B-7043, DECEMBER 15, 1939, 19 COMP. GEN. 578

TRANSPORTATION - HOUSEHOLD EFFECTS - EXCESS COST LIABILITY WHERE THE TOTAL GROSS WEIGHT OF MOTOR-VAN SHIPMENT OF THE HOUSEHOLD EFFECTS OF AN EMPLOYEE CHANGING OFFICIAL STATION EXCEEDED THE ALLOWANCE OF 5,000 POUNDS AUTHORIZED UNDER THE INVOLVED APPROPRIATION AND ADMINISTRATIVE REGULATIONS, THE FACT THAT THE EMPLOYEE ARRANGED FOR THE TRANSPORTATION ON THE BASIS OF A FIXED CHARGE FOR THE FIRST 4,000 POUNDS AND A MUCH LOWER FIXED SUM FOR ALL WEIGHT OVER 4,000 POUNDS, DOES NOT LIMIT THE EMPLOYEE'S EXCESS COST LIABILITY TO THE CHARGE SPECIFIED FOR THE EXCESS OVER 4,000 POUNDS, SINCE THE GOVERNMENT AS WELL AS THE EMPLOYEE IS ENTITLED TO SHARE IN THE SAVING, AND THE EMPLOYEE IS LIABLE FOR THE SAME FRACTION OF THE TOTAL CHARGE AS THE EXCESS WEIGHT (OVER 5,000 POUNDS) IS OF THE TOTAL WEIGHT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 15, 1939:

I HAVE YOUR LETTER OF NOVEMBER 27, 1939, AS FOLLOWS:

THERE IS SUBMITTED HEREWITH CORRESPONDENCE IN REGARD TO THE EXCESS COST INCURRED IN SHIPMENT OF THE HOUSEHOLD EFFECTS OF DR. RICHARD L. COOK FROM SUNMOUNT, NEW YORK, TO OUTWOOD, KENTUCKY, ON GOVERNMENT BILL OF LADING VA- 363908 IN JUNE 1939.

BILL NO. 15080 SUBMITTED BY THE SANDERS TRANSFER AND STORAGE COMPANY IN THE AMOUNT OF $185.40 FOR TRANSPORTATION FURNISHED WAS PAID IN THE AMOUNT RENDERED OCTOBER 6, 1939, UNDER DISBURSING OFFICE VOUCHER NO. 511407, SYMBOL 11-559.

THE WEIGHT OF THE GOODS SHIPPED WAS 8,365 POUNDS, OF WHICH 2,100 POUNDS WERE PACKED FOR SHIPMENT. IN ACCORDANCE WITH EXISTING REGULATIONS 25 PERCENT WAS ADDED TO 6,265 POUNDS FOR TARE, THE CONSTRUCTIVE GROSS WEIGHT BEING 9,931 POUNDS. COMPUTATION WAS ON BASIS OF 4931/9931 OF $185.40 AND THE EXCESS TRANSPORTATION CHARGE WAS DETERMINED TO BE $92.06. DR. COOK HAD PREVIOUSLY REMITTED $25.00 OF THIS AMOUNT, WHICH HAD BEEN APPLIED IN PART PAYMENT OF THE CARRIER'S CLAIM.

THE BID SUBMITTED BY THE SANDERS TRANSFER AND STORAGE COMPANY READS AS FOLLOWS:

"WE WILL TRANSPORT YOUR HOUSEHOLD EFFECTS BY VAN FOR THE FOLLOWING

COST:

4,000 POUNDS--- $160.40.

ALL EXCESS WEIGHT OVER AND ABOVE 4,000 POUNDS FOR AN ADDITIONAL

$25.00, THESE TERMS BEING SUBMITTED PROVIDED YOUR HOUSEHOLD

EFFECTS ARE TO BE TRANSPORTED BY RETURN LOAD.'

