While Jones differs from Forster and Ellis in the matter of having less than 30 years' creditable service on the date he was placed on the retired list of the Navy, February 1, 1944, this distinction does not remove him from the scope of the holding in the decision of November 7, 1962, nor does the opinion expressed by the Bureau of Medicine and Surgery in letter of March 5, 1962, that Jones' disability was incurred while in receipt of basic pay-on which our Claims Division seems to have relied on March 14, 1962, in certifying Seliga benefits-avoid the restrictions imposed in the Forster and Ellis decisions. Accordingly, while the action taken in the certification of March 14, 1962, will not be reversed, no proper basis is presented to pay Seliga benefits to Jones from February 1, 1962, the date following the period covered in the certification of March 14, 1962. Therefore, effective as of February 1, 1962, Jones' retired pay account should be continued on the same basis on which his retired pay has been computed by the Department of the Navy since October 1, 1949.

Carl E. Maloney, Claims file No. 0268891, GAO certification dated May 10, 1962, was treated as a 30-year retiree effective from July 1, 1946. In April 1962 the Bureau of Naval Personnel changed the records to show him as having been retired for physical disability as of July 1, 1945. Effective from October 1, 1949, he was paid under method (b) of section 511. In the stipulated judgment of November 4, 1952, as plaintiff No. 5, in the case of Maar, et al. v. United States, Ct. Cl. No. 50223, his pay was readjusted to the Sanders basis (120 Ct. Cl. 501) through June 30, 1952, presumably under authority of method (a) in section 511, 37 U.S.C. 311(a).

The Bureau of Medicine and Surgery in a report dated February 19, 1962, expresses the view that Maloney's disability was incurred while entitled to receive basic pay. This report together with the change made in April 1962 in the character of his retirement from that for years of service to retirement on account of physical disability appears to have been the basis for the action of May 10, 1962, allowing him Seliga benefits for the period November 5, 1952, to August 31, 1961, inclusive. The action authorizing Seliga benefits thus treated Maloney as having been in a section 411 status effective from October 1, 1949, and as having been denied the benefits of option (A) in section 411 by reason of receiving incorrect information prior to midnight October 1, 1954, concerning his retired pay status.

Notwithstanding the comment in Navy Finance Center letter of February 6, 1963, that no determination was made in this case by the Secretary of the Navy as provided in Executive Order No. 10124, April 25, 1950, or the fact that there is no record of any section 411 election by Maloney and that no authority is cited in Bureau of Naval Personnel letter of April 24, 1962, in support of the "retroactive"

change in Maloney's status from retirement for years of service to retirement, at an earlier date, for physical disability, the evidence reasonably supports the action taken May 10, 1962. Accordingly, that settlement will not be disturbed. However, even if it be assumed that the change made in April 1962 in the character of Maloney's retirement was proper and retroactively effective so as to bring him within the scope of section 411, the holding in the Forster and Ellis decision of November 7, 1962, precludes any further action in the matter. Therefore, Maloney's retired pay status should remain, effective from September 1, 1961, the date following the period covered in the certification of May 10, 1962, at the monthly basic rate of pay that he was being paid by the Department of the Navy prior to the action taken on May 10, 1962.

John T. Owens, Claims file No. Z-1409008, GAO certification dated October 19, 1962, was retired for a physical disability on June 1, 1941, which the Bureau of Medicine and Surgery in letter of October 1, 1962, indicates was incurred while in receipt of basic pay. Owens again served on active duty from March 30, 1942, to August 9, 1945, inclusive, and his disability was rated at "zero" percentage in March 1951 pursuant to section 411. It appears that by Bureau of Naval Personnel letter of October 17, 1951, he was advised that he was not entitled to the benefits of section 411. Also, it appears that he was further advised that any section 411 action theretofore taken by him under authority of Bureau of Naval Personnel letter on June 28, 1951, was canceled. In a letter dated August 30, 1962, the Navy Finance Center reports that Owens did not make a section 411 election.

