B-148906, JUL. 5, 1962

B-148906: Jul 5, 1962

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YOU GIVE US THE FOLLOWING INFORMATION: "THE QUESTION IS WHETHER AN EMPLOYEE MAKING HIS OWN TRAVEL ARRANGEMENTS MUST TAKE AN AVAILABLE FOREIGN CARRIER WHEN HE WOULD BE DELAYED OVER 24 HOURS AWAITING THE NEXT AVAILABLE AMERICAN CARRIER AND WHICH LAY OVER WOULD RESULT IN SUBSTANTIAL ADDITIONAL COST TO THEU.S. PER DIEM WAS PAID ON THE BASIS OF CONSTRUCTIVE DIRECT TRAVEL OF NEXT AVAILABLE CARRIER OUT. THIS WAS A FOREIGN FLAG CARRIER. "PER DIEM WAS BASED ON THE CONSTRUCTIVE DIRECT TRAVEL VIA FOREIGN FLAG CARRIER BECAUSE EMPLOYEE HAD TO STAY 48 HOURS IN ROME IN ORDER TO TAKE THE NEXT AMERICAN FLAG CARRIER. AID/W REGULATIONS (SIC) STATE THAT A FOREIGN CARRIER IS JUSTIFIED WHEN THE EMPLOYEE WOULD BE DETAINED FOR TWENTY-FOUR HOURS OR MORE AWAITING AN AMERICAN FLAG CARRIER AND THAT TRAVEL WILL BE PERFORMED BY THE MOST EXPEDITIOUS MEANS PRACTICABLE UNDER INDIVIDUAL CIRCUMSTANCES.

B-148906, JUL. 5, 1962

TO MR. DERO J. CAGLE, AUTHORIZED CERTIFYING OFFICER, AMERICAN EMBASSY, AMMAN, JORDAN:

YOUR LETTER RECEIVED MAY 15, 1962, REFERENCE C-62-603, REQUESTS OUR DECISION WHETHER THE RECLAIM VOUCHER OF MR. FRED J. WILKINSON, AN EMPLOYEE OF THE U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, FOR ADDITIONAL PER DIEM AND EXPENSES TOTALING $247.86, MAY BE CERTIFIED FOR PAYMENT.

YOU GIVE US THE FOLLOWING INFORMATION:

"THE QUESTION IS WHETHER AN EMPLOYEE MAKING HIS OWN TRAVEL ARRANGEMENTS MUST TAKE AN AVAILABLE FOREIGN CARRIER WHEN HE WOULD BE DELAYED OVER 24 HOURS AWAITING THE NEXT AVAILABLE AMERICAN CARRIER AND WHICH LAY OVER WOULD RESULT IN SUBSTANTIAL ADDITIONAL COST TO THEU.S. GOVERNMENT.

"MR. WILKINSON AND FAMILY ARRIVED IN ROME VIA TWA AT 12:00 NOON ON 1/8/1962 AND DEPARTED ROME FOR BEIRUT, LEBANON ON 1/10/62 AT 12:15 NOON VIA PAA, THE NEXT AVAILABLE AMERICAN CARRIER. PER DIEM WAS PAID ON THE BASIS OF CONSTRUCTIVE DIRECT TRAVEL OF NEXT AVAILABLE CARRIER OUT. THIS WAS A FOREIGN FLAG CARRIER, MEA, FLIGHT NO. 218 LEAVING ROME FOR BEIRUT AT 3:30 PM ON THE DATE OF ARRIVAL.

"PER DIEM WAS BASED ON THE CONSTRUCTIVE DIRECT TRAVEL VIA FOREIGN FLAG CARRIER BECAUSE EMPLOYEE HAD TO STAY 48 HOURS IN ROME IN ORDER TO TAKE THE NEXT AMERICAN FLAG CARRIER. AID/W REGULATIONS (SIC) STATE THAT A FOREIGN CARRIER IS JUSTIFIED WHEN THE EMPLOYEE WOULD BE DETAINED FOR TWENTY-FOUR HOURS OR MORE AWAITING AN AMERICAN FLAG CARRIER AND THAT TRAVEL WILL BE PERFORMED BY THE MOST EXPEDITIOUS MEANS PRACTICABLE UNDER INDIVIDUAL CIRCUMSTANCES. THE CERTIFYING OFFICER FELT THAT THE COST OF PER DIEM IN ROME, TAXI FARE AND AIRPORT TAXES WERE NOT JUSTIFIED WHEN OTHER TRANSPORTATION WHICH WOULD HAVE EFFECTED SUBSTANTIAL SAVINGS TO THE U.S. GOVERNMENT COULD HAVE BEEN UTILIZED.

