Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405







                                                 



                        February 14, 2002

                                                 





                         GSBCA 15673-RELO





                 In the Matter of MARION T. SILVA





     Marion T. Silva, Rockville, MD, Claimant.



     Mary C. Lanham, Chief, Travel Payments Section, Division of Financial Operations,

Program Support Center, Department of Health and Human Services, Rockville, MD,

appearing for Department of Health and Human Services.



DANIELS, Board Judge (Chairman).



     After being named the chief administrative law judge of the Department of Health and

Human Services (DHHS), Marion T. Silva was directed to move from Albuquerque, New

Mexico, to Washington, D.C.  She reported for duty in Washington in July 2000.



     Judge Silva's household goods were transported by a carrier under contract to the

Government and then stored by an agent of that carrier until the judge moved into a home in

the Washington area.  The goods weighed more than 18,000 pounds, and DHHS charged the

judge for what it believes to be the proportion of the carrier's charges associated with weight

in excess of 18,000 pounds.  Judge Silva contests the agency's assessment of charges.



     DHHS is clearly correct in maintaining that Judge Silva is obligated to pay for the part

of the shipment which involved household goods weighing more than 18,000 pounds.  Under

statute, an agency which transfers an employee, in the interest of the Government, to a new

duty station, is obligated to pay "the expenses of transporting, packing, crating, temporarily

storing, draying, and unpacking his household goods and personal effects not in excess of

18,000 pounds net weight."  5 U.S.C.   5724(a)(2) (1994).  When the employee's goods weigh

more than the specified amount, "the total quantity may be shipped on a Government bill of

lading, but the employee shall reimburse the Government for the cost of transportation and

other charges applicable to the excess weight, computed from the total charges according to

the ratio of excess weight to the total weight of the shipment."  41 CFR 302-8.3(b)(5) (2000).



     In calculating the proportion of the costs which Judge Silva must pay, DHHS has

made a slight error.  The contents of the moving van in which the judge's belongings were

transported weighed 25,420 pounds.  Of this amount, 560 pounds were professional books

and papers.  The weight of the judge's household goods is the difference between these two

figures   24,860 pounds.  DHHS has determined that Judge Silva is responsible for 27.59

percent of the charges imposed by the carrier.  This percentage is 6,860 pounds (the

difference between the 24,860 pounds of household goods and the 18,000 pounds for which

the Government is responsible) divided by 24,860 pounds.  This determination ignores the

agency's obligation to pay for the shipment of the employee's professional books and papers

as an administrative expense.  41 CFR 302-8.2(b).  The agency was responsible for the costs

of shipping 18,560 pounds in all.  Judge Silva is responsible for only 26.99 percent of the

appropriate charges   the 6,860 pounds of excess weight attributable to her household goods

divided by the total weight of the shipment, 25,420 pounds.



     Determining the correct cost of the shipment to which this percentage should be

applied has been difficult, due to the obstinacy of the agency.  The carrier presented to

DHHS three different invoices for services it performed, as well as two different statements

which purport to explain the items included in the invoices.  One of those statements contains

items and charges which are somewhat different from those on the invoice it supposedly

explains.  Judge Silva has asked DHHS on several occasions to delineate specifically which

charges were properly made and why, and the Board has asked the agency to respond to this

request.  DHHS, however, has taken the position that "[it] is not responsible for providing

[this] information" and confesses that it does not "have the information to calculate costs for

shipping household goods."  In addition to being rude to its own employee and the Board,

this position is irrational.  No reasonable consumer pays a bill presented to him or her

without ascertaining that the bill is correct.  No reasonable agency takes any less care when

paying taxpayer money entrusted to it.



     For DHHS's sake, as well as for the benefit of other agencies which may find

themselves confronted with similar issues in the future, we will take the time here to explain

how we expect an agency to evaluate invoices presented to it by household goods carriers. 

Having performed such an evaluation, an agency should be able to respond readily to

questions like those posed here by Judge Silva and the Board.  



     The rate tender or tariff which governs charges for a shipment is the touchstone

against which the carrier's charges and explanations must be assessed.  The shipment of

Judge Silva's goods was governed by rate tender HGB 415-G.  After examining the carrier's

invoices and explanations in light of this tender, we conclude that DHHS was obligated to

pay the following amounts for the services performed by the carrier itself (for transporting

the judge's  goods from New Mexico to the Washington, D.C., area), one of the carrier's

subcontractors (for third-party services), and the carrier's agent (for storing the goods

between the time they arrived in the Washington area and the time they were delivered to the

judge's new residence).



