[Requests for Reconsideration of Sustained Protest of Navy Contract Award]

A-26531, NOVEMBER 18, 1929, 9 COMP. GEN. 210

TRANSPORTATION OF DEPENDENTS OF NAVAL OFFICERS ON AMERICAN VESSELS SECTION 601 OF THE ACT OF MAY 22, 1928, 45 STAT. 697, REQUIRING THAT OFFICERS AND EMPLOYEES OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS TO FOREIGN COUNTRIES AND TO ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHEN SUCH SHIPS ARE AVAILABLE, IS APPLICABLE TO TRAVEL OF DEPENDENTS OF OFFICERS OF THE NAVY. REIMBURSEMENT OF THE TRAVEL EXPENSES OF DEPENDENTS OF OFFICERS OF THE NAVY MUST BE BASED ON TRAVEL OVER THE USUALLY TRAVELED ROUTE, AND DETERMINATION OF THE AVAILABILITY OF GOVERNMENT TRANSPORTS OR OF TRANSPORTATION ON COMMERCIAL SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES MUST BE BASED ON THE USUALLY TRAVELED ROUTE. WHEN THE DEPENDENTS OF AN OFFICER OF THE NAVY, FOR THEIR OWN CONVENIENCE AND PLEASURE, ELECT TO TRAVEL OVER A CIRCUITOUS ROUTE ON A FOREIGN- REGISTERED VESSEL, AMERICAN VESSELS BEING AVAILABLE BY THE USUALLY TRAVELED ROUTE, THE OFFICER IS NOT ENTITLED TO ANY REIMBURSEMENT FOR THEIR TRAVEL EXPENSES.

COMPTROLLER GENERAL MCCARL TO LIEUT. FELIX L. JOHNSON, UNITED STATES NAVY, NOVEMBER 18, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 30, 1929, REQUESTING REVIEW OF SETTLEMENT OF JUNE 5, 1929, DISALLOWING YOUR CLAIM FOR PAYMENT OF TRANSPORTATION COST OF DEPENDENTS (WIFE AND TWO CHILDREN) FROM ANNAPOLIS, MD., TO MANILA, P.I., UNDER ORDERS OF FEBRUARY 11, 1928, AND MODIFYING ORDERS OF APRIL 26 AND JUNE 8, 1928. YOUR ORDERS OF FEBRUARY 11, 1928, DETACHED YOU FROM DUTY AT THE NAVAL ACADEMY, ANNAPOLIS, MD., AND DIRECTED YOU TO PROCEED TO SAN FRANCISCO AND REPORT TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, AND THE COMMANDING OFFICER OF THE U.S.S. HENDERSON FOR PASSAGE TO MANILA, P.I., AND UPON ARRIVAL TO REPORT TO THE COMMANDER IN CHIEF, ASIATIC FLEET, FOR ASSIGNMENT. THE ORDERS OF APRIL 26, 1928, MODIFIED THE ORDERS OF FEBRUARY 11, 1928, DIRECTING YOU TO PROCEED TO SEATTLE, WASH., IN TIME TO TAKE PASSAGE TO MANILA, P.I., VIA THE STEAMSHIP PRESIDENT JEFFERSON OF THE AMERICAN MAIL LINE SAILING ON JUNE 16, 1928, INSTEAD OF TAKING PASSAGE VIA THE U.S.S. HENDERSON FROM SAN FRANCISCO, CALIF. THE ORDERS OF JUNE 8, 1928, FURTHER HERE MATERIAL, AS FOLLOWS: FROM: BUREAU OF NAVIGATION. TO: LIEUTENANT FELIX L. JOHNSON, U.S.N., ABERDEEN, N.C. SUBJECT: AUTHORIZED PROCEED VIA YACHT ATLANTIC. REFERENCE: (A) BUREAU'S ORDERS OF 11 FEBRUARY, 1928, AND MODIFICATION OF 26 APRIL, 1928.