IN VIEW OF THE TERMS OF THE BID SUBMITTED BY THE CARRIER DR. COOK PROTESTED FURTHER PAYMENT OF THE EXCESS AS COMPUTED CONTENDING IN LETTER OF SEPTEMBER 28, 1939, THAT IN REALITY ALL THAT WAS MOVED FOR HIM ON THE GOVERNMENT BILL OF LADING WAS 4,000 POUNDS, THAT HE VERY SPECIFICALLY CONTRACTED FOR ALL OTHER POUNDAGE WITH THE VAN COMPANY AT HIS OWN EXPENSE, AND THAT THE CARRIER'S ACCEPTANCE ON THESE TERMS WAS DUE TO THE FACT THAT HIS SHIPMENT WAS A RETURN LOAD. HE FURTHER STATED IN LETTER OF OCTOBER 18, 1939, THAT HAD HIS HOUSEHOLD EFFECTS AMOUNTED TO EXACTLY 5,000 POUNDS AND HAD THEY BEEN SENT BY COMMON CARRIER, THE FREIGHT, PACKING, AND DRAYAGE WOULD HAVE COST THE GOVERNMENT $191.50 WHEREAS THE MANNER IN WHICH BIDS WERE SELECTED AND THROUGH PERSONAL ARRANGEMENT THE GOVERNMENT SHOULD PAY $184.12, AND HE DID NOT FEEL THAT HE SHOULD BE PENALIZED FOR HAVING MORE THAN 5,000 POUNDS.

DR. COOK WAS INFORMED IN LETTER OF OCTOBER 10, 1939, THAT FROM THE FACTS PRESENTED IN THE CASE IT WAS NOT SHOWN HOW THIS SHIPMENT DIFFERED FROM SHIPMENTS MADE IN OTHER INSTANCES BY FEDERAL EMPLOYEES SINCE THE ENTIRE SHIPMENT MOVED IN ONE MOTOR VAN UNDER A GOVERNMENT BILL OF LADING. LETTER OF OCTOBER 30, 1939, HE WAS AGAIN INFORMED AS TO THE METHOD OF COMPUTATION USED IN DETERMINING THE AMOUNT OF THE EXCESS AND ADVISED THAT IF HE STILL FELT HE WAS ENTITLED TO A GREATER ALLOWANCE AND SO DESIRED HIS ACCOUNT WOULD BE FORWARDED TO THE COMPTROLLER GENERAL FOR FURTHER CONSIDERATION.

IN HIS REPLY OF NOVEMBER 2, 1939, DR. COOK REITERATES HIS DESIRE TO HAVE HIS CASE FURTHER CONSIDERED IN THAT HE IS STILL OF THE OPINION THAT THE PERSONAL AGREEMENT MADE WITH THE VAN COMPANY ELIMINATES THE NECESSITY OF ANY FURTHER REIMBURSEMENT ON HIS PART. IN THIS LETTER DR. COOK FURTHER HOLDS THAT SINCE THE VAN COMPANY IS CLAIMING $160.40, THE $25.00 HAVING BEEN DEPOSITED BY HIM DOES NOT ENTER INTO THE COMPUTATION AND THAT THE FRACTIONAL PART OF $160.40 OR $79.34 SHOULD BE CONSIDERED AS HIS PORTION OF THE COST, AND WHEN THE $25.00 ALREADY PAID IS DEDUCTED THEREFROM WOULD LEAVE HIM OWING THE GOVERNMENT ONLY $54.34. HOWEVER, HE SUPPLEMENTS THIS LETTER OF NOVEMBER 2, 1939, HOLDING THAT THE FOLLOWING WOULD BE AN EQUITABLE ADJUSTMENT OF THE DIFFERENCE IN THIS SHIPMENT OF HIS HOUSEHOLD EFFECTS FROM TUPPER LAKE, NEW YORK, TO OUTWOOD, KENTUCKY:

"DISREGARD ALL PREVIOUS CORRESPONDENCE, BILLS OF LADING, AND MY CHECK FOR $25.00. MAKE OUT A NEW GOVERNMENT BILL OF LADING IN ACCORDANCE WITH THE BID MADE BY THE VAN COMPANY WHERE HE WOULD HAUL 4,000 LBS. OF MY HOUSEHOLD EFFECTS FOR $160.40. RETURN TO ME MY CHECK FOR $25.00 AND THEN THE VAN FIRM COULD MAKE OUT A COMMERCIAL BILL OF LADING TO COVER THE SHIPMENT OF THE EXCESS WEIGHT. HE WOULD THEN FILE A CLAIM WITH THE VETERANS' ADMINISTRATION FOR $160.40, AS PROPERLY DUE HIM, AND I WOULD REIMBURSE HIM WITH THE REFERRED-TO CHECK. THIS WOULD ENTIRELY CLOSE THE ISSUE.'

