_________________ December 16, 1997 _________________ GSBCA 14158-RELO In the Matter of JERRY JOLLY Jerry Jolly, Roseville, CA, Claimant. J. Keith Laird, Director, Financial Management Division, Natural Resources Conservation Service, Sacramento, CA, appearing for Department of Agriculture. NEILL, Board Judge. The Director of the Financial Management Division of the Natural Resources Conservation Service (NRCS) of the Department of Agriculture ask our opinion on the propriety of refunding with interest the sum of $2,920.88 which was deducted from an employee's salary. The deduction was taken to pay for the cost of moving 4780 pounds of household goods allegedly in excess of the 18,000 pounds weight allowance normally allotted to employees authorized to relocate at the Government's expense. Given the unique circumstances of this case, we conclude that the money deducted may be returned to the employee but without interest. We see no reason to make the refund contingent on recovery from the moving company. Background In August 1995, Mr. Jerry Jolly, a management analyst with the NRCS, was relocated from Woodbridge, Virginia, to Sacramento, California. His household goods were to be moved at Government expense pursuant to a Government bill of lading (GBL). The Bekins Van Line Company (Bekins) performed the move. A Bekins representative who estimated the weight of the shipment on an initial walk-through prior to the move, states that she advised Mr. Jolly at that time that his goods might be close to or even in excess of 18,000 pounds. Mr. Jolly was well aware that no more than 18,000 pounds of his household goods would be transported at the Government's expense and that he would be responsible for the cost of moving anything in excess of this limit. He, therefore, undertook various measures to ensure 2 that the goods transported by Bekins would remain within the stated allowable maximum. Specifically he did the following: a) He held a garage sale for items such as hardware, tools, and clothing. Items not sold were donated to charity. The quantity of these donations filled two full-sized vans. b) He took 1000 pounds of household goods to the county landfill. c) He transported 4600 pounds of household goods to his new duty station in his personal vehicle in two separate trips. The weight of these cargoes is supported with certified weight receipts. Notwithstanding these measures taken by Mr. Jolly, Bekins contends that the household goods it shipped for him came to a total weight of 22,780 pounds. Bekins was paid by the Government based on this alleged weight. In November 1995, the agency demanded that Mr. Jolly pay $2,920.88 as the cost of transporting the alleged excess weight of 4780 pounds. Over the ensuing months, this amount was deducted from his regular salary. Mr. Jolly strongly disagrees with Bekins' billing and has requested that the Government restore to him with interest the $2,920.88 already deducted from his regular earnings. The agency has not ignored the arguments and evidence he has presented in support of his case. The agency now recognizes that Mr. Jolly was in fact told that his shipment weighed over 18,000 pounds. Nevertheless, the agency now believes that when Mr. Jolly contacted the storage in transit (SIT) facility by phone to ascertain the actual weight of his shipment, he was told that the SIT office did not have that information. The agency also tells us that it does not believe Mr. Jolly realized that he had the option of having his goods weighed a second time but that, in any event, there would have been little time for reweighing since Mr. Jolly did not learn how much the goods were alleged to weight until they were actually being delivered. The agency also is now convinced that documentation provided in support of Bekins' claim is unreliable. The GBL for the shipment has a weight of 16,438 pounds, but this entry has been scratched out and replaced with figure of 22,780 pounds. No explanation is given on the document for this change. In addition, in support of its calculation of the net weight of Mr. Jolly's shipment, Bekins has provided the agency with a certified weight receipt of the equipment allegedly used for the move but in its unloaded state. This receipt, however, is unsigned and fails to identify either the tractor or the trailer being weighed. 3 In February of this year, the agency wrote Bekins pointing out the problems raised by the correction of the weight as originally listed on the GBL and the inadequacy of the alleged weight certificate for the unloaded equipment. Bekins reply was less than responsive. The agency received nothing more than a brief memorandum from the original estimator. She wrote that if her original estimate was inaccurate, it was because the Jollys had already begun their packing and many of the goods were no longer in plain view. In addition, she reminded the agency that, since Mr. Jolly's shipment went into SIT, there was ample time to request that it be reweighed if any question existed. The memorandum provides no explanation regarding the modification of the GBL or the inadequacy of the weight certificate for the moving equipment in its unloaded state. Discussion Given Bekins' failure to provide support for the alleged weight of Mr. Jolly's shipment, the agency is now apparently convinced that it has a legitimate claim against the mover. It therefore asks the following questions: 1) Can the agency reimburse Mr. Jolly for the amounts requested given the lack of proof provided by Bekins regarding the alleged weight of Mr. Jolly's shipment? 2) If so, can this be done immediately whether or not the agency recovers the funds from Bekins? We reply to the first question in the affirmative so far as the deducted $2,920.88 is concerned. We follow a strict standard in cases where an employee challenges the correctness of the certified weight of household goods. Certified weights recorded for the movement of household goods can be rebutted. Nevertheless, the burden of proving that they are incorrect or fraudulent is an exceedingly heavy one and rests solely on the claimant. Jayme A. Norris, GSBCA 13662-RELO, 97-2 BCA 29,049. This case clearly differs from the typical claim where the employee disagrees with the weight furnished by the mover and accepted by the agency as correct. Here, the employee has succeeded in convincing the agency officials that the data provided by the mover is open to serious question. The handwritten modification of the certified weight on the GBL and the company's failure to provide any explanation is particularly troubling. Mr. Jolly's household goods moved on a GBL. The Federal Travel Regulation (FTR) states that when the decision is made to move the household goods of a relocating employee under a GBL, the Government assumes total responsibility for the award and administration of the transportation contract in question. 41 4 CFR 302-8.3 (1996) (FTR 302-8.3). If a relocating Government employee succeeds in convincing his agency that the weight data for the move of his household goods is suspect, that is enough to justify a refund of any deduction the agency may have already made based on the premature assumption that this data is correct. We do not look to Mr. Jolly, as the claimant here, to accept the burden of proving the Government's claim against the carrier for possible over-billing. This is the task of the agency. It is true that under FTR 302-8.3(b)(5), an employee is required to pay for the shipment of excess weight when household goods are moved pursuant to a GBL. Nevertheless, this provision should not be applied when there is a bonafide dispute between the Government and the carrier on the fundamental issue of whether the shipment was ever in fact in excess of the allowable maximum. In the event the agency, as in this case, does not become convinced that there is a bonafide dispute until after the contractor has been paid and the employee has been charged for the alleged overweight, then any payment of this charge by the employee should be promptly refunded pending resolution of the agency's dispute with the carrier. While we conclude that the deduction should in this case be restored to Mr. Jolly, we do not believe that this should involve the payment of interest as well. We are not aware of any general authority which would permit this, and the agency has not identified for us any special authority which it possesses which would make this possible. As to the agency's second question, we see no reason why Mr. Jolly's refund should be contingent upon the agency's recovery from Bekins. Mr. Jolly is not the Government's insurer against over-billing by or inadvertent over-payment to an agency contractor. Given the record before us, we agree with the agency that, at this point in time, its dispute is with Bekins and not Mr. Jolly. The previous deduction from his salary, therefore, may and should be restored without further delay. _____________________ EDWIN B. NEILL Board Judge