In the instant case Philco's proposal was selected on the basis that it best assured "flawless and uninterrupted support to the Department of Defense space programs." Based on our review of the records detailing the evaluation proceedings conducted by the SSB we cannot say that the SSA was not provided with a sound basis upon which to exercise his discretion to award the contract to Phileo for "technical" reasons despite the purported GE cost advantage. See B-173199, February 22, 1972.

Finally, you question whether the SSA could have carefully reviewed and considered the SSAC report since the records of the Air Force evaluation reveal that the SSAC report was not delivered to the SSA until December 2, the same day that the SSA issued its final determination. We do not feel that this necessarily indicates a shortcoming in the SSA conduct of the evaluation since the SSA, in essence, accepted the final evaluation report of the SSAC. In the circumstances, we see nothing unusual in the fact that the SSA's evaluation was completed in one day.

During our consideration of this matter we reviewed those portions of the Air Force records which contain the SSAC's final evaluation of all the proposals. We have also received from the Air Force a document entitled, "Comparison of Technical/Management Proposals of Protestant and Awardee." Neither of these documents has been released to GE because Air Force states that they contain "a sensitive compilation of the Air Force work product" as well as data which may be proprietary to the offerors. In accordance with our longstanding policy in this regard, we have honored the Air Force's request that this information not be released to the parties, unless it has otherwise been made public.

After a consideration of the entire record before us, we conclude that your protest should be denied.

[B-176436]

Transportation-Bills of Lading-Issuance-By Shipper-Effects on Carrier Liability

On a shipment of wooden boxes of ammunition for cannon with explosive projectiles weighing 795 pounds and subject to freight charges computed on a minimum of 2,500 pounds, the additional charges claimed by the delivering and billing carrier on the basis of a second freight movement of boxes found astray at the origin carrier's terminal because the Government prepared the bill of lading and incorrectly showed the quantity shipped as five boxes instead of 15 boxes properly was disallowed since pursuant to section 219 of the Interstate Commerce Act, 49 U.S.C. 319, the carrier and not the shipper is responsible for issuing an appropriate bill of lading, and the fact that the shipper prepared the bill of lading does not relieve the carrier of the duty of ensuring the bill of lading was correctly prepared.

522-985 O - 74 - 16

To the C. I. Whitten Transfer Company, October 12, 1972:

Further reference is made to the request in your letter of June 19, 1972, for review of the settlement (TK-942130) which disallowed your claim (CB-6032 O/C 1–061) for $387.25 in additional freight charges on a shipment of 15 wooden boxes of ammunition for cannon with explosive projectiles weighing 795 pounds. The shipment was tendered on June 18, 1969, to Tri-State Motor Transit Company at Milan Army Ammunition Plant, Milan, Tennessee, for transportation under bill of lading E-6894349 to Camp Drum, Watertown, New York.

The payment record shows that for the transportation of this shipment your company, as delivering and billing carrier, already has been paid charges of $387.25 which were computed on a minimum weight of 2,500 pounds at the rates of $5.97 and $9.52 per hundred pounds published to and beyond Jeffersonville, Indiana. In urging payment of a like additional amount of $387.25, you state that a second freight movement was necessary because 10 of the boxes in the shipment were found astray at the origin carrier's terminal which resulted in your company not receiving those 10 boxes from the origin carrier at the Jeffersonville, Indiana, interchange until after the first five boxes already had moved forward to final destination. You contend that the additional charges claimed are due the carriers because the Government prepared the bill of lading and incorrectly showed the quantity shipped as five boxes instead of 15 boxes. It is apparent that 15 boxes were tendered to the origin carrier when it accepted Government bill of lading E-6894349.

Section 219 of the Interstate Commerce Act, 49 U.S. Code 319, incorporates into Part II of the act section 20, paragraphs (11) and (12) of Part I, which paragraphs provide, among other things, that a common carrier receiving property for transportation in interstate or foreign commerce shall issue a proper bill of lading for each shipment of goods delivered to the carrier for transportation. See also Chicago, M. St. P. & P. R. Co. v. Acme Fast Freight. 336 U.S. 465, 469 (1949); Independent Lock Co. v. Acme Fast Freight, 116 N.E. 2d 841, 843 (1953); and Valeo Mfg. Co. v. C. Richard & Sons, 92 A. 2d 501, 504 (1952).

Thus, the duty for issuing an appropriate bill of lading is the responsibility of the carriers and not the shipper. See United States v. Southern Pacific Co.. 325 I.C.C. 200, 209 (1965). The fact that it is not uncommon for shippers to prepare bills of lading for execution by carriers' agents does not relieve the carriers of their duty of ensuring that the bill of lading prepared by the shipper is correct in all respects. The Interstate Commerce Commission has repeatedly found that an obligation lawfully rests on carriers' agents to refrain from executing

bills of lading that cannot lawfully be complied with or which contain conflicting or erroneous entries. See Exposition Cotton Mills v. Southern Ry. Co., 234 I.C.C. 441, 442 (1939); Ezee Flow Corp. v. Illinois Central R. Co., 287 I.C.C. 281 (1952); and St. Louis Cooperage Co. v. Baltimore & Ohio R., 161 I.C.C. 258 (1930).

Since responsibility for the issuance and the accuracy of the bill of lading is the responsibility of the carriers, the Government, as a shipper, cannot be required to pay double freight charges on a shipment because the carriers failed in the performance of their duty to execute a proper bill of lading and transported the shipment as two separate freight movements.

Accordingly, the settlement issued to your company on March 22, 1972, which disallowed your claim for an additional $387.25 on this shipment appears to be correct and is sustained.

