A-90988, MARCH 29, 1939, 18 COMP. GEN. 755

A-90988: Mar 29, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TRAVEL BY PRIVATELY OWNED AUTOMOBILE - DETERMINATIONS OF ECONOMY AND ADVANTAGE - FINALITY OF ADMINISTRATIVE DETERMINATIONS WHERE FACTS WARRANT FURTHER INQUIRY WHETHER THE USE OF A CIVILIAN EMPLOYEE'S OWN AUTOMOBILE WITH REIMBURSEMENT ON A MILEAGE BASIS IS AUTHORIZED UNDER THE ACT OF FEBRUARY 14. IS NOT A MATTER ENTIRELY WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED BUT IS DEPENDENT UPON WHETHER THE REQUIREMENTS OF THE STATUTE ARE MET. WHILE ADMINISTRATIVE DETERMINATIONS IN ADVANCE OF THE TRAVEL OF ADVANTAGE AND ECONOMY OF SUCH TRAVEL WILL NOT ORDINARILY BE QUESTIONED. WHETHER THE PAYMENT ON A MILEAGE BASIS IS IN FACT MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. 11 COMP.

A-90988, MARCH 29, 1939, 18 COMP. GEN. 755

TRAVEL BY PRIVATELY OWNED AUTOMOBILE - DETERMINATIONS OF ECONOMY AND ADVANTAGE - FINALITY OF ADMINISTRATIVE DETERMINATIONS WHERE FACTS WARRANT FURTHER INQUIRY WHETHER THE USE OF A CIVILIAN EMPLOYEE'S OWN AUTOMOBILE WITH REIMBURSEMENT ON A MILEAGE BASIS IS AUTHORIZED UNDER THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1516, IS NOT A MATTER ENTIRELY WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED BUT IS DEPENDENT UPON WHETHER THE REQUIREMENTS OF THE STATUTE ARE MET, AND WHILE ADMINISTRATIVE DETERMINATIONS IN ADVANCE OF THE TRAVEL OF ADVANTAGE AND ECONOMY OF SUCH TRAVEL WILL NOT ORDINARILY BE QUESTIONED, INQUIRY MAY BE MADE BY THIS OFFICE, IN THE AUDIT OF ACCOUNTS AND WHERE THE FACTS SO WARRANT, WHETHER THE PAYMENT ON A MILEAGE BASIS IS IN FACT MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. 11 COMP. GEN. 91; ID. 134; AND 13 COMP. GEN. 387, AMPLIFIED. WHERE UNDER TRAVEL ORDERS PERMITTING THE USE OF CIVILIAN EMPLOYEES' OWN AUTOMOBILES WITH REIMBURSEMENT ON A MILEAGE BASIS UNDER THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1516, THERE IS INVOLVED ONLY TRAVEL BETWEEN TWO SPECIFIC POINTS ADEQUATELY SERVED BY COMMON CARRIER, THERE CAN ORDINARILY BE ONLY TWO ELEMENTS INVOLVED IN ESTABLISHING THE ECONOMY AND ADVANTAGE TO THE UNITED STATES REQUIRED BY THE SAID STATUTE--- TO WIT, TRAVEL TIME AND COST--- AND WHERE IT WAS ADMINISTRATIVELY KNOWN THAT BECAUSE OF WEATHER CONDITIONS THE TRAVEL WOULD BE BY A CIRCUITOUS ROUTE TAKING MORE TIME THAN THE DIRECT TRAVEL BY COMMON CARRIER, THE FACTS ARE SUCH THAT NO DETERMINATION OF ECONOMY AND ADVANTAGE TO THE UNITED STATES WAS POSSIBLE, AND SUCH AS SUGGEST THE POSSIBILITY THAT THE AUTHORIZATION FOR THE TRAVEL UPON THE CHANGE OF PERMANENT STATION INVOLVED WAS TO PERMIT THE TRANSPORTATION OF THE EMPLOYEES' AUTOMOBILES TO THE NEW STATION WITHOUT COST TO THEM BUT AT SOME EXPENSE TO THE GOVERNMENT, FOR WHICH NO AUTHORITY OF LAW APPEARS AS TO THE EMPLOYEES INVOLVED, AND REIMBURSEMENT FOR THE TRAVEL INVOLVED MUST IN SUCH CASES BE CONFINED TO THE CONSTRUCTIVE COST HAD TRAVEL BEEN PERFORMED BY COMMON CARRIER, WITH THE EXCESS TRAVEL TIME CHARGED AS ANNUAL LEAVE OR LEAVE WITHOUT PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, MARCH 29, 1939:

THERE WAS RECEIVED YOUR LETTER OF FEBRUARY 10, 1939, AS FOLLOWS:

REFERENCE IS MADE TO NOTICES OF EXCEPTION ISSUED BY THE GENERAL ACCOUNTING OFFICE UNDER DATES OF JANUARY 7 AND 8, 1939, IN WHICH CREDIT IS WITHHELD FOR THE AMOUNTS PAID, AS LISTED BELOW, BY G. F. ALLEN, HELENA, MONTANA, OFFICE, DURING THE PERIOD MARCH 1937:

CHART

VOUCHER NO. PAYEE AMOUNT 18 46813 ---------------- LESLIE N. PRESLEY ---- --------- $90.16 18 46817 ---------------- EMMETT J. WHITE --------------- 105.87 18 50436 ---------------- ROY I. MORAN ------------------ 140.12 18 50449 ---------------- ERNEST B. EKMAN --------------- 115.70 18 50452 --- ------------- FREDERICK G. GOEBEL ----------- 117.62 18 50457 ------------ ---- LESTER J. LEWIS --------------- 112.97 18 50763 ---------------- HIRAM R. CLARK ---------------- 69.87

THESE VOUCHERS COVERED THE TRAVELING EXPENSES OF THESE MEN INCURRED IN CONNECTION WITH THE TRANSFER OF THEIR OFFICIAL STATIONS IN THE EAST AND MIDDLE WESTERN STATES TO THE STATES OF WASHINGTON AND OREGON UNDER THE DISTRICT SUPERINTENDENT, NORTHWEST CUSTOMS PATROL, WITH HEADQUARTERS AT HAVRE, MONTANA.

THE TRANSFERS OF THESE EMPLOYEES WERE ACCOMPLISHED IN ORDER TO AFFORD VITALLY NEEDED REINFORCEMENT TO THE CUSTOMS PATROL PERSONNEL ON THE PACIFIC SEABOARD FOR THE PURPOSE OF AFFORDING A BETTER DEFENSE AGAINST NARCOTIC SMUGGLING, WHEREIN TIME WAS THE ESSENCE OF THE ACTION. THUS, IT BECAME NECESSARY TO ORDER THE TRANSFER OF THESE MEN DURING EXTREMELY UNSETTLED AND UNFAVORABLE WEATHER CONDITIONS, MAKING THEIR TRAVEL SUBJECT TO THE VICISSITUDES OF THE ELEMENTS BUT DEMANDING THEIR SURE ARRIVAL.

THE TRAVEL PERFORMED BY EACH OF THESE EMPLOYEES WAS UNUSUAL, AND, BECAUSE OF MATTERS BEYOND THEIR CONTROL, IT WAS NEITHER POSSIBLE NOR SAFE TO ATTEMPT TO PROCEED OVER THE DIRECT ROUTING BETWEEN THE EAST AND WEST, WITH THE INCIDENTAL EXPOSURE TO THE EXCESSIVE LOW TEMPERATURE AND EXTREMELY DANGEROUS ROAD CONDITIONS DUE TO THE HEAVY DRIFTING OF SNOW IN THE ISOLATED PRAIRIE AND MOUNTAIN REGIONS THROUGH WHICH THIS ROUTE WOULD HAVE TAKEN THEM.

FURTHER, THESE EMPLOYEES WERE TRAVELING IN THE MANNER LAWFULLY AUTHORIZED, AND EXERCISED, WE BELIEVE, REASONABLE AND SOUND JUDGMENT IN THE ACCOMPLISHMENT OF THEIR TRAVEL IN THE BEST INTERESTS OF THE GOVERNMENT, BASED UPON EVERY SOUND AND RELIABLE SOURCE OF INFORMATION AVAILABLE TO THEM BEFORE AND DURING THE PERFORMANCE OF THEIR TRAVEL.

TO ALLOW, IN FACE OF THE CONDITIONS DESCRIBED SUPRA, ONLY SUCH MILEAGE AND PER DIEM PAYMENT AS SET FORTH IN THE EXCEPTION--- NAMELY, AN ALLOWANCE OF 3 CENTS PER MILE FOR THE DIRECT MILEAGE AND PER DIEM BASED UPON THE TIME REQUIRED TO TRAVEL BY COMMON CARRIER--- WOULD, IN THE OPINION OF THIS OFFICE, BE A GROSS INJUSTICE TO THE OFFICERS.

IT IS DESIRED TO POINT OUT THAT DUE TO THE EXTREMITY OF THE WEATHER CONDITIONS THE PER DIEM CLAIMS PROBABLY WOULD HAVE BEEN GREATER THAN THAT INDICATED BY THE OPERATION SCHEDULES OF THE COMMON CARRIERS DUE TO FAILURE ON THE PART OF SUCH CARRIERS TO MAKE CONNECTIONS AT TRANSFER POINTS AND STOP-OVERS INCIDENTAL THERETO.

FURTHER, IT IS POINTED OUT THAT AT THE TIME THE TRAVEL ORDERS WERE ISSUED THE DEPARTMENT WAS AWARE OF THE WEATHER CONDITIONS, AND IT WAS KNOWN THAT A CIRCUITOUS ROUTE MIGHT BE NECESSARY, AND WITH THIS FACT IN MIND IT ADMINISTRATIVELY DETERMINED THAT THE MILEAGE RATE WOULD BE MORE ECONOMICAL. IN THIS CONNECTION IT IS BELIEVED THAT UNDER THE PROVISIONS LAID DOWN IN 13 COMP. GEN. 387 THE ADMINISTRATIVE DETERMINATION OF THE ADVANTAGEOUSNESS OF THE METHOD OF TRAVEL AUTHORIZED IN THE INSTANT CASE SHOULD NOT HAVE BEEN QUESTIONED.

THE NOTICES OF EXCEPTION DATED JANUARY 7 AND 9, 1939, BASE THE COST OF TRANSPORTATION UPON THE MILEAGE RATE OF 3 CENTS VIA DIRECT ROUTE, AS SHOWN BY THE OFFICIAL MILEAGE GUIDE, AND PER DIEM BASED UPON THE TIME REQUIRED TO TRAVEL BY COMMON CARRIER. AS SET FORTH ABOVE, IT IS NOT LOGICAL OR CORRECT TO USE THE MILEAGE RATE FOR USE OF PERSONAL AUTOMOBILE FOR THE COST OF TRANSPORTATION AND THE PER DIEM THAT WOULD HAVE BEEN INCURRED BY TRAVEL BY COMMON CARRIER.

THE DEPARTMENT CONSIDERS THE AMOUNTS CHARGED BY THESE EMPLOYEES WERE REASONABLE UNDER THE CONDITIONS UNDER WHICH THE TRAVEL WAS PERFORMED, AND REQUESTS THAT THE EXCEPTIONS ISSUED AGAINST THE VOUCHERS IN QUESTION BE REMOVED.

WHILE REQUESTS FOR REVIEW OF EXCEPTIONS OR DISALLOWANCES MADE IN THE SETTLEMENT OF A DISBURSING OFFICER'S ACCOUNT ORDINARILY ARE NOT FOR CONSIDERATION BY THIS OFFICE UNLESS SUBMITTED BY THE DISBURSING OFFICER WHOSE ACCOUNTS ARE INVOLVED, SINCE YOUR LETTER INDICATES A MISAPPREHENSION OF THE STATUTE AND DECISIONS OF THIS OFFICE CONTROLLING TRAVEL BY PERSONALLY OWNED AUTOMOBILE, AND INVOLVES AN ADMINISTRATIVE PRACTICE IN THE MATTER OF AUTHORIZING OFFICIAL TRAVEL IN PERSONALLY OWNED AUTOMOBILES OF EMPLOYEES, THE SOURCE OF THE REQUEST FOR REVIEW WILL NOT BE FURTHER QUESTIONED IN THIS INSTANCE.

THE RECORD DISCLOSES THAT THE SEVEN EMPLOYEES LISTED IN THE FIRST PARAGRAPH OF YOUR LETTER WERE PAID MILEAGE AND PER DIEM ALLOWANCES FOR TRAVEL BY PERSONALLY OWNED AUTOMOBILES ON CHANGE OF PERMANENT STATION UNDER ORDERS WORDED AS FOLLOWS:

AS THESE TRANSFERS ARE IN THE INTEREST OF THE SERVICE AND NOT FOR THE CONVENIENCE OF THE EMPLOYEES, AUTHORITY IS GRANTED FOR THEM TO PROCEED FROM THEIR PRESENT STATIONS TO THEIR NEW STATIONS IN THEIR PERSONALLY OWNED AUTOMOBILES ON A MILEAGE BASIS AT THE RATE OF THREE CENTS PER MILE FOR ALL OR ANY PORTION OF THE AUTHORIZED TRAVEL, WHICH MODE OF TRAVEL HAS BEEN ADMINISTRATIVELY DETERMINED AS BEING MORE ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT THAN TRAVEL BY COMMON CARRIER. A PER DIEM ALLOWANCE FOR EACH EMPLOYEE AT THE RATE OF $5 IN LIEU OF ACTUAL EXPENSES FOR SUBSISTENCE AND IN LIEU OF ALL FEES TO PORTERS AND STEWARDS IS ALSO AUTHORIZED.

THE RECORD FURTHER DISCLOSES THAT THE ACTUAL COST OF THE TRAVEL WAS $651.66 IN EXCESS OF THE COST BY COMMON CARRIER, TAKING INTO CONSIDERATION THE COST OF TRANSPORTATION, INCLUDING PULLMAN ACCOMMODATIONS, AND PER DIEM ALLOWANCES. ALSO, THERE WAS A LOSS OF APPROXIMATELY 83 DAYS OF THE EMPLOYEES' SERVICES DUE TO THE ADDITIONAL TIME REQUIRED FOR THE TRAVEL BY OTHER THAN COMMON CARRIER.

THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1516, PROVIDES:

THAT A CIVILIAN OFFICER OR EMPLOYEE ENGAGED IN NECESSARY TRAVEL ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY MAY BE PAID, IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, NOT TO EXCEED 2 CENTS PER MILE FOR THE USE OF HIS OWN MOTORCYCLE OR 5 CENTS PER MILE FOR THE USE OF HIS OWN AUTOMOBILE FOR SUCH TRANSPORTATION, WHENEVER SUCH MODE OF TRAVEL HAS BEEN PREVIOUSLY AUTHORIZED AND PAYMENT ON SUCH MILEAGE BASIS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. * * *

THE PROVISIONS OF THE STATUTE HAVE BEEN INCORPORATED IN PARAGRAPH 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

UNDER THE PLAIN TERMS OF THE STATUTE AND REGULATIONS THE DETERMINATION AS TO WHETHER THE USE OF AN AUTOMOBILE WITH REIMBURSEMENT ON A MILEAGE BASIS IS AUTHORIZED IS NOT ENTIRELY WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED BUT IS DEPENDENT UPON WHETHER SUCH MEANS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. THUS, THE STATUTE PLACES A LIMITATION ON THE USES OF APPROPRIATED FUNDS FOR PAYMENTS OF MILEAGE TO EMPLOYEES WHO PERFORM OFFICIAL TRAVEL BY THEIR OWN AUTOMOBILES, AND THIS OFFICE IN THE AUDIT OF ACCOUNTS MAY, WHERE THE FACTS WARRANT, INQUIRE WHETHER PAYMENT ON A MILEAGE BASIS IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. HOWEVER, AS ADMINISTRATIVE OFFICERS ARE IN A BETTER POSITION TO KNOW THE REQUIREMENTS OF THE SERVICE WITH RESPECT TO THE ACTUAL CONDITIONS SURROUNDING THE USUAL CASE OF TRAVEL, IT HAS BEEN HELD BY THIS OFFICE THAT AN ADMINISTRATIVE DETERMINATION IN ADVANCE OF THE TRAVEL, OF ADVANTAGE AND ECONOMY WILL NOT ORDINARILY BE QUESTIONED. SEE 11 COMP. GEN. 91; ID. 134. THIS IS PARTICULARLY TRUE WITH RESPECT TO TRAVEL IN RURAL SECTIONS, OR INVOLVING FREQUENT STOPS, SCATTERED DUTIES, OR THE LIKE.

WHERE, HOWEVER, FROM THE FACTS IN ANY GIVEN CASE IT IS OBVIOUS THAT THE ADMINISTRATIVE DETERMINATION IS IN ERROR, PARTICULARLY WHERE, AS IN THE INSTANCE CASES, THE TRAVEL WAS REQUIRED TO BE PERFORMED ONLY BETWEEN TWO POINTS ADEQUATELY CONNECTED BY COMMON CARRIER, AND WITH NO OFFICIAL DUTY TO BE PERFORMED EN ROUTE, THIS OFFICE IS NOT WARRANTED IN ACCEPTING AN ADMINISTRATIVE DETERMINATION WHICH APPEARS TO BE AT VARIANCE WITH THE KNOWN FACTS. THE HOLDING IN 13 COMP. GEN. 387, THAT A COMPARATIVE STATEMENT OF COST NEED NOT BE FURNISHED IN CONNECTION WITH TRAVEL PERFORMED UNDER ORDERS REQUIRING TRAVEL BY COMMON CARRIER WHEN PRACTICABLE, OR WHEN NOT PRACTICABLE BY PERSONALLY OWNED AUTOMOBILE, OBVIOUSLY IS NOT FOR APPLICATION TO TRAVEL PERFORMED UNDER THE TERMS OF THE ORDER HERE INVOLVED AND AFFORDS NO BASIS FOR THE BELIEF EXPRESSED IN YOUR LETTER THAT THE ADMINISTRATIVE DETERMINATION IN THE INSTANT CASE SHOULD NOT HAVE BEEN QUESTIONED.

