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WHERE THE ALLEGED ADVANCE NOTICE OF THE CONSIGNEE'S INABILITY TO ACCEPT DELIVERY AS ORIGINALLY SCHEDULED IS NOT REBUTTED BY A RECORD THAT DOES NOT SUGGEST THE TELEPHONIC CANCELLATION OF THE ORIGINAL DELIVERY DATE WAS INADEQUATE OR NOT IN COMPLIANCE WITH ANY TARIFF PROVISION RELATING TO FORMAL REQUISITES OF NOTICE. THE HOLD-UP DELIVERY MESSAGE LEFT WITH AN EMPLOYEE OF THE TRANSFER AND STORAGE CONCERN PRESENTING THE SUPPLEMENTAL BILLING IS IMPUTED TO THE CONCERN. ALSO NO GOVERNMENT AGENT WAS AT FAULT. WAS LEFT AT THE DESIGNATED PLACE OF DELIVERY. NO INQUIRY WAS MADE AS TO WHEN REDELIVERY SHOULD BE MADE. NO REQUEST WAS MADE FOR FURTHER INSTRUCTIONS. WAS GIVEN TO CLAIMANT'S DELIVERY AGENT.

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B-178136, AUG 28, 1973, 53 COMP GEN 127

TRANSPORTATION - HOUSEHOLD EFFECTS - DELIVERY - ATTEMPTED FIRST DELIVERY A SUPPLEMENTAL BILLING FOR AN ALLEGED ATTEMPTED FIRST DELIVERY OF AN EMPLOYEE'S HOUSEHOLD EFFECTS, WHERE THE ALLEGED ADVANCE NOTICE OF THE CONSIGNEE'S INABILITY TO ACCEPT DELIVERY AS ORIGINALLY SCHEDULED IS NOT REBUTTED BY A RECORD THAT DOES NOT SUGGEST THE TELEPHONIC CANCELLATION OF THE ORIGINAL DELIVERY DATE WAS INADEQUATE OR NOT IN COMPLIANCE WITH ANY TARIFF PROVISION RELATING TO FORMAL REQUISITES OF NOTICE, MAY NOT BE CERTIFIED FOR PAYMENT. FURTHERMORE, THE HOLD-UP DELIVERY MESSAGE LEFT WITH AN EMPLOYEE OF THE TRANSFER AND STORAGE CONCERN PRESENTING THE SUPPLEMENTAL BILLING IS IMPUTED TO THE CONCERN, AND ALSO NO GOVERNMENT AGENT WAS AT FAULT; NO NOTICE OF ATTEMPTED DELIVERY, AS REQUIRED BY THE BILL OF LADING, WAS LEFT AT THE DESIGNATED PLACE OF DELIVERY; NO INQUIRY WAS MADE AS TO WHEN REDELIVERY SHOULD BE MADE, AND NO REQUEST WAS MADE FOR FURTHER INSTRUCTIONS.

TO DONALD E. MULDOON, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, AUGUST 28, 1973:

YOUR LETTER OF MARCH 2, 1973, REFERENCE 9AF, CONCERNS A SUPPLEMENTAL BILLING PRESENTED BY LAS VEGAS TRANSFER AND STORAGE, INC., IN CONNECTION WITH THE TRANSPORTATION OF HOUSEHOLD EFFECTS FROM LAS VEGAS TO RENO, NEVADA, BELONGING TO ANDREW MCGUIRE, AN EMPLOYEE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. THE PUBLIC VOUCHER FOR TRANSPORTATION CHARGES CONTAINS, AMONG OTHER CHARGES, AN ITEM IN THE AMOUNT OF $200 FOR AN ALLEGED ATTEMPTED FIRST DELIVERY. IN VIEW OF THE ASSERTION BY THE EMPLOYEE'S WIFE THAT NOTICE BY TELEPHONE OF THE CONSIGNEE'S INABILITY TO ACCEPT DELIVERY AS ORIGINALLY SCHEDULED ON NOVEMBER 22, 1972, WAS GIVEN TO CLAIMANT'S DELIVERY AGENT, BENDER MOVING AND STORAGE, INC., 2 DAYS IN ADVANCE OF THAT DATE, YOU REQUEST OUR ADVICE CONCERNING THE PROPRIETY OF PAYING THE $200.

THE CARRIER'S COMBINATION BILL OF LADING AND FREIGHT BILL NO. WO 41578 INDICATES THAT THE SHIPMENT WAS RECEIVED BY LAS VEGAS TRANSFER AND STORAGE ON NOVEMBER 10, 1972, AND WAS PLACED IN BENDER'S STORAGE FACILITIES AT RENO ON NOVEMBER 13, 1972. ACTUAL DELIVERY WAS EFFECTED, APPARENTLY, ON DECEMBER 7, 1972. IN CONTROVERSY ARE TWO FACTUAL QUESTIONS: WHETHER NOTICE WAS GIVEN ON NOVEMBER 20, AND WHETHER DELIVERY WAS ATTEMPTED ON NOVEMBER 22.