Effective October 1, 1949, Owens was entitled under the Seliga rule (he has over 20 years of active service see section 402(f), 63 Stat. 820, 37 U.S.C. 272(f) (1952 Ed.)) to greater retired pay, $154.35 per month computed on his years of service as prescribed in section 402 (d) (1), 63 Stat. 818, 37 U.S.C. 272(d) (1) (1952 Ed.), than the method (b) section 511 pay which the Navy paid him at $146.63 per month or the Sanders rate of pay, $140.25 per month ($147.26 per month for the period covered in the stipulated judgment of April 15, 1953, rendered in his favor as plaintiff No. 45, in the case of Mims, et al. v. United States, Ct. Cl. No. 49645, which included the compromise 5 percent for good conduct). Since it clearly appears from the record that he was misinformed as to his section 411 status, the action taken in the certification of October 19, 1962, allowing Seliga benefits for the period July 1, 1952, to July 31, 1962, inclusive, was proper and not inconsistent with the holding in the Forster and Ellis

cases.

[B-151433]

Statutes of Limitation—Claims-Transportation-Transit Privileges

In transit shipments under Government bills of lading which originated in 1953 but were not delivered at destination until after August 26, 1958-the date of the act (49 U.S.C. 66) establishing a 3-year limitation on claims for transportation performed and paid for after such date must be regarded as being performed within the meaning of the act when the shipments were delivered at destination rather than when the shipments originated; therefore, since the claims for additional freight charges were not received in the General Accounting Office until more than 3 years after both performance of the transportation and payment, the claims are barred by the act.

To the Gulf, Mobile and Ohio Railroad Company, July 1, 1963:

By letter of March 8, 1963, file No. W-66826-CI24, to the Director of our Transportation Division, you request reconsideration of your claim per supplemental bill No. W-66826-A for additional freight charges of $1,349.64 alleged to be due for the transportation of three carloads of fiber cordage sisal which moved from Naval Construction Battalion Center, Davisville, Rhode Island, a transit point, to the International Harvester Co., New Orleans, Louisiana, under Government bill of lading Nos. GS-T-3017, GS-T-3023, and GS-T-3021, dated December 19, December 18, and December 23, 1958, respectively. The inbound transit movements originated from Boston, Massachusetts, during the first quarter of 1953.

For the service performed on the outbound transportation, you originally claimed and were paid the amount of $4,200.75 on March 4, 1959, by D.O. Voucher No. 14312. On audit of the payment voucher in our Office, no exception was taken but you subsequently claimed the additional freight charges in question by your supplemental bill which was received in our Office on April 6, 1962, or more than 3 years after the original payment. You were advised that consideration of such supplemental claim was barred under the provisions of Public Law 85-762, 72 Stat. 860, 49 U.S.C. 66, which provides in part as follows:

That every claim cognizable by the General Accounting Office for charges for transportation within the purview of this section shall be forever barred unless such claim shall be received in the General Accounting Office within three years (not including any time of war) from the date of (1) accrual of the cause of action thereon, or (2) payment of charges for the transportation involved, or (3) subsequent refund for overpayment of such charges, or (4) deduction made pursuant to this section, whichever is later.

In your letters of September 26, 1962, and March 8, 1963, file No. W66826-CI24, you urge that since these transit shipments originated from Boston prior to the effective date of Public Law 85-762, August 26, 1958, the period of limitations does not apply.

Section 3 of Public Law 85-762, 72 Stat. 860, 861, 49 U.S.C. 66 note, provides in pertinent part as follows:

The provisions of this Act which amends section 322 of the Transportation Act of 1940 (49 U.S.C. 66) shall apply only to transportation performed and payment made therefor subsequent to the effective date of this Act.

In our letter of December 21, 1962, T-C/R-CL-TK-736158-REV., to you we stated:

Transit is based on the theory that the entire shipment from origin through the transit point to final destination is the same in principle as if the shipment had moved without transit. The subject shipments were delivered at final destination January 15, 1959, and the charges, per your bill No. W-66826, were paid in March 1959, and the right to make claim accrued at that time.

