B-223799.2, May 13, 1991

B-223799.2, May 13, 1991

CIVILIAN PERSONNEL - Relocation - Household goods - Weight restrictions - Liability - Computation DIGEST: A Public Health Service commissioned officer requests reconsideration of a prior decision holding him liable for the costs of shipping household goods in excess of his weight allowance. The officer maintains that he should not be held liable for the extra costs because the moving company offered him a Guaranteed Price Pledge based on the company's estimate that the weight of his household goods would be within his prescribed limit. In fact, the guaranteed price equated to the cost of moving goods weighing substantially more than his weight allowance and the total net weight of his goods was 4,454 pounds over his limit. While he may not have understood the basis for the guaranteed price and the company's agent misinformed him as to the weight, the law does not permit the government to bear the costs for shipping excess weight. Upon reconsideration, Dr. John M. Dyer, 67 Comp.Gen. 171 (1988), is affirmed.

Dr. John M. Dyer - Household Goods Excess Weight - Carrier's Guaranteed Price Pledge - Reconsideration:

Dr. John M. Dyer, a Public Health Service commissioned officer requests reconsideration of our decision, Dr. John M. Dyer, 67 Comp.Gen. 171 (1988), in which we determined that he is liable for the costs of shipping excess weight of household goods incident to a permanent change of station transfer in 1985. /1/ The holding in that decision is affirmed; however, we agree that Dr. Dyer is entitled to a reduction in the amount of his liability.

BACKGROUND

Dr. Dyer was authorized to have his household goods (within his prescribed weight allowance) moved by household goods carrier at government expense under a government bill of lading from Glen Ellyn, Illinois, to Dallas, Texas. He selected Allied Van Lines to transport his household goods. An Allied representative prepared a Guaranteed Price Pledge of $8,532.71 to move an estimated 12,500 pounds, including 1,000 pounds of professional books and papers. /2/ Charges for additional services (complete unpacking and insurance) brought the price up to $9,179.87. In fact, however, the price initially quoted by the representative corresponded to the cost of moving a weight of approximately 18,000 pounds, which turned out to be reasonably close to the 21,060 pounds actually moved as ascertained by scale weight certificates Allied furnished the agency. See John M. Dyer, supra, at 174.

The agency determined that Allied moved 4,454 pounds of excess weight. That figure represents the difference between Dr. Dyer's weight allowance and the net weight moved, which is determined by subtracting from the total weight moved a 10 percent allowance for packing materials and another 1,000 pounds for Dr. Dyer's professional books and papers. See Dr. John M. Dyer, supra, at 172, footnote 4. In this case, the excess weight moved amounted to about 21 percent of the total weight moved (4,454 pounds divided by 21,060 pounds). In accord with the applicable regulation, the agency applied this ratio to the amount paid to Allied and concluded that Dr. Dyer owed the agency $1,913.53 for the excess weight. Volume 1, Joint Travel Regulations (1 JTR) para. M8007-2a (Change 392, Oct. 1, 1985).

Dr. Dyer's main contention is that the assurances made by Allied's representative that his total weight would be within his authorized weight allowance should preclude the agency from recouping from him any charges for excess weight. In our initial decision, Dr. John Dyer, supra, we rejected that argument, noting prior decisions holding employees liable for excess costs, even where the actual weights were considerably higher than contractor estimates. Id. at 174, citing Joseph S. Montalbano, B-197046, Feb. 19, 1980; Robert Y. Ikeda, B-181631, Oct. 9, 1974; and also Rayburn C. Robinson, Jr., B-215221, Sept. 5, 1984. In his request for reconsideration, Dr. Dyer argues that he should not be bound by Allied's conduct because he followed all applicable agency guidelines. Further, he questions whether, in fact, he shipped excess weight or whether, if he did, the government incurred any costs for any excess weight. Finally, he requests that we direct the agency to reimburse him for legal costs and interest on all monies withheld from him, but in light of our decision to affirm our prior ruling, we need not reach these final points. His other arguments are considered below.