WHERE UNDER A TRAVEL ORDER THE ONLY DUTY REQUIRED OF AN OFFICER OR AN EMPLOYEE IS THAT HE PERFORM TRAVEL BETWEEN TWO SPECIFIC POINTS ADEQUATELY SERVED BY COMMON CARRIER, IT IS TO BE ASSUMED THAT REIMBURSEMENT OF THE COST THEREOF CANNOT EXCEED THE COST BY MEANS OF THE MOST DIRECT USUALLY TRAVELED ROUTE BETWEEN THE TWO POINTS AND THERE CAN ORDINARILY BE ONLY TWO ELEMENTS INVOLVED IN ESTABLISHING THE LEGALLY REQUIRED ECONOMY AND ADVANTAGE TO THE UNITED STATES IN ORDER TO AUTHORIZE THE USE OF AN AUTOMOBILE ON A MILEAGE BASIS--- TO WIT, TRAVEL TIME AND COST. TRAVEL BY A CIRCUITOUS ROUTE TAKING MORE TIME APPARENTLY WOULD NOT BE ADVANTAGEOUS TO THE UNITED STATES, AND A PRIOR DETERMINATION OF ECONOMY WOULD NECESSARILY REQUIRE THE DETERMINATION OF THE COST OF THE TRIP BY COMMON CARRIER. IN THIS CONNECTION SEE PARAGRAPH 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. FROM THE FACTS NOW OF RECORD, IT SEEMS OBVIOUS THAT NO SUCH DETERMINATION COULD HAVE BEEN MADE FOR THE TRAVEL NOW UNDER CONSIDERATION. IT WOULD APPEAR, ALSO, THAT THE WEATHER CONDITIONS YOU MENTION AS JUSTIFYING THE CIRCUITOUS ROUTE BY AUTOMOBILE SHOULD HAVE BEEN ADMINISTRATIVELY CONSIDERED AS REQUIRING THE TRAVEL TO BE PERFORMED BY COMMON CARRIER AS MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES. AND THE FACT THAT THE ADMINISTRATIVE OFFICE KNEW IN ADVANCE THAT A CIRCUITOUS ROUTE BY AUTOMOBILE WOULD BE NECESSARY TENDS FURTHER TO NEGATIVE THE VIEW THAT THE TRAVEL BY AUTOMOBILE WAS FOUND TO BE MORE ECONOMICAL AND ADVANTAGEOUS TO THE UNITED STATES, AND SUGGESTS THE POSSIBILITY THAT AUTHORIZATION FOR THE TRAVEL BY PERSONALLY OWNED AUTOMOBILE UPON TRANSFER FROM ONE PERMANENT STATION TO ANOTHER WAS TO PERMIT THE EMPLOYEES TO TRANSPORT THEIR AUTOMOBILES WITHOUT COST TO THEM BUT AT SOME EXPENSE TO THE GOVERNMENT. I AM NOT AWARE OF ANY STATUTE AUTHORIZING EMPLOYEES OF THE CUSTOMS SERVICE TO TRANSPORT THEIR AUTOMOBILES UPON CHANGE OF STATION AT GOVERNMENT EXPENSE. COMPARE DECISION A-62630 DATED DECEMBER 23, 1935; ALSO 16 COMP. GEN. 1082.

IN VIEW OF THE STATEMENTS NOW MADE THAT PERFORMANCE OF THE TRAVEL VIA AN INDIRECT ROUTE WAS CONTEMPLATED AT THE TIME OF THE ISSUANCE OF ORDERS, THE DISALLOWANCES HERETOFORE MADE IN THE AUDIT, LIMITING THE MILEAGE ALLOWANCE TO THAT FOR THE DISTANCE VIA THE DIRECT HIGHWAY ROUTE, WILL BE REVISED, WITHIN THE LIMITATION OF THE STATUTE, SUPRA, ON THE BASIS OF THE CONSTRUCTIVE COST HAD TRAVEL BEEN PERFORMED BY COMMON CARRIER. THIS ACTION IS TAKEN WITH THE UNDERSTANDING THAT BY ADMINISTRATIVE ACTION THE EXCESS TRAVEL TIME WILL BE CHARGED TO THE EMPLOYEES' ACCRUED ANNUAL LEAVE OR LEAVE WITHOUT PAY, AS MAY BE REQUIRED. NOTICE OF THE REVISIONS WILL GO FORWARD TO THE DISBURSING OFFICER CONCERNED IN DUE COURSE.