B-174818, MAY 9, 1972

B-174818, MAY 9, 1972

TRANSPORTATION COSTS - REIMBURSEMENT - BARRING ACT - REQUEST FOR WAIVER DECISION DENYING THE REQUEST OF ROCK ISLAND MOTOR TRANSIT COMPANY FOR WAIVER OF THE PROVISIONS OF THE BARRING ACT WITH REGARD TO ITS CLAIM FOR THE COSTS OF TRANSPORTING TEN SAFES FROM DIEBOLD, INC., HAMILTON, OHIO, TO TOPEKA, KANS., UNDER A GOVERNMENT BILL OF LADING. SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY 49 U.S.C.A. 66, PROVIDES THAT UNLESS A CLAIM IS RECEIVED BY GAO WITHIN A THREE-YEAR PERIOD, THE CLAIM IS FOREVER BARRED. PURSUANT TO SECTION 54.6AA) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, THE FILING OF A CLAIM WITH SOME OTHER AGENCY DOES NOT MEET THIS REQUIREMENT. SINCE THE STATUTE IS NOT SUBJECT TO WAIVER BY OFFICERS OR AGENTS OF THE UNITED STATES, (MUNRO V. UNITED STATES, 303 U.S. 36 (1938)), THE REQUEST FOR WAIVER MUST BE DENIED.

TO ROCK ISLAND MOTOR TRANSIT COMPANY:

PLEASE REFER TO YOUR LETTER OF NOVEMBER 30, 1971, FILE GBL D-1876061, WITH ENCLOSURES, REQUESTING CONSIDERATION OF YOUR CLAIM FOR $542.25 FOR THE TRANSPORTATION OF A SHIPMENT OF 10 SAFES FROM DIEBOLD, INCORPORATED, HAMILTON, OHIO, TO TOPEKA, KANSAS. YOU ASK FOR APPROVAL OF A WAIVER SINCE YOU BELIEVE THAT YOU HAVE MET THE REQUIREMENTS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C.A. 66, REQUIRING PAYMENT UPON PRESENTATION OF BILLS FOR TRANSPORTATION FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT OR THE FEDERAL AVIATION ACT OF 1958, PROVIDES IN PERTINENT PART:

" *** 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 (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER."

THE STATUTE CLEARLY PROVIDES THAT, UNLESS A CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE PRESCRIBED THREE-YEAR PERIOD, THE CLAIM IS FOREVER BARRED. STATUTES OF THIS KIND CANNOT BE WAIVED BY OFFICERS OR AGENTS OF THE UNITED STATES. FINN V UNITED STATES, 123 U.S. 227 (1887); MUNRO V UNITED STATES, 303 U.S. 36 (1938).

THE COPY OF THE U.S. GOVERNMENT FREIGHT WAYBILL, WHICH WAS SUBMITTED HERE BY YOU, INDICATES THAT THE SHIPMENT OF SAFES WAS PICKED UP ON MAY 21, 1968, BY THE MOTOR FREIGHT CORPORATION AND TRANSFERRED TO YOUR COMPANY FOR DELIVERY, WHICH PRESUMABLY WAS EFFECTED WITHIN A WEEK OR TWO THEREAFTER. YOUR COPY OF STANDARD FORM 1113A, "PUBLIC VOUCHER FOR TRANSPORTATION CHARGES," YOUR BILL NO. 630 FOR $542.25, IS DATED JUNE 27, 1968, AND SHOWS THAT IT WAS PRESENTED FOR PAYMENT TO THE POSTAL DATA CENTER, POST OFFICE DEPARTMENT, NEW YORK, NEW YORK 10099. THE BILL, THEREFORE, APPEARS TO HAVE BEEN PRESENTED TO THE POST OFFICE DEPARTMENT FOR PAYMENT WITHIN THREE YEARS AFTER DELIVERY.

THEREAFTER, AS YOUR PAPERS INDICATE, YOU CONTINUED TO SEEK PAYMENT FROM THE POST OFFICE DEPARTMENT BY LETTERS WRITTEN IN 1969, 1970, AND 1971. THE UNITED STATES POSTAL SERVICE, HOWEVER, IN A LETTER DATED NOVEMBER 23, 1971, REFERRED TO 49 U.S.C. 66 AND SUGGESTED THAT YOU REQUEST "APPROVAL OF A WAIVER." YOU WERE ALSO ADVISED THAT A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING "WOULD BE ONLY RETURNED."

YOUR CLAIM WAS RECEIVED HERE ON DECEMBER 2, 1971, MORE THAN THREE YEARS AFTER THE PROBABLE DATE OF DELIVERY OF THE SHIPMENT OF SAFES, IN LATE MAY OR EARLY JUNE, 1968, THE EVENT WHICH FIXED THE TIME FOR THE ACCRUAL OF THE CAUSE OF ACTION. THE CLAIM, THEREFORE, MAY NOT BE CONSIDERED BY OUR OFFICE, EVEN THOUGH IT WAS PRESENTED TO THE POST OFFICE DEPARTMENT WITHIN THE THREE-YEAR LIMITATION PERIOD. THE LAW IS DESIGNED TO END CONTROVERSY AFTER A REASONABLE PERIOD OF TIME.

OUR REGULATIONS PROVIDE IN SECTION 54.6AA) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS:

" *** THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WILL NOT MEET THE REQUIREMENTS OF THIS STATUTE; THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED."

AND, AS PROVIDED IN SECTION 54.6(A) OF THE REGULATIONS, "A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION DIVISION, GENERAL ACCOUNTING OFFICE, PARTICULARLY IF THE APPLICABLE STATUTORY PERIOD OF LIMITATION IS ABOUT TO EXPIRE."

AS WE HAVE EXPLAINED, THE CLAIM WAS NOT RECEIVED IN THE UNITED STATES GENERAL ACCOUNTING OFFICE WITHIN THE THREE-YEAR LIMITATION PERIOD PROVIDED BY LAW; THEREFORE, CONSIDERATION OF YOUR CLAIM IS NOW BARRED UNDER THE PROVISIONS OF THE STATUTE, WHICH WE HAVE NO AUTHORITY TO WAIVE.