1. YOU ARE AUTHORIZED TO PROCEED TO SANTANDER, SPAIN, VIA THE YACHT ATLANTIC SAILING FROM NEW YORK, N.Y., ON OR ABOUT 6 JULY, 1928, AND TO REMAIN AT SANTANDER, SPAIN, NOT MORE THAN ONE WEEK.

2. YOU ARE HEREBY AUTHORIZED TO APPLY TO THE NAVAL ATTACHE, AMERICAN EMBASSY, MADRID, SPAIN, FOR TRANSPORTATION TO THE ASIATIC STATION, VIA THE SUEZ CANAL.

3. THE ABOVE IS AUTHORIZED WITH THE UNDERSTANDING THAT YOU WILL BE ENTITLED TO NO MILEAGE OR EXPENSE IN EXCESS OF THAT ALLOWED BY REFERENCE (A). IN CASE YOU DO NOT DESIRE TO BEAR THIS EXPENSE, YOU WILL REGARD THIS AUTHORIZATION AS REVOKED AND RETURN THIS LETTER TO THE BUREAU OF NAVIGATION FOR CANCELLATION.

SECTION 601 OF THE ACT OF MAY 22, 1928, 45 STAT. 697, PROVIDES:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS TO FOREIGN COUNTRIES, OR TO ANY OF THE POSSESSIONS OF THE UNITED STATES, SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHEN SUCH SHIPS ARE AVAILABLE, UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.

IT APPEARS THAT YOUR DEPENDENTS WERE NOT FURNISHED TRANSPORTATION AND THAT THEY PERFORMED TRAVEL FROM NEW YORK TO MANILA VIA EUROPE AND SUEZ CANAL ON FOREIGN REGISTERED VESSELS.

YOUR ORDERS TO PERFORM TRAVEL VIA SPAIN AND SUEZ CANAL WERE NOT MANDATORY BUT CONDITIONAL, AND WERE GIVEN WITH THE UNDERSTANDING THAT IF YOU DID NOT DESIRE TO BEAR ALL EXPENSES IN EXCESS OF THAT ALLOWABLE FOR THE TRAVEL AS DIRECTED IN ORDERS OF APRIL 26, 1928, YOU SHOULD REGARD THE AUTHORIZATION AS REVOKED.

PERMISSION GIVEN YOU TO TRAVEL VIA EUROPE DID NOT AUTHORIZE OR REQUIRE YOUR DEPENDENTS TO TRAVEL THAT ROUTE. REIMBURSEMENT OF THE TRAVEL EXPENSES OF AN OFFICER'S DEPENDENTS MUST BE BASED ON TRAVEL OVER THE USUALLY TRAVELED ROUTE, AND DETERMINATION OF THE AVAILABILITY OF GOVERNMENT TRANSPORT, OR OF TRANSPORTATION ON A COMMERCIAL SHIP REGISTERED UNDER THE LAWS OF THE UNITED STATES, MUST BE BASED ON THE USUALLY TRAVELED ROUTE. THE FACT THAT TRAVEL WAS NOT AVAILABLE ON A SHIP REGISTERED UNDER THE LAWS OF THE UNITED STATES OVER A CIRCUITOUS ROUTE SELECTED BY AN OFFICER'S DEPENDENTS FOR THEIR OWN CONVENIENCE AND PLEASURE IS NOT CONCLUSIVE THAT SUCH COMMERCIAL SHIP WAS NOT AVAILABLE OVER THE USUALLY TRAVELED ROUTE. WITHOUT REFERENCE TO THE AVAILABILITY OF GOVERNMENT TRANSPORT BY THE DIRECT ROUTE IT IS APPARENT THAT COMMERCIAL TRANSPORTATION COULD HAVE BEEN FURNISHED YOUR DEPENDENTS VIA SEATTLE OR SAN FRANCISCO ON A UNITED STATES REGISTERED VESSEL. ACCORDINGLY, UNDER THE PLAIN TERMS OF THE LAW, YOUR DEPENDENTS HAVING ELECTED TO TRAVEL BY CIRCUITOUS ROUTE ON A FOREIGN REGISTERED VESSEL, YOU ARE NOT ENTITLED TO ANY REIMBURSEMENT OF THEIR TRAVEL EXPENSES.

YOU SUGGEST THAT THE PROVISIONS OF THE ACT OF MAY 22, 1928, WERE NOT GENERALLY KNOWN TO THE NAVAL SERVICE WHEN YOU MADE ARRANGEMENTS FOR THE TRANSPORTATION OF YOUR DEPENDENTS. YOU ALSO CITE DECISION A-24720 OF OCTOBER 17, 1928, 8 COMP. GEN. 196, AS AUTHORITY FOR NOT APPLYING THE TERMS OF THAT ACT TO TRAVEL PERFORMED PRIOR TO NOVEMBER 1, 1928; ALSO, THAT SAID ACT OF MAY 22, 1928, IS LIMITED TO THE TRAVEL OF OFFICERS AND EMPLOYEES OF THE GOVERNMENT AND DOES NOT APPLY TO AN OFFICER'S DEPENDENTS.

AS TO THE FIRST SUGGESTION, THAT THE PROVISIONS OF THE ACT OF MAY 22, 1928, WERE NOT GENERALLY KNOWN TO THE NAVAL SERVICE WHEN YOU MADE ARRANGEMENTS FOR THE TRANSPORTATION OF YOUR DEPENDENTS, YOU STATED IN THE SUBMISSION OF YOUR CLAIM THAT WHILE IN WASHINGTON ABOUT JUNE 25 YOU SAW THE TRANSPORTATION OFFICER IN THE BUREAU OF NAVIGATION, WHO ADVISED YOU THAT IN ORDER FOR YOU TO BE REIMBURSED FOR DEPENDENTS' TRAVEL EXPENSES IT WOULD BE NECESSARY FOR THEM TO TRAVEL VIA VESSEL UNDER AMERICAN FLAG; ALSO, THAT THE TRANSPORTATION OFFICER REFUSED TO AUTHORIZE THE NAVAL ATTACHE AT PARIS TO FURNISH YOUR DEPENDENTS TRANSPORTATION UNDER FOREIGN FLAG.

THE QUESTION CONSIDERED IN THE DECISION OF OCTOBER 17, 1928, WAS WHETHER SECTION 601 OF THE ACT OF MAY 22, 1928, APPLIED TO OFFICERS AND EMPLOYEES IN RETURNING FROM A FOREIGN COUNTRY AS WELL AS WHEN GOING TO A FOREIGN COUNTRY. THE DECISION HELD THAT ALTHOUGH THE LANGUAGE OF THE FIRST PART OF THE ACT AFFORDED SOME GROUND FOR HOLDING IT APPLICABLE ONLY FOR TRAVEL TO A FOREIGN COUNTRY, THE PROVISO THEREIN REQUIRING DENIAL OF CREDIT FOR "ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF NECESSITY THEREFOR" CLEARLY MADE IT APPLICABLE TO TRAVEL BOTH GOING TO AND RETURNING FROM A FOREIGN COUNTRY. HOWEVER, BY REASON OF THE DOUBT WHICH MAY HAVE EXISTED IN THE ADMINISTRATIVE SERVICES, CREDITS FOR TRAVEL EXPENSES RETURNING TO THE UNITED STATES UPON A FOREIGN VESSEL PRIOR TO NOVEMBER 1, 1928, WERE ALLOWED. THAT EXCEPTION, HOWEVER HAD NO APPLICATION FOR TRAVEL TO A FOREIGN COUNTRY. FOR THE SAME REASON--- THE LANGUAGE OF THE PROVISO MAKING THE PROVISIONS OF THE SECTION APPLY TO ALL ALLOWANCES FOR TRAVEL--- IT IS EVIDENT THAT THE ACT WAS INTENDED TO APPLY TO ALL TRAVEL EXPENSES REIMBURSABLE FROM GOVERNMENT APPROPRIATION, AND THEREFORE APPLIES TO TRAVEL EXPENSES OF THE DEPENDENTS OF OFFICERS OF THE NAVY.