AT THE REQUEST OF DR. COOK THIS ACCOUNT IS ACCORDINGLY SUBMITTED FOR DETERMINATION OF THE AMOUNT WHICH IS PAYABLE FROM FEDERAL FUNDS. WHEN IT HAS SERVED ITS PURPOSE DR. COOK WISHES HIS FILE RETURNED.

THE APPROPRIATION FOR ADMINISTRATION, MEDICAL, HOSPITAL, AND DOMICILIARY SERVICES, VETERANS' ADMINISTRATION 1940, ACT OF MARCH 16, 1939, 53 STAT. 544, PROVIDES:

* * * THAT THIS APPROPRIATION SHALL BE AVAILABLE * * * FOR EXPENSES INCURRED IN PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD EFFECTS AND OTHER PROPERTY, NOT EXCEEDING IN ANY ONE CASE FIVE THOUSAND POUNDS, OF EMPLOYEES WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY AND WHEN SPECIFICALLY AUTHORIZED BY THE ADMINISTRATOR;

PARAGRAPH 920, REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION, PROVIDES, IN PART, AS FOLLOWS:

WHEN SPECIFICALLY AUTHORIZED IN ADVANCE BY THE ADMINISTRATOR, EMPLOYEES OF THE VETERANS' ADMINISTRATION, WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, WILL BE ALLOWED EXPENSES INCURRED FOR PACKING, CRATING, DRAYAGE, AND TRANSPORTATION OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY, EXCLUDING AUTOMOBILES, NOT EXCEEDING IN ALL 5,000 POUNDS GROSS WEIGHT FOR MARRIED PERSONS OR PERSONS HAVING DEPENDENTS LIVING WITH THEM, OR 3,500 POUNDS GROSS WEIGHT FOR SINGLE PERSONS WITHOUT DEPENDENTS LIVING WITH THEM.

(A) SHIPMENTS OF HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY WILL BE MADE BY FREIGHT (RAIL OR WATER) EXCEPT THAT SHIPMENTS MAY BE MADE BY EXPRESS OF ARTICLES OF A PERISHABLE NATURE OR REQUIRED FOR IMMEDIATE USE AT THE OFFICIAL STATION TO WHICH THE EMPLOYEE IS TRANSFERRED, SUCH AS WEARING APPAREL, TABLEWARE, BEDDING, AND KITCHEN UTENSILS, BUT NOT INCLUDING FURNITURE OR JEWELRY, PROVIDED THAT THIS SHALL APPLY ONLY IN CASES WHERE SHIPMENT BY FREIGHT WOULD CAUSE DELAY AND INCONVENIENCE.

(C)IF HOUSEHOLD GOODS AND PERSONAL PROPERTY ARE NOT SHIPPED BY FREIGHT BUT SHIPPED BY MOTOR TRUCK OR VAN, NOT TO EXCEED 4,000 POUNDS NET WEIGHT FOR MARRIED PERSONS OR PERSONS HAVING DEPENDENTS LIVING WITH THEM AND 2,800 POUNDS NET WEIGHT FOR SINGLE PERSONS WITHOUT DEPENDENTS LIVING WITH THEM WILL BE ALLOWED, IN ACCORDANCE WITH COMPTROLLER GENERAL'S DECISION A- 84778 OF APRIL 26, 1937. IF ANY OF THE HOUSEHOLD GOODS AND PERSONAL PROPERTY TO BE SHIPPED BY MOTOR TRUCK OR VAN IS PACKED OR CRATED, APPROPRIATE ALLOWANCE WILL BE MADE, PROVIDED THE ACTUAL GROSS WEIGHTS OF THE ARTICLES PACKED OR CRATED ARE SHOWN ON THE CARRIER'S BILL.

(D) IN ARRIVING AT THE ALLOWABLE COST OF SHIPMENT BY VAN OR TRUCK, THE CONSTRUCTIVE GROSS WEIGHT OF THE GOODS WILL BE COMPUTED BY ADDING TO THE GROSS WEIGHT OF THE GOODS PACKED AND CRATED, ONE HUNDRED AND TWENTY-FIVE PERCENT OF THE NET WEIGHT OF THE GOODS NOT PACKED AND CRATED, BEARING IN MIND, OF COURSE, THAT THE GOVERNMENT ALLOWANCE OF THE EQUIVALENT OF CRATING, PACKING, AND DRAYAGE CHARGES AND RAIL FREIGHT COSTS WILL IN NO CASE BE PAID ON A CONSTRUCTIVE GROSS WEIGHT IN EXCESS OF 5,000 POUNDS FOR MARRIED PERSONS OR PERSONS HAVING DEPENDENTS LIVING WITH THEM OR IN EXCESS OF 3,500 POUNDS FOR SINGLE PERSONS WITH NO DEPENDENTS LIVING WITH THEM.

