B-164219, MAY 20, 1968, 47 COMP. GEN. 662

B-164219, MAY 20, 1968, 47 COMP. GEN. 662

OFFICERS AND EMPLOYEES - TRAINING - TRANSPORTATION AND/OR PER DIEM - EXPENSES ASSUMED BY AND REIMBURSED TO CONTRACTOR THE BUREAU OF INDIAN AFFAIRS AUTHORIZED UNDER 5 U.S.C. 4109 TO PAY THE NECESSARY EXPENSES OF TRAINING EMPLOYEES PURSUANT TO SECTION 4105 MAY IN NEGOTIATING A FIXED PRICE CONTRACT WITH A UNIVERSITY TO DESIGN AND COORDINATE EDUCATIONAL WORKSHOPS TO BE SUBCONTRACTED, AND TO PERFORM ALL THE ADMINISTRATIVE FUNCTIONS OF THE PROGRAM, PROVIDE FOR THE CONTRACTOR TO PAY THE TRANSPORTATION COST AND PER DIEM OF BUREAU PARTICIPANTS IN THE WORKSHOPS. HOWEVER, AS THE AMOUNTS PAYABLE TO THE CONTRACTOR FOR THE TRAVEL EXPENSES AND PER DIEM MAY NOT EXCEED THE AMOUNTS THAT WOULD BE DIRECTLY PAYABLE TO THE EMPLOYEES UNDER 5 U.S.C. 4109 (A), REIMBURSEMENT TO THE CONTRACTOR SHOULD BE ON AN ACTUAL EXPENSE BASIS, AND THE AMOUNTS REIMBURSED CHARGED TO THE FISCAL YEAR APPROPRIATION AVAILABLE AT THE TIME THE TRAVEL EXPENSES WERE INCURRED BY THE EMPLOYEES.

TO THE SECRETARY OF THE INTERIOR, MAY 20, 1968:

WE REFER TO LETTER OF MAY 2, 1968, FROM YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTING A DECISION UPON THREE QUESTIONS ARISING IN CONNECTION WITH A PROPOSED CONTRACTUAL ARRANGEMENT BETWEEN THE BUREAU OF INDIAN AFFAIRS AND NORTHERN ARIZONA UNIVERSITY. THE PROPOSAL IS FOR THE BUREAU OF INDIAN AFFAIRS TO NEGOTIATE A FIXED PRICE CONTRACT WITH THE UNIVERSITY WHO IN TURN WILL SUBCONTRACT WITH CERTAIN OTHER UNIVERSITIES TO CONDUCT A NUMBER OF EDUCATIONAL WORKSHOPS DURING THE COMING SUMMER WITH AN EVALUATION SESSION TO BE HELD IN THE FALL FOR APPROXIMATELY 1,000 ADMINISTRATORS OF THE BUREAU OF INDIAN AFFAIRS. UNDER THE PROPOSED CONTRACT THE CONTRACTOR WILL DESIGN AND COORDINATE THE PROGRAM WITH THE VARIOUS SUBCONTRACTOR UNIVERSITIES AND WILL PERFORM ALL ADMINISTRATIVE FUNCTIONS, INCLUDING PAYMENT OF TRANSPORTATION COSTS TO AND FROM THE DESIGNATED UNIVERSITIES AND A SPECIFIED PER DIEM ALLOWANCE TO EACH PARTICIPANT. ALSO, THE CONTRACTOR WILL CONDUCT CERTAIN OF THE WORKSHOPS ON ITS CAMPUS.

THE SPECIFIC QUESTIONS RAISED BY YOUR DEPARTMENT'S LETTER ARE AS FOLLOWS:

1. IT IS (IS IT) (SIC) PERMISSIBLE TO INCLUDE IN THE CONTRACT A PROVISION FOR THE CONTRACTOR UNIVERSITY, IN ITS ROLE AS COORDINATING AGENT, TO PAY THE TRANSPORTATION COST AND PER DIEM TO THE BUREAU PARTICIPANTS? IN THIS CONNECTION YOU ARE ADVISED THAT THE CONTRACTOR IS A TAX EXEMPT UNIVERSITY AND THE TAX NORMALLY CHARGED BY COMMON CARRIERS IS NOT APPLICABLE.

2. IF THE ANSWER TO THE FIRST QUESTION IS AFFIRMATIVE CAN THE CONTRACT SPAN THE TWO FISCAL YEARS (1968-1969) INSOFAR AS TRANSPORTATION AND PER DIEM ARE CONCERNED, IN VIEW OF THE EXPIRATION OF THE FUNDS AT THE END OF FY 1968?

3. IF THE ANSWER TO THE FIRST QