B-180910, SEP. 22, 1978, 57 COMP.GEN. 821

B-180910, SEP. 22, 1978, 57 COMP.GEN. 821

SUBSISTENCE - PER DIEM - TEMPORARY DUTY - RETURN TO HEADQUARTERS FOR WEEKENDS - PAYMENT BASIS WHEN AN EMPLOYEE ON TDY RENTS LODGING BY THE WEEK OR MONTH RATHER THAN BY THE DAY BUT ACTUALLY OCCUPIES THEM FOR A LESSER PERIOD BECAUSE HE VOLUNTARILY RETURNS HOME ON WEEKENDS, THE AVERAGE COST OF LODGING MAY BE DERIVED BY PRORATING THE RENTAL COST OVER THE NUMBER OF NIGHTS THE ACCOMMODATIONS ARE ACTUALLY OCCUPIED, RATHER THAN OVER THE ENTIRE RENTAL PERIOD, PROVIDED THAT THE EMPLOYEE ACTS PRUDENTLY IN RENTING BY THE WEEK OR MONTH, AND THAT THE COST TO GOVERNMENT DOES NOT EXCEED THE COST OF RENTING A SUITABLE MOTEL OR HOTEL ROOM AT A DAILY RATE. 54 COMP.GEN. 299; B-180910, JULY 18, 1978, AND JULY 6, 1976, OVERRULED IN PART.

IN THE MATTER OF JAMES K. GIBBS-- PER DIEM-- LODGINGS-PLUS METHOD-- MONTHLY OR WEEKLY RENTAL-- WEEKEND RETURN HOME TRAVEL, SEPTEMBER 22, 1978:

THIS DECISION IS THE RESULT OF FURTHER CONSIDERATION OF ONE OF THE ISSUES INVOLVED IN 54 COMP.GEN. 299 (1974), AFFIRMED IN MATTER OF JAMES K. GIBBS, B-180910, JULY 6, 1976, AND B-180910, JULY 18, 1978. THAT ISSUE IS HOW TO DETERMINE THE AVERAGE COST OF LODGINGS IN COMPUTING PER DIEM BY THE LODGINGS-PLUS METHOD WHEN AN EMPLOYEE ON TEMPORARY DUTY (TDY) RENTS AN APARTMENT BY THE WEEK OR MONTH BUT ACTUALLY OCCUPIES THE ACCOMMODATIONS FOR A LESSER NUMBER OF NIGHTS BECAUSE HE VOLUNTARILY RETURNS HOME ON WEEKENDS.

THE RELEVANT REGULATION IS FOUND IN PARAGRAPH 1-7.3C OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1973, AS AMENDED BY FPMR TEMPORARY REGULATION A-11, SUPPLEMENT 4, ATTACHMENT A, APRIL 29, 1977, AND READS IN PERTINENT PART AS FOLLOWS:

(1) FOR TRAVEL IN THE CONTERMINOUS UNITED STATES WHEN LODGING AWAY FROM THE OFFICIAL DUTY STATION IS REQUIRED, THE PER DIEM RATE SHALL BE ESTABLISHED ON THE BASIS OF THE AVERAGE AMOUNT THE TRAVELER PAYS FOR LODGING, PLUS AN ALLOWANCE OF $16 FOR MEALS AND MISCELLANEOUS SUBSISTENCE EXPENSES. CALCULATION SHALL BE AS FOLLOWS:

(A) TO DETERMINE THE AVERAGE COST OF LODGING, DIVIDE THE TOTAL AMOUNT PAID FOR LODGINGS DURING THE PERIOD COVERED BY THE VOUCHER BY THE NUMBER OF NIGHTS FOR WHICH LODGINGS WERE OR WOULD HAVE BEEN REQUIRED WHILE AWAY FROM THE OFFICIAL STATION.

(B) TO THE AVERAGE COST OF LODGING ADD THE ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES. THE RESULTING AMOUNT ROUNDED TO THE NEXT WHOLE DOLLAR, SUBJECT TO THE MAXIMUM PRESCRIBED IN 107.2A, IS THE RATE TO BE APPLIED TO THE TRAVELER'S REIMBURSEMENT VOUCHER.

IN THE PRIOR GIBBS CASES AS WELL AS OTHER CASES WHERE AN EMPLOYEE ON TDY HAS RENTED LODGING BY THE WEEK OR THE MONTH, RATHER THAN BY THE DAY, BUT HAS ACTUALLY OCCUPIED THE LODGING FOR A LESSER NUMBER OF NIGHTS, WE HAVE GENERALLY ADOPTED THE RULE THAT THE AVERAGE DAILY COST IS DERIVED BY DIVIDING THE WEEKLY OR MONTHLY AMOUNT PAID FOR LODGING BY THE NUMBER OF DAYS IN THE RENTAL PERIOD, I.E., 7 OR 30, RATHER THAN BY THE NUMBER OF NIGHTS THE LODGING WAS ACTUALLY OCCUPIED. MATTER OF NICHOLAS G. ECONOMY, B-188515, AUGUST 18, 1977; B-185467, MAY 5, 1976; MATTER OF DR. CURTIS W. TARR, B-181294, MARCH 16, 1976; B-168225, FEBRUARY 25, 1970.

EXCEPTIONS TO THE GENERAL RULE HAVE BEEN PERMITTED WHERE THE EMPLOYEE ACTED REASONABLY OR PRUDENTLY IN RENTING LODGING BY THE WEEK OR MONTH AND EITHER (1) THE TEMPORARY DUTY ASSIGNMENT WAS UNEXPECTEDLY ENDED SHORT OF ITS ANTICIPATED DURATION THROUGH NO FAULT OF THE EMPLOYEE, MATTER OF ROBERT L. DAVIS, B-188346, AUGUST 9, 1977; MATTER OF TEXAS C. CHING, B-188924, JUNE 15, 1977; MATTER OF GEORGE AVERY, B-184006, NOVEMBER 16, 1976; B-138032, JANUARY 2, 1959; OR (2) THE MONTHLY OR WEEKLY RENTAL WAS LESS THAN THE AMOUNT THE EMPLOYEE WOULD HAVE BEEN REQUIRED TO PAY BASED ON THE DAILY RENTAL RATE. CHING, SUPRA; MATTER OF WILLARD R. GILLETTE, B-183341, MAY 13, 1975. IN THESE SITUATIONS PRORATING THE MONTHLY OR WEEKLY RENTAL COST OVER THE NIGHTS OF ACTUAL OCCUPANCY, RATHER THAN THE RENTAL PERIOD, HAS BEEN PERMITTED, PROVIDED OF COURSE THAT THE MAXIMUM AUTHORIZED RATE FOR PER DIEM OR ACTUAL SUBSISTENCE EXPENSES IS NOT EXCEEDED. NONE OF THESE CASES, HOWEVER, INVOLVED VOLUNTARY WEEKEND RETURN HOME TRAVEL.

NEVERTHELESS, UPON FURTHER CONSIDERATION OF THE ISSUE AT HAND IN THE LIGHT OF THESE EXCEPTIONS, WE ARE OF THE OPINION THAT WHERE AN EMPLOYEE ON TDY HAS RENTED LODGINGS BY THE WEEK OR MONTH, RATHER THAN BY THE DAY, BUT ACTUALLY OCCUPIES THE LODGINGS FOR A LESSER NUMBER OF NIGHTS BECAUSE HE VOLUNTARILY RETURNS HOME ON WEEKENDS, THE AVERAGE DAILY COST MAY BE DERIVED BY DIVIDING THE WEEKLY OR MONTHLY RENTAL COST BY THE NUMBER OF NIGHTS THE LODGINGS ARE ACTUALLY OCCUPIED, RATHER THAN THE NUMBER OF DAYS IN THE RENTAL PERIOD, PROVIDED (1) THAT THE EMPLOYEE ACTED PRUDENTLY IN OBTAINING LODGINGS BY THE WEEK OR MONTH RATHER THAN BY THE DAY, AND (2) THAT THE COST TO THE GOVERNMENT DOES NOT EXCEED THAT WHICH WOULD HAVE BEEN INCURRED HAD THE EMPLOYEE OBTAINED SUITABLE LODGINGS AT A DAILY RATE.

TO THE EXTENT INCONSISTENT WITH THE FOREGOING, THE PRIOR GIBBS DECISIONS, 54 COMP.GEN. 299 (1974), B-180910, JULY 6, 1976, AND B-180910, JULY 18, 1978, ARE HEREBY OVERRULED. WITHIN THE LIMITS PERMITTED BY 31 U.S.C. 71A, THIS DECISION MAY BE GIVEN RETROACTIVE EFFECT SINCE IT IS PREDICATED PRIMARILY ON A MODIFICATION IN THE INTERPRETATION OF AN EXISTING REGULATION RATHER THAN AN AMENDMENT OF THAT REGULATION. 55 COMP.GEN. 785 (1976).