B-177909, APR 19, 1973, 52 COMP GEN 730

B-177909, APR 19, 1973, 52 COMP GEN 730

SUBSISTENCE - PER DIEM - RATES - LODGING COSTS - APPLICATION OF "LODGINGS -PLUS" SYSTEM IN THE APPLICATION OF THE "LODGINGS-PLUS" PROVISION OF SECTION 6.3C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO DETERMINE THE AVERAGE DAILY LODGING COSTS FOR THE PURPOSE OF ESTABLISHING PER DIEM RATES FOR CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE ASSIGNED TO PROLONGED TEMPORARY DUTY AT LOCATIONS WHERE HOTEL AND MOTEL ACCOMMODATIONS ARE LIMITED AND EMPLOYEES RENT LIVING QUARTERS AT OR NEAR THE TEMPORARY DUTY STATION, THERE IS FOR INCLUSION THE EXPENSES THAT ARE ORDINARILY INCLUDED IN THE PRICE OF A HOTEL OR MOTEL ROOM, SUCH AS RENT OF AN APARTMENT, HOUSE OR TRAILER, FURNISHED OR UNFURNISHED; RENTAL OF FURNITURE, INCLUDING STOVES, REFRIGERATORS, TELEVISION SETS, AND VACUUM CLEANERS; UTILITIES, MAID AND CLEANING CHARGES; TELEPHONE AND OTHER USER FEES, BUT NOT THE EXPENSES INCURRED FOR TIPS, HOUSEKEEPING ITEMS, AND TELEPHONE INSTALLATION. FURTHERMORE, SECTION 6.3C PERMITS THE ESTABLISHMENT OF A SPECIFIC PER DIEM RATE WHEN THE USE OF THE LODGINGS-PLUS SYSTEM IS NOT APPROPRIATE.

TO THE SECRETARY OF THE NAVY, APRIL 19, 1973:

THIS REFERS TO LETTER OF JANUARY 8, 1973, FROM MR. JAMES E. JOHNSON, ASSISTANT SECRETARY OF THE NAVY, MANPOWER AND RESERVE AFFAIRS, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON JANUARY 18, 1973, PDTATAC CONTROL NO. 73-1, FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF INCLUDING THE COST OF VARIOUS ITEMS IN DETERMINING THE AVERAGE DAILY LODGING COSTS IN PRESCRIBING THE PER DIEM RATE OF A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE ON TEMPORARY DUTY.

IT IS STATED THAT MANY CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE, DUE TO THE NATURE OF THE DUTY TO BE PERFORMED, ARE FREQUENTLY ASSIGNED TO PROLONGED TEMPORARY DUTY AT LOCATIONS WHERE ACCOMMODATIONS AT HOTELS OR MOTELS ARE EXTREMELY LIMITED. THIS REQUIRES THAT EMPLOYEES SECURE LIVING QUARTERS BY RENTING FURNISHED AND UNFURNISHED APARTMENTS, HOUSES OR TRAILERS AT OR NEAR THE TEMPORARY DUTY STATION. A DECISION IS REQUESTED WHETHER THE FOLLOWING ITEMS MAY PROPERLY BE INCLUDED AS LODGING COSTS FROM WHICH AN AVERAGE COST OF LODGING MAY BE DERIVED FOR THE PURPOSE OF DETERMINING THE PAYABLE PER DIEM RATE:

A. RENT OF AN APARTMENT, HOUSE OR TRAILER, FURNISHED OR UNFURNISHED;

B. RENTAL CHARGES FOR FURNITURE SUCH AS STOVES, REFRIGERATORS, CHAIRS, TABLES, BEDS, SOFAS, TELEVISIONS, AND VACUUM CLEANERS;

C. PURCHASE COSTS OF HOUSEKEEPING NECESSITIES SUCH AS BEDDING, TOWELS, WASH CLOTHS, CLEANING SUPPLIES, DISHWARES, UTENSILS, POTS AND PANS, CURTAINS, AND THROW RUGS;

D. PAYMENT OF UTILITIES INCLUDING ELECTRICITY, NATURAL GAS, WATER, FUEL OIL, AND SEWER CHARGES;

E. PAYMENT OF SPECIAL USER FEES SUCH AS CABLE TV CHARGES AND PLUG IN CHARGES FOR AUTOMOBILE HEAD BOLT HEATERS;

F. PAYMENT OF MAID FEES AND CLEANING CHARGES;

G. PAYMENT OF TELEPHONE INSTALLATIONS AND USER FEES;

H. TIPS PAID TO MAIDS AND PERSONNEL PROVIDING SERVICES.

THE QUESTION SUBMITTED CONCERNS THE APPLICATION OF THE "LODGINGS PLUS" PROVISION OF SUBSECTION 6.3C OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR) WHICH PROVIDES AS FOLLOWS:

