B-153862 L/M, JUN 1, 1982, OFFICE OF GENERAL COUNSEL

B-153862 L/M, JUN 1, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: WHERE CARRIER FURNISHES GOVERNMENT TICKET AT PROPER FARE UNDER THE APPLICABLE TARIFF, THE CARRIER BILLS ON THE BASIS OF THE TICKET BEING FURNISHED, BUT THE TICKET IS NEVER USED BY THE GOVERNMENT, CLAIM FOR REFUND FOR UNUSED TICKET IS NOT OVERCHARGE UNDER 31 U.S.C. SEC. 244(A). OVERCHARGE CONCERNS CHARGES FOR TRANSPORTATION SERVICE IN EXCESS OF CHARGES APPLICABLE UNDER A TARIFF.

MR. ALBERT A. VICCHIOLLA, GENERAL SERVICES ADMINISTRATION:

BY LETTER OF DECEMBER 22, 1981, YOU REQUESTED THAT WE RECONSIDER AN OFFICE OF GENERAL COUNSEL (GAO) OPINION TO THE GENERAL SERVICES ADMINISTRATION (GSA), B-153862-O.M, DATED NOVEMBER 19, 1975, WHICH CONCLUDED THAT THE VALUE OF UNUSED PASSENGER TICKETS IS AN "OVERCHARGE" UNDER 49 U.S.C. SEC. 66A (1976) (NOW 31 U.S.C. SEC. 244(A) (SUPP. III, 1979)). YOU REPORT THAT THROUGH YOUR TRANSPORTATION AUDIT ACTIVITIES, YOU HAVE DISCOVERED THAT GOVERNMENT AGENCIES HAVE FAILED TO RECOVER MONEY PAID TO CARRIERS FOR TICKETS PURCHASED, BUT NOT USED. WE NOTE THAT GAO ALSO HAS AN ONGOING AUDIT INVESTIGATION OF THE UNUSED TICKET PROBLEM.

YOU INDICATE THAT BOTH THE GSA REGULATIONS AND THE CARRIERS' TARIFFS HAVE PROVISIONS FOR THE RETURN OF THE VALUE OF UNUSED TICKETS TO THE GOVERNMENT. HISTORICALLY, THE METHOD EMPLOYED BY THE GOVERNMENT TO RECOUP THE VALUE OF UNUSED PASSENGER TICKETS HAS BEEN BY USE OF A STANDARD FORM 1170. THE GOVERNMENT'S RECOVERY PROGRAM IS CURRENTLY BEING REVISED TO BETTER EFFECT RECOVERY. GSA WILL SOON BE ISSUING NEW REGULATIONS IN THIS REGARD. OF PARTICULAR INTEREST TO GSA IS THE EFFECT OF CLASSIFYING THE VALUE OF THE UNUSED PASSENGER TICKETS AS AN OVERCHARGE. IN YOUR VIEW, IF SO CLASSIFIED, THE TERMS OF 31 U.S.C. SEC. 244 ARE SUCH THAT THE USE OF ADMINISTRATIVE OFFSET WOULD BE LIMITED TO 3 YEARS. HOWEVER, IF IT IS NOT AN OVERCHARGE, THE COMMON LAW RULE OF OFFSET WILL ALLOW 6 YEARS FOR ADMINISTRATIVE OFFSET.

UNDER 31 U.S.C. SEC. 244(A), THE TERM "OVERCHARGE" IS DEFINED AS "CHARGES FOR TRANSPORTATION SERVICES IN EXCESS OF THOSE APPLICABLE THERETO UNDER TARIFFS LAWFULLY ON FILE WITH *** THE CIVIL AERONAUTICS BOARD."

YOU POINT OUT THAT, ORDINARILY, THE SERVICES BILLED FOR AND THE CHARGES PAID TO THE CARRIER UNDER A GOVERNMENT TRANSPORTATION REQUEST (GTR) ARE IN ACCORDANCE WITH THE ACTUAL SERVICES REQUESTED BY THE GOVERNMENT. GENERALLY, THE RATES CHARGED ARE NOT EXCESSIVE AND ARE IN COMPLIANCE WITH THOSE PRESCRIBED IN AN APPLICABLE TARIFF ON FILE WITH THE CIVIL AERONAUTICS BOARD. THEREFORE, IN YOUR VIEW, THERE SEEMS TO BE NO FACTUAL BASIS FOR CONCLUDING THAT THE VALUE OF UNUSED PASSENGER TICKETS IS AN OVERCHARGE.