THE DECISION OF APRIL 26, 1937, A-84778, CITED IN THE REGULATIONS ABOVE QUOTED, HELD, IN PERTINENT PART, AS FOLLOWS:

THE CITED REGULATIONS PROVIDE FOR THE SHIPMENT OF THE AUTHORIZED CHANGE OF STATION ALLOWANCE OF NOT TO EXCEED 5,000 POUNDS BY FREIGHT, OR SHIPMENT BY MOTOR TRUCK NOT TO EXCEED THE COST BY FREIGHT TAKING INTO CONSIDERATION CHARGES FOR PACKING, CRATING, AND DRAYAGE, AND SUCH MODE OF TRANSPORTATION IS ESTABLISHED AS THE STANDARD FOR COMPUTING THE AUTHORIZED CHANGE OF STATION ALLOWANCE. PACKING AND CRATING IS ESSENTIAL FOR SHIPMENT BY FREIGHT AND THE WEIGHT OF THE PACKING MATERIAL IS NECESSARILY INCLUDED IN THE WEIGHT OF THE SHIPMENT AND IN THE COMPUTATION OF COSTS FOR PACKING, CRATING, AND DRAYAGE. THE PROVISIONS OF ARMY REGULATIONS FOR COMPUTING THE TARE IN CONNECTION WITH SHIPMENTS BY MOTOR VAN ARE NOT FOR APPLICATION IN THE COMPUTATION OF VAN SHIPMENTS MADE BY THE VETERANS' ADMINISTRATION, BUT A 25 PERCENT INCREASE TO COVER TARE HAS BEEN FOUND TO BE AN EQUITABLE ALLOWANCE FOR SUCH PURPOSE, AND IN THE ABSENCE OF OTHER INFORMATION AS TO ACTUAL TARE, IT WILL BE APPLIED IN THE COMPUTATION OF THIS CASE. HAD THIS SHIPMENT BEEN MADE BY FREIGHT, THE STANDARD FIXED BY THE REGULATIONS, THE WEIGHT OF PACKING AND CRATING ADDED TO THE 5,760 POUNDS OF UNPACKED HOUSEHOLD EFFECTS, WOULD REASONABLY CONSTITUTE THE CONSTRUCTIVE WEIGHT OF SUCH SHIPMENT AS 7,200 POUNDS, AND HAD SHIPMENT BEEN BY SUCH STANDARD METHOD THE REASONABLE ESTIMATED COST WOULD HAVE BEEN AT $1.55 PER CWT. FOR FREIGHT AND $1.75 FOR PACKING, CRATING AND DRAYAGE, OR $237.60, AND THE PRO RATA COST OF SHIPPING THE EXCESS WEIGHT OF 2,200 POUNDS WOULD HAVE BEEN $72.60. HOWEVER, AS THE ACTUAL COST OF SHIPMENT BY MOTOR VAN WAS ONLY $202.75, THE GOVERNMENT, AS WELL AS THE EMPLOYEE, IS ENTITLED TO SHARE IN THE SAVINGS DUE TO SUCH MODE OF TRANSPORTATION, AND THE PRO RATA COST OF SUCH AMOUNT BASED ON THE STANDARD AUTHORIZED MODE OF TRANSPORTATION BEING 2200/7200 OF $202.75, OR $61.95, IS THE AMOUNT PROPERLY FOR COLLECTION FROM DR. MCFADDEN AS COST TO THE GOVERNMENT OF SHIPPING HIS HOUSEHOLD EFFECTS IN EXCESS OF THE AUTHORIZED CHANGE OF DUTY STATION WEIGHT ALLOWANCE.

