B-161380, MAY 18, 1967

B-161380: May 18, 1967

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ADMINISTRATOR: WE ARE IN RECEIPT OF A LETTER DATED APRIL 26. THE QUESTIONS CONTAINED IN THE LETTER ARE QUOTED AS FOLLOWS: "A CONSULTANT. WAS DIRECTED TO PERFORM TEMPORARY DUTY IN WASHINGTON. HIS OFFICIAL RESIDENCE WAS IN CHICAGO. CONTINUED BEYOND THE 130 DAYS OF INTERMITTENT SERVICE ALLOWED EACH YEAR AND WAS AUTOMATICALLY CONVERTED TO THE STATUS OF A TEMPORARY EMPLOYEE. IS THE GOVERNMENT LIABLE FOR THE FOLLOWING: "1. THE CONSULTANT WAS PAID TRANSPORTATION. ARE WE REQUIRED TO DEMAND A REFUND FOR GOVERNMENT MONEY EXPENDED FOR THE CONSULTANT'S EXPENSES PAID DURING THIS PERIOD OF THE TEMPORARY DUTY? WHEN AN EMPLOYEE IS HIRED ON A TEMPORARY INTERMITTENT BASIS AND MAINTAINS HIS OFFICIAL RESIDENCE AWAY FROM HIS TEMPORARY POST.

B-161380, MAY 18, 1967

TO THE HONORABLE JAMES E. WEBB, ADMINISTRATOR:

WE ARE IN RECEIPT OF A LETTER DATED APRIL 26, 1967, REFERENCE BFH, FROM MR. ROBERT W. DOERNER, CHIEF, PERSONNEL SERVICE SECTION, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C., IN WHICH HE ASKS OUR DECISION FOR THE GUIDANCE OF CERTIFYING OFFICERS CONCERNING MATTERS PERTAINING TO THE TRANSPORTATION COSTS, PER DIEM AND MISCELLANEOUS EXPENSES OF CONSULTANTS.

THE QUESTIONS CONTAINED IN THE LETTER ARE QUOTED AS FOLLOWS:

"A CONSULTANT, WITH COMPENSATION, WAS DIRECTED TO PERFORM TEMPORARY DUTY IN WASHINGTON, D.C. HIS OFFICIAL RESIDENCE WAS IN CHICAGO, ILLINOIS. DURING THE PERIOD OF HIS LAST ASSIGNMENT IN WASHINGTON, THE CONSULTANT REACHED, AND CONTINUED BEYOND THE 130 DAYS OF INTERMITTENT SERVICE ALLOWED EACH YEAR AND WAS AUTOMATICALLY CONVERTED TO THE STATUS OF A TEMPORARY EMPLOYEE. UPON COMPLETION OF THIS ASSIGNED TOUR OF DUTY, HE RETURNED TO CHICAGO. WE PAID THE CONSULTANT PER DIEM FOR THE FULL TIME IN WASHINGTON DURING THIS LAST ASSIGNMENT AND ALSO RELATED TRANSPORTATION EXPENSES. THE LIMITATION HAD BEEN EXCEEDED DURING THIS ASSIGNMENT, TO WHICH HE HAD BEEN DIRECTED, IS THE GOVERNMENT LIABLE FOR THE FOLLOWING:

"1. PER DIEM AND MISCELLANEOUS EXPENSES, FOR HIS PERFORMANCE OF DUTY, THAT EXCEED THE 130 DAYS LIMITATION?

"2. TRANSPORTATION COSTS, PER DIEM AND MISCELLANEOUS EXPENSES FOR THE RETURN TRIP TO CHICAGO FROM HIS TEMPORARY DUTY STATION IN WASHINGTON, D.C.?