"THE EMPLOYEE STATES THAT HE MADE HIS OWN TRAVEL ARRANGEMENTS SINCE HE WAS REQUESTED TO DO SO BY THE TRAVEL OFFICE IN AID, WASHINGTON. HE SAID THAT HE WAS TOLD BY PAA THAT THEY WERE NOT ALLOWED TO BOOK GOVERNMENT EMPLOYEES ON OTHER THAN AMERICAN FLAG CARRIERS. HE FURTHER STATED THAT THE TRANSPORTATION OFFICER OF AID/W WAS AWARE OF HIS LAY OVER IN ROME AND THE REASON FOR IT AS HE ADVISED THAT OFFICE OF ALL ARRANGEMENTS.'

ICA MANUAL ORDER NO. 561.1, III B, TRANSMITTAL LETTER 1014, JUNE 6, 1961 (NOW CONTAINED IN TRANSMITTAL LETTER 1072, APRIL 19, 1962) PROVIDES:

"ICA IS EXEMPTED BY EXECUTIVE ORDER 10784 FROM THE REQUIREMENTS OF SECTION 901 OF THE MERCHANT MARINE ACT OF 1936 WHICH REQUIRES U.S. GOVERNMENT EMPLOYEES TO USE SHIPS OF U.S. REGISTRY WHEN SUCH SHIPS ARE AVAILABLE. HOWEVER, IN ORDER TO IMPLEMENT THE PRESIDENT'S DIRECTIVE ON BALANCE OF PAYMENTS, SIMILAR PROVISIONS WILL BE APPLIED TO THE TRAVEL OF ICA EMPLOYEES AND THEIR DEPENDENTS. THESE PROVISIONS WILL APPLY TO TRAVEL BY AIR IN ADDITION TO SHIP TRAVEL. ACCORDINGLY, AS A MATTER OF PRINCIPLE IN CONNECTION WITH TRAVEL PERFORMED BY ICA EMPLOYEES AND THEIR DEPENDENTS, AMERICAN FLAG CARRIERS ARE TO BE USED UNLESS THEY ARE NOT AVAILABLE OR THEIR USE IS NOT FEASIBLE. INSTANCES OF EXCEPTIONS TO THIS PRINCIPLE INCLUDE THE FOLLOWING * * * (B) WHEN THE EMPLOYEE WOULD BE DETAINED TWENTY -FOUR HOURS OR MORE AWAITING AN AMERICAN FLAG CARRIER * * *. WHENEVER A FOREIGN FLAG CARRIER IS USED, MISSIONS ARE TO ANNOTATE THEIR RECORDS TO INDICATE THE REASONS FOR SUCH .'

THE REGULATION IS AN EXPRESSION OF ADMINISTRATIVE POLICY, THE PURPOSE OF WHICH IS TO FURTHER THE USE OF AMERICAN AIRPLANES WHERE PRACTICABLE. HOWEVER, THE REGULATION FAILS TO INDICATE UNDER WHAT CIRCUMSTANCES A DELAY OF MORE THAN 24 HOURS AWAITING AN AMERICAN FLAG CARRIER WOULD BE ACCEPTABLE OR THE EXTENT OF A TRAVELER'S LIABILITY IN THE EVENT OF DELAYS IN EXCESS OF 24 HOURS.

IT APPEARS THAT THE EMPLOYEE HERE DELAYED TRAVEL BECAUSE, AS A RESULT OF THE INDEFINITE ASPECTS OF THE REGULATION, HE LACKED A CLEAR UNDERSTANDING OF THE REQUIREMENTS OF THE REGULATION. THERE IS NO INDICATION IN THE RECORD THAT THE DELAY WAS FOR HIS OWN CONVENIENCE. APPARENTLY, HE WAS UNDER THE IMPRESSION THAT HE SHOULD TRAVEL THE WHOLE WAY BY AMERICAN CARRIER, IF REASONABLY POSSIBLE. UNDER THE CIRCUMSTANCES, WE VIEW THE DEALY OF 48 HOURS AS NOT UNREASONABLE AND THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.