IN RESPONSES TO AN INQUIRY FROM OUR OFFICE DATED MAY 8, 1973 (COPY OMITTED), LAS VEGAS TRANSFER AND STORAGE, INC. FORWARDED A REPLY, DATED JANUARY 22, 1973, TO A MESSAGE FROM CLAIMANT, DATED JANUARY 18, 1973 (COPY OMITTED), IN WHICH BENDER STATED THAT MRS. MCGUIRE CALLED AND WANTED HER HOUSEHOLD EFFECTS DELIVERED ON NOVEMBER 22, 1972. MRS. MCGUIRE'S LETTER OF FEBRUARY 1, 1973, BY IMPLICATION, AGREES THAT NOVEMBER 22, 1972, WAS THE DELIVERY DATE ORIGINALLY AGREED UPON BY THE PARTIES. BUT THE RECORD CONTAINS NO REBUTTAL TO MRS. MCGUIRE'S ASSERTION THAT SHE ALSO CALLED BENDER 2 DAYS BEFORE NOVEMBER 22, 1972, CANCELING THE ORIGINAL DELIVERY DATE, AND THERE IS NOTHING IN THE RECORD SUGGESTING THAT THE NOTICE WAS INADEQUATE OR NOT IN COMPLIANCE WITH ANY TARIFF PROVISION RELATING TO FORMAL REQUISITES OF NOTICE. IN THE ABSENCE OF SUCH REBUTTAL, NOTICE TO THE EMPLOYEE WHO RECEIVED MRS. MCGUIRE'S MESSAGE IS IMPUTED TO THE EMPLOYER, BENDER. THEREFORE, IF DELIVERY WAS ATTEMPTED BY BENDER ON NOVEMBER 22, 1972, IT WAS THROUGH NO FAULT OF THE CONSIGNEE, AND THERE IS NOTHING IN THE RECORD INDICATING THAT AN AGENT OF THE GOVERNMENT WAS AT FAULT.

THERE IS NO DOCUMENTARY EVIDENCE IN THE RECORD SUPPORTING THE CLAIM THAT DELIVERY WAS IN FACT ATTEMPTED ON NOVEMBER 22, 1972. SECTION 4(A) OF THE CONTRACT TERMS AND CONDITIONS ON THE REVERSE OF THE CARRIER'S BILL OF LADING STATES IN PERTINENT PART:

*** IN THE EVENT THE CONSIGNEE CANNOT BE FOUND AT THE ADDRESS GIVEN FOR DELIVERY, THEN IN THAT EVENT, NOTICE OF THE PLACING OF SUCH GOODS IN SAID WAREHOUSE OR OTHER AVAILABLE PLACE SHALL BE LEFT AT THE ADDRESS GIVEN FOR DELIVERY AND MAILED TO ANY OTHER ADDRESS GIVEN ON THE BILL OF LADING FOR NOTIFICATION, SHOWING THE WAREHOUSE OR OTHER PLACE IN WHICH SUCH PROPERTY HAS BEEN STORED, SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH.

WE REALIZE THAT THESE PROVISIONS RELATE TO CONSIGNEE'S LIABILITY FOR STORAGE CHARGES AND THE EXTENT OF CARRIER'S LIABILITY FOR LOSS OR DAMAGE TO THE HOUSEHOLD EFFECTS, BUT THE NOTICE THEREIN SPECIFIED IS THE TYPE OF EVIDENCE, IF GIVEN, THAT COULD SUPPORT THE CONTENTION THAT DELIVERY WAS IN FACT ATTEMPTED. ALTHOUGH BENDER ASSERTS DELIVERY WAS ATTEMPTED ON NOVEMBER 22, 1972, AND THAT NO ONE WAS AT THE PLACE DESIGNATED FOR DELIVERY, BENDER'S EMPLOYEES APPARENTLY LEFT NO NOTICE THERE, SUCH AS THAT PROVIDED FOR BY SECTION 4(A) OF THE CONTRACT TERMS AND CONDITIONS OF THE BILL OF LADING.

ANOTHER FACTOR UNDERMINES BENDER'S CONTENTION THAT DELIVERY WAS ATTEMPTED ON NOVEMBER 22. THE STORAGE-IN-TRANSIT SECTION OF THE STATEMENT OF ACCESSORIAL SERVICES PERFORMED (DD FORM 619), RELATING TO GBL F-7857055, SHOWS "DATE IN" AS NOVEMBER 13, 1972, AND "DATE OUT" AS DECEMBER 6, 1972 (OR DECEMBER 7, 1972). THE ABSENCE OF ANY REFERENCE TO NOVEMBER 22, 1972, AS A DATE ON WHICH THE HOUSEHOLD EFFECTS WERE TAKEN OUT OF STORAGE AND IN, IS NOT CONSISTENT WITH BENDER'S POSITION. MOREOVER, IF BENDER DID MAKE AN ATTEMPTED DELIVERY ON NOVEMBER 22, THE RECORD DOES NOT INDICATE BENDER MADE ANY INQUIRY AS TO WHEN REDELIVERY SHOULD BE MADE NOR THAT ANY REQUEST FOR FURTHER INSTRUCTIONS WAS SOUGHT THUS LENDING CREDENCE TO MRS. MCGUIRE'S STATEMENT THAT SHE NOTIFIED BENDER ON NOVEMBER 20TH NOT TO MAKE DELIVERY ON THE 22ND. IT WAS NOT UNTIL MRS. MCGUIRE NOTIFIED BENDER TO MAKE DELIVERY ON DECEMBER 6 THAT THE REDELIVERY WAS EFFECTED, INDICATING THAT BENDER HAD ACQUIESCED IN THE CANCELLATION NOTICE OF NOVEMBER 20.

UNDER THESE CIRCUMSTANCES, WHICH INCLUDE AN UNREBUTTED AFFIRMATION THAT ADVANCE NOTICE CANCELING THE ORIGINALLY ESTABLISHED DELIVERY DATE WAS GIVEN, WE ARE OF THE OPINION THAT THE $200 CHARGE FOR ATTEMPTED FIRST DELIVERY SHOULD NOT BE ALLOWED.

ACCORDINGLY, THE $200 ITEM MAY NOT PROPERLY BE CERTIFIED FOR PAYMENT.

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