Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________ December 4, 1998 ____________________ GSBCA 14721-RELO In the Matter of MICHAEL J. KUNK Michael J. Kunk, Denver, CO, Claimant. Susan R. Sheely, Chief, Travel Branch, Office of Financial Management, United States Geological Survey, Reston, VA, appearing for Department of the Interior. NEILL, Board Judge. Mr. Michael J. Kunk is an employee of the Department of Interior. In September 1996, he and his family made a permanent change of station (PCS) move from Hamilton, Virginia to Conifer, Colorado. The household goods shipped in the move were found to be 5860 pounds over the allotted limit of 18,000 pounds. As a result, the agency demanded that Mr. Kunk pay the cost of transporting this excess weight, $3081.76. Mr. Kunk protested this charge on the ground that he was advised before the move that the estimated weight of his household goods would be 18,000 pounds. He stated that the overage was the result of the mover s incompetence in making an accurate estimate and that any charge to him for it should, therefore, be waived. His protest was denied. He then asked that the case be forwarded to this Board for review. Based upon the applicable statute and regulations as well as the record before us, we conclude that the claim for the cost of transporting the excess weight cannot be waived and is the responsibility of Mr. Kunk. Background Mr. Kunk explains that he was not present at the time the mover came to his home to survey his household goods and estimate their weight. Nevertheless, it is his understanding that, at the time, his wife and the shipper s representative discussed the inclusion of some oak timbers in the planned shipment. He explains that his wife insisted that they be included in the survey and that the shipper s concern was not that their inclusion would make the shipment in excess of 18,000 pounds but only that the timbers would have to be insect free. Mr. Kunk also states that the written estimate of the weight of the household goods was 18,000 but that, on the day of the actual move, he was surprised to hear the movers comment that the weight of the belongings in the garage had been underestimated. The oak timbers were not stored in the garage. Mr. Kunk has no recollection of any discussion with the mover s estimator or with the agency s freight weight specialist regarding his shipment of household goods being in excess of 18,000 pounds. Statements provided by the estimator and the freight weight specialist who issued the Government bill of lading (GBL) covering Mr. Kunk s shipment are in conflict with Mr. Kunk's version of what transpired prior to the move. The shipper s estimator contends that the written estimate of the weight of Mr. Kunk s household goods was 19,000 pounds and that this estimate did not even include the oak timbers. He states that he advised Mr. Kunk that the tender of service did not allow movement of cordwood or building materials and that inclusion of the timbers was likely to exceed [the] maximum weight, but that Mr. Kunk replied that these timbers were needed for a hobby. The estimator also states that he passed on his concerns regarding the shipment and its weight to the agency freight specialist responsible for issuing the GBL. The record contains a copy of the estimator s worksheet. The total weight is, in fact, stated to be 19,000. This handwritten figure appears to have been 18,000 originally but later was changed to 19,000. We have no way of knowing when this correction was made. The wooden timbers, however, are shown on the worksheet. Nevertheless, it is clear from figures on the face of the document that the weight of the timbers was not included in the calculations leading to the bottom-line estimate. A statement from the agency s freight rate specialist confirms that the estimator did contact him regarding Mr. Kunk s shipment and its weight. The specialist claims to have explained later to Mr. Kunk that the responsibility of paying the cost of shipping goods in excess of 18,000 pounds rested with the owner. Mr. Kunk, according to the rate specialist, said he would be willing to pay this cost. The specialist also states that he advised Mr. Kunk that shipment of the wooden timbers was not authorized. Mr. Kunk is alleged to have then replied that the wood was utilized for his hobby of furniture building. The specialist states that he then discussed this problem with Mr. Kunk s new supervisor. The supervisor eventually gave approval for the timbers to be shipped as hobby materials. Discussion On balance, we are unpersuaded that Mr. Kunk was totally surprised by the fact that his shipment was in excess of 18,000 pounds and that he could not have made a decision at the time of the move not to ship certain items in order to ensure he was within the specified limit. If the written estimate was in fact 19,000 pounds, he was undoubtedly on notice. However, even if the estimate was 18,000, as he contends, this should have alerted him to the very strong