B-173425, JUN 20, 1972

B-173425, JUN 20, 1972

PROCUREMENT LAW - REIMBURSEMENT OF EXCESS AMOUNTS CHARGED - TIMELINESS OF CLAIMS - LACK OF SUPPORTING RECORDS CONCERNING THE CLAIM OF MATSON NAVIGATION COMPANY FOR EXCESS AMOUNTS SETOFF BY THE ARMY UNDER A CONTRACT FOR OVERTIME WORK PERFORMED BY CIVIL SERVICE EMPLOYEES IN CONNECTION WITH THE LOADING AND DISCHARGING OF GOVERNMENT CARGO DURING THE YEARS 1955 TO 1960, INCLUSIVE. IN VIEW OF THE "TEST CASE" NATURE OF ASBCA NO. 5721, DATED JUNE 13, 1960, AND THE FACT THAT CLAIMANT HAS EXHAUSTED AVAILABLE REMEDIES UNDER ITS CONTRACT DISPUTES CLAUSE, GAO IS NOT REQUIRED TO CONSIDER ITS SUBMISSIONS AS UNTIMELY. SINCE THE VALIDITY OF ITS CLAIM FOR 1959 IS UNDISPUTED, THAT AMOUNT MAY BE CERTIFIED FOR PAYMENT. HOWEVER, CLAIMS FROM OPERATIONS PERFORMED DURING THE YEARS 1955 TO 1958 MAY NOT BE ALLOWED BECAUSE PAYROLL RECORDS HAVE BEEN SHIPPED TO THE NATIONAL PERSONNEL RECORDS CENTER, ST. LOUIS, MO; AND NO IDENTIFYING RECORDS ARE AVAILABLE FOR EMPLOYEES INVOLVED IN THE OVERTIME CHARGES.

TO MATSON NAVIGATION COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 4 AND DECEMBER 29, 1971, RELATIVE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT DATED JANUARY 19, 1971, WHICH ALLOWED $2,388.09 AND DISALLOWED $23,072.89 OF CLAIMS TOTALING $25,460.98, AS EXCESS AMOUNTS CHARGED TO YOUR COMPANY BY THE DEPARTMENT OF THE ARMY UNDER CONTRACT NO. MST-1020, DATED JANUARY 15, 1952, FOR OVERTIME WORK PERFORMED BY CIVIL SERVICE EMPLOYEES OF THE UNITED STATES IN CONNECTION WITH THE LOADING AND DISCHARGING OF GOVERNMENT CARGO DURING THE YEARS 1955 TO 1960, INCLUSIVE, AT ARMY TERMINALS.

THE AMOUNTS OF $5,358.09, $8,964.60, $2,062.72, $1,525.55, $5,161.93 AND $2,388.09 WERE CLAIMED UNDER CHARGES MADE DURING 1955 THROUGH 1960, INCLUSIVE. YOU RECOMPUTED THE CHARGEABLE COSTS FOR THESE YEARS. YOUR CLAIMS FOR 1959 AND 1960 WERE BASED ON ACTUAL BILLINGS; THE CLAIMS FOR 1955 THROUGH 1958 APPEAR TO BE BASED ON EXPERIENCE RATIOS FOR 1959 AND 1960 BILLINGS. IT WAS ADMINISTRATIVELY CONSIDERED THAT THE CLAIMS FOR 1955 THROUGH 1958 WERE OF DOUBTFUL VALIDITY, AND THAT PORTIONS OF YOUR TOTAL CLAIM FOR $25,460.98 MIGHT OTHERWISE BE UNALLOWABLE IN VIEW OF THE TIME LIMITATION OF 10 YEARS, AS SET FORTH IN 31 U.S.C. 71(A) FOR THE RECEIPT IN OUR OFFICE OF CLAIMS OR DEMANDS AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE UNDER 31 U.S.C. 71.

