B-148550, AUGUST 15, 1968, 48 COMP. GEN. 75

B-148550, AUGUST 15, 1968, 48 COMP. GEN. 75

TRAVEL EXPENSES - MISCELLANEOUS EXPENSES - HOTEL, ETC., ROOMS - CANCELLATION OF RESERVATION - DEPOSIT REIMBURSEMENT CIVILIAN EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES SUBJECT TO THE JOINT TRAVEL REGULATIONS WHO ARE PREVENTED FROM USING AN ADVANCE HOTEL ROOM RESERVATION DUE TO THE CANCELLATION OF ORDERS, CHANGE IN TRAVEL ITINERARIES, OR WEATHER CONDITIONS MAY BE REIMBURSED THE FORFEITED ADVANCE DEPOSIT, THE EXPENSE BEING IMPUTABLE TO THE TRAVEL WHICH REQUIRED THE ROOM RESERVATION. THEREFORE, THE REGULATIONS MAY BE AMENDED TO PRESCRIBE REIMBURSEMENT FOR THE NONREFUNDABLE RESERVATION CHARGE ON AN ACTUAL EXPENSES BASIS AND THE ITEM INCLUDED IN REIMBURSEMENT AUTHORIZED FOR SUBSISTENCE EXPENSES ON AN ACTUAL EXPENSE BASIS IN UNUSUAL CIRCUMSTANCES OF TRAVEL.

TO THE SECRETARY OF THE ARMY, AUGUST 15, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 28, 1967, FROM THE UNDER SECRETARY OF THE ARMY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 68-4) ON JANUARY 10, 1968, REQUESTING A DECISION RELATIVE TO A PROPOSED AMENDMENT TO VOLUME 1, CHAPTER 4, PART I, AND VOLUME 2, CHAPTER 9, PART A, OF THE JOINT TRAVEL REGULATIONS.

THE UNDER SECRETARY STATES THE DEFENSE INTELLIGENCE AGENCY HAS REQUESTED THAT CONSIDERATION BE GIVEN TO AMENDING THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR REIMBURSEMENT TO CIVILIAN EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES FOR ADVANCE DEPOSITS ON HOTEL ROOM RESERVATIONS WHICH ARE FORFEITED WHEN TRAVEL ORDERS ARE CANCELED, TRAVEL ITINERARIES ARE CHANGED, OR WHEN ARRIVING LATE DUE TO WEATHER CONDITIONS OR OTHER REASONS. THE UNDER SECRETARY STATES FURTHER THAT IT IS COMMON PRACTICE AND CONSISTENT WITH THE LAWS OF SOME COUNTRIES TO REQUIRE AN ADVANCE DEPOSIT ON RESERVATIONS; THAT SUCH DEPOSITS ARE NOT REFUNDABLE IF RESERVATIONS ARE CANCELED, OR NOT CANCELED WITHIN A SPECIFIED PERIOD PRIOR TO THE DATE OF THE RESERVATION; AND CONSEQUENTLY, AN EMPLOYEE OR A MEMBER IS FINANCIALLY PENALIZED THROUGH NO FAULT OF HIS OWN WHEN THE DEPOSIT IS FORFEITED.

THE VIEW WAS EXPRESSED IN 41 COMP. GEN. 780, CONTINUES THE UNDER SECRETARY, THAT PAYMENT OF THE CHARGES FOR THE RESERVED HOTEL ROOMS WAS AUTHORIZED EVEN THOUGH NOT OCCUPIED ON THE BASIS THAT A FIRM UNCONDITIONAL RESERVATION (CONTRACT) TO PAY FOR THE HOTEL ROOMS HAD BEEN EXECUTED; THAT THE RESERVATION HAVING BEEN MADE, THERE REMAINED NOTHING FOR THE HOTEL TO DO; AND THE CONTRACT WAS THUS FULLY PERFORMED EXCEPT FOR THE PAYMENT BY THE GOVERNMENT FOR THE HOTEL ROOMS SO RESERVED. THE UNDER SECRETARY STATES THAT THIS DECISION APPEARS TO INVOLVE THE GOVERNMENT DIRECTLY, THAT THE TRAVELERS WERE NOT A PARTY TO THE CONTRACT, AND THAT PAYMENT FOR THE ROOMS WAS MADE FROM FUNDS AUTHORIZED FOR THE PROJECT FLIGHT AND AS SUCH WERE NOT STRICTLY TRAVEL FUNDS. HE SUGGESTS, THEREFORE, THAT THE HOLDING IN 41 COMP. GEN. 780 WOULD NOT BE APPLICABLE IN A SITUATION WHERE THERE IS A CONTRACT BETWEEN THE EMPLOYEE OR THE MEMBER AND A HOTEL, AND THE ADVANCE DEPOSIT IS PAID FROM THE INDIVIDUAL'S PERSONAL FUNDS.

THE UNDER SECRETARY FURTHER STATES THAT SINCE THE COST OF A HOTEL ROOM IS CONSIDERED TO BE AN EXPENSE INCLUDED IN THE PER DIEM ALLOWANCE AUTHORIZED FOR TRAVEL AND TEMPORARY DUTY, A HOTEL RESERVATION CHARGE WOULD APPEAR TO BE AN ADDITIONAL EXPENSE OF THE HOTEL ROOM AND AS SUCH WITHIN THE COVERAGE OF THE PER DIEM ALLOWANCE. ACCORDINGLY, HE CONTINUES, WHILE THE JOINT TRAVEL REGULATIONS, VOLUME 1, APPENDIX A, FOOTNOTE 15, APPLICABLE SPECIFICALLY TO THE UNION OF SOVIET SOCIALIST REPUBLICS, INCREASES, BY THE AMOUNT OF THE RESERVATION CHARGE, THE PER DIEM RATE FOR THE FIRST DAY HOTEL ACCOMMODATIONS ARE OCCUPIED, IN CASES INVOLVING CANCELED ORDERS AND NO PER DIEM PAYABLE THERE IS SOME DOUBT WHETHER APPLICABLE MILITARY AND CIVILIAN TRAVEL EXPENSE REIMBURSEMENT LAWS PROVIDE AUTHORITY FOR REIMBURSING A MEMBER OR EMPLOYEE FOR SUCH EXPENSE WHEN NO TRAVEL IS PERFORMED.

THE DECISION AT 41 COMP. GEN. 780, CITED BY THE UNDER SECRETARY INVOLVED A BLOCK RESERVATION FOR A GROUP OF MILITARY PERSONNEL AND CIVILIAN EMPLOYEES WHICH THE RECORD INDICATED WAS MADE ON A CONTRACTUAL BASIS BETWEEN THE GOVERNMENT AND THE HOTEL CONCERNED THROUGH OFFICIAL ADMINISTRATIVE ACTION. THE PRINCIPLE OF THAT DECISION HAS NO APPLICATION AS TO THE PRESENT MATTER, AS THERE ARE HERE INVOLVED ONLY AGREEMENTS BETWEEN THE INDIVIDUAL TRAVELERS AND HOTELS.

AS WE UNDERSTAND IT, THE PROPOSED AMENDMENTS TO THE JOINT TRAVEL REGULATIONS WOULD PROVIDE AUTHORIZATION FOR REIMBURSEMENT FOR NONREFUNDABLE ADVANCE HOTEL RESERVATION DEPOSITS MADE BY TRAVELERS WHERE FOR REASONS BEYOND THEIR CONTROL, THE RESERVED ACCOMMODATIONS CANNOT BE USED. IT IS NOT CLEAR WHETHER IT IS INTENDED THAT THE TRAVELER WOULD RECEIVE SUCH REIMBURSEMENT IN ADDITION TO THE PER DIEM ALLOWANCE OTHERWISE AUTHORIZED FOR THE TRAVEL OR THAT THE APPLICABLE PER DIEM RATE WOULD BE INCREASED TO THE EXTENT OF THE FORFEITED LOSS ON DAYS WHEN LOSS OCCURS, FOR AFTER THE FACT APPLICATION.

UNDER THE RULES OF A PARTICULAR HOTEL, ADVANCE RESERVATION DEPOSITS MADE INCIDENT TO ORDERED TRAVEL MAY BE FORFEITED WHEN, BECAUSE OF THE CANCELLATION OF TRAVEL ORDERS, NO TRAVEL IS PERFORMED. IN SUCH CIRCUMSTANCES, TRAVEL PER DIEM WOULD NOT ACCRUE BECAUSE OF THE FAILURE OF THE TRAVELER TO ENTER A TRAVEL STATUS. CONSEQUENTLY, HE WOULD SUFFER A LOSS TO THE EXTENT OF THE DEPOSIT IN THE ABSENCE OF AUTHORITY FOR REIMBURSEMENT OF THE EXPENSE OF THE UNPERFORMED TRAVEL ON ANOTHER BASIS.

EXCEPT IN UNUSUAL CIRCUMSTANCES OF TRAVEL INVOLVING HIGH COST CONDITIONS WHERE REIMBURSEMENT FOR ALL SUBSISTENCE EXPENSES MAY, WITHIN PRESCRIBED LIMITATIONS, BE AUTHORIZED ON AN ACTUAL EXPENSE BASIS, PROVISION IS MADE BY STATUTE FOR REIMBURSEMENT OF SUBSISTENCE EXPENSES OF MEMBERS OF THE UNIFORMED SERVICES (37 U.S.C. 404, 405, 411) AND CIVILIAN EMPLOYEES (5 U.S.C. 5702, 5707) INCURRED IN THE PERFORMANCE OF TRAVEL AWAY FROM POST OF DUTY ON OFFICIAL BUSINESS IN THE FORM OF PER DIEM ALLOWANCES.

