B-162553, OCT. 16, 1967

B-162553, OCT. 16, 1967

PER DIEM - CIVILIAN PERSONNEL - RATES DECISION TO CERTIFYING OFFICER OF AGENCY FOR INTERNATIONAL DEVELOPMENT FOR PER DIEM TO EMPLOYEE WHO DURING 11-1/2 MONTHS OUT OF 15 MONTH ASSIGNMENT IN KANO, NIGERIA, WAS IN TRAVEL OR TDY STATUS. EMPLOYEE WHO IS SHOWN TO HAVE BEEN TRAVELING TO VARIOUS PLACES WHILE STATIONED IN NIGERIA IS NOT REQUIRED TO HAVE PROVISION OF REGULATION REQUIRING REDUCTION IN PER DIEM AFTER STATED PERIOD OF DAYS APPLIED SINCE THAT LIMITATION IS APPLICABLE ONLY WHEN EMPLOYEE IS ON TEMPORARY DUTY AT ONE PARTICULAR PLACE AND IS NOT FOR APPLICATION WHEN EMPLOYEE IS IN TRAVEL STATUS GOING FROM ONE PLACE TO ANOTHER. ALSO SINCE EXECUTIVE OFFICER OF MISSION HAS APPROVED VOUCHER SUCH APPROVAL WOULD CONSTITUTE AN ADMINISTRATIVE DETERMINATION APPROVING CONTINUATION OF PER DIEM BEYOND PRESCRIBED PERIOD. WITH RESPECT TO QUESTION OF PAYMENT FOR QUARTERS WHERE HOTEL PROVIDED GENERAL CHARGE FOR "BED AND BREAKFAST," REASONABLE EVALUATION SHOULD BE PLACED UPON BREAKFAST ITEM AND EXCLUDED FROM QUARTERS. THE FACT EMPLOYEE DID NOT EAT BREAKFAST AT HOTEL DOES NOT CHANGE ITEM FROM SUBSISTENCE TO QUARTERS EXPENSE.

TO MR. MELVIN L. VAN DOREN:

THIS IS IN REPLY TO YOUR LETTER OF AUGUST 24, 1967, REQUESTING OUR DECISION UNDER 31 U.S.C. 82D AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT TWO UNPAID TRAVEL VOUCHERS ONE FOR $492.60 AND ONE FOR $380 SUBMITTED BY MR. JOHN W. SWANN, A FORMER EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) AT THE MISSION IN KANO, NORTHERN NIGERIA.

YOU INDICATE THAT WHILE MR. SWANN WAS STATIONED AT KANO HE SPENT MOST OF HIS TIME IN A TRAVEL OR A TEMPORARY DUTY PER DIEM STATUS COVERING APPROXIMATELY 11-1/2 MONTHS OUT OF 15 MONTHS DURING THE PERIOD FROM FEBRUARY 1966, TO MAY 1967.

THE VOUCHER FOR $492.60 REPRESENTS A CLAIM FOR 43 DAYS PER DIEM AT THE FULL RATE AS AUTHORIZED LOCALLY FOR THE PERIOD FROM MARCH 29, 1967, TO MAY 10, 1967. YOU STATE THAT YOU MADE PAYMENT FOR 102 DAYS PER DIEM AT THE FULL RATE FOR THE PERIOD DECEMBER 16, 1966, TO MARCH 28, 1967, UNDER AID MISSION ORDER NO. 27, DATED JANUARY 13, 1960. HOWEVER, THIS ORDER PROVIDES FOR REDUCTION OF PER DIEM TO 75 PERCENT AFTER 60 DAYS AND TERMINATION AFTER 90 DAYS AND YOU STATE THAT THERE IS NOW SOME QUESTION AS TO THE PROPRIETY OF PAYMENT. IN PARTICULAR YOU ASK ADVICE AS TO WHETHER PAYMENT FOR THE PERIOD MARCH 29, 1967, TO MAY 10, 1967, MAY BE PAID AT THE RATE OF 75 PERCENT OF THE LOCALLY AUTHORIZED RATE OR AT THE FULL RATE IN VIEW OF THE USAID EXECUTIVE OFFICER'S ADMINISTRATIVE APPROVAL AT THE LATTER RATE.

THE VOUCHER FOR $380 REPRESENTS THE DIFFERENCE IN PER DIEM BETWEEN$18 PER DAY AND $22 PER DAY FOR 95 DAYS IN WHICH MR. SWANN WAS LODGED IN THE BRISTOL HOTEL IN LAGOS, NIGERIA. YOU POINT OUT THAT UNDER SECTION 6 OF ADMINISTRATIVE ORDER NO. 402 OF THE AMERICAN EMBASSY IN NIGERIA, THE MAXIMUM PER DIEM RATES WERE GOVERNED BY THE AMOUNT PAID FOR QUARTERS. DURING MR. SWANN'S STAY AT THE BRISTOL HOTEL IN LAGOS THE BILL REFLECTS A PAYMENT OF L4.17.6 ($13.65) DAILY FOR "BED AND BREAKFAST.' IN ADDITION, THERE WAS A SERVICE CHARGE OF L0.5.0 (?70) BRINGING THE TOTAL TO L5.2.6 ($14.35). HOWEVER, YOU INDICATE THAT A COST OF L0.5.0 (?70) WAS ATTRIBUTED TO BREAKFAST BRINGING THE PAYMENT FOR QUARTERS ALONE DOWN TO L4.17.6 ($13.65). UNDER THE EMBASSY ORDER PAYMENT FOR QUARTERS IN THIS AMOUNT WOULD PERMIT A MAXIMUM ALLOWABLE PER DIEM RATE OF $18 (INSTEAD OF $22 WHEN THE QUARTERS COST IS L5.0.0 OR MORE). YOU STATE THAT THE ASSUMPTION REGARDING BREAKFAST COST WAS BASED ON SECTION 125.2 OF THE STANDARDIZED REGULATIONS AND IS CONSISTENT WITH THE POLICY OF THE EMBASSY AT LAGOS.

MR. SWANN CONTENDS THAT HE DID NOT EAT BREAKFAST, THAT THE ENTIRE CHARGE WAS FOR QUARTERS ONLY AND THAT THE PAYMENT OF L5.2.6 ($14.35) FOR QUARTERS ENTITLES HIM TO PER DIEM AT THE MAXIMUM RATE OF $22 PRESCRIBED FOR NIGERIA IN SECTION 925 STANDARDIZED REGULATIONS. YOU POINT OUT THAT "TO SUPPORT HIS CLAIM HE HAS HAD SOMEONE LINE OUT AND INITIAL -BREAKFAST- ON THE HOTEL RECEIPTS.' THIS CLAIM FOR ADDITIONAL PER DIEM WAS ALSO APPROVED ADMINISTRATIVELY BY THE EXECUTIVE OFFICER OF THE MISSION.

YOU REQUEST ADVICE AS TO WHETHER THE INCLUSIVE CHARGE FOR BED AND BREAKFAST, WHICH IS MADE WHETHER OR NOT THE HOTEL GUEST DOES HAVE BREAKFAST, SHOULD BE SEPARATED INTO A CHARGE FOR ROOM AND A CHARGE FOR BREAKFAST.

WITH RESPECT TO PAYMENT OF PER DIEM WHILE ON EXTENDED TRAVEL AND TEMPORARY DUTY SECTION VII OF USAID MISSION TO NIGERIA ORDER NO. 27 PROVIDES AS FOLLOWS:

"VII. LIMITATION FOR PAYMENT OF PER DIEM ON TDY

"IN ACCORDANCE WITH PROVISIONS CONTAINED IN REFERENCES, THE FOLLOWING POLICY IS ESTABLISHED FOR THE PAYMENT OF PER DIEM TO EMPLOYEES ON TEMPORARY DUTY AWAY FROM THEIR POST OF ASSIGNMENT:

"THE APPLICABLE RATE AT THE TEMPORARY DUTY STATION WILL BE PAID FOR THE FIRST 60 CALENDER DAYS OF SUCH DUTY. THEREAFTER, THE RATE WILL BE REDUCED TO 75 PERCENT OF THE APPLICABLE RATE. IF TEMPORARY DUTY IS TO BE CONTINUED BEYOND 90 DAYS, PAYMENT OF PER DIEM WILL BE "/1) ELIMINATED ENTIRELY, OR "/2) ACTION TAKEN TO TRANSFER THE EMPLOYEE.

"IF AN EMPLOYEE RETURNS TO HIS OFFICIAL DUTY STATION DURING A PERIOD OF TEMPORARY DUTY FOR 14 DAYS OR LESS, HIS ASSIGNMENT IS INTERRUPTED ONLY AND THEREFORE WHEN HE RETURNS TO THE TEMPORARY DUTY STATION THE COMPUTATION OF THE 60 DAYS PERIOD CONTINUES FROM THE POINT AT WHICH IT STOOD IMMEDIATELY PRIOR TO THE TEMPORARY DISLOCATION.

"WHERE THE ABOVE POLICY WILL CREATE A HARDSHIP ON ANY ONE EMPLOYEE, A JUSTIFICATION MAY BE SUBMITTED TO THE EXECUTIVE OFFICE REQUESTING AN ADMINISTRATIVE DETERMINATION FOR THE CONTINUATION OF PER DIEM BEYOND THE PRESCRIBED PERIOD. ALL SUCH REQUESTS WILL BE CONSIDERED ON AN INDIVIDUAL BASIS ONLY.'

IT IS APPARENT THAT THE FOREGOING LIMITATION IS APPLICABLE ONLY WHEN AN EMPLOYEE IS ON TEMPORARY DUTY AT ONE PARTICULAR STATION AND IS NOT INTENDED TO APPLY WHEN THE EMPLOYEE IS IN A TRAVEL STATUS AND MOVING FROM ONE TEMPORARY DUTY STATION TO ANOTHER, IF OTHERWISE AUTHORIZED. EXAMINATION OF THE SEVERAL VOUCHERS COVERING THE ENTIRE PERIOD OF MR. SWANN'S DUTY INDICATES THAT ASIDE FROM THE PERIOD FROM FEBRUARY 9, 1967, UNTIL APRIL 5, 1967, APPROXIMATELY 56 DAYS, HE DID CONSIDERABLE TRAVELING TO VARIOUS PLACES THROUGHOUT THE REGION IN WHICH HE WAS ASSIGNED, IBADAN, JOS, KADUNA, MANCHOK, MUBI, ENUGU AND HADEJIA, NIGERIA.