THE SUM OF $2,388.09 CLAIMED FOR 1960, WAS ALLOWED IN THE SETTLEMENT OF JANUARY 19, 1971. THE $23,072.89 BALANCE OF YOUR TOTAL CLAIM WAS REFERRED TO IN THE SETTLEMENT AS HAVING BEEN BARRED BECAUSE THE CLAIMS FOR THE YEARS 1955 THROUGH 1959 WERE NOT RECEIVED IN OUR OFFICE UNTIL JANUARY 26, 1970, OR MORE THAN 10 YEARS AFTER THE PERIODS OF SERVICE. REFERENCE WAS ALSO MADE TO A DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS, RENDERED ON JUNE 13, 1960, ASBCA NO. 5721, AS NOT BEING APPLICABLE TO THE CLAIMS OF YOUR COMPANY BECAUSE IT WAS NOT A PARTY TO THE PROCEEDINGS BEFORE THE BOARD.

YOU CONTENDED IN YOUR LETTER OF JUNE 4, 1971, THAT ASBCA NO. 5721, WHICH INVOLVED AN APPEAL OF THE STATES STEAMSHIP COMPANY, ESTABLISHED A POLICY, THAT OTHER COMPANIES FILED CLAIMS AGAINST THE GOVERNMENT AND PROCEEDED TO COLLECT, BASED UPON THE FINDINGS IN THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS, AND THAT THE DECISION WAS IN THE NATURE OF A TEST CASE.

IT WAS STATED IN THE BOARD'S DECISION THAT THE DISPUTE UNDER CONSIDERATION HAD BEEN BROUGHT AS A TEST CASE FOR VARIOUS OTHER CONTRACTOR CLAIMS INVOLVING THE SAME ISSUE. THE BOARD'S DECISION WAS FAVORABLE TO THE APPELLANT STATES STEAMSHIP COMPANY AND OUR RECORDS SHOW THAT THE GOVERNMENT AGENCIES INTENDED TO APPLY THE DECISION PROSPECTIVELY FROM JUNE 13, 1960, TO CLAIMS OF THE APPELLANT AND TO CLAIMS OF ALL OTHER STEAMSHIP COMPANIES WHICH INVOLVED THE SAME ISSUE. IN VIEW THEREOF, AND SINCE IT APPEARS FROM YOUR LETTER OF DECEMBER 29, 1971, THAT YOUR COMPANY HAS PURSUED ITS ADMINISTRATIVE REMEDY UNDER THE DISPUTES CLAUSE OF YOUR CONTRACT AS FAR AS IT COULD WITH THE DEPARTMENT OF THE ARMY, WE ARE NOT REQUIRED TO CONCLUDE THAT YOUR CLAIMS WERE NOT TIMELY SUBMITTED TO OUR OFFICE.

SINCE THE VALIDITY OF YOUR CLAIM FOR 1959, IN THE AMOUNT OF $5,161.93, HAS NOT BEEN QUESTIONED BY THE DEPARTMENT OF THE ARMY, EXCEPT AS TO THE TIMELINESS OF FILING, THAT AMOUNT WILL BE CERTIFIED FOR PAYMENT TO YOUR COMPANY, IF OTHERWISE CORRECT. HOWEVER, WE WOULD NOT BE WARRANTED ON THE PRESENT RECORD IN AUTHORIZING PAYMENT OF ANY PART OF YOUR CLAIMS FOR A TOTAL OF $17,910.96 WHICH AROSE IN CONNECTION WITH YOUR OPERATIONS DURING THE YEARS 1955 THROUGH 1958. SEE 31 COMP. GEN. 340 (1952). IN THAT CONNECTION, THE FINANCE CENTER, UNITED STATES ARMY, HAS INDICATED (1) THAT PAYROLL RECORDS THROUGH THE CALENDAR YEAR 1967 HAVE BEEN SHIPPED FOR RETENTION AT THE NATIONAL PERSONNEL RECORDS CENTER, ST. LOUIS, MISSOURI; (2) THAT INDIVIDUAL RECORDS MAY BE RECALLED BUT THE NAMES OF THE EMPLOYEES INVOLVED IN YOUR CLAIMS ARE NOT KNOWN; AND (3) THAT THE BILLING AGENCY, DIRECTORATE OF TRANSPORTATION, U.S. ARMY, HAWAII, HAS ADVISED THAT NO RECORDS ARE AVAILABLE FOR IDENTIFICATION OF THE EMPLOYEES INVOLVED IN THE OVERTIME CHARGES.