Storage

[B-176773]

Household Effects Military Personnel - Temporary Storage Conversion to Nontemporary Storage

When Air Force members ordered to mobile Navy units are unable because of operational requirements to take delivery of household goods that had been shipped and placed in temporary storage at new home ports, the temporary storage may not be converted to nontemporary storage, nor may the 180-day limit on temporary storage be extended for a period equivalent to the period of a member's absence. The temporary storage authorized in connection with a shipment of household goods incident to a permanent change-of-station and the nontemporary storage prescribed in lieu of shipment are incompatible under 37 U.S.C. 406 and, therefore, combinations of shipment and nontemporary storage may not be authorized. Furthermore, as the section does not contemplate temporary storage in excess of 6 months, the 180-day limit on such storage may not be extended without congressional approval.

To the Secretary of the Air Force, October 12, 1972:

Reference is made to letter dated July 28, 1972, from the Assistant Secretary of the Air Force (Manpower and Reserve Affairs) requesting a decision as to whether the Joint Travel Regulations, Volume I, Chapter 8, may be changed to authorize nontemporary storage of household goods in cases where the household goods have been shipped and placed in temporary storage in the area of the member's new home port, but the member, because of an operational requirement of his unit, is absent from the area and unable to accept delivery prior to the expiration of the 180-day temporary storage period. If our reply is in the negative the Assistant Secretary asked whether the maximum period of temporary storage now authorized (180 days) may be extended by a period equivalent to the period of his absence due to operational requirements of his unit. The request has been assigned

Control No. 72-33 by the Per Diem, Travel and Transportation Allowance Committee.

The Assistant Secretary says that in support of the recommended change it was stated that members ordered to mobile Navy units (ships) normally make their personal plans relative to movement of their families and household goods based on their new duty station's deployment schedule and that when their unit is deployed away from its home port members often elect to place their household goods in temporary storage at the new home port and defer delivery until after the unit returns from deployment and they have had an opportunity to locate suitable permanent quarters for their families.

However, it is said that these plans are disrupted when for some reason after they have reported for duty their unit does not return as scheduled and the member is unable to take delivery of his household goods as planned. In many cases this involves storage beyond the maximum 180-day limit and the member is then faced with the alternatives of requesting his wife or someone else to locate housing and accept delivery of the household goods or personally pay for the excess storage charges.

The Assistant Secretary also states that similar problems may arise when it is necessary to deploy a unit with little or no advance notice. Then newly reported members or members en route are often unable to locate housing and to accept delivery of their household goods before departing the home port area. As a result they face the same alternatives as members attached to extended deployed units.

Section 406, Title 37, U.S. Code, provides for the transportation and storage of household effects of members of the uniformed services under such regulations as may be prescribed by the Secretary concerned. Subsection 406 (b) authorizes temporary storage incident to a shipment while subsection 406 (d) authorizes the nontemporary storage of baggage and household effects when it is considered more economical to the United States. The regulations relating to storage of household goods authorized to be prescribed are contained in the Joint Travel Regulations, Volume I, Chapter 8, paragraph M8100, referring to temporary storage and paragraph M8101 relating to nontemporary storage.

Temporary storage is storage authorized in connection with a shipment of permanent change-of-station weight allowance of household goods, the right to which may accrue at place of origin, in transit, at destination or any combination thereof; whereas, nontemporary storage is that storage other than temporary which is authorized in lieu of shipment of such effects. Under the regulations temporary storage may be converted to nontemporary storage only when the goods are

in temporary storage at the place of origin and the member is entitled pursuant to further permanent change-of-station orders to nontemporary storage or shipment as he may elect. Paragraph M8100–7, JTR. Upon receipt of permanent change-of-station orders, a member is entitled to shipment of his household goods or, if authorized, may have his goods placed in nontemporary storage at Government expense. Thus, temporary storage in connection with a shipment and nontemporary storage which is in lieu of shipment are incompatible and combinations of shipment and nontemporary storage are not authorized.

In the circumstances described by the Assistant Secretary where the household goods have been shipped and placed in temporary storage at or near destination, the member has exercised his right of election to ship and there is no authority under the law to convert temporary storage to nontemporary storage which is in lieu of shipment, at the expiration of the 180-day temporary storage period allowed by the regulations.

With respect to extension of the 180-day temporary storage period of a member by a period equivalent to the period of his absence due to operational requirements of his unit, we are still of the view that storage in excess of 6 months, or the substantially similar period of 180 days, could not reasonably be considered as temporary within the contemplation of the statute. In our decision of December 12, 1961, 41 Comp. Gen. 402, regarding a proposal to extend temporary storage for more than 180 days, we said that any time limitation on the availability of a benefit may seem to be somewhat inequitable in that there will always be some individuals who, because of circumstances beyond their control, will be denied the benefit because of the limitation. However, without congressional approval, we do not believe the circumstances presented afford any basis for departing from the longstanding application of the limitation. Also see 48 Comp. Gen. 773 (1969).

Accordingly, it must be concluded that the Joint Travel Regulations, Volume I, Chapter 8, may not legally be amended in the manner proposed.

[B-176393]

Bids-Evaluation-Delivery Provisions-Freight

neous

Rates-Erro

The partial cancellation of a contract erroneously awarded for the handling of surplus butter made available to the Department of Defense by the Department of Agriculture because an erroneous freight rate evaluation resulted in an award to other than the low bidder should be changed to a partial termination for the convenience of the Government since, while the award was improper, it was not plainly or palpably illegal for the displaced contractor had not contributed