B-159731, AUG. 5, 1966

B-159731: Aug 5, 1966

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THE FEDERAL AVIATION AGENCY IS REQUIRED TO COLLECT RENT RETROACTIVELY FROM SEVERAL EMPLOYEES WHO WERE FURNISHED GOVERNMENT QUARTERS WITHOUT CHARGE DURING VARIOUS PERIODS COMMENCING WITH AUGUST 1. EMPLOYEES OF THE FEDERAL AVIATION AGENCY WERE ADVISED IN A NOTICE OF POSITION VACANCIES THAT THEY MIGHT BID ON POSITIONS WHICH REQUIRED DUTY AT TWO RADAR FACILITIES AT MOUNTAINTOP LOCATIONS 68 MILES FROM GALLUP. AS FOLLOWS: "* * * BACHELOR QUARTERS WILL BE PROVIDED AT THE ARSR SITE. PERSONNEL SELECTED WILL BE REQUIRED TO PERFORM DUTY AT THE SITE APPROXIMATELY 50 PERCENT OF THE TIME. PER DIEM WILL BE PAID AT THE RATE OF $9.00 PER DAY WHILE ON DUTY AT THE ARSR SITE. EMPLOYEES WILL BE FURNISHED GOVERNMENT TRANSPORTATION TO THE SITE AND WILL TRAVEL ON GOVERNMENT TIME.'.

B-159731, AUG. 5, 1966

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

WE REFER TO YOUR LETTER OF JULY 20, 1966, REQUESTING OUR DECISION WHETHER, UNDER THE FOLLOWING RELATED FACTS AND CIRCUMSTANCES, THE FEDERAL AVIATION AGENCY IS REQUIRED TO COLLECT RENT RETROACTIVELY FROM SEVERAL EMPLOYEES WHO WERE FURNISHED GOVERNMENT QUARTERS WITHOUT CHARGE DURING VARIOUS PERIODS COMMENCING WITH AUGUST 1, 1963, AND ENDING JUNE 9, 1965.

ON NOVEMBER 28, 1962, EMPLOYEES OF THE FEDERAL AVIATION AGENCY WERE ADVISED IN A NOTICE OF POSITION VACANCIES THAT THEY MIGHT BID ON POSITIONS WHICH REQUIRED DUTY AT TWO RADAR FACILITIES AT MOUNTAINTOP LOCATIONS 68 MILES FROM GALLUP, NEW MEXICO, AND 73 MILES FROM SILVER CITY, NEW MEXICO. THE REFERRED TO NOTICE PROVIDED, IN PART, AS FOLLOWS:

"* * * BACHELOR QUARTERS WILL BE PROVIDED AT THE ARSR SITE. PERSONNEL SELECTED WILL BE REQUIRED TO PERFORM DUTY AT THE SITE APPROXIMATELY 50 PERCENT OF THE TIME. PER DIEM WILL BE PAID AT THE RATE OF $9.00 PER DAY WHILE ON DUTY AT THE ARSR SITE. EMPLOYEES WILL BE FURNISHED GOVERNMENT TRANSPORTATION TO THE SITE AND WILL TRAVEL ON GOVERNMENT TIME.'

YOU EXPLAIN THAT VARIOUS FACTORS, INCLUDING WEATHER CONDITIONS AND DISTANCE OF THE FACILITIES FROM SETTLED AREAS, PREVENTED DAILY COMMUTING BY EMPLOYEES TO THE RADAR SITES AND CONSEQUENTLY CREW QUARTERS WERE PROVIDED AT BOTH FACILITIES.

WITH RESPECT TO THE FURNISHING OF QUARTERS WITHOUT CHARGE, YOUR LETTER READS AS FOLLOWS:

"THESE NOTICES WERE INTENDED TO ADVISE EMPLOYEES BIDDING ON THE POSITIONS REFERRED TO THEREIN, THAT QUARTERS WOULD BE FURNISHED TO THEM FREE, AND THAT NO DEDUCTION WOULD BE MADE FROM THEIR SALARIES OR PER DIEM ALLOWANCES FOR THEIR USE OF THESE LIVING QUARTERS. GRADES FOR THESE POSITIONS WERE DETERMINED UPON THE BASIS OF THE DUTIES AND RESPONSIBILITIES OF THE JOBS IN ACCORDANCE WITH THE CLASSIFICATION ACT, AND NO CONSIDERATION WAS GIVEN TO THE VALUE OF THE QUARTERS IN FIXING THE SALARY RATE OF THE EMPLOYEES. THE GALLUP QUARTERS WERE FIRST OCCUPIED ON AUGUST 1, 1963, AND THE SILVER CITY QUARTERS WERE FIRST OCCUPIED ON MARCH 12, 1964. * * * AT THE TIME THESE QUARTERS WERE OCCUPIED, 5 U.S.C. 75 (A) REQUIRED THAT "* * * THE REASONABLE VALUE OF SUCH ALLOWANCES (FOR QUARTERS, ETC.) SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.' HOWEVER, NO DETERMINATION OF THE REASONABLE VALUE OF THE QUARTERS IN QUESTION WAS MADE, UNTIL JUNE 9, 1965, AT WHICH TIME NOTICE SW 4239.1, ISSUED BY THE DIRECTOR OF THE SOUTHWEST REGION OF THIS AGENCY, ESTABLISHED A RENTAL RATE OF $3.56 PER DAY, EFFECTIVE IMMEDIATELY. THIS RATE WAS LATER DETERMINED TO BE EXCESSIVE UNDER THE STANDARDS PRESCRIBED IN BUREAU OF THE BUDGET CIRCULAR A-45, AND WAS REDUCED TO $2.00 PER DAY, EFFECTIVE JANUARY 1, 1966. IN THE MEANTIME, ON AUGUST 20, 1964, PUBLIC LAW 88-459, (5 U.S.C. 3121 ET SEQ.), WAS SIGNED BY THE PRESIDENT, AND PURSUANT TO ITS TERMS, BECAME EFFECTIVE ON OCTOBER 19, 1964.'

FROM AUGUST 1, 1963, UNTIL JUNE 9, 1965, APPROXIMATELY 26 EMPLOYEES OCCUPIED QUARTERS DURING VARIOUS PERIODS OF DUTY AT THE TWO RADAR FACILITIES AND YOU ESTIMATE THE TOTAL UNCOLLECTED RENT TO BE $6,046. YOU SAY THAT THE FAILURE TO ASSESS A FAIR RENTAL VALUE FOR THE QUARTERS RESULTED FROM ADMINISTRATIVE ERROR AND WAS IN NO WAY THE FAULT OF THE OCCUPANTS. YOU EXPRESS THE VIEW THAT RETROACTIVE COLLECTION OF THE RENT WOULD CAUSE UNDUE HARDSHIP UPON SOME OF THE EMPLOYEES AND WOULD ADVERSELY AFFECT EMPLOYEE MORALE.

AS POINTED OUT IN YOUR LETTER, BOTH SECTION 3 OF THE ACT OF MARCH 5, 1928, 5 U.S.C. 75A AND SECTION 3 OF PUB.L. 88-459, 5 U.S.C. 3123, AS WELL AS THE APPROPRIATE IMPLEMENTING REGULATIONS (BUREAU OF THE BUDGET CIRCULAR A-45), REQUIRE THAT AN EMPLOYEE BE CHARGED WITH THE REASONABLE VALUE OF QUARTERS FURNISHED. ALSO PERTINENT ARE SECTIONS 70 AND 71 OF TITLE 5, UNITED STATES CODE.

HOWEVER, IT IS SIGNIFICANT THAT NO RENTAL CHARGES WERE ADMINISTRATIVELY PROMULGATED AS REQUIRED BY LAW AND THE EMPLOYEES CONCERNED ACCEPTED ASSIGNMENT TO THE RADAR FACILITIES WITH THE UNDERSTANDING THAT QUARTERS WOULD BE FURNISHED WITHOUT CHARGE. UNDER THE CIRCUMSTANCES, OUR OFFICE WILL NOT INSIST UPON COLLECTION OF SUCH PAST CHARGES IN THIS CASE.

IF THE RATE OF $2 RENTAL PER DAY NOW IS ADMINISTRATIVELY CONSIDERED TO BE NOMINAL, WE ASSUME THAT APPROPRIATE DEDUCTIONS FROM THE AUTHORIZED PER DIEM RATE ARE BEING MADE AS REQUIRED BY SECTION 6.7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.