IN THE PERIOD YOU ARE QUESTIONING MARCH 29, 1967, TO MAY 10, 1967, HE TRAVELED TO ALMOST EVERY ONE OF THESE TOWNS. CONSEQUENTLY, THE REDUCTION OF PER DIEM AFTER 60 DAYS TO 75 PERCENT AND ITS ELIMINATION OR THE TRANSFER OF THE EMPLOYEE PROVIDED IN SECTION VII WOULD NOT BE FOR APPLICATION. MOREOVER, EVEN IF THE FOREGOING LIMITATIONS WERE APPLICABLE IT IS CONSIDERED THAT THE EXECUTIVE OFFICER'S APPROVAL OF THE VOUCHER WOULD CONSTITUTE AN ADMINISTRATIVE DETERMINATION APPROVING THE CONTINUATION BEYOND THE PRESCRIBED PERIOD. ACCORDINGLY, THE VOUCHER FOR $492.60, RELATING TO PAYMENT OF PER DIEM FOR THE PERIOD MARCH 29, 1967, TO MAY 10, 1967, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.

WITH RESPECT TO THE MAXIMUM ALLOWABLE RATES OF PER DIEM AMERICAN EMBASSY LAGOS, NIGERIA, ADMINISTRATIVE ORDER NO. 402 DATED SEPTEMBER 26, 1966, APPLICABLE TO ALL GOVERNMENT EMPLOYEES IN NIGERIA PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * THE ACTUAL RATE OF PER DIEM AUTHORIZED FOR ANY PARTICULAR PERIOD OF TRAVEL MAY BE ADMINISTRATIVELY REDUCED BELOW THE MAXIMUM RATES PRESCRIBED BY THIS ADMINISTRATIVE ORDER, AS NOTED IN THE FOLLOWING EXCERPT FROM THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PUBLISHED BY THE BUREAU OF THE BUDGET: -IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO 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 PER DIEM IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES-. * * *

"6. MAXIMUM ALLOWABLE RATES OF PER DIEM. THE FOLLOWING MAXIMUM RATES OF PER DIEM ARE APPLICABLE FOR TEMPORARY DUTY IN NIGERIA BY AMERICAN PERSONNEL AND LOCAL EMPLOYEES IN CLASSES FSL-1 THROUGH FSL-6. A RECEIPT FOR PAYMENT FOR QUARTERS MUST BE SUBMITTED WITH TRAVEL VOUCHER:

"6.1 PAYMENT FOR QUARTERS IS L5.0S.0D OR MORE $22.00

"6.2 PAYMENT FOR QUARTERS IS L3.0S.0D OR MORE

BUT LESS THAN L5.0S.0D $18.00

"6.3 WHERE PAYMENT FOR QUARTERS OCCUPIED IS

LESS THAN L3.0S.0D OR TRAVEL VOUCHER IS NOT

SUPPORTED BY A RECEIPT OF PAYMENT FOR QUARTERS $12.00"

THE PURPOSE OF ESTABLISHING THE COST OF PAYMENT FOR QUARTERS UNDER THE FOREGOING REGULATION IS TO SET A BASE UPON WHICH TO CALCULATE A PER DIEM ALLOWANCE WHICH WILL COVER THE EMPLOYEE'S NECESSARY SUBSISTENCE EXPENSES OTHER THAN COST OF QUARTERS. IN ORDER TO ARRIVE AT THIS FIGURE ANY ITEM OF SUBSISTENCE OTHER THAN QUARTERS, SUCH AS BREAKFAST, WOULD HAVE TO BE EXCLUDED.

WE ASSUME YOU WERE UNABLE TO OBTAIN INFORMATION AS TO WHAT COST THE BRISTOL HOTEL ATTRIBUTED TO THE BREAKFAST ITEM WHICH WAS INCLUDED IN THE GENERAL CHARGE FOR "BED AND BREAKFAST.' IF THAT BE THE CASE OR IF NO COST WAS ASSIGNED TO THE BREAKFAST ITEM THEN A REASONABLE EVALUATION WOULD HAVE TO BE PLACED UPON SUCH ITEM AS YOU HAVE DONE. THE FACT THAT MR. SWANN UNDER SUCH CIRCUMSTANCES CHOSE NOT TO EAT BREAKFAST AT THE HOTEL WOULD BE OF NO CONSEQUENCE IN CHANGING THE CHARACTER OF THAT PARTICULAR EXPENSE FROM A SUBSISTENCE (OTHER THAN QUARTERS) EXPENSE TO A QUARTERS EXPENSE.

ACCORDINGLY, THE VOUCHER FOR $380 MAY NOT BE CERTIFIED FOR PAYMENT ON THE BASIS OF THE PRESENT RECORD.