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B-223741, FEB 24, 1987

B-223741 Feb 24, 1987
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T. MICHAEL DILLON: WE HAVE BEEN ASKED BY AN AUTHORIZED CERTIFYING OFFICIAL FOR AN ADVANCE DECISION ON WHETHER A VOUCHER FOR REIMBURSEMENT OF EXPENDITURES INCURRED BY A SURVEILLANCE TEAM FOR PURCHASE OF COLD WEATHER CLOTHING WHILE ON AN EXTENDED MISSION MAY BE CERTIFIED FOR PAYMENT. THE SURVEILLANCE TEAM MEMBERS ARE NOT ENTITLED TO REIMBURSEMENT FOR THE PERSONAL ITEMS PURCHASED. A FEDERAL BUREAU OF INVESTIGATION SURVEILLANCE TEAM WAS SENT TO SANTA FE. DURING THE MISSION THE DURATION WAS EXTENDED AND AFTER THE MISSION'S 10TH DAY THE WEATHER TURNED SIGNIFICANTLY COLDER. DILLON'S VOUCHER WAS NOT HONORED BY THE AGENCY BASED ON OUR DECISION B-198823. IN THAT CASE WE HELD THAT PURCHASES OF PERSONAL CLOTHING AND TOILETRY ITEMS BY EMPLOYEES ON TEMPORARY DUTY UNDER EMERGENCY CIRCUMSTANCES ARE NOT MISCELLANEOUS EXPENDITURES NECESSARILY INCURRED BY A TRAVELER IN CONNECTION WITH OFFICIAL BUSINESS UNDER THE FEDERAL TRAVEL REGULATIONS AND THEY MAY NOT BE REGARDED AS SPECIAL CLOTHING AND EQUIPMENT WITHIN THE MEANING OF 5 U.S.C.

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B-223741, FEB 24, 1987

APPROPRIATIONS/FINANCIAL MANAGEMENT - APPROPRIATION AVAILABILITY - PURPOSE AVAILABILITY - SPECIFIC PURPOSE RESTRICTIONS - PERSONAL EXPENSES/FURNISHINGS DIGEST: PURCHASES OF COLD WEATHER CLOTHING BY MEMBER OF SURVEILLANCE TEAM WHILE PERFORMING TEMPORARY DUTY FOR EXTENDED PERIOD OF TIME DURING WHICH WEATHER CHANGED CANNOT BE CONSIDERED THE PURCHASE OF SPECIAL CLOTHING AND EQUIPMENT FOR WHICH REIMBURSEMENT COULD BE AUTHORIZED UNDER 5 U.S.C. SEC. 7903, NOR CAN SUCH PURCHASES CONSTITUTE MISCELLANEOUS EXPENSES NECESSARILY INCURRED BY A TRAVELER IN CONNECTION WITH OFFICIAL BUSINESS UNDER THE FEDERAL TRAVEL REGULATIONS.

T. MICHAEL DILLON:

WE HAVE BEEN ASKED BY AN AUTHORIZED CERTIFYING OFFICIAL FOR AN ADVANCE DECISION ON WHETHER A VOUCHER FOR REIMBURSEMENT OF EXPENDITURES INCURRED BY A SURVEILLANCE TEAM FOR PURCHASE OF COLD WEATHER CLOTHING WHILE ON AN EXTENDED MISSION MAY BE CERTIFIED FOR PAYMENT. FOR THE REASONS THAT FOLLOW, THE SURVEILLANCE TEAM MEMBERS ARE NOT ENTITLED TO REIMBURSEMENT FOR THE PERSONAL ITEMS PURCHASED.

SOMETIME IN EARLY AUGUST 1985, A FEDERAL BUREAU OF INVESTIGATION SURVEILLANCE TEAM WAS SENT TO SANTA FE, NEW MEXICO, ON A TEMPORARY DUTY ASSIGNMENT. THE HEADQUARTERS DIVISION HAD ADVISED THE TEAM THAT ITS STAY WOULD BE APPROXIMATELY 5 TO 7 DAYS. DURING THE MISSION THE DURATION WAS EXTENDED AND AFTER THE MISSION'S 10TH DAY THE WEATHER TURNED SIGNIFICANTLY COLDER. AT THIS POINT MR. DILLON AUTHORIZED THE PURCHASE OF COLD WEATHER CLOTHING FOR THE SURVEILLANCE TEAM WHICH HE HAS SUBMITTED RECEIPTS TOTALLING $2,415.32.

THE SUBMISSION INDICATES THAT MR. DILLON'S VOUCHER WAS NOT HONORED BY THE AGENCY BASED ON OUR DECISION B-198823, DECEMBER 10, 1980. IN THAT CASE WE HELD THAT PURCHASES OF PERSONAL CLOTHING AND TOILETRY ITEMS BY EMPLOYEES ON TEMPORARY DUTY UNDER EMERGENCY CIRCUMSTANCES ARE NOT MISCELLANEOUS EXPENDITURES NECESSARILY INCURRED BY A TRAVELER IN CONNECTION WITH OFFICIAL BUSINESS UNDER THE FEDERAL TRAVEL REGULATIONS AND THEY MAY NOT BE REGARDED AS SPECIAL CLOTHING AND EQUIPMENT WITHIN THE MEANING OF 5 U.S.C. SEC. 7903.