C. WHEN LODGINGS ARE REQUIRED. FOR TRAVEL IN THE CONTINENTAL UNITED STATES WHEN LODGING AWAY FROM THE OFFICIAL STATION IS REQUIRED AGENCIES SHALL FIX PER DIEM FOR EMPLOYEES PARTLY ON THE BASIS OF THE AVERAGE AMOUNT THE TRAVELER PAYS FOR LODGINGS. TO SUCH AMOUNT, I.E., THE AVERAGE OF AMOUNTS PAID FOR LODGING WHILE TRAVELING ON OFFICIAL BUSINESS DURING THE PERIOD COVERED BY THE VOUCHER, SHALL BE ADDED A SUITABLE ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES. THE RESULTING AMOUNT ROUNDED TO THE NEXT WHOLE DOLLAR, IF THE RESULT IS NOT IN EXCESS OF THE MAXIMUM PER DIEM, WILL BE THE PER DIEM RATE TO BE APPLIED TO THE TRAVELER'S REIMBURSEMENT IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS SECTION. IF SUCH RESULT IS MORE THAN THE MAXIMUM PER DIEM ALLOWABLE SUCH MAXIMUM WILL BE THE PER DIEM ALLOWED. NO MINIMUM ALLOWANCE WILL BE AUTHORIZED FOR LODGING SINCE THOSE ALLOWANCES ARE BASED ON ACTUAL LODGING EXPENSES.*** AN AGENCY MAY DETERMINE THAT THE LODGINGS-PLUS SYSTEM AS PRESCRIBED HEREIN IS NOT APPROPRIATE IN GIVEN CIRCUMSTANCES AS WHEN QUARTERS OR MEALS, OR BOTH, ARE PROVIDED AT NO COST OR AT A NOMINAL COST BY THE GOVERNMENT OR WHEN FOR SOME OTHER REASON THE SUBSISTENCE COSTS WHICH WILL BE INCURRED BY THE EMPLOYEE MAY BE ACCURATELY ESTIMATED IN ADVANCE. IN SUCH CASES A SPECIFIC PER DIEM RATE MAY BE ESTABLISHED AND REDUCTIONS MADE IN ACCORDANCE WITH THIS SECTION PROVIDED THE EXCEPTION FROM THE LODGINGS-PLUS METHOD IS AUTHORIZED IN WRITING BY AN APPROPRIATE OFFICIAL OF THE AGENCY INVOLVED.

SECTION 5701 OF TITLE 5 OF THE U.S.C. DEFINES "PER DIEM ALLOWANCE" AS "A DAILY FLAT RATE PAYMENT INSTEAD OF ACTUAL EXPENSES FOR SUBSISTENCE ***" AND SUBSISTENCE IS DEFINED AS "LODGING, MEALS, AND OTHER NECESSARY EXPENSES FOR THE PERSONAL SUSTENANCE AND COMFORT OF THE TRAVELER."

THE TERM LODGING AS USED IN THE STATUTE AND REGULATIONS REFERS TO A TEMPORARY PLACE OF ABODE USED BY AN EMPLOYEE AT A TEMPORARY DUTY STATION AWAY FROM HIS HEADQUARTERS, AND THE COST OF LODGING IN THE USUAL SITUATION RELATES TO THE COST OF A HOTEL OR MOTEL ROOM PLUS SALES TAX, IF ANY. DOES NOT INCLUDE TIPS. THOSE ITEMS OF EXPENSE LISTED IN THE ASSISTANT SECRETARY'S LETTER WHICH ARE FOR ACCOMMODATIONS OR SERVICES ORDINARILY INCLUDED IN THE PRICE OF A HOTEL OR MOTEL ROOM MAY BE USED IN THE COMPUTATION OF LODGING COSTS. WE DO NOT, HOWEVER, CONSIDER THE COST OF INSTALLATION OF A TELEPHONE OR THE COSTS INCIDENT TO PURCHASE OF HOUSEKEEPING ITEMS AS PROPER FOR INCLUSION. IN SUMMARY, ITEMS A, B, D, F, AND TELEPHONE USE FEES IN G, ARE VIEWED AS PROPER FOR CONSIDERATION AS A LODGING COST. WITH REGARD TO ITEM E, IF SUCH FACILITIES IN THE AREA CONCERNED ARE ORDINARILY INCLUDED IN THE PRICE OF A ROOM, THE COSTS THEREOF MAY LIKEWISE BE CONSIDERED AS A LODGING COST. ITEM H, TIPS PAID TO MAIDS AND PERSONNEL PROVIDING SERVICES, IS NOT A COST ORDINARILY INCLUDED IN THE COST OF HOTEL OR MOTEL ROOM AND ACCORDINGLY MAY NOT BE VIEWED AS A LODGING COST FOR THE PURPOSES OF THE REGULATION.

WE BELIEVE, IN VIEW OF THE CIRCUMSTANCES EXPLAINED IN THE LETTER, NAMELY, PROLONGED PERIODS OF TEMPORARY DUTY WHERE EMPLOYEES SECURE ACCOMMODATIONS IN APARTMENTS, HOUSES OR TRAILERS, ALL OF WHICH PRESUMABLY HAVE HOUSEKEEPING FACILITIES, THAT ADMINISTRATIVE CONSIDERATION SHOULD BE GIVEN TO THAT PART OF SECTION 6.3C OF SGTR WHICH PROVIDES THAT A SPECIFIC PER DIEM RATE MAY BE ESTABLISHED WHEN AN AGENCY DETERMINES THAT THE LODGINGS- PLUS SYSTEM IS NOT APPROPRIATE IN GIVEN CIRCUMSTANCES.