B-143189, OCTOBER 24, 1960, 40 COMP. GEN. 234

B-143189, OCTOBER 24, 1960, 40 COMP. GEN. 234

CONCESSION CONTRACTS - FREE OR REDUCED RATE ACCOMMODATIONS TO FEDERAL PERSONNEL IN VIEW OF THE WIDE DISCRETION VESTED IN THE SECRETARY OF THE INTERIOR UNDER SECTION 3 OF THE ACT OF AUGUST 25, 1916, 16 U.S.C. 3, CONCERNING RULES AND REGULATIONS ON THE USE AND MANAGEMENT OF THE NATIONAL PARKS, THE SECRETARY HAS AUTHORITY TO INCLUDE IN CONCESSION CONTRACTS A REQUIREMENT FOR THE FURNISHING OF MEALS, LODGING, AND TRANSPORTATION--- EITHER FREE OF CHARGE OR AT REDUCED RATES--- TO FEDERAL AND STATE PERSONNEL VISITING THE PARKS ON OFFICIAL BUSINESS, PROVIDED THAT ADMINISTRATIVE CONSIDERATION, CONSISTENT WITH SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 836, AND SECTION 6.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, BE GIVEN TO FIXING THE PER DIEM FOR FEDERAL PERSONNEL ON THE BASIS OF THE REDUCED RATES FOR MEALS AND LODGINGS SO THAT REIMBURSEMENT WILL APPROXIMATE THE ADDITIONAL OUT OF-POCKET EXPENSES INCURRED BY THE EMPLOYEES. THE REQUIREMENT IN CONCESSION CONTRACTS FOR THE FURNISHING OF FREE TRANSPORTATION AND REDUCED RATE ACCOMMODATIONS TO FEDERAL AND STATE EMPLOYEES VISITING NATIONAL PARKS ON OFFICIAL BUSINESS IS A REQUIREMENT IN THE INTEREST OF THE GOVERNMENT RATHER THAN THE CONCESSIONERS SO THAT CONCESSIONERS MAY NOT BE RELIEVED OF THIS OBLIGATION IN THE ABSENCE OF ADEQUATE CONSIDERATION MOVING TO THE GOVERNMENT NOR MAY THE CONTRACTS BE MODIFIED, IN THE ABSENCE OF CONSIDERATION, TO PROHIBIT A CONCESSIONER FROM FURNISHING THE OBLIGATED SERVICES.

TO THE SECRETARY OF THE INTERIOR, OCTOBER 24, 1960:

YOUR LETTER OF JUNE 10, 1960, WITH ENCLOSURES, REQUESTS OUR OPINION ON SEVERAL QUESTIONS CONCERNING THE FURNISHING BY CONCESSIONERS, OPERATING BUSINESSES IN NATIONAL PARK AREAS OF MEALS, LODGING, AND TRANSPORTATION, EITHER FREE OR AT REDUCED RATES, TO CERTAIN GOVERNMENT OFFICIALS WHO VISIT THE PARKS ON OFFICIAL BUSINESS.

YOU SAY THAT FOR A NUMBER OF YEARS A PRACTICE, WHICH WAS APPROVED BY THE SECRETARY AT LEAST AS EARLY AS 1938, HAS DEVELOPED WHEREBY CONCESSIONERS AND OTHER OPERATING BUSINESSES IN NATIONAL PARK AREAS PROVIDE MEALS, LODGING, AND TRANSPORTATION TO FEDERAL AND STATE EMPLOYEES, EITHER FREE OF CHARGE OR AT REDUCED RATES. THE HISTORY OF THIS PRACTICE, YOU SAY, INDICATES THAT IT WAS ADOPTED BECAUSE FEDERAL AND STATE EMPLOYEES WHO ARE REQUIRED TO TRAVEL IN AND TO SUCH AREAS INCIDENT TO THE PERFORMANCE OF OFFICIAL DUTIES ARE LIMITED AS TO CERTAIN OF THE EXPENSES THEY INCUR TO A STATUTORY PER DIEM RATE. IN MANY INSTANCES THE PER DIEM ALLOWANCE IS SUBSTANTIALLY LESS THAN THE ACTUAL EXPENSES NECESSARY TO BE INCURRED FOR MEALS AND LODGING IN THE PARK AREAS, WHICH ARE FREQUENTLY REMOTE AND OFTEN HAVE LIMITED FACILITIES. SEE, HOWEVER, IN THAT REGARD THE CURRENT AUTHORITY IN 5 U.S.C. 836 FOR PAYMENT OF ACTUAL EXPENSES NOT TO EXCEED $25 PER DAY IN CASES OF UNUSUAL COSTS BEING INCURRED BY EMPLOYEES IN A TRAVEL STATUS.

