B-179597, OCT 19, 1973

B-179597, OCT 19, 1973

THERE IS NO LEGAL AUTHORITY WHEREBY GOVERNMENT CAN EFFECT ADMINISTRATIVE SET-OFF OF $29.40 AGAINST SUBCONTRACTOR OF FREIGHT FORWARDER FOR BENEFIT OF CONSIGNEE WHO ALLEGES SAME AMOUNT WAS COLLECTED FROM HIM.

TO MR. PERRIN E. PARKHURST:

WE REFER TO YOUR LETTER DATED AUGUST 9, 1973, TO OUR TRANSPORTATION AND CLAIMS DIVISION, WITH WHICH YOU ATTACHED A COPY OF OUR SETTLEMENT CERTIFICATE DATED JULY 24, 1973, OUR CLAIM NO. Z-2483162. YOU IN EFFECT REQUEST REVIEW OF THE SETTLEMENT IN WHICH THE DIVISION DISALLOWED YOUR CLAIM FOR $29.40, PART OF THE AMOUNT THAT YOU REPORT YOU PAID HARDEN MOVING & STORAGE COMPANY (HARDEN) IN CONNECTION WITH THE TRANSPORTATION AND STORAGE OF YOUR HOUSEHOLD GOODS ON GOVERNMENT BILL OF LADING NO. E- 9441720, DATED JUNE 26, 1969. THE DIVISION SAID, AMONG OTHER THINGS, THAT YOUR ONLY RECOURSE WAS AGAINST HARDEN, NOT AGAINST THE GOVERNMENT.

YOU EXPLAIN THAT YOUR CLAIM IS NOT AGAINST THE GOVERNMENT BUT THAT IT IS A REQUEST THAT THE GOVERNMENT ACT AGAINST HARDEN AND ASSIST YOU IN COLLECTING THE $29.40 WHICH MAY BE INCLUDED IN THE CHARGES THE GOVERNMENT PAID PAUL ARPIN VAN LINES, INC. (ARPIN) FOR THE SAME SERVICE.

OUR RECORDS DO NOT INCLUDE A COPY OF YOUR RECEIPTED BILL, CANCELLED CHECK, OR ANY OTHER EVIDENCE SHOWING THE DATE YOU PAID HARDEN AND THE SERVICES FOR WHICH YOU WERE BILLED. THE FACT THAT THE SAME AMOUNT, $29.40, IS INCLUDED IN AN AMOUNT PAID ARPIN ON D.O. VOUCHER 515452, DATED JUNE 21, 1970, FOR THE RETURN OF 1,680 POUNDS OF YOUR HOUSEHOLD GOODS TO THE WAREHOUSE IS NOT IN ITSELF SIGNIFICANT. THE CHARGES YOU PAID MAY HAVE BEEN FOR DELIVERY FROM ONE WAREHOUSE TO ANOTHER WAREHOUSE WHICH WOULD NOT BE CHARGEABLE TO YOU OR TO THE GOVERNMENT.

YOU REFER TO THE PROCEDURE WHEREBY THE GOVERNMENT CAN MAKE AN ADMINISTRATIVE SET-OFF OF OVERCHARGES BY ANY CARRIER OR FORWARDER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER OR FORWARDER. THIS PROCEDURE IS SPECIFICALLY AUTHORIZED BY 49 U.S.C. 66(A) WHICH PROVIDES IN PERTINENT PART:

"(A) SUBJECT TO SUCH STANDARDS AS SHALL BE PROMULGATED JOINTLY BY THE SECRETARY OF THE TREASURY AND THE COMPTROLLER GENERAL OF THE UNITED STATES, PAYMENT FOR TRANSPORTATION OF PERSONS OR PROPERTY FOR OR ON BEHALF OF THE UNITED STATES BY ANY CARRIER OR FORWARDER SHALL BE MADE UPON PRESENTATION OF BILLS THEREFOR, PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, BUT THE RIGHT IS RESERVED TO THE UNITED STATES GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERCHARGE BY ANY CARRIER OR FORWARDER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER OR FORWARDER. THE TERM "OVERCHARGES" SHALL BE DEEMED TO MEAN CHARGES FOR TRANSPORTATION SERVICES IN EXCESS OF THOSE APPLICABLE THERETO UNDER TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION, THE CIVIL AERONAUTICS BOARD, THE FEDERAL MARITIME COMMISSION, AND ANY STATE TRANSPORTATION REGULATORY AGENCY, AND CHARGES IN EXCESS OF THOSE APPLICABLE THERETO UNDER RATES, FARES, AND CHARGES ESTABLISHED PURSUANT TO SECTION 22 OF THIS TITLE, OR OTHER EQUIVALENT CONTRACT, ARRANGEMENT, OR EXEMPTION FROM REGULATION: PROVIDED, HOWEVER, THAT SUCH DEDUCTIONS SHALL BE MADE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE TIME OF PAYMENT OF BILLS: ***".

AS YOU CAN SEE, THIS STATUTORY AUTHORITY RELATES ONLY TO "OVERCHARGES" PAID BY THE GOVERNMENT AND CANNOT BE CONSTRUED TO INCLUDE THE AMOUNT YOU PAID HARDEN EVEN IF OUR RECORDS CONTAINED ENOUGH EVIDENCE TO ESTABLISH YOUR CLAIM. WE MUST CONCLUDE THEN, AS DID THE DIVISION, THAT YOUR ONLY RECOURSE IS AGAINST HARDEN.

THE GENERAL ACCOUNTING OFFICE DOES NOT OF COURSE CONDONE THE PRACTICES WHICH MAY HAVE BEEN INVOLVED HERE. HOWEVER, THE DEPARTMENT OF DEFENSE IS RESPONSIBLE FOR EVALUATING THE TRANSPORTATION SERVICES FURNISHED TO THEIR EMPLOYEES AND HAS PROCEDURES DESIGNED TO MINIMIZE UNSATISFACTORY PERFORMANCES BY HOUSEHOLD GOODS CARRIERS OR FORWARDERS OR THEIR AGENTS. WE PRESUME THAT THESE PROCEDURES WERE FOLLOWED HERE. MOREOVER, WE ARE SENDING A COPY OF THIS DECISION AND OF YOUR AUGUST 9TH LETTER TO THE DOD COMPONENT RESPONSIBLE FOR QUALITY CONTROL IN THE MOVEMENT OF HOUSEHOLD GOODS FOR SUCH ACTION AS IT DEEMS APPROPRIATE.

IN THESE CIRCUMSTANCES, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.