     Shipping charges



     1.   Line-haul charge for moving 25,420 pounds of household goods 1,818 miles

from Judge Silva's previous home in Placitas, New Mexico, to her new home in Rockville,

Maryland: $24,122.  The line-haul charge is dependent on the weight of the shipment and the

distance between the two points.  The invoices show incorrectly that the shipment weighed

29,900 pounds, and one document in the record indicates that the distance was based on an

incorrect point of origin (Placitas, Do¤a Ana County, New Mexico, rather than Placitas,

Sandoval County, New Mexico).  Nevertheless, the line-haul charge shown in one of the

carrier's explanatory statements turns out to have been based on the correct weight and

distance.  The tender in question establishes a charge of $22,937 for carriage, over a distance

of 1,801 to 1,900 miles, of the first 23,999 pounds shipped.  The tender establishes a charge

of $79 for each additional one hundred pounds of fraction thereof.  The total quantity

shipped, 25,420 pounds, is 1421 pounds, or 14.21 hundred pounds, more than 23,999.  The

charge for shipping this additional weight is $79 times fifteen hundred pounds, or $1,185. 

The total line-haul charge is $22,937 plus $1,185, or $24,122.



     2.   Fuel cost surcharge: $723.66.  Under the terms of the tender, the carrier was

entitled to a fuel cost price adjustment when the "national U.S. average" price of diesel fuel,

as calculated through the Department of Energy's survey of retail on-highway diesel prices,

exceeded $1.136 per gallon.  The adjustment varied, depending on the price of diesel fuel. 

For the period from June 15 to July 14, 2000, when Judge Silva's goods moved, the

adjustment factor was three percent.  Thus, the carrier was entitled to a fuel surcharge of

three percent of the line-haul charge.  Three percent of $24,122 is $723.66.



     3.   Additional transportation charge at destination: $271.99.  Under the terms of

the tender, the carrier was entitled to be paid $1.07 per hundred pounds moved to the

Washington, D.C., service area.  One dollar and seven cents times 254.2 hundred pounds

equals $271.99.  The tender does not state whether the additional transportation charge is to

be based on the exact weight of the shipment (e.g., 254.2 hundred pounds) or on the weight,

rounded up to the next hundred pounds (e.g., 255 hundred pounds) as used in the method

specified for calculating line-haul charges.  The carrier based its additional transportation at

destination charge on the exact weight, so we will use that lower of the two possible figures

for the purpose of settling Judge Silva's claim.



     4.   Container and packing charges: $10,574.72.  The tender contains separate

prices for each container used in a shipment, packing the container, and unpacking the

container.  For example, using a three cubic foot carton results in a charge of $9.05, packing

it results in a charge of $13.20, and unpacking it results in a charge of $5.30.  The charges

for using all the containers involved in Judge Silva's move totaled $6,612.15, and the charges

for packing those containers totaled $7,918.40.  The sum of these numbers is $14,530.55. 

The carrier may not recover this amount, however, because the tender establishes a maximum

packing and container charge (or "maxpak charge"), and the maximum is less than

$14,530.55.  The maximum is $6,656 for 16,000 pounds shipped plus $41.60 per additional

hundred pounds.  For 25,420 pounds, the maximum is $10,574.72.  (For maxpak charges, the

tender requires calculations to be based on the exact weight of goods shipped, rather than the

weight rounded up to the next hundred pounds.)



     5.   Unpacking charges: $799.70.  The agency has provided a document which

states that certain numbers of various sizes of cartons were unpacked by the movers who

delivered Judge Silva's belongings to her new home.  The document appears to have been

signed by the judge directly under the legend, "The foregoing correctly reflects the unpacking

. . . performed."  The appropriate charge for unpacking all these cartons is $1,022.90.  Judge

Silva is not sure that the signature on the document is hers, and she has submitted a

declaration that based on careful recordkeeping by her and her husband, the movers could

not have unpacked as many cartons as are shown on the agency's document.  If the movers

had unpacked the smaller numbers of cartons noted in Judge Silva's declaration, the

appropriate charge for unpacking would have been $799.70.  We find the judge's declaration

persuasive evidence that fewer cartons were unpacked by the movers than is asserted on the

agency's document.  Even if Judge Silva did sign the document, her declaration is more

conclusive as to the number of cartons unpacked by the movers.  The judge could not have

been expected to provide this information earlier, since the agency did not previously explain

the basis of the charge asserted.  We therefore use $799.70 as the correct charge for

unpacking.

 [Foot # 1 ] 

     

****************** Footnote Begin **********

[Foot # 1 ]       The tender does not contain a maximum charge for unpacking, as it does for

use and packing of containers.  Thus, the calculated amount for unpacking is not limited in

the way that the calculated amounts for use and packing are.

****************** Footnote End ************



 6.  Additional services: $96.10 for an extra pickup and $68.60 for two "long carries" (for

handling freight not adjacent to the vehicle at the origin or destination).  Under the tender,

the carrier is entitled to be paid $96.10 for each extra pickup and $1.75 per hundred pounds

for each long carry.  (A long carry is a carry of fifty feet (or a fraction thereof) beyond the

first carry of one hundred feet between the outside entrance of a single-family house and the

carrier's vehicle.)  These charges appear on the carrier's first invoice.  The explanatory

statement for that invoice says that each of two long carries involved 1,960 pounds; $68.60

is the correct charge for these services.

