B-129258, APR. 1, 1958

B-129258, APR. 1, 1958

TO NORTH AMERICAN VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1957, AND ENCLOSURE, REQUESTING RECONSIDERATION OF CERTAIN OVERCHARGE CLAIMS STATED AGAINST YOUR COMPANY ARISING OUT OF THE TRANSPORTATION OF HOUSEHOLD GOODS AND OFFICE FURNITURE FROM CAMP COOKE, CALIFORNIA, TO FORT LEWIS, WASHINGTON, DURING THE PERIOD NOVEMBER 24 TO DECEMBER 9, 1952. YOU SHOW IN YOUR ENCLOSURE THAT WE HAVE DEDUCTED $1,786.25 FROM AMOUNTS OTHERWISE DUE YOU, AND THAT GOVERNMENT CLAIMS FOR $3,922.11 STILL REMAIN OUTSTANDING ON SIMILAR TRAFFIC.

OUR OVERCHARGE CLAIMS ARE BASED ON THE APPLICATION OF YOUR SECTION 22 TENDER NO. 1 WHICH WAS ISSUED TO COVER THE INVOLVED MOVEMENT AND SPECIFIED A POINT-TO-POINT RATE OF $6.25 PER 100 POUNDS, WITH

ACCESSORIAL CHARGES TO BE COMPUTED ON THE BASIS OF RATES NAMED IN WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1. YOU BILLED AND WERE PAID ON THE BASIS OF A $7 POINT-TO-POINT RATE NAMED IN SUPPLEMENT 1 OF YOUR SECTION 22 TENDER NO. 1, WHICH WAS ISSUED DECEMBER 10, 1952, AND MADE RETROEFFECTIVE TO NOVEMBER 24, 1952. ALTHOUGH SUPPLEMENT 1 TO YOUR TENDER NO. 1 PROVIDED FOR ACCESSORIAL CHARGES TO BE COMPUTED ON THE BASIS OF RATES NAMED IN WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1--- AS DID YOUR ORIGINAL TENDER NO. 1--- YOU BILLED AND WERE PAID FOR THE ACCESSORIAL CHARGES ON THE BASIS OF WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1-A.

YOU CONTEND THAT YOUR COMPANY NEGOTIATED WITH THE DEPARTMENT OF THE ARMY FOR A $7 RATE WHICH CONCLUDED IN A MEETING OF THE MINDS AS TO THE APPLICABLE RATE, BUT BECAUSE OF A CLERICAL ERROR WHICH OCCURRED DURING THE PROCESS OF REDUCING THE NEGOTIATED AGREEMENT TO WRITING, A $6.25 RATE WAS SPECIFIED IN THE WRITTEN TENDER. ACCORDINGLY, YOU ARGUE--- CITING IN SUPPORT OF YOUR CONTENTION CERTAIN DECISIONS OF THE COMPTROLLER GENERAL--- THAT THE CONTRACTING OFFICER KNEW THE PRICE AGREED UPON; THAT THIS KNOWLEDGE PLACED UPON HIM THE DUTY TO CALL TO YOUR ATTENTION THE CLERICAL ERROR IN YOUR RATE TENDER; AND THAT YOU HAD THE RIGHT TO CORRECT YOUR RATE TENDER UPON PRESENTATION OF CONCLUSIVE PROOF AS TO THE AMOUNT OF THE INTENDED RATE TENDER.

THE GENERAL ACCOUNTING OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS REQUIRED TO QUESTION OR DISAPPROVE THAT PART OF A PAYMENT TO A CARRIER WHICH IS FOUND TO BE IN EXCESS OF THAT PROPERLY DUE ON THE BASIS OF THE APPLICABLE TARIFFS OR SPECIAL QUOTATIONS AND WHICH IS NOT SUPPORTED BY ESSENTIAL DOCUMENTARY EVIDENCE ESTABLISHING A PROPER OBLIGATION OF THE UNITED STATES. SEE LONGWILL AND JOHNSON'S CASES, 17 C.CLS. 288, 291; AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319. YOUR TRANSPORTATION BILLS FOR THE SERVICES INVOLVED WERE PAID UPON PRESENTATION, BUT THE RIGHT WAS RESERVED TO THE GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERPAYMENT FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE YOU, UNDER AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. THE UNITED STATES SUPREME COURT HAS RECENTLY HELD THAT THE BURDEN OF PROOF CONTINUES TO REMAIN WITH THE CARRIER TO ESTABLISH THE LAWFULNESS OF ITS CHARGES AFTER DEDUCTION HAS BEEN MADE UNDER SECTION 322. NEW YORK, N.H. AND H.R. CO. V. UNITED STATES, 355 U.S. 253. THEREFORE, IN THIS CASE, OUR DUTY IS TO DECIDE WHETHER APPROPRIATED FUNDS ARE PROPERLY AVAILABLE FOR PAYMENT OF THE CLAIMED CHARGES ON THE BASIS OF THE EVIDENCE WHICH YOU HAVE PRESENTED.

WE HAVE RECEIVED FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY, WASHINGTON, D.C., A COPY OF AN OFFICE MEMORANDUM DATED DECEMBER 10, 1952, CONCERNING THE SUBJECT MOVEMENT, AND SIGNED BY R. C. HUMPHREYS, CHIEF, WESTERN SECTION. IT READS AS FOLLOWS:

"1. UNDER DATE OF 24 NOVEMBER 1952 MR. J. W. REA, DISTRICT MANAGER, NORTH AMERICAN VAN LINES INC., VISITED THE OFFICE AND TALKED WITH THE UNDERSIGNED REGARDING MOVEMENT OF HOUSEHOLD GOODS AND OFFICE FURNITURE FROM CAMP COOKE, CALIFORNIA TO FT. LEWIS, WASHINGTON.

"2. AT THAT TIME STUDY WAS IN PROCESS AND MR. REA WAS ADVISED THAT HE WOULD BE INFORMED JUST AS SOON AS A REASONABLE RATE WAS DEVELOPED. MR. REA STATED THAT HE WOULD LIKE TO PROVIDE A RATE OF 625 CENTS PER 100 POUNDS, VOLUME MINIMUM WEIGHT 8,000 POUNDS.

"3. UPON COMPLETION OF STUDY IT WAS FOUND THAT RATE OF 700 CENTS PER 100 POUNDS, VOLUME MINIMUM WEIGHT 8,000 POUNDS WOULD BE REASONABLE. MR. REA WAS ADVISED THAT HIS OFFER WOULD BE ACCEPTED.

"4. TODAY, 10 DECEMBER 1952, MR. J. W. REA VISITED THE OFFICE AND ADVISED THAT HE HAD MADE A VERY GRAVE ERROR IN ASCERTAINING THE APPLICABLE RATE IN WESTERN STATES MOVERS CONFERENCE TARIFF MF ICC 18. IT WAS HIS INTENTION TO PROVIDE THE SAME RATE AS NAMED IN THE ABOVE TARIFF I.E., 750 CENTS PER 100 POUNDS. DUE TO THE FACT THAT THE PROVIDED RATE AFFORDS REVENUE TO A CONSIDERABLE EXTENT BELOW OPERATING EXPENSES MR. REA REQUESTED AN ADJUSTMENT IN THE RATE.

"5. INASMUCH AS THIS OFFICE CONSIDERED RATE OF 700 CENTS 100 POUNDS, MINIMUM 8,000 POUNDS AS REASONABLE I RECOMMENDED TO LT. COL. VALIANTE THAT CARRIER TO PERMITTED TO ADJUST PROVIDED RATE OF 625 CENTS PER 100 POUNDS TO 700 CENTS PER 100 POUNDS, VOLUME MINIMUM 8,000 POUNDS. LT. COL. VALIANTE CONCURRED AND INSTRUCTED THAT I EFFECT PROPER SETTLEMENT.

"6. MR. REA WAS ADVISED THAT AN AMENDMENT TO QUOTATION WOULD BE ACCEPTED PROVIDING RATE OF 700 CENTS PER 100 POUNDS, VOLUME MINIMUM 8,000 POUNDS. HE READILY AGREED TO PROVIDE THE NECESSARY AMENDMENT.'

THIS MEMORANDUM IS AT VARIANCE WITH YOUR CONTENTION THAT A $7 RATE WAS ORIGINALLY NEGOTIATED WITH THE DEPARTMENT OF THE ARMY AND LATER ERRONEOUSLY TRANSCRIBED AS $6.25 IN THE WRITTEN TENDER. WHERE THERE IS A CONFLICT BETWEEN THE REPORT OF THE ADMINISTRATIVE OFFICE AND THE CONTENTION OF THE CLAIMANT, AS THERE IS HERE, THE NECESSARY RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY.

UNDER THE CIRCUMSTANCES, WE DO NOT FEEL THAT YOU HAVE SUSTAINED YOUR BURDEN OF PROVING THE LAWFULNESS OF THE CHARGES ORIGINALLY PAID ON THE BASIS OF YOUR SUPPLEMENTAL TENDER. CONSEQUENTLY, YOUR CLAIM FOR REFUND OF AMOUNTS ALREADY DEDUCTED MUST BE DISALLOWED. REFUND SHOULD BE MADE PROMPTLY OF THE OTHER OVERPAYMENTS REPORTED TO YOU TO AVOID RECOVERY BY OTHER MEANS.