applicable on the several commodities contained in the shipment. On audit of the payment voucher in our Office a notice of overcharge was issued to your company for refund in the amount of $61.22, subsequently recovered by administrative deduction. Our Office computed the charges on the basis of a lower class 200-rating on an item of 380 pounds of insulating material, which lower rating is authorized in item 300 of Rocky Mountain Motor Tariff Bureau Transcontinental Class Tariff 21-B, MF-I.C.C. No. 117, and applies in connection with all carriers participating in the tariff except Western Truck Lines, Ltd., and one other carrier.

The claim on your bill No. G-02559 concerns two shipments of class "B" explosives on Government bill of lading Nos. N-34513768 and N-34513769, dated August 25, 1959, and September 2, 1959, and weighing 128 pounds and 174 pounds, respectively, which were tendered unrouted to Central Freight Lines, Inc., at McGregor, Texas, for movement to China Lake, California. The shipments were delivered to the consignee at China Lake by Western Truck Lines, Ltd. For this service you originally claimed and were paid freight charges in the amount of $906.75 for each shipment, computed on the basis of a class-150 rate of $12.09 per 100 pounds provided in R.M.M.T.B. Tariff No. 21-B, MF-I.C.C. No. 117, at a minimum weight of 7,500 pounds provided in the minimum charge rule in item 932 of R.M.M.T.B. Tariff No. 20-B, MF-I.C.C. No. 101. Note 2 in item 932 provides that via any one or any combination of the 33 carriers listed in Note 2-including Central Freight Lines, the initial carrier in this case, but not including Western Truck Lines-the minimum charge will not apply. Therefore, on audit of the payment voucher, our Office computed charges at the published through rate of $12.09 per 100 pounds at the actual weights of the shipments resulting in overcharges of $891.27 and $885.71 assessed against your company as destination carrier and subsequently recovered by administrative deduction. It may be noted that the shipments covered by your bills G-02475 and G-02559 both moved under rates provided in regularly published and filed tariffs which were also available to the public at large.

On the other hand, your claim No. G-02845 covers a shipment of personal effects transported under Government bill of lading No. A-8954191, dated April 28, 1961. The shipment was tendered unrouted to Western Truck Lines, which was a party to a special rate of $6.47 per 100 pounds published in R.M.M.T.B. Quotation No. 51, I.C.C. No. 4, for the movement from Sacramento, California, to Panama City, Florida. The shipment was delivered to the consignee at destination by M. R. and R. Trucking Company, which was not a party to the quotation and, presumably, could not be charged with

knowledge of the special contract with the origin carrier and the connecting lines which were parties to the quotation. Consequently, the destination carrier claimed and was paid charges based upon a published rate of $10.82 per 100 pounds provided in the class tariff and, on audit of the payment voucher in our Office, the overcharge was assessed against Western Truck Lines, which not only was a party to the quotation but was responsible for the misroute, as well.

Similarly, your claim No. G-02935 involved a shipment of aircraft parts transported under Government bill of lading No. B-2489238 during February 1962, which was tendered unrouted to Western Truck Lines for carriage from Mira Loma, California, to Warner Robins, Georgia. Western Truck Lines was a party to the special rate provided by R.M.M.T.B. Quotation I.C.C. No. 10, item 300. The shipment was delivered at destination by Terminal Transport Company, Inc., which did not participate in the quotation and, therefore, claimed and was paid higher published charges for the services performed. Consequently, on audit in our Office an overcharge for the difference was assessed against your company, the origin carrier which was a party to the quotation and was the carrier responsible for the misrouting.

The initial carrier is charged with the duty of forwarding an unrouted shipment tendered to it over the lines of connecting carriers via which the lowest total charge applies and its failure to do so constitutes misrouting. Murray Company of Texas, Inc. v. Morrow, Inc., 54 M.C.C. 442, 444; Metzner Stove Repair Company v. Ranft, 47 M.C.C. 151, 154; Great Atlantic and Pacific Tea Company v. Ontario Freight Lines, 46 M.C.C. 237; Hausman Steel Company v. Seaboard Freight Lines, 32 M.C.C. 31, 34, 36. The carrier guilty of misrouting is liable for the difference between the rate applicable over the route of movement and a lower rate applicable via the route over which the shipment should have moved. Alabama Rock Asphalt, Inc. v. Abilene and Southern Railway Company, 206 I.C.C. 510; Sunderland Brothers Company v. Louisville and Nashville Railroad Company, 168 I.C.C. 446; Ferguson, Assignee v. Louisville and Arkansas Railway Company, 196 I.C.C. 369, 373. Since these shipments were misrouted, the liability for the excess charge rests upon the carrier guilty of the misrouting, and no part of such excess is payable by the Government.

The first two claims considered above, Nos. G-02475 and G-02559, covered shipments which were subject to rates and routes provided in interstate tariffs regularly published and filed with the Interstate Commerce Commission, and shippers and carriers alike are charged with knowledge of the legally published tariff rate or charge. Johnson Machine Works, Inc. v. Chicago, Burlington and Quincy Railway

Co., 297 F. 2d 793, 794 (8th Cir., 1962); Atchison, T. & S. F. Ry. Co. v. Springer, 172 F.2d 346, 349 (7th Cir., 1949); Kahn Mfg. Co. v. Boston & M.R.R. Co., 276 I.C.C. 556, 559. While you were not the initial carrier in these two instances, you had knowledge that the shipment had been tendered to the initial carrier unrouted before you claimed and collected the higher charges, and you were legally chargeable with knowledge of the published tariff rates. In this situation, the Government is not required to become involved in such circuity of action as would be entailed by the collection of the excess charges from the Government by one carrier and the refund of the same charges to the Government by another carrier participating in the transportation of the shipment. See Galveston, Houston and San Antonio Railway Company v. Lykes Bros., 294 Fed. 968, and Lancaster v. Schreiner, 212

S.W. 19.

Which carrier in the actual route of movement was responsible for misrouting the shipments covered by claim Nos. G-02475 and G-02559 seems ordinarily to be immaterial to the shipper. The transportation charges were claimed by, and paid to, the last carrier in the actual route of movement in accordance with the provisions of condition No. 1 on the back of the Government bill of lading. In connection with each shipment, the Government bill of lading was surrendered to the delivering carrier and that carrier used the bill of lading to support its claim for charges. Thus, the carrier which claimed and received payment of the transportation charges had in its possession the evidence (unrouted bill of lading) of the misrouting of the shipment and of the right of the shipper to the benefit of the lowest available joint through rate in which the initial carrier participated. In the distribution of the through revenue among the interested carriers, the delivering carrier had the means of protecting the revenue of those carriers innocent of misrouting the shipment and assessing any shortage in revenue against the carrier guilty of the misrouting. See 35 Comp. Gen. 569.

The other claims considered above, Nos. G-02845 and G-02935, dealt with shipments for which charges were provided in a special rate quotation not available to the public-at-large, as authorized in sections 22(1) and 217(b) of the Interstate Commerce Act (49 U.S.C. 22(1) and 317(b)). Both of these claims cover shipments which were tendered to your company at the point of origin but which were delivered to the consignee at destination by the M. R. & R. Trucking Company in one instance, and by the Terminal Transport Company in the other. Both shipments were subject to charges named in a special rate quotation, authorized by section 22 of the Interstate Commerce Act, 49 U.S.C. 22, and your line and various other lines-not including M. R. & R. Trucking Co. or Terminal Transport Co.-participated in

the rates named in the quotation. Both of the shipments were tendered to your line unrouted and you forwarded the shipments over the lines of connecting carriers other than those participating in the quotation rates. The carriers delivering the shipments to the consignee at destination claimed and were paid the rates provided in the regularly published and filed tariffs. Thus, you misrouted the shipments and became responsible for all charges paid in excess of those based on the rates provided in the section 22 quotation. In this instance, the overpayment was recovered directly from the carrier responsible for the misrouting rather than from the delivering carrier which collected the excess charge because the record contains no evidence of any knowledge by either of the delivering carriers that the shipments had been misrouted, nor of any agreement, express or implied, on their part to accept any amount less than their proper earnings under the regularly published and filed tariffs. United States v. Bethke, 132 F. Supp. 22. In your request for review, you take no exception to the actual charges alleged to be applicable by the Government. Your sole complaint now seems to be that the Government recovered the overpayments from the destination carrier in two instances, and in two other instances the recovery was made from the initial carrier. You ask an explanation of this apparent inconsistency. Each situation has been explained in considerable detail above and an attempt at summation will be made.

In the instance covering claims G-02475 and G-02559, the applicable charges were provided in regularly published and filed tariffs of which shippers and carriers alike are charged with notice. See the cases cited above. Also, you had in your actual possession before you submitted your bill for charges to the consignee the original bill of lading which, being unrouted, was notice to you that the shipper was entitled to the benefit of the lowest available charge in which the initial carrier participated, and you had the opportunity, in one transaction, of protecting the lowest available charge to the shipper, of charging the carrier who misrouted the shipment with the excess charges, and of allowing any other connecting carrier its proper proportion of the actual route-of-movement charges, thus avoiding all circuity of action. On the other hand, in claims G-02845 and G-02935 the applicable charges were provided in a section 22 quotation which applied only on Government shipments and was without application on any shipment transported for a member of the general public. Thus, the quotation appears to be in the nature of a continuing offer (37 Comp. Gen. 753; 39 id. 352) which ripens into an implied contract when accepted by the Government by tendering a shipment for transporting thereunder. Louisville and Nashville Railroad Company v. United States, 106 F. Supp. 999, affirmed 221 F.2d 698 (6th Cir., 1955). Since parties other

than those participating in the said quotation apparently are not chargeable, as a matter of law, with knowledge thereof-as they are in the case of tariffs available to the public-at-large-and the record apparently contains nothing to show that either destination carrier actually knew, or should have known, of the misroute, there was no basis for charging the destination carrier with the excess charges, and the same were recovered directly from your line, the carrier actually responsible for the misrouting.

Accordingly, the disallowance of your claims is sustained.

[B-150886]

Bids-Evaluation-Negotiation-Factors Other Than Price

Income tax benefits and interest costs which would accrue to the Government if an award of an electric power contract were made to an investor-owned private utility company rather than to a tax exempt rural electric cooperative which had to obtain a long-term low interest rate loan from the Rural Electrification Administration to enable it to furnish the required service are indirect benefits which are too uncertain and speculative to be considered in the evaluation process and, therefore, award of a negotiated contract to the cooperative on the basis of a comparison of the rate schedules based on estimated consumption, plus a determination of the bidder's capability to meet the service requirements, is proper.

Bids ment

Evaluation-Tax Benefits-Loan Assistance From Govern

While financial advantages such as tax and loan assistance to rural electric cooperative borrowing from the Rural Electrification Administration create an unequal competitive situation when the cooperative competes with private regulated power companies for Government business, the Government procurement procedure which requires establishment in advance of definite factors for bid evaluation is not the proper vehicle to equalize the unequal competitive situation created by legislation unrelated to procurement and, therefore, in the absence of legislation requiring consideration of indirect benefits to the Government in the evaluation process such factors are not for consideration.

Agriculture Department-Rural Electrification AdministrationLoans to Cooperatives-Central Service Limitation

A loan obtained by a rural electric cooperative under section 4 of the Rural Electrification Act of 1936, 7 U.S.C. 904, which precludes loans to areas receiving "central station service" so that the cooperative could furnish power to a military radar site which was not served by any existing electric distribution facilities and which was located 4 miles from the nearest facilities that were owned by the cooperative is a loan to an area not receiving central station service and, therefore, does not violate the limitation in section 4 of the act.

To Beggs, Lane, Daniel, Middlebrooks & Gaines, July 15, 1963:

We refer to your letter dated May 14, 1963, and to that of your client, Gulf Power Company, dated February 19, 1963, concerning your client's protest against the award of a contract by the Department of the Air Force to Choctawhatchee Electric Cooperative, Inc. (Chelco), for electric power requirements for the SPADAT radar