 [Foot # 2 ] 

     

****************** Footnote Begin **********

[Foot # 2 ]       It is not readily apparent from the carrier's vouchers and explanatory

statements  why the carrier assessed the charge for the long carries.  Consequently, Judge

Silva has effectively not had an opportunity to address this charge.  The claimant and the

agency may continue to discuss the charge.  If Judge Silva contests it, and the agency finds

her position convincing, the charge (and corresponding discount   see item 7 among shipping

charges) should be eliminated from the total amount of which the judge must pay a

percentage.

****************** Footnote End ************



 7.  Discount: ($19,794.66).  Atlas Van Lines, Inc., the firm which transported Judge

Silva's belongings, agreed to move household goods for the Government for forty-six percent

of tender rates.  Thus, all of the charges specified above are discounted by fifty-four percent. 

The total tender charge of $36,656.77 is reduced by $19,794.66.



     One of the vouchers from Atlas to DHHS includes charges relating to the

transportation of an automobile.  The agency arranged for the shipment of Judge Silva's

privately-owned vehicle, as well as her household goods, in connection with her relocation. 

An automobile is not a household good.  41 CFR 302-1.4(j)(i).  The Federal Travel

Regulation contains rules for shipment of automobiles which are separate from those for

shipment of household goods.  Id. pts. 302-8, -10.  Notwithstanding the charges on the

voucher, the shipment of the privately-owned vehicle is a matter distinct from anything

discussed in this opinion.



     Subcontractor charges



     According to its invoices, Atlas paid a third party for performing services relative to

this shipment   $710 for services at the point of origin and $261 for services at the point of

destination.  The agency has not provided any documentation or explanation of the services

which were involved, and the applicable tender sheds no light on the nature of the charges. 

Consequently, we are not in a position to assess whether the charges were proper or not.  The

Board, as a quasi-judicial tribunal, does not conduct independent investigations with regard

to cases presented to it.  We expect an agency to submit to us "[a]ny . . . information deemed

necessary to the Board's review of the claim."  Pamela R. Harris, GSBCA 15645-RELO, 01-2

BCA   31,640 (quoting Rule 403(a)(3) (48 CFR 6104.3(a)(3) (2000)).  Without any reason

to believe that these charges were incurred for services actually performed, we cannot

conclude that the employee should bear a portion of the charges.

 [Foot # 3 ] 

     

****************** Footnote Begin **********

[Foot # 3 ]       If DHHS is able to provide to Judge Silva documentation regarding the third-

party services, and to persuade her that these charges were appropriately incurred, it may add

the charges to the base amount against which the judge's obligation is calculated.  We note

that charges for third-party services are not provided for in the tender and are consequently

not subject to a discount.

****************** Footnote End ************



 Storage charges



     1.   First day of storage: $1,779.40.  The tender provides that when goods are

placed in storage, the carrier is to be paid a certain charge for the first day of storage and a

vastly lower charge for each additional day.  The high charge for the first day evidently

compensates the carrier (and its storage agent) for the costs of moving the goods into and

ultimately out of the storage facility.  The charge for the first day of storage in the

Washington, D.C., service area was $7.00 per hundred pounds at the time Judge Silva

moved.  Charges for storage are based on the actual weight of goods stored   which is to say

that the weight is not rounded up to the next hundred pounds when computing these charges. 

The charge for storing Judge Silva's goods for one day is seven dollars times 254.2 hundred

pounds, or $1,779.40.



     2.   Additional days of storage: $7,961.54.  The tender's charge for each additional

day of storage is twenty-seven cents per hundred pounds.  Judge Silva's goods were in

storage for 116 days beyond the day they were placed in the storage facility.  Twenty-seven

cents times 116 days times 254.2 hundred pounds is $7,961.54.



     3.   Cartage: $5,645.  The tender's charge for delivering goods from storage in the

Washington area was $5,300 for the first 23,999 pounds and $23 for each additional hundred

pounds.   Judge Silva's goods weighed 1,421 pounds, or 14.21 hundred pounds, more than

23,999.  Additional weight charges for cartage, like those for line-haul, are calculated after

rounding up weight to the next hundred pounds.  At $23 each, the charge for fifteen hundred

pounds of additional weight was $345.  The total charge for carting Judge Silva's goods was

$5,645.



     4.   Fuel cost surcharge: $282.25.  Under the same tender provision which allows

carriers to apply a fuel surcharge to line-haul charges when the price of diesel fuel rises

above $1.136 per gallon, a carrier is entitled to apply a surcharge to cartage charges on goods

delivered from storage.  At the end of October 2000, when Judge Silva's goods were

delivered from storage, the fuel price adjustment factor was five percent.  Five percent of the

cartage charge of $5,645 is $282.25.



     5.   Discount: ($5,953.91).  Atlas agreed to charge sixty-two percent of tender

prices for storage services.  The total storage charges listed above are $15,668.19.  The

discount on this amount is thirty-eight percent, or $5,953.91.



     We have determined that the total charges for shipping and storing Judge Silva's

household goods are $26,576.39   $16,862.11 for shipping and $9,714.28 for storage.  Of

this amount, the judge is obligated to pay 26.99 percent, or $7,172.97.  This amount is

$456.94 less than the sum asserted by DHHS, $7,629.91.











                              _________________________

                              STEPHEN M. DANIELS 

                              Board Judge