"IN ADDITION TO THE ABOVE CIRCUMSTANCES, THROUGH ADMINISTRATIVE ERROR, WE INADVERTENTLY AUTHORIZED TRAVEL AFTER A CONSULTANT HAD EXCEEDED THE 130 DAYS LIMITATION. HE TRAVELED FROM CHICAGO TO WASHINGTON AND RETURNED UPON COMPLETION OF HIS ASSIGNMENT. THE CONSULTANT WAS PAID TRANSPORTATION, PER DIEM AND MISCELLANEOUS EXPENSES BEYOND THE EXPIRATION DATE OF HIS INTERMITTENT SERVICE TOUR. CONSIDERING THESE CIRCUMSTANCES, ARE WE REQUIRED TO DEMAND A REFUND FOR GOVERNMENT MONEY EXPENDED FOR THE CONSULTANT'S EXPENSES PAID DURING THIS PERIOD OF THE TEMPORARY DUTY?

"FURTHER, WHEN AN EMPLOYEE IS HIRED ON A TEMPORARY INTERMITTENT BASIS AND MAINTAINS HIS OFFICIAL RESIDENCE AWAY FROM HIS TEMPORARY POST, IS THERE JUSTIFICATION FOR PAYING TRAVEL AND PER DIEM TO COVER HIS ASSIGNMENT AND TRIPS FROM OFFICIAL RESIDENCE AND RETURN?

WHILE WE MAY NOT RENDER AN AUTHORITATIVE DECISION UPON THE REQUEST OF THE OFFICER CONCERNED (SEE 31 U.S.C. 74), THE QUESTIONS PRESENTED MAY BE OF GENERAL INTEREST TO YOUR AGENCY AND, FOR THE PURPOSES OF AVOIDING DELAY, WE WILL VIEW THE REQUEST AS HAVING BEEN INITIATED IN YOUR OFFICE.

WE ASSUME THE CONSULTANTS MENTIONED IN THE LETTER WERE EMPLOYED UNDER AUTHORITY OF 42 U.S.C. 2473 (B) (9) WHICH PROVIDES FOR EMPLOYMENT BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION OF THE SERVICES OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY 5 U.S.C. 3109, FORMERLY 5 U.S.C. 55A, AT RATES NOT TO EXCEED $100 A DAY.

GENERALLY THE QUESTION CONCERNING CONSULTANTS EMPLOYED FOR INTERMITTENT SERVICE BUT INTENTIONALLY EMPLOYED FOR MORE THAN 130 DAYS IN A YEAR WAS CONSIDERED IN OUR DECISION 36 COMP. GEN. 351 WHEREIN IT WAS HELD, QUOTING FROM THE BODY OF THE DECISION, AS FOLLOWS:

"THE ABOVE-QUOTED INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION DID NOT CHANGE THE REQUIREMENT THAT EMPLOYMENT TO BE CLASSED AS INTERMITTENT MUST OCCUR OCCASIONALLY OR IRREGULARLY AND BE LIMITED TO WORK ON PROGRAMS, PROJECTS OR PROBLEMS REQUIRING INTERMITTENT SERVICES. SEE 35 COMP. GEN. 90. THE EFFECT OF THE INSTRUCTIONS WAS TO PLACE A LIMITATION OF ONE-HALF OF THE FULL-TIME WORKING DAYS EACH YEAR--- OR 130 WORKING DAYS--- ON THE NUMBER OF DAYS OF INTERMITTENT EMPLOYMENT ALLOWED IN ANY YEAR. THEREAFTER THE INTERMITTENT EMPLOYMENT IS AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE LIMIT IS EXCEEDED.

"OUR VIEW IS THAT THE PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED BY SECTION 5, ABOVE, MAY BE PAID TO A CONSULTANT ONLY FOR 130 DAYS OF INTERMITTENT SERVICE EACH YEAR. THE AUTOMATIC CONVERSION OF THE SERVICE TO TEMPORARY EMPLOYMENT UPON THE 130-DAY LIMITATION BEING EXCEEDED, HOWEVER, DOES NOT INVALIDATE RETROACTIVELY PREVIOUS PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE FOR PERIODS OF INTERMITTENT SERVICE AT THE REGULAR PLACE OF DUTY.'