GENERALLY, MOST ITEMS OF WEARING APPAREL ARE CONSIDERED TO BE THE EMPLOYEES' PERSONAL RESPONSIBILITY AND NOT THE GOVERNMENT'S. HOWEVER EXCEPTIONS MAY BE AUTHORIZED UNDER 5 U.S.C. SEC. 7903 WHICH PROVIDES FOR THE AVAILABILITY OF APPROPRIATIONS FOR PURCHASES OF SPECIAL CLOTHING AND EQUIPMENT FOR THE PROTECTION OF PERSONNEL IN THE PERFORMANCE OF THEIR ASSIGNED TASKS.

IN ORDER FOR AN ITEM TO BE AUTHORIZED BY 5 U.S.C. SEC. 7903, THREE TESTS MUST BE MET: (1) THE ITEM MUST BE SPECIAL, AND NOT THAT WHICH AN EMPLOYEE MAY REASONABLY BE EXPECTED TO PROVIDE FOR HIMSELF; (2) THE ITEM MUST BE FOR THE BENEFIT OF THE GOVERNMENT AND NOT SOLELY FOR THE PROTECTION OF THE EMPLOYEE, AND (3) THE EMPLOYEE MUST BE ENGAGED IN HAZARDOUS DUTY. SEE 63 COMP.GEN. 245 (1984).

IN 63 COMP.GEN. 245 THE PROPOSED PROCUREMENT MET THIS STANDARD. THERE THE HEAVY-DUTY PARKAS PURCHASED WERE ITEMS THAT EMPLOYEES COULD NOT HAVE REASONABLY BEEN EXPECTED TO OWN SINCE THE PARKAS WERE DESIGNED FOR THE MOST EXTREME OF ENVIRONMENTS AND NOT SIMPLY COLD WEATHER. FURTHERMORE, THE PARKAS WERE THE PROPERTY OF THE GOVERNMENT AND ISSUED DAILY FOR USE DURING WORKING HOURS ONLY. THAT SITUATION IS IN SHARP CONTRAST TO THE FACTS SUBMITTED HERE. THE ITEMS PURCHASED BY THE SURVEILLANCE TEAM WERE THE TYPE OF COLD WEATHER ARTICLES THAT THE EMPLOYEES COULD REASONABLY BE EXPECTED TO OWN, SOCKS, FLANNEL SHIRTS, LONG UNDERWEAR, VESTS, HATS, GLOVES AND JEANS ARE AMONG THE ITEMS PURCHASED.

THESE ITEMS WERE APPARENTLY RETAINED FOR PERSONAL USE AND DID NOT BECOME GOVERNMENT PROPERTY. THEREFORE, THERE APPEARS TO BE NO BASIS FOR FINDING THAT THE COLD WEATHER ARTICLES PURCHASED ARE SPECIAL CLOTHING AND EQUIPMENT UNDER 5 U.S.C. SEC. 7903. SEE B-215327, AUGUST 3, 1984.

PARAGRAPH 1-9.1(D) OF THE FEDERAL TRAVEL REGULATIONS (SUPP. 1, SEPTEMBER 28, 1981), INCORP BY REF., 41 C.F.R. SEC. 101-7.003 (1984), PROVIDES THAT MISCELLANEOUS EXPENDITURES WHICH ARE NECESSARILY INCURRED BY A TRAVELER IN CONNECTION WITH OFFICIAL BUSINESS WILL BE ALLOWED. HOWEVER, CLOTHING CONSTITUTING ORDINARY ITEMS OF WEARING APPAREL AND TOILETRY ARTICLES WHICH ARE RETAINED FOR PERSONAL USE ARE NOT REIMBURSABLE UNDER THE REGULATIONS. COMPARE 45 COMP.GEN. 272 (1965) WITH 48 COMP.GEN. 48 (1968). WE HAVE DENIED REIMBURSEMENT UNDER THIS AUTHORITY EVEN THOUGH THE EMPLOYEE'S PURCHASE OF PERSONAL ITEMS WAS NECESSITATED BY THE FACT THAT HE DID NOT HAVE ADVANCE NOTICE OF THE TEMPORARY DUTY ASSIGNMENT INVOLVED. SEE B-179057, MAY 14, 1974; AND B-198823, SUPRA. WE FIND THE SITUATION HERE SIMILAR IN THAT THE PURCHASE OF THE PERSONAL ITEMS WAS NECESSITATED BY THE INABILITY TO PREDICT THE EXACT DURATION OF THE SURVEILLANCE MISSION AND THE ACCOMPANYING WEATHER CONDITIONS.

ACCORDINGLY THE VOUCHER SUBMITTED BY MR. DILLON ON BEHALF OF HIS SURVEILLANCE TEAM MAY NOT BE CERTIFIED FOR PAYMENT.

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