Board of Contract Appeals General Services Administration Washington, D.C. 20405 November 5, 1998 GSBCA 14709-RELO In the Matter of BART J. DUBINSKY Bart J. Dubinsky, Highland Village, TX, Claimant. Dr. Michael H. Trujillo, Assistant Surgeon General and Director, Indian Health Service, Rockville, MD, appearing for Department of Health and Human Services. DANIELS, Board Judge (Chairman). The Indian Health Service (IHS), a unit of the Department of Health and Human Services' Public Health Service, transferred employee Bart J. Dubinsky from Phoenix, Arizona, to Dallas, Texas, at the end of 1995. Bart J. Dubinsky, GSBCA 14546-RELO, 98-2 BCA 29,840. Mr. Dubinsky submitted to IHS a voucher for reimbursement of expenses he incurred in relocating. After some discussion, the agency and the employee agree on all aspects of reimbursement due, save one -- the amount attributable to the shipment of the employee's household goods. As to this item, the two sides agree that reimbursement should be made in accordance with the commuted rate system. See 41 CFR 302-8.3(a) (1995). Under that system, the amount due is dependent on the weight of the household goods and the distance traveled. Id. 302-8.3(a)(2). The two sides are in dispute as to how much Mr. Dubinsky's goods weighed. This case calls on us to resolve the dispute. Background Mr. Dubinsky moved his goods in a truck which he rented and packed himself, as well as his two automobiles. The truck's van has an interior volume of 1,536 cubic feet. Upon the employee's arrival in Texas, he temporarily stored the goods in eight containers, each of which had exterior dimensions of seven feet by seven feet by five feet. He did not have the goods weighed at any time. Mr. Dubinsky had moved to Phoenix three years earlier. At that time, he had received an estimate that his household goods weighed 12,000 pounds. He has not provided us with any firm evidence regarding the actual weight of the goods, however. He says that to the best of his knowledge, the goods weighed over 9,000 pounds. He believes that "due to the nature of a growing family," the amount of his goods "increased slightly" during the period between the two moves. Discussion Under the Federal Travel Regulation (FTR), the preferred way of determining the weight of household goods is, of course, to weigh the goods on a scale. Where this cannot be done, however, "constructive weight" may be determined by multiplying seven pounds by the number of cubic feet of properly loaded van space required for the shipment. 41 CFR 302-8.2(c); Thomas J. Prendergast, GSBCA 13961-RELO, 97-2 BCA 29,052. Because Mr. Dubinsky did not have his goods weighed, an approximation of their weight must be derived through the constructive weight procedure allowed by the regulation. Mr. Dubinsky has proposed two ways of calculating the constructive weight. First, he suggests that the volume of the eight containers in which his goods were stored (1,960 cubic feet) be multiplied by seven, reaching a figure of 13,720 pounds. Second, he proposes multiplying the volume of his rental truck's van by seven (the product is 10,752 pounds), and adding to that number additional amounts to reflect the space in the truck's cab and the two automobiles (one a sport utility vehicle) that was devoted to household goods, to reach a total of 12,159 pounds. He says that he will accept payment based on a weight of 12,000 pounds. IHS asked four companies which transport household goods for estimates of the weight of a loaded container such as the ones in which Mr. Dubinsky's goods were stored. The average of the weights provided by the companies, multiplied by eight (the number of containers used), is 8,258 pounds. IHS used this number in determining the amount of reimbursement due the employee under the commuted rate system. It then offered to base reimbursement on the figure of 9,000 pounds, but when Mr. Dubinsky accepted this proposal, IHS retracted it and retreated to the figure of 8,258. There are problems with the techniques used by both the employee and the agency to determine constructive weight. The FTR authorizes the use of a figure of seven pounds per cubic foot of volume only where the van in which the goods were transported was properly loaded. The employee's methods are both premised on the assumption that the vehicles and containers he used were properly loaded, but we have no proof that they were (and such an assumption is of doubtful validity, since non-professionals did the work). The employee's calculations regarding the containers are also deficient in that they are based on the exterior dimensions of the boxes, though contents obviously fit only within interior dimensions. If, for example, each wall of each container was one and one-half inches thick, the volume of eight containers would be only 1,731 cubic feet, not 1,960, and the constructive weight based on this volume would be 12,117 pounds, not 13,720. The agency's method suffers from infirmities, too. Like the employee's technique, it does not take into account whether a container is properly loaded. More critically, the agency's method is fundamentally at odds with the FTR in being derived from estimates that a cubic foot of household goods weighs, on average, much less than seven pounds. (The figures provided by the carriers vary from 3.06 to 5.71 pounds per cubic foot.) While this may suggest that the regulatory provision is overly generous to employees, it does not give IHS authorization to use a number other than the one prescribed. Further, the figures provided by the carriers are not capable of being averaged, since each carrier premised its estimate on a container which was uniquely sized; only one was the size Mr. Dubinsky actually used. Additionally, the dimensions used by some carriers are for the inside of the containers and the dimensions used by others are for the outside. No one will ever know with any degree of certainty how much Mr. Dubinsky's household goods weighed when he moved them from Phoenix to Dallas. There is consequently no right answer to the question posed in this case. This sort of dispute ought to be resolved by the agency and the employee informally, without recourse to the Board. Because IHS has refused to honor its own settlement proposal, however, and the matter must be settled, we have no choice but to hazard our own guess. See 31 U.S.C.A. 3702(a)(3) (West Supp. 1998). The number used by IHS is not helpful, as it is based on concepts which are inconsistent with FTR requirements. Mr. Dubinsky's suggestion that we select 12,000 pounds would be reasonable if he could demonstrate that he properly loaded the goods, but he has not done so. The employee has told us that his belongings were about the same as items he shipped three years earlier, and that those belongings weighed about 9,000 pounds. The estimate of 9,000 pounds is consistent with application of the FTR's seven-pounds-per-cubic-foot rule, if we assume that the employee did a pretty good job of packing the containers -- that he put in each one of them three-quarters the weight of goods that would have been included if they had been properly loaded. We direct IHS to use this figure in determining the amount that the employee should be paid, using the commuted rate system, for transportation of the household goods. _________________________ STEPHEN M. DANIELS Board Judge