possibility of a charge for excess weight, particularly when he heard the movers observe, as they loaded the truck, that the weight of the belongings in his garage had been underestimated. As to the oak timbers, it is clear that they were a matter of concern, but it is unclear whether the principal problem was with their weight or with their being considered building materials. The estimator and the rate specialist appear to have been concerned with both aspects. Given the entries on the estimator s worksheet, the timbers posed a problem regarding weight. They were obviously a heavy item, and it is apparent on the face of the worksheet that they were not included in the tally leading to the final written estimate. Whether the worksheet showed a final estimate of 18,000 or 19,000 pounds, if Mr. Kunk was given a copy of it, he certainly should have realized that inclusion of the timbers would pose a problem for the weight of his shipment. We cannot tell from the record, however, if the written estimate given to Mr. Kunk was that shown on the worksheet or on some other separate document. Whatever the problems may be with the facts of this case, in the final analysis, Mr. Kunk s liability for the $3081.76 does not turn on whether he knew or didn t know that his shipment was over the maximum allowable 18,000 pounds. Under statute the Government is simply not authorized to pay for the shipment of more than 18,000 pounds. 5 U.S.C. 5724(a)(2) (1994). The implementation of this statute in the Federal Travel Regulation provides that "the maximum weight of household goods that may be transported or stored at Government expense is limited to 18,000 pounds net weight for all employees." 41 CFR 302-8.2(a) (1996). Even if we were to view the facts of this case in a light most favorable to Mr. Kunk, neither we nor the agency would have the authority to waive this statutory limitation. We are aware of no statutory authority which, given the facts here, would permit either this Board or Mr. Kunk's agency to waive the requirement that he pay the cost of shipping household goods in excess of the 18,000 pound limit. It is well established that, absent a specific provision in statute or regulation which might permit it under certain circumstances, neither an agency nor the Board has the authority to waive the applicability of travel statutes or regulations for any individual federal employee who is subject to them. Defense Intelligence Agency Employee, GSBCA 14745-RELO (Nov. 6, 1998); Gordon D. Giffin, GSBCA 14425-RELO (Sept. 29, 1998); Murray Lumpkin, GSBCA 14513-RELO (Sept. 17, 1998); Thomas D. Thompson, GSBCA 14496-RELO, 98-1 BCA 29,799; Kelly A. Wells, GSBCA 14205-TRAV, 98-1 BCA 29,603; Thomas T. Matteson, GSBCA 14111-RELO, 98-1 BCA 29,413 (1997). This is not the first time that a federal employee has asked us to provide relief, for one reason or another, from the payment of the cost of shipping household goods in excess of the statutory limit of 18,000 pounds. Our position in such cases has consistently been that these costs are for the account of the employee. E.g., Leroy Aaron, GSBCA 14311-RELO, 98-2 BCA 29,762; Joseph W. Burns, GSBCA 14233-RELO, 98-1 BCA 29,393; George L. Taylor, GSBCA 14036-RELO, 97-2 BCA 29,148; Jayme A. Norris, GSBCA 13663-RELO, 97-2 BCA 29,049; Ingrid Rodenberg, GSBCA 13729-RELO, 97-2 BCA 29,027; Pamela J. Whitmore, GSBCA 13819-RELO, 97-1 BCA 28,957; Robert C. Berg, GSBCA 13655-RELO, 97-1 BCA 28,939. The possibilities for relief in cases such as Mr. Kunk's are few indeed. As noted above, if a particular statute authorizes waiver under limited circumstances, relief may be possible. E.g., 5 U.S.C. 5584.[foot #] 1 Similarly, where the Government s assessment of costs is based on charges proven by clear and substantial evidence to be marred by error, there is the possibility that the employee may successfully avoid liability for the cost of transporting the alleged excess. Jerry Jolly, GSBCA 14158-RELO, 98-1 BCA 29,518 (1997) (claimant provided persuasive evidence that mover's charges were based upon unreliable weight data); Robert G. Gindhart, GSBCA 14288- RELO, 98-1 BCA 29405 (1997) (mover's charges were based on weight of household goods which became waterlogged during shipment). No circumstances such as these, however, exist in Mr. Kunk's case. Accordingly, we affirm the agency s determination that the cost associated with the transport of goods in excess of the allowable 18,000 pounds must be paid by Mr. Kunk. _____________________ EDWIN B. NEILL Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 Under this statute, for example, if any employee has already paid for the shipment of goods in excess of 18,000 pounds with funds previously advanced to him or her, the agency head would have the authority to waive any demand for a refund of the advance if collection should be deemed to be against equity and good conscience and not in the best interest of the Government. See Gerald A. Sherman, GSBCA 13791-TRAV, 97-2 BCA ___ _________________ 29,299.