PER DIEM IS AN ALLOWANCE AUTHORIZED IN LIEU OF THE REIMBURSEMENT OF SUBSISTENCE EXPENSES ON AN ACTUAL EXPENSE BASIS AND IS PAYABLE IN PROPER CASES WITHOUT REGARD TO WHEN OR WHETHER THE ACTUAL COSTS IN ANY INDIVIDUAL CASE ARE INCURRED. IT CLEARLY IS INTENDED TO SERVE FOR ALL REIMBURSABLE SUBSISTENCE EXPENSES, AND CONSEQUENTLY MAY NOT PROPERLY BE SUPPLEMENTED BY PROVISION FOR ADDITIONAL PAYMENT ON A REIMBURSEMENT OF ACTUAL EXPENSE BASIS TO COVER ANY SUBSISTENCE ITEM OR ITEMS OTHERWISE COVERED BY THE PER DIEM PAYMENT.

POSSIBLY THE INCIDENCE OF HOTEL RESERVATION CANCELLATIONS OF THE NATURE AND CONSEQUENCE CONTEMPLATED BY THE UNDER SECRETARY IS SUCH AS TO WARRANT ITS INCLUSION AS AN ITEM FOR CONSIDERATION IN THE FIXING OF OVERALL PER DIEM RATES OF ALLOWANCE WITHIN THE CONTEMPLATION OF THE SUBSISTENCE LAWS. WE ARE OF THE VIEW, HOWEVER, THAT PROVISION BY REGULATION TO AUTHORIZE PER DIEM RATES OF ALLOWANCE CONSISTING OF THE NORMAL PER DIEM RATE PLUS AN AMOUNT EQUAL TO THAT LOST BY REASON OF A RESERVATION CANCELLATION, SUCH RATES TO BE PAYABLE ONLY FOR THE DAYS OF LOSS, WOULD BE IMPROPER IN THAT BY INDIRECTION IT WOULD, IN EFFECT, ACCOMPLISH THE PAYMENT OF PER DIEM AND A CONCURRENT REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS OF THE ITEM OF LOSS FOR CANCELED HOTEL RESERVATIONS.

IN CIRCUMSTANCES SOMEWHAT ANALOGOUS TO THE SITUATION HERE CONSIDERED, IN CASES WHERE A CIVILIAN EMPLOYEE MAINTAINED HIS QUARTERS WHILE ABSENT FROM HIS TEMPORARY DUTY STATION TO INSURE THEIR AVAILABILITY ON HIS RETURN, THEREBY INCURRING MORE THAN ONE ITEM OF EXPENSE FOR LODGINGS AT DIFFERENT POINTS ON THE SAME DAY, WE HAVE INDICATED THAT IF SUBSISTENCE EXPENSES ARE APPROVED FOR PAYMENT ON AN ACTUAL EXPENSE BASIS, EVEN THOUGH AFTER THE FACT, WE WILL HAVE NO OBJECTION TO THE INCLUSION OF THE COST OF BOTH LODGINGS AS PARTS OF HIS DAILY SUBSISTENCE EXPENSES ON SUCH DAYS, REIMBURSABLE TO THE EXTENT OTHERWISE AUTHORIZED. SEE B-155141, OCTOBER 20, 1964, AND B-158882, APRIL 27, 1966.

WE WOULD NOT OBJECT TO AN EXTENSION OF THAT PRINCIPLE TO CASES INVOLVING FORFEITED HOTEL RESERVATION DEPOSITS WHERE REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS HAS BEEN AUTHORIZED WITHIN THE STATUTORY AUTHORITY OF THE ADMINISTRATORS INVOLVED TO PROVIDE FOR THE REIMBURSEMENT OF SUBSISTENCE EXPENSES ON AN ACTUAL EXPENSE BASIS IN UNUSUAL CIRCUMSTANCES OF TRAVEL. SUCH AUTHORIZATION REASONABLY COULD INCLUDE REIMBURSEMENT FOR A DEPOSIT MADE INCIDENT TO ANTICIPATED TRAVEL UNDER ORDERS CANCELED BEFORE COMMENCEMENT OF THE TRAVEL, THE EXPENSE THEREOF BEING CLEARLY IMPUTABLE TO THE TRAVEL REQUIREMENTS EXISTING BEFORE THE CANCELLATION.