B-170577, NOV. 19, 1970

B-170577, NOV. 19, 1970

TRANSPORTATION CLAIM - TIMELY FILING AFFIRMING PRIOR DECISION NOT TO CONSIDER CLAIM OF PROTESTANT ON MERITS DUE TO LATE FILING OF CLAIM AGAINST DEPARTMENT OF AGRICULTURE, AGRICULTURE FINANCE CENTER, MINNEAPOLIS, MINN., WITH GAO. WHERE CARRIER CLAIM FOR TRANSPORTATION SERVICES WAS FIRST RECEIVED IN GAO MORE THAN THREE YEARS AFTER ACCRUAL OF THE CLAIM AND THE APPLICABLE STATUTE, SEC. 322 OF THE TRANSPORTATION ACT OF 1940 AS AMENDED, 49 U.S.C. 66 BARS ALL CLAIMS AFTER THIS THREE YEAR PERIOD AND THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR AGENTS OF U.S. TO WAIVE THE PROVISIONS OF LAW, THE ACTION TO DISMISS PROTESTANT'S CLAIM WITHOUT CONSIDERATION ON THE MERITS, MUST BE SUSTAINED.

TO TIDEWATER INLAND EXPRESS, INC.:

WE REFER AGAIN TO YOUR LETTER OF SEPTEMBER 18, 1970, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 10, 1970, B-170577, CONCERNING YOUR CLAIM FOR TRANSPORTATION CHARGES OF $51.12 PER YOUR BILL NO. 800. WE HAVE STUDIED THE RECORD AND ITS HANDLING IN THE DEPARTMENT OF AGRICULTURE, THE AGRICULTURE FINANCE CENTER, MINNEAPOLIS, MINNESOTA, AND OUR TRANSPORTATION DIVISION. WE MUST CONCLUDE THAT DISPOSITION OF THE CLAIM BY RETURN OF ALL PAPERS TO YOU, WITHOUT CONSIDERATION ON THE MERITS, WAS PROPER UNDER THE LAW AND OUR REGULATIONS.

BRIEFLY, THE RECORD SHOWS THAT THE CERTIFICATE IN LIEU OF LOST BILL OF LADING INVOLVED THE MOVEMENT OF A SHIPMENT OF EXHIBITS FROM NEW ORLEANS, LOUISIANA, TO WASHINGTON, D.C., WITH DELIVERY TO THE CONSIGNEE ON OCTOBER 31, 1966, WHICH COMPLETED THE SERVICES AUTHORIZED THEREBY. YOUR CLAIM IN THE AMOUNT OF $51.12 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 26, 1970, WHICH WAS MORE THAN THREE YEARS AFTER ACCRUAL OF THE CLAIM UPON THE COMPLETION OF THE SERVICE ON OCTOBER 31, 1966, AS SHOWN ON THE CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING, OR NOVEMBER 2, 1966, THE DELIVERY DATE SHOWN ON THE RECEIPT OF THE BINGHAMTON WAREHOUSE & TERMINAL, INC., SUBMITTED WITH YOUR LETTER OF AUGUST 6, 1970.

YOU URGE THAT THE CERTIFICATE IN LIEU WAS ISSUED ON NOVEMBER 7, 1968, BUT WAS NOT FORWARDED TO YOU UNTIL APRIL 11, 1969. YOU STATE THAT THIS BILL OF LADING INDICATED THAT THE CHARGES SHOULD BE BILLED TO THE U.S. DEPARTMENT OF AGRICULTURE, HYATTSVILLE, MARYLAND. YOU POINT OUT THAT YOU DID BILL THE DEPARTMENT OF AGRICULTURE ON APRIL 29, 1969, WHICH WAS STILL WITHIN THE THREE-YEAR LIMITATION. THE BILL WAS THEN SENT TO THE MINNEAPOLIS FINANCE CENTER, MINNEAPOLIS, MINNESOTA, ON DECEMBER 17, 1969, AND THAT INSTALLATION DID NOT FORWARD IT TO THE GENERAL ACCOUNTING OFFICE UNTIL MARCH 26, 1970, WHICH WAS BEYOND THE THREE-YEAR LIMITATION. YOU THEREFORE TAKE THE POSITION THAT YOUR BILL NO. 800 WAS TIMELY RECEIVED IN THE ADMINISTRATIVE OFFICE AND SHOULD THEREFORE BE PAID. THE LANGUAGE OF THE STATUTE, HOWEVER, MAKES RECEIPT IN THE GENERAL ACCOUNTING OFFICE THE CONDITION UPON WHICH TIMELINESS DEPENDS. THERE IS NO DISPUTE THAT THIS BILL WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE MORE THAN THREE YEARS AFTER DELIVERY, THE TIME WHEN THE CAUSE OF ACTION ACCRUED.

THE PERTINENT PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 72 STAT. 860, 49 U.S.C. 66, WERE QUOTED AT LENGTH IN OUR DECISION OF SEPTEMBER 10, 1970, AND SPECIFICALLY PROVIDE FOR PAYMENT OF TRANSPORTATION BILLS UPON PRESENTATION SUBJECT TO THE PROVISO:

"THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS *** FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, *** ." PRIOR TO THAT TIME CARRIER CLAIMS, LIKE OTHER CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, COULD BE CONSIDERED IF PRESENTED WITHIN 10 YEARS AFTER THE CLAIMS FIRST ACCRUED. SEE 31 U.S.C. 71A. THE 1958 AMENDMENT WAS ENACTED DUE, IN LARGE PART, TO CARRIER SUPPORT FOR A REDUCED LIMITATION TO APPLY IN TRANSPORTATION ACCOUNTS. YOU KNOW, THE PURPOSE OF THE STATUTE IS TO TERMINATE CONTROVERSY AFTER A REASONABLE PERIOD OF TIME AND TO ASSURE THE GOVERNMENT AS WELL AS THE CARRIERS PROTECTION FROM OLD CLAIMS ON WHICH RECORDS HAVE BECOME DESTROYED, LOST OR IMPRACTICABLE TO OBTAIN.

IN THE CIRCUMSTANCES OF THIS CASE, THE CAUSE OF ACTION AROSE ON YOUR CLAIM WHEN THE SHIPMENT WAS DELIVERED. DELIVERY OF THE SHIPMENT WAS ADMITTEDLY MADE MORE THAN THREE YEARS BEFORE YOUR CLAIM WAS RECEIVED IN OUR OFFICE, AND THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR AGENTS OF THE UNITED STATES TO WAIVE THE PROVISIONS OF LAW ESTABLISHING THE THREE -YEAR STATUTE OF LIMITATIONS. COMPARE UNITED STATES V CARBUTT OIL CO., 302 U.S. 528 (1937); JOHN FINN V UNITED STATES, 123 U.S. 227 (1887); MUNRO V UNITED STATES, 303 U.S. 36 (1938). WE WOULD BE VIOLATING THE LAW IF WE UNDERTOOK TO CONSIDER YOUR CLAIM ON ITS MERITS.

WE ARE AWARE THAT CARRIERS SOMETIMES ENCOUNTER TIME-CONSUMING DELAYS IN PREPARING AND SUBMITTING THEIR CLAIMS. WE ALSO KNOW THAT AFTER BILLS ARE PRESENTED TO THE PAYING AGENCIES, THERE MAY OCCASIONALLY BE ADMINISTRATIVE DELAYS IN MAKING PAYMENT. TO WARN CARRIERS OF THE NEED TO PURSUE THEIR CLAIMS ACTIVELY AND TO REMEDY THIS SITUATION TO THE EXTENT POSSIBLE, OUR REGULATIONS POINT OUT THAT THE FILING OF A CLAIM WITH ANOTHER AGENCY DOES NOT MEET THE REQUIREMENTS OF SECTION 322; THE CLAIM MUST BE RECEIVED HERE WITHIN THREE YEARS OF ACCRUAL. 4 CFR 54.6AA). AND CLAIMANTS ARE ADVISED, IF THE APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE, THAT CLAIMS MAY BE FILED INITIALLY WITH THE TRANSPORTATION DIVISION OF THIS OFFICE, RATHER THAN WITH THE APPROPRIATE ADMINISTRATIVE OFFICE. 4 CFR 54.6. COMPARE UNITED STATES V UTZ, 80 FED. 848 (1897); KENNEDY V UNITED STATES, 79 FED. 893 (1897), AFFIRMED 95 FED. 127 (1899). IN THE YEARS SINCE THE AMENDMENT TO SECTION 322 WAS ENACTED, OFFICIALS OF OUR TRANSPORTATION DIVISION, WHEN SPEAKING TO CARRIER ORGANIZATIONS AND PARTICIPATING IN CARRIER MEETINGS, HAVE EMPHASIZED THE NEED FOR ATTENTION TO THE TIME ELEMENT IN PURSUING CARRIER CLAIMS AND THE CARRIERS ARE REMINDED THAT CLAIMS - ALTHOUGH NOT THEN FULLY SUPPORTED - MAY BE FILED HERE, TO TOLL THE STATUTE, WHILE DEVELOPMENT OF SUPPORT FOR THE CLAIM CONTINUES.

SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS AS REQUIRED BY LAW, THE ACTION OF OUR TRANSPORTATION DIVISION IN RETURNING YOUR BILL WITH ITS SUPPORTING PAPERS WAS THE ONLY DISPOSITION THAT COULD BE LEGALLY MADE, AND OUR DECISION OF SEPTEMBER 10, 1970, AFFIRMING SUCH ACTION, MUST BE AND IS SUSTAINED.