THE METHOD USED ADMINISTRATIVELY IN DETERMINING THE EXCESS COST FOR COLLECTION FROM THE EMPLOYEE, ASCERTAINS THE GOVERNMENT'S LIABILITY ON THE BASIS OF THE MORE EXPENSIVE METHOD OF SHIPMENT, PROPOSES TO PERMIT THE EMPLOYEE TO SHIP EFFECTS IN EXCESS OF THE STATUTORY MAXIMUM OF 5,000 POUNDS BY A LESS EXPENSIVE METHOD OF SHIPMENT, AND COLLECT FROM THE EMPLOYEE ONLY THE DIFFERENCE BETWEEN THE COST TO THE GOVERNMENT OF PACKING, CRATING, DRAYING, AND SHIPPING 5,000 POUNDS BY THE MORE EXPENSIVE METHOD AND THE ACTUAL COST OF SHIPPING BY THE LESS EXPENSIVE METHOD, UNPACKED, UNCRATED, AND WITHOUT ANY DRAYAGE. ASIDE FROM THE FACT THAT THIS INDIRECTLY OPERATES TO INCREASE THE AMOUNT SHIPPED WITHOUT COST TO THE EMPLOYEE OVER THE STATUTORY LIMIT, THE GOVERNMENT IS ENTITLED TO BENEFIT EQUALLY WITH THE EMPLOYEE WHEN A LESS EXPENSIVE METHOD OF SHIPMENT IS USED.

IT IS, OF COURSE, THE DUTY OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT WHEN INCURRING EXPENSES TO BE CHARGED AGAINST PUBLIC FUNDS TO SECURE THE BEST RATES AVAILABLE AND NOT TO ATTEMPT TO SECURE FOR HIMSELF ANY UNDUE ADVANTAGE BY WHICH THE COST TO THE UNITED STATES MAY BE INCREASED. UNDER DR. COOK'S AGREEMENT WITH THE VAN COMPANY THE COMPANY AGREED TO CARRY 4,000 POUNDS FOR $160.40 AND THE REMAINDER, OR 4,365 POUNDS, FOR $25. THESE GOODS WERE ALL OF THE SAME GENERAL CHARACTER AND INCLUDED IN ONE SHIPMENT, DR. COOK COULD NOT CLAIM THE EXCLUSIVE BENEFIT OF THE $25 PORTION OF THE CHARGE. UNQUESTIONABLY THAT PORTION OF THE CHARGE HAS A DIRECT RELATION TO, OR BEARING UPON, THE CHARGE OF $160.40 MADE TO CARRY 4,000 POUNDS. IT IS NOT BELIEVED IT COULD SERIOUSLY BE CONTENDED THAT COMPANY WOULD HAVE CARRIED FOR $25 THE EXCESS POUNDAGE ALONE--- I.E., WITHOUT THE CHARGE OF $160.40 FOR THE FIRST 4,000 POUNDS. THE RIGHTS OR LIABILITIES OF THE UNITED STATES CANNOT THUS BE FIXED BY AGREEMENTS BETWEEN PRIVATE PARTIES TO WHICH AGREEMENTS THE UNITED STATES IS NOT ITSELF A PARTY. IT HAS BEEN THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS THAT WHERE A METHOD OF SHIPMENT IS ADOPTED WHICH REDUCES THE COST, THE GOVERNMENT AS WELL AS THE EMPLOYEE IS ENTITLED TO SHARE IN THE SAVING, THE RIGHT BEING A RIGHT TO SERVICE IN KIND AND NOT TO AN ALLOWANCE WHICH CAN BE COMMUTED IN MONEY. 17 COMP. GEN. 273, 276. THE TOTAL COST OF THE SHIPMENT, AS HERETOFORE STATED, WAS $185.40, AND THE EXCESS COST WHICH DR. COOK IS REQUIRED TO PAY WAS PROPERLY COMPUTED AT 4931/9931 OF THAT AMOUNT--- SUCH COMPUTATION BEING IN ACCORDANCE WITH THE REGULATIONS HEREINBEFORE QUOTED AND THE DECISIONS OF THIS OFFICE. CF. 17 COMP. GEN. 116; 17 ID. 273; AND 18 ID. 405. THE OFFICER SHOULD BE INSTRUCTED TO REMIT THE BALANCE DUE THE UNITED STATES WITHOUT FURTHER DELAY.

DR. COOK'S FILE OF CORRESPONDENCE IN THIS CASE IS RETURNED AS REQUESTED.