B-236378, Feb 6, 1991, 91-1 CPD ***

B-236378, Feb 6, 1991, 91-1 CPD ***

PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Burden of proof DIGEST: 1. A carrier's claim that it should not be held responsible for the loss of a government shipment because another carrier received and transported the shipment is rejected where the Government Bill of Lading (GBL) was issued by the carrier without reference to any other carrier; the GBL, Public Voucher for Transportation Charges and other documents indicate that the carrier alone moved the shipment; and the carrier admits that it billed for the shipment. 2. Where an agency asserts that four of seven items in a shipment were not delivered, the carrier involved is liable for the loss if the carrier does not prove delivery of all of the items. PROCUREMENT - Payment/Discharge - Shipment costs - Overcharge - Payment deductions - Propriety 3. The 3-year limit in 31 U.S.C. Sec. 3726(b) on the government's right to deduct against a carrier's future bills to recover overcharges does not restrict the government's common law right to set off in order to recover for loss or damage.

Double "M" Transport:

Double "M" Transport, a motor carrier, requests that we review our Claims Group's disallowance of its claim for reimbursement of $7,500.28 set off from revenues due the firm by the Army Finance Center to satisfy the loss of missing items on Government Bill of Lading (GBL) shipment S-3,808,714. Double "M" says that it did not receive or transport the shipment for the government and, anyway, that it understands the entire shipment was delivered. Double "M" also argues that the Army's claim is barred because the agency failed to notify Double "M" of the loss within the time required by regulation and failed to initiate setoff within the period of the statute of limitations.

We affirm the Claims Group's decision.

Double "M" first says that although it had been contacted concerning transporting the shipment, it did not have an available truck and therefore "referred the shipment" to another carrier. Double "M" maintains that it acted only as the billing agent for the actual carrier as evidenced by that carrier's bill to Double "M" and Double "M"'s check in response. The firm argues that where the facts are conclusive regarding the line on which a loss occurred, the government should file its claim against that carrier.

The GBL related to this transaction indicates that Double "M" received the shipment on October 30, 1984, and includes a certification by an individual at Double "M" that the carrier delivered the shipment to its destination. The record also indicates that Double "M" billed the Army Finance Center on a Public Voucher for Transportation Charges dated November 5, 1984, as the carrier concedes. Further, the record includes a copy of a "Statement" on stationery with "Double 'M' Transport" printed on it, referencing the GBL number and the amount billed in the Public Voucher. None of these documents refers to any party or carrier other than Double "M". In sum, nothing in the record supports the claimant's contention that it was not responsible for the transportation, so that we see no basis to relieve Double "M" of liability for the loss.

Double "M" also alleges that all seven items in the shipment in fact were delivered, and as evidence refers to a telephone call allegedly received from a woman at the destination who stated that all pieces were received.

The record shows that the Army initially claimed non-delivery of all seven items, but subsequently found three of them. Notwithstanding what Double "M" says it was told in a telephone conversation by someone at the destination, the Army maintains that it never received four of the seven pieces.

We note that the telephone conversation in issue appears to have taken place shortly after the Army's discovery of the partial delivery, which would suggest that the call was intended to relay only that factor. Further, although there is documentation in the record to show delivery of three of the seven items shipped, Double "M" has not furnished any documentation to establish delivery of the remaining four items. Double "M" has the burden of proving delivery of the items the Army says are missing. See ABF Freight System, Inc., B-203529.2, July 18, 1990. The allegation of a telephone call indicating delivery of the entire shipment, without more, is insufficient evidence to prove the carrier's case in that regard.

Double "M" contends that it did not receive any written notification of the loss until June 1988, 3-1/2 years after discovery of the shortage. is the carrier's position that, under applicable regulations, the company was entitled to receive a copy of the Discrepancy in Shipment Report (SF 361) within 7 days of discovery of the loss or the government's claim would be barred.

The original Discrepancy in Shipment Report was prepared on December 18, 1984, 1 day after discovery of the shortage, and indicates that Double "M" was notified on that day that the entire shipment was missing. Also, notes in the "Remarks" block of the report indicate that the carrier was on distribution for a copy of it since the carrier was specifically requested through the report to trace the shipment.

The issue of the notification of loss in December 1984 is a question o fact. The original Discrepancy in Shipment Report contains specific evidence of such notification, as well as an intent that a copy of it would be forwarded to the carrier for action. In our view, such evidence of notification outweighs the carrier's allegation to the contrary.

Finally, Double "M" suggests that the 3-year statute of limitations in 31 U.S.C. Sec. 3726(b) bars the Army's deduction action. There is no merit in that position, however. The cited statute precludes the government from deducting for overcharges more than 3 years after paying a bill. does not apply to the government's common law right to set off in satisfaction of loss or damage claims against a carrier.

The Claims Group's settlement is affirmed.