER PARTICULAR GOVERNMENT BILLS OF LADING.

THE LANGUAGE OF 49 U.S.C. 66(B) (1976) AND THE REGULATIONS IN 4 C.F.R. 53 (1978) PROVIDE THE PROPER REVIEW PROCEDURE. UNDER THIS PROVISION ANY CARRIER OR FORWARDER MAY REQUEST REVIEW OF ACTION TAKEN BY GSA ON ITS CLAIM.

OUR PRIOR DECISION IS SUSTAINED.