DISCUSSION

Initially there was some confusion by the agency concerning how the Guaranteed Price Pledge worked and whether the agency actually paid the carrier to move weight in excess of Dr. Dyer's allowance. As a result, the agency queried the Per Diem, Travel and Transportation Allowance Committee concerning Dr. Dyer's shipment. In a memorandum dated May 14, 1986, the Director of the Committee replied that there was no excess cost to the government since the government did not pay for any excess weight. However, that memorandum indicates the Committee's understanding that Allied's Guaranteed Price Pledge was based on the cost for moving 12,500 pounds. As explained above and in our prior decision, we now know that the Committee was misinformed as to the basis for the charges. These matters subsequently have been clarified. It is clear, as stated above, that Dr. Dyer's goods actually weighed substantially more than the 12,500 pounds (plus 1,000 pounds of professional goods) noted on the carrier's Guaranteed Price Pledge form. It is also clear that the amount of the guaranteed price stated on the form, upon which the charges the agency paid were based, related to movement of substantially more than the estimated amount entered on the form and substantially more than Dr. Dyer's maximum 13,500 pound allowance (plus 1,000 pounds of professional goods).

Dr. Dyer disputes whether he shipped any excess weight on the basis that the agency erred in its computation of his net weight by failing to deduct a 20 percent allowance for reusable containers, described in the agency's relocation guide, in addition to the 10 percent packing allowance deducted. However, the regulation upon which the guidebook is based authorizes the 20 percent allowance only for shipments in standardized overseas shipping boxes, such as CONEX transporters. 1 JTR M8002 (Change 376, June 1, 1984). Dr. Dyer's goods were shipped by moving van and not in such overseas shipping boxes. Thus, the 20 percent allowance is inapplicable. In short it is clear that Dr. Dyer's shipment exceeded his weight allowance and that the agency incurred the additional cost to move the excess weight.

Dr. Dyer also argues that his liability should be reduced by the pro rata amount of unpacking costs assessed against him. The agency paid the carrier an extra $268 for unpacking services, and Dr. Dyer contends that he should not be assessed any of this charge because Allied included those services in its guaranteed price. After further reviewing the documents, we agree that unpacking services were specifically included in the original guaranteed price and there is no explanation why the agency paid the extra charge. Therefore, since it appears the agency should not have paid the carrier the extra $268, Dr. Dyer's liability should be reduced by the pro rata amount of the $268 charge assessed against him.

Further, Dr. Dyer argues that he should be relieved fully from liability because he followed the agency's relocation guide, which states that "carriers' representatives can usually be relied upon to make reasonably accurate estimates of weight." However, he has failed to show that the relocation guide contains erroneous advice or that he relied on the guide to his detriment. Nowhere does it state that the government is bound by such estimates, and indeed, it clearly warns that the shipper is liable for the costs of moving excess weight. See also 1 JTR para. M8007, which also specifically provides that the member is to bear all costs arising from shipment of excess weight. Also, Dr. Dyer received the benefit of the services for which he is being charged. That is, the extra 4,454 pounds of his goods were moved. Even if Allied had given him an accurate weight estimate, he would have had to move these goods or otherwise dispose of them.

In this regard, at our request, the Transportation Audits Office, General Services Administration, has reviewed the shipping documents and advised us that, had the rates under the standard tender agreement between Allied and the federal government been applied to the shipment instead of the guaranteed price, the cost to move Dr. Dyer's total weight would have been $9,413.15. This would result in an excess weight cost of $2,081.04, /3/ which is greater than the $1,913.53 excess cost assessed Dr. Dyer based on the guaranteed price paid by the agency.

In any event the law is well settled that a uniformed service member or an employee is liable for the costs of shipping weight exceeding the applicable allowance. See 49 Comp.Gen. 255 (1969), and Joseph S. Montalbano, B-197046, supra. In Montalbano, although the employee claimed that the excess weight for which he was charged resulted from the carrier's fraud or negligence, we held that, "regardless of the reasons for the shipment of the excessive weight of household goods, the law does not permit payment by the government of charges incurred for shipment of the excess weight." Id. at 2. Accordingly, except for the reduction for the packing charge, we affirm our holding that Dr. Dyer is liable for excess shipping costs assessed by the agency.

/1/ Dr. Dyer is represented by counsel, Kator, Scott Heller, whose submissions on his behalf have been considered in the preparation of this decision.

/2/ Dr. Dyer (pay grade 0-7) was entitled to a maximum basic weight allowance of 13,500 pounds plus 1,000 pounds for professional books and papers, so this estimated weight would not have exceeded his allowance. JTR para. M8003.

/3/ The $9,413.15 figure includes $132 for excess valuation (insurance), which Dr. Dyer elected for his shipment which is not payable by the government. 1 JTR para. M8007-1. To arrive at the final figure used here, we subtracted the excess valuation cost from the total amount that was paid to Allied, applied the ratio to that figure, then added the excess valuation.