There can be no question but that the delivery, accomplished on January 15, 1959, and the payment on March 4, 1959, were both after the effective date of the act, August 26, 1958. It is apparently your contention that because the shipments originated before the effective date of the act, the transportation service was not "performed" subsequent to the effective date of the act. The word "performed" has been defined as meaning completed or finished and not something begun or half done. Kendall v. Garnue, 75 N.W. 852, 853. The words in a statute are to be given their ordinary and customary meaning in the absence of evidence to the contrary. Deputy v. DuPont, 308 U.S. 488, and Old Colony R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 560. Also see 82 C.J.S. Statutes, § 316, page 550, and 50 Am. Jur., Statutes, § 238, page 228. The legislature is presumed to know the meaning of the words used, to have used the words of a statute advisedly, and to have expressed its intent by the use of the words found in the statute. State ex rel. Attorney General v. AndersonTully Co., 53 S.W. 2d 17; Lewis v. Petroleum County, 17 P. 2d 60, 61; In re Opinion of the Justices, 22 N.E. 2d 49; Cram v. Chicago, B & Q. Ry. Co., 123 N.W. 1045, affirmed 228 U.S. 70; Van Pelt v. Hilliard, 78 So. 693.

A contract of transportation is completed, and therefore "performed" by acceptance of delivery at destination and removal of the shipment from the carrier's possession. See Chestnut v. Chicago, B. & Q. Ry. Co., 208 I.C.C. 456, 458; Woodward & Sons v. Southern Ry. Co., 156 I.C.C. 354; and Alcoa S.S. Co. v. United States, 338 U.S. 421. Since the three shipments involved in this claim were delivered at destination on January 15, 1959, the services were "performed” subsequent to the effective date of Public Law 85-762. Also, as previously pointed out payment was made subsequent to such effective date. Consequently, since your claim was not received in our Office until April 6, 1962, or more than 3 years after both the performance of the transportation and the payment of the freight charges in March 1959,

the claim is barred by the 3-year period of limitation contained in Public Law 85-762, 72 Stat. 860, 49 U.S.C. 66.

The action taken in so advising you is therefore sustained.

[B-150468]

Sales Conditions Reducing Price-Propriety

A condition in an advertised sale of surplus property that the article sold must be scrapped to avoid an adverse economic impact on the industry which condition will reduce the return to the Government below the fair market value as required for advertised surplus sales under section 203 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 484, is illegal, there being no indication of any Congressional intent in the legislative history of the 1949 act or its amendments to grant agencies the discretion to avoid possible economie dislocation by selling surplus property below the actual fair market value, if sold by advertised bidding, or below the estimated fair market value if sold by negotiation, and, therefore, the contract should be canceled and the property returned to the Government or negotiations conducted with the contractor to delete the scrapping provision provided a price increase is offered. To the Director, Defense Supply Agency, July 2, 1963:

We have received your reports dated February 20, 1963, and March 27, 1963, submitted in response to a protest by Peck Iron and Metal Company, Inc., against a condition in its contract DSA-25–S– 157, dated July 19, 1962, for the purchase of 34 surplus anchors, and in invitation for bids 25-S-63-54, opened on December 13, 1962, on which the company was the high bidder. The condition in question was that the anchors sold under the contract and advertised for sale under the invitation must be scrapped by the purchaser.

The record establishes that the disputed condition was inserted into the contract and invitation for bids as a result of a directive from the Department of the Navy, BUSANDA Notice 4530, dated April 25, 1961, stating that all surplus anchors weighing 8,000 pounds or more will be sold as scrap for metal content only. The basis of this directive is a Memorandum of Understanding and Cooperation in Program for the Disposal of Surplus Personal Property dated July 19, 1954, between the Department of Defense and the Department of Commerce, Bureau of Business and Defense Services Administration (BDSA). Under this agreement, BDSA conducts investigations on request or on its own initiative in order to ascertain the impact which planned disposal by the Department of Defense of significant amounts of domestic surplus property may have on a given segment of industry. The objective of the agreement is to see that such property is disposed of in a manner which results in a fair rate of return to the Government but with a minimum impact on civilian markets.

The BDSA's role in these disposals is purely advisory and nonstatutory, except as it is said to follow from the basic statutory duty of the Department of Commerce to foster, promote and develop the