YOU REQUEST THAT OUR OPINION OF NOVEMBER 19, 1975, BE CLARIFIED IN LIGHT OF CURRENT USAGE AND NEW DEVELOPMENTS. YOU SUGGEST THAT THE VALUE OF UNUSED TICKETS IS A DEBT OWED TO THE GOVERNMENT IN THE SAME WAY THAT A DUPLICATE PAYMENT FOR TRANSPORTATION IS A DEBT DUE THE GOVERNMENT. NEITHER INSTANCE DID THE CARRIER COLLECT "CHARGES FOR TRANSPORTATION SERVICES IN EXCESS OF THOSE APPLICABLE THERETO UNDER TARIFFS LAWFULLY ON FILE." IN THE CASE OF A DUPLICATE PAYMENT, THE CARRIER HAS CHARGED THE RIGHT AMOUNT, BUT THE CARRIER HAS BEEN PAID MORE THAN ONCE FOR THE SAME SERVICE. IN REGARD TO THE UNUSED PASSENGER TICKET, THE CARRIER HAS ISSUED A TICKET AND CHARGED THE CORRECT LAWFUL FARE, BUT THE GOVERNMENT HAS NOT USED THE TICKET. IT IS YOUR VIEW THAT, IN BOTH CASES, THE GOVERNMENT IS ENTITLED TO A REFUND. THE GOVERNMENT SHOULD BE PERMITTED TO USE ADMINISTRATIVE OFFSET FOR A PERIOD OF 6 YEARS AND NOT BE LIMITED TO THE 3- YEAR OFFSET FOR AN OVERCHARGE UNDER 31 U.S.C. SEC. 244(A).

IN RECONSIDERING OUR PRIOR OPINION ON THE BASIS OF YOUR SUBMISSION, WE AGREE WITH YOU THAT THE RECOVERY OF THE VALUE OF AN UNUSED TICKET IS NOT AN OVERCHARGE UNDER 31 U.S.C. SEC. 244(A).

IN OUR 1975 OPINION, WE CONCLUDED THAT "THE ACTUAL AMOUNT PAID FOR AN UNUSED TICKET IS IN EXCESS OF THE AMOUNT DUE, AND IT IS NECESSARY TO REFER TO APPLICABLE TARIFFS FOR A DETERMINATION OF THE 'OVERCHARGE.'"

HOWEVER, YOU INDICATE THAT THIS IS REALLY NOT THE CASE. THE RATES CHARGED THE GOVERNMENT ARE NOT AT ISSUE AND ARE NOT THE BASIS FOR SEEKING A REFUND, THAT IS, THIS IS NOT A SITUATION WHERE THE CARRIER HAS NOT CHARGED THE PROPER FARE FOR THE TICKET WHICH WOULD USUALLY RESULT IN GSA ISSUING NOTICES OF OVERCHARGE. RATHER, HERE, THE GOVERNMENT IS SEEKING TO RECOVER THE TICKET PRICE BECAUSE THE GOVERNMENT DISCOVERED AFTER PAYMENT THAT THE TICKET HAS NOT BEEN USED.

SINCE THE REQUEST FOR REFUND DOES NOT ARISE FROM ANY ERROR IN THE RATE OR FARE, THE REFUND CLAIM DOES NOT INVOLVE A CHARGE FOR A GIVEN TRANSPORTATION SERVICE IN EXCESS OF THAT APPLICABLE BY A TARIFF.

WE FURTHER NOTE THAT THE DEFINITION OF OVERCHARGES IN 31 U.S.C. SEC. 244(A) IS THE SAME AS THAT PROVIDED IN THE INTERSTATE COMMERCE ACT (ICA), 49 U.S.C. SEC. 11705(B)(1) (SUPP. III, 1979). IN DUPLICATE PAYMENTS OF FREIGHT CHARGES, 350 ICC 513 (1975), THE INTERSTATE COMMERCE COMMISSION (ICC) DEALT WITH THE ISSUE OF WHETHER DUPLICATE PAYMENTS OF FREIGHT CHARGES CONSTITUTED "OVERCHARGES" AS DEFINED IN THE ICA AND, THEREFORE, WHETHER THE PAYMENTS WERE COVERED BY A 3-YEAR STATUTE OF LIMITATIONS FOR CLAIMING REFUNDS FOR OVERCHARGES. THE ICC CONCLUDED CLAIMS FOR REFUNDS FOR DUPLICATE PAYMENTS WERE NOT OVERCHARGES. WE THINK THE ICC'S REASONING IS EQUALLY APPLICABLE TO THE QUESTION OF WHETHER A REFUND FOR A TICKET NEVER USED IS AN OVERCHARGE. THE ICC POINTED OUT THAT THE OVERCHARGE PROVISIONS:

"*** WERE DESIGNED TO DEFINE AND LIMIT DISPUTES REGARDING THE PROPRIETY OF THE CHARGES ASSESSED BY CARRIERS AND NOT TO CONTROL DISPUTES ARISING AFTER THE PROPER CHARGES HAVE BEEN ASSESSED AND PAID.

"IN THE DUPLICATE PAYMENT SITUATION, THE CARRIER HAS ASSESSED AND THE SHIPPER *** HAS PAID THE PUBLISHED CHARGES."

AS WE UNDERSTAND THE CASE HERE, THE TICKET IS FURNISHED BY THE CARRIER AT THE PROPER FARE, UNDER THE APPLICABLE TARIFF, THE CARRIER BILLS ON THE BASIS OF THE TICKET BEING FURNISHED, BUT THE TICKET IS NEVER USED BY THE GOVERNMENT. THUS, IN OUR VIEW, ON THE BASIS OF THESE FACTS, SINCE THE CHARGES FOR TICKETS WERE PROPER UNDER THE TARIFFS ON FILE WITH THE CIVIL AERONAUTICS BOARD, WE CONCLUDE THAT THE RECOVERY OF THE VALUE OF AN UNUSED TICKET DOES NOT INVOLVE AN OVERCHARGE UNDER 31 U.S.C. SEC. 244(A).