IN 27 COMP. GEN. 695, AT PAGE 697, WE SAID:

"EXPERTS OR CONSULTANTS WHO ARE EMPLOYED TEMPORARILY (NOT IN EXCESS OF ONE YEAR) IN ACCORDANCE WITH THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, GENERALLY ARE IN THE SAME STATUS SO FAR AS THE INCURRING AND PAYMENT OF TRANSPORTATION EXPENSES ARE CONCERNED AS OTHER CIVILIAN EMPLOYEES OF THE GOVERNMENT, I.E., PROPERLY AUTHORIZED EXPENSES OF TRAVEL INCLUDING A PER DIEM IN LIEU OF SUBSISTENCE ARE PAYABLE OR REIMBURSABLE BY THE GOVERNMENT IN ACCORDANCE WITH THE SUBSISTENCE EXPENSE ACT (NOW SEE 5 U.S.C. 5701 ET. SEQ.) AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

"AS TO EXPERTS OR CONSULTANTS EMPLOYED INTERMITTENTLY AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 5 OF PUBLIC LAW 600, 60 STAT. 808

THE PROVISIONS OF SECTION 5 AS CODIFIED NOW MAY BE FOUND IN 5 U.S.C. 5703.

IN THE LIGHT OF THE DECISIONS QUOTED ABOVE, QUESTIONS 1 AND 2, WHICH ARE UNDERSTOOD TO RELATE ONLY TO PER DIEM IN LIEU OF SUBSISTENCE, TRANSPORTATION AND MISCELLANEOUS EXPENSES, ARE ANSWERED IN THE NEGATIVE. THERE WAS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO PAY THE ALLOWANCES PROVIDED BY 5 U.S.C. 5703 IN CONNECTION WITH SERVICES RENDERED BY CONSULTANTS AFTER THE COMPLETION OF 130 DAYS IN A SERVICE YEAR WHEN THEIR EMPLOYMENT STATUS AUTOMATICALLY HAD BEEN CONVERTED TO TEMPORARY AS DISTINGUISHED FROM INTERMITTENT EMPLOYMENT.

IN RESPONSE TO QUESTION 3, THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO WAIVE RECOVERY OF OVERPAYMENTS, SUCH AS APPEAR TO BE DISCLOSED IN THE INSTANCES COVERED BY QUESTIONS 1 THROUGH 3. WE NOTE, HOWEVER, THAT THE TEMPORARY EMPLOYMENT WAS FOR A LIMITED PERIOD (ABOUT 19 DAYS) AND THAT THE OVERPAYMENT OF EXPENSES RESULTED FROM ADMINISTRATIVE OVERSIGHT OR INADVERTENCE RATHER THAN FROM DELIBERATE PURPOSE. REGARDING THE LATTER OBSERVATION, WE ASSUME THAT APPROPRIATE ADMINISTRATIVE STEPS WILL BE TAKEN TO PREVENT THE RECURRENCE OF SIMILAR OVERRUNS OF INTERMITTENT EMPLOYMENT WITH ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE, TRAVEL AND MISCELLANEOUS EXPENSES. CONCERNING THE QUESTION OF RECOVERY OF THE OVERPAYMENTS ADMINISTRATIVELY, SEE THE PROVISIONS OF THE FEDERAL CLAIMS COLLECTION ACT OF 1966, PUB.L. 89 508, APPROVED JULY 19, 1966.

QUESTION 4 IS UNDERSTOOD TO REFER TO EXPERTS OR CONSULTANTS EITHER INTERMITTENTLY OR TEMPORARILY EMPLOYED. THE FORMER ARE ENTITLED TO BE ALLOWED THE EXPENSES AUTHORIZED BY 5 U.S.C. 5703. THE LATTER MAY BE ALLOWED ONLY THE USUAL EXPENSES AUTHORIZED FOR REGULAR GOVERNMENT EMPLOYEES TRAVELING ON OFFICIAL BUSINESS AWAY FROM THEIR OFFICIAL STATIONS. SEE 27 COMP. GEN. 695, CITED ABOVE.