YOU FURTHER SAY THAT BECAUSE OF THIS PRACTICE THE CONCESSIONERS AND SOME OF THE PRIVATE OPERATORS HAVE MADE REDUCED RATES AVAILABLE NOT ONLY TO EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, BUT ALSO TO EMPLOYEES OF OTHER FEDERAL AGENCIES, MEMBERS OF CONGRESS AND THEIR STAFFS, AND TO STATE OFFICIALS AND EMPLOYEES VISITING THE PARKS ON OFFICIAL BUSINESS. THE PRACTICE IS INCORPORATED IN THE PROVISIONS CONTAINED IN THE STANDARD FORM OF CONCESSION CONTRACT CURRENTLY IN USE BY THE NATIONAL PARK SERVICE. THERE WERE RECEIVED WITH YOUR LETTER COPIES OF THE CONTRACTS WITH SIGNAL MOUNTAIN LODGE AND WITH THE YELLOWSTONE PARK COMPANY WHICH ARE SAID TO BE TYPICAL. SECTION 14 OF THE FIRST MENTIONED CONTRACT INCLUDES PART OF THE LANGUAGE OF SECTION 15 OF THE SECOND CONTRACT, AND IS QUOTED IN YOUR LETTER AS FOLLOWS:

"SEC. 14. ACCOMMODATIONS FOR GOVERNMENT EMPLOYEES. THE CONCESSIONER SHALL FURNISH (AVAILABLE TRANSPORTATION WITHIN THE (AREA) (PARK) FREE OF CHARGE, AND OTHER) ACCOMMODATIONS AT REDUCED RATES, TO FEDERAL AND STATE EMPLOYEES VISITING THE (AREA) (PARK) ON OFFICIAL BUSINESS AND TO THE EMPLOYEES OF THE (AREA) (PARK) AWAY FROM THEIR REGULARLY ASSIGNED STATION, UPON THE PRESENTATION OF PROPER CREDENTIALS. PAYMENTS MADE BY SUCH EMPLOYEES IN THE ABSENCE OF SUCH CREDENTIALS SHALL BE WITHOUT PREJUDICE TO A REFUND UPON LATER SUBMISSION THEREOF.'

YOU POINT OUT THAT THIS SECTION RELATES TO TWO CLASSES OF ACCOMMODATIONS, VIZ., MEALS AND LODGING PROVIDED AT REDUCED RATES, AND TRANSPORTATION PROVIDED FREE OF CHARGE. YOU FURTHER POINT OUT THAT WHILE THERE IS NO INDICATION THAT THE PRACTICE IS NOT FULLY CONSISTENT WITH THE BEST INTERESTS OF THE UNITED STATES IN THE MANAGEMENT AND ADMINISTRATION OF THE NATIONAL PARK SERVICE, THERE ARE INHERENT IN SUCH A PRACTICE ELEMENTS WHICH MAY SUBJECT THE GOVERNMENT TO CRITICISM FOR REQUIRING CONCESSIONERS TO EXTEND SPECIAL RATES TO SUCH OFFICIALS.

BASED UPON THE FOREGOING STATE OF FACTS YOU REQUEST OUR OPINION ON THE FOLLOWING QUESTIONS:

QUESTION 1. WAS INSTITUTION OF THE DESCRIBED PRACTICES IN THE FIRST INSTANCE WITHIN THE AUTHORITY OF THE SECRETARY OF THE INTERIOR AND ARE DIRECTIVES PRESENTLY IN FORCE CONTINUING THEM WITHIN THE SECRETARY'S AUTHORITY?

FOR PURPOSES OF THE REMAINING QUESTIONS, YOU MAY ASSUME THE EXISTENCE OF A CONCESSION CONTRACT CONTAINING THE SAME PROVISIONS AS THOSE EMBODIED IN THE CONTRACT WITH THE YELLOWSTONE PARK COMPANY, AND AN AFFIRMATIVE ANSWER TO QUESTION 1. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, THERE WOULD, OF COURSE, BE NO BASIS FOR ANSWERING THE REMAINING QUESTIONS.

QUESTION 2. CAN THE SECRETARY OF THE INTERIOR UNILATERALLY RELIEVE THE CONCESSIONER OF THE OBLIGATION CREATED BY CONTRACT TO SUPPLY FOOD AND LODGING AT REDUCED RATES TO EMPLOYEES OF THIS DEPARTMENT VISITING IN THE PARKS ON OFFICIAL BUSINESS?

QUESTION 3. CAN THE SECRETARY OF THE INTERIOR UNILATERALLY RELIEVE THE CONCESSIONER OF THIS OBLIGATION CREATED BY CONTRACT TO FURNISH FREE TRANSPORTATION TO EMPLOYEES OF THIS DEPARTMENT VISITING IN THE PARKS ON OFFICIAL BUSINESS?

QUESTION 4. CAN THE SECRETARY OF THE INTERIOR UNILATERALLY RELIEVE THE CONCESSIONER OF THE OBLIGATION CREATED BY CONTRACT TO SUPPLY FOOD AND LODGING AT REDUCED RATES AND TO FURNISH FREE TRANSPORTATION TO EMPLOYEES OF THE FEDERAL GOVERNMENT, OTHER THAN THOSE OF THIS DEPARTMENT, AND TO STATE EMPLOYEES?

QUESTION 5. CAN THE SECRETARY OF THE INTERIOR, WITHOUT NOVATION OF THE CONTRACT OR SEPARATE BILATERAL AGREEMENT, PROHIBIT CONCESSIONERS FROM SUPPLYING SUCH ACCOMMODATIONS OR SERVICES AT FREE OR REDUCED RATES TO OFFICERS AND EMPLOYEES OF THE UNITED STATES, TO MEMBERS OF CONGRESS AND THEIR STAFFS, AND TO OFFICERS AND EMPLOYEES OF STATE GOVERNMENTS?

REGARDING THESE QUESTIONS, YOU DIRECT OUR ATTENTION TO THE FACT THAT, SO FAR AS THE FINANCIAL INTERESTS OF THE UNITED STATES ARE CONCERNED, A DISTINCTION MAY BE MADE BETWEEN THE GRANTING OF FREE TRANSPORTATION AND THE GRANTING OF REDUCED RATES FOR MEALS AND LODGING. IN EXPLANATION OF THE DISTINCTION YOU SAY THAT---

IN THE CASE OF TRANSPORTATION, IF AN EMPLOYEE IS REQUIRED TO VISIT A PARK AREA WHERE THE CONCESSIONER IS NOT REQUIRED BY CONTRACT TO PROVIDE FREE TRANSPORTATION FOR HIM WITHIN THE PARK AREA, THEN THE EMPLOYEE WILL BE REQUIRED, IF HE USES SUCH TRANSPORTATION, EITHER TO ISSUE A GOVERNMENT TRANSPORTATION REQUEST OR TO PAY THE FARE FROM HIS OWN FUNDS AND SEEK REIMBURSEMENT THEREFOR. THUS, AS TO TRANSPORTATION, THE ELIMINATION OF THE OBLIGATION TO FURNISH FREE TRANSPORTATION WILL REQUIRE THE PAYMENT OF THE TRANSPORTATION COSTS BY THE UNITED STATES FOR ANY EMPLOYEE USING SUCH TRANSPORTATION SYSTEM ON OFFICIAL BUSINESS.

IN THE MATTER OF MEALS AND LODGING, IT APPEARS THAT THE FINANCIAL INTEREST OF THE UNITED STATES IS NOT AS DIRECTLY INVOLVED, SINCE THE EMPLOYEE IS GIVEN THE SAME PER DIEM ALLOWANCE ESTABLISHED BY STATUTE REGARDLESS OF THE AMOUNT CHARGED FOR SUCH ACCOMMODATIONS. HOW THE EMPLOYEE SPENDS THIS PER DIEM, IT WOULD APPEAR, DOES NOT DIRECTLY AFFECT THE UNITED STATES. WE OBSERVE, HOWEVER, THAT THE CONSIDERATION OF THE ELIMINATION OF THE REDUCED RATE PROVISION MIGHT APPROPRIATELY BE RELATED TO ANY POSSIBLE DETRIMENTAL EFFECTS ON EMPLOYEE MORALE AND ON THE AVAILABILITY AND RECRUITMENT OF COMPETENT PERSONNEL.

THE DIRECTIVE CURRENTLY RELATING TO FREE AND REDUCED RATE ACCOMMODATIONS TO BE FURNISHED BY CONCESSIONERS WAS ISSUED TO THE WASHINGTON OFFICE AND ALL FIELD OFFICES BY THE DIRECTOR, NATIONAL PARK SERVICE, ON JANUARY 11, 1956 (FO-4-56). THE DIRECTIVE PROVIDES UNDER THE CAPTION " FREE ACCOMMODATIONS" THAT CONCESSIONERS WHO, UNDER THEIR CONTRACTS, ARE REQUIRED TO FURNISH FREE ACCOMMODATIONS TO EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, ARE TO FURNISH FREE ACCOMMODATIONS ONLY TO IMPORTANT OFFICIALS OF THE OFFICE OF THE SECRETARY AND OF OTHER BUREAUS OF THE DEPARTMENT, AS APPROVED BY THE SECRETARY, AND TO THE DIRECTOR OF THE PARK SERVICE, VISITING SUCH AREAS ON OFFICIAL BUSINESS. FREE TRANSPORTATION ON REGULARLY SCHEDULED TRANSPORTATION SERVICES IS REQUIRED TO BE FURNISHED BY THE CONCESSIONERS TO ALL EMPLOYEES OF THE DEPARTMENT VISITING THE PARK AREAS ON OFFICIAL BUSINESS.

THE DIRECTIVE FURTHER PROVIDES UNDER THE CAPTION " REDUCED RATE ACCOMMODATIONS" THAT OFFICIAL TRAVELERS OF THE DEPARTMENT OF THE INTERIOR RECEIVING A PER DIEM ALLOWANCE OF MORE THAN $9 WILL BE CHARGED BY CONCESSIONERS FOR LODGING AT NOT TO EXCEED $4 PER DAY, AND THOSE RECEIVING A PER DIEM OF $9 OR LESS WILL BE CHARGED NOT IN EXCESS OF $3 PER DAY. MEALS WILL BE PAID FOR ONLY IF ORDERED AND AT RATES IN EFFECT AT THE TIME. HOWEVER, NO MEAL RATE SHALL EXCEED $2.50 EXCLUDING SPECIAL HIGH PRICED MAIN COURSE DINNERS.

UNDER THE CAPTION " OFFICERS OF OTHER GOVERNMENT BUREAUS, MEMBERS OF CONGRESS SERVING ON COMMITTEES DEALING WITH NATIONAL PARK SERVICE MATTERS, STATE OFFICERS, AND OTHERS VISITING THE FIELD AREA AT THE REQUEST OF THE NATIONAL PARK SERVICE TO ENGAGE IN WORK BENEFICIAL TO THE FIELD AREA," THE DIRECTIVE PROVIDES FOR REDUCED RATE ACCOMMODATIONS TO THIS CLASS OF TRAVELER. WHILE THE DIRECTIVE IS SILENT AS TO THE MAXIMUM RATES TO BE PAID BY THESE TRAVELERS, WE UNDERSTAND THAT THE CONCESSIONERS GENERALLY MAKE AVAILABLE TO THEM THE SAME RATE AUTHORIZED FOR EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR.

SECTION 3 OF THE ACT OF AUGUST 25, 1916, 39 STAT. 535, AS AMENDED, 16 U.S.C. 3, CITED IN YOUR LETTER, AUTHORIZING THE SECRETARY OF THE INTERIOR TO MAKE SUCH RULES AND REGULATIONS AS HE MAY DEEM NECESSARY OR PROPER FOR THE USE AND MANAGEMENT OF THE PARKS, MONUMENTS, AND RESERVATIONS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE, PROVIDES THAT:

* * * HE MAY ALSO GRANT PRIVILEGES, LEASES, AND PERMITS FOR THE USE OF LAND FOR THE ACCOMMODATION OF VISITORS IN THE VARIOUS PARKS, MONUMENTS, OR OTHER RESERVATIONS PROVIDED FOR UNDER SECTION 2 OF THIS TITLE, BUT FOR PERIODS NOT EXCEEDING THIRTY YEARS * * *

IN VIEW OF THE WIDE DISCRETION THUS CONFERRED ON THE SECRETARY OF THE INTERIOR CONCERNING RULES AND REGULATIONS RELATING TO THE USE AND MANAGEMENT OF THE NATIONAL PARKS, AND SINCE THERE IS NOTHING THEREIN PRESCRIBING THE TERMS OR CONDITIONS UNDER WHICH CONTRACTS WITH CONCESSIONERS FOR THE OPERATION OF PUBLIC ACCOMMODATIONS IN THE AREAS OF THE NATIONAL PARK SERVICE MAY BE GRANTED, WE BELIEVE THE SECRETARY OF THE INTERIOR HAS AUTHORITY TO INCLUDE IN CONCESSION CONTRACTS A REQUIREMENT FOR THE FURNISHING OF MEALS, LODGING, AND TRANSPORTATION, EITHER FREE OF CHARGE OR AT REDUCED RATES, TO OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, AS WELL AS TO OTHER FEDERAL AND STATE PERSONNEL, VISITING NATIONAL PARK AREAS ON OFFICIAL BUSINESS. HOWEVER, THAT AUTHORITY MUST BE CONSTRUED AND APPLIED CONSISTENTLY WITH OTHER PERTINENT STATUTES AND WITH DUE REGARD TO THE BEST INTERESTS OF THE GOVERNMENT.

REGARDING THE CONTRACTUAL OBLIGATION ON THE PART OF CONCESSIONERS TO FURNISH FREE TRANSPORTATION ON REGULARLY SCHEDULED TRANSPORTATION SERVICE TO ALL FEDERAL AND STATE PERSONNEL VISITING NATIONAL PARK AREAS ON OFFICIAL BUSINESS, IT APPEARS THAT LITTLE, IF ANY, ADDITIONAL EXPENSES TO THE CONCESSIONERS IN INVOLVED BY REASON OF FURNISHING THE SERVICE AND THAT THE ARRANGEMENT IS CONVENIENT AND BENEFICIAL TO THE GOVERNMENT.

REGARDING THE OBLIGATION OF CONCESSIONERS TO PROVIDE MEALS AND LODGING TO FEDERAL AND STATE PERSONNEL VISITING THE PARKS ON OFFICIAL BUSINESS, EITHER FREE OF CHARGE OR AT REDUCED RATES, SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 63 STAT. 166 5 U.S.C. 836, AUTHORIZING A PER DIEM ALLOWANCE TO CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT TRAVELING ON OFFICIAL BUSINESS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, NOT TO EXCEED THE RATE OF $12 PER DAY, EXPRESSLY STATES THAT THE ALLOWANCE IS "* * * IN LIEU * * * OF THEIR ACTUAL EXPENSES FOR SUBSISTENCE * * *.' PARAGRAPH 6.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROMULGATED UNDER THE AUTHORITY OF THIS ACT, PROVIDES AS FOLLOWS:

THE PER DIEM ALLOWANCES PROVIDED IN THESE REGULATIONS REPRESENT THE MAXIMUM ALLOWABLE, NOT THE MINIMUM. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND ESTABLISHMENT TO SEE THAT TRAVEL ORDERS AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF A PER DIEM ALLOWANCE IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY OR AUTHORIZED EXPENSES.

OUR OFFICE HAS CONSISTENTLY RECOGNIZED THAT THE CONGRESS IN PROVIDING FOR A PER DIEM ALLOWANCE, IN LIEU OF SUBSISTENCE, INTENDED THAT SUCH ALLOWANCE SHOULD AS NEARLY AS POSSIBLE APPROXIMATE THE ADDITIONAL OUT-OF-POCKET EXPENSES TO THE OFFICER OR EMPLOYEE OF SUBSISTENCE EXPENSE ITEMS DURING THE PERIOD OF HIS TEMPORARY DUTY AWAY FROM HIS OFFICIAL STATION. SEE 31 COMP. GEN. 264, AND DECISIONS CITED THEREIN. WHEN IMPORTANT OFFICIALS OF THE DEPARTMENT OF THE INTERIOR ARE ON OFFICIAL TRAVEL IN PARK AREAS AND ARE ENTITLED TO MEALS AND LODGING FREE OF CHARGE, IT IS CLEAR, UNDER THE TERMS OF THE DIRECTIVE DATED JANUARY 11, 1956, REFERRED TO ABOVE, THAT THE OFFICIALS WOULD INCUR LITTLE, IF ANY, ADDITIONAL SUBSISTENCE EXPENSE BY REASON OF SUCH TRAVEL AND THAT THIS FACT SHOULD BE ADMINISTRATIVELY CONSIDERED IN FIXING A PER DIEM ALLOWANCE. REGARDING THE OFFICIALS AND EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, AND OTHER FEDERAL PERSONNEL ENTITLED, UNDER THE DIRECTIVE AND THE PROVISIONS OF THE STANDARD FORM OF CONCESSION CONTRACT QUOTED ABOVE, TO REDUCED RATE ACCOMMODATIONS WHEN VISITING THE PARK AREAS ON OFFICIAL BUSINESS, THE ADMINISTRATIVE OFFICIALS HAVE THE RESPONSIBILITY TO TAKE THESE CIRCUMSTANCES INTO CONSIDERATION IN FIXING THE RATE OF PER DIEM IN LIEU OF SUBSISTENCE, AND TO PREVENT FIXING A RATE IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES. IN THIS LATTER CONNECTION WE RECOGNIZE, AS STATED IN YOUR LETTER, THAT IN CERTAIN INSTANCES THE PER DIEM ALLOWANCE OF $12 IS SUBSTANTIALLY LESS THAN THE ACTUAL EXPENSES NECESSARY TO BE INCURRED FOR MEALS AND LODGING IN THE PARK AREAS. HOWEVER, WE OBSERVE FROM AN EXAMINATION OF THE PUBLICATION ISSUED BY THE NATIONAL PARK SERVICE IN MAY 1960 ENTITLED " VISITOR ACCOMMODATIONS" THAT OVERNIGHT ACCOMMODATIONS WITH BATH FOR ONE PERSON IN A MAJORITY OF THE NATIONAL PARK AREAS RANGE FROM $4.50 TO $8.50 PER DAY EUROPEAN PLAN. THESE RATES FOR LODGINGS APPEAR TO BE NO MORE THAN THE COST OF HOTEL ROOMS WHICH A TRAVELER NORMALLY MAY BE EXPECTED TO INCUR OUTSIDE OF THE PARK AREAS.

IT THUS APPEARS THAT A TRAVELER IN THESE PARKS WITH A MAXIMUM PER DIEM OF $12 WHO IS PROVIDED WITH LODGINGS AT NOT TO EXCEED $4 PER DAY HAS AT LEAST $8, EXCLUSIVE OF THE SUBSISTENCE EXPENSES HE WOULD HAVE INCURRED HAD HE REMAINED AT HIS HEADQUARTERS, TO PAY FOR MEALS AND INCIDENTAL EXPENSES. CONSIDERING ALSO THAT THE TRAVELER MAY OBTAIN MEALS AT REDUCED RATES, IT IS APPARENT THAT THE AMOUNT OF $8 IS SUBSTANTIALLY IN EXCESS OF THE AMOUNT NECESSARY TO COVER THE DAILY COST OF MEALS AND INCIDENTAL EXPENSES. HENCE, WE BELIEVE THAT THERE WOULD BE FOR ADMINISTRATIVE CONSIDERATION, GENERALLY, THE QUESTION WHETHER THE MAXIMUM AUTHORIZED PER DIEM RATE SHOULD NOT BE REDUCED DURING TRAVEL TO THESE PARK AREAS WHERE MEALS AND LODGINGS MAY BE OBTAINED AT REDUCED RATES--- IT BEING THE INTENT OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, TO REIMBURSE PERSONS IN A TRAVEL STATUS FOR ADDITIONAL OUT OF-POCKET EXPENSES ONLY. SEE 36 COMP. GEN. 268, 270.

IN SPECIFIC ANSWER TO THE FIRST QUESTION PRESENTED IN YOUR LETTER, YOU ARE ADVISED THAT THE PRACTICE ADOPTED BY THE DEPARTMENT OF THE INTERIOR REQUIRING CONCESSIONERS OPERATING BUSINESS IN THE NATIONAL PARK AREAS UNDER CONTRACT WITH THE NATIONAL PARK SERVICE TO PROVIDE MEALS, LODGING, AND TRANSPORTATION, EITHER FREE OF CHARGE OR AT REDUCED RATES, TO FEDERAL AND STATE OFFICERS AND EMPLOYEES WHO VISIT THE PARKS ON OFFICIAL BUSINESS, WAS AND IS WITHIN THE STATUTORY AUTHORITY OF THE SECRETARY OF THE INTERIOR, SUBJECT, OF COURSE, TO ADMINISTERING THE PRACTICE IN ACCORDANCE WITH THE VIEWS AND CONCLUSIONS EXPRESSED HEREINABOVE.

IN RESPONSE TO YOUR SECOND, THIRD, AND FOURTH QUESTIONS, IT IS CLEAR THAT, UNDER THE TERMS OF SECTIONS 3 AND 17B OF TITLE 16, U.S. CODE, THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO AWARD CONTRACTS TO CONCESSIONERS FOR SERVICES OR OTHER ACCOMMODATIONS PROVIDED IN THE NATIONAL PARKS FOR THE PUBLIC, AND TO APPROVE ALL RATES AND PRICES CHARGED TO THE PUBLIC BY CONCESSIONERS FOR SUCH SERVICES. AND WHEN, AS HERE, CONCESSION CONTRACTS INCLUDE A REQUIREMENT TO FURNISH FREE TRANSPORTATION AND REDUCED RATE ACCOMMODATIONS TO FEDERAL AND STATE EMPLOYEES VISITING THE PARKS ON OFFICIAL BUSINESS, WHICH REQUIREMENT IS IN THE INTEREST OF THE GOVERNMENT RATHER THAN THE CONCESSIONER, AT LEAST AS TO FEDERAL EMPLOYEES, THERE WOULD APPEAR TO BE NO AUTHORITY ON THE PART OF THE SECRETARY OF THE INTERIOR TO UNILATERALLY RELIEVE THE CONCESSIONER OF THE CONTRACT OBLIGATION, IN THE ABSENCE OF ADEQUATE CONSIDERATION THEREFOR MOVING TO THE GOVERNMENT. SEE 15 COMP. GEN. 25; 18 ID. 240. THESE QUESTIONS, THEREFORE, ARE ANSWERED IN THE NEGATIVE.

CONCERNING YOUR FINAL QUESTION, YOU ARE ADVISED THAT IN VIEW OF OUR ANSWER TO THE SECOND, THIRD, AND FOURTH QUESTIONS, TO THE EFFECT THAT A CONTRACT MAY NOT BE MODIFIED PREJUDICIALLY TO THE INTEREST OF THE UNITED STATES WITHOUT ADEQUATE CONSIDERATION THEREFOR, IT FOLLOWS THAT THE SECRETARY OF THE INTERIOR MAY NOT, IN THE ABSENCE OF ADEQUATE CONSIDERATION, PROHIBIT A CONCESSIONER FROM SUPPLYING SUCH ACCOMMODATIONS OR SERVICES AT FREE OR REDUCED RATES TO OFFICERS AND EMPLOYEES OF THE UNITED STATES, TO MEMBERS OF CONGRESS AND THEIR STAFFS, AND TO OFFICERS AND EMPLOYEES OF STATE GOVERNMENTS, WHILE A CONTRACT IN THE FORM CURRENTLY IN USE REMAINS IN EFFECT.

THE ANSWERS TO QUESTIONS TWO, THREE, AND FOUR ARE PREMISED ON UNILATERAL ACTION BY THE SECRETARY OF THE INTERIOR. IT SHOULD BE UNDERSTOOD THAT IF YOU FEEL THE PRACTICE OF FURNISHING ACCOMMODATIONS AND SERVICES TO FEDERAL AND STATE OFFICERS AND EMPLOYEES AT FREE OR REDUCED RATES IS NOT IN THE BEST INTEREST OF THE GOVERNMENT, WE SEE NO REASON WHY YOU COULD NOT ENTER INTO NEGOTIATIONS WITH THE CONCESSIONERS TO ELIMINATE REQUIREMENTS FOR THE FURNISHING OF ACCOMMODATIONS AND SERVICES TO FEDERAL AND STATE OFFICIALS AND EMPLOYEES AT FREE OR REDUCED RATES IN RETURN FOR CONSIDERATION MOVING TO THE UNITED STATES, AND AMENDING THE CONTRACTS TO REFLECT THE AGREEMENTS REACHED. ANY SUCH AMENDMENTS COULD ALSO STIPULATE THAT ACCOMMODATIONS AND SERVICES WOULD NOT BE FURNISHED TO FEDERAL AND STATE OFFICERS AND EMPLOYEES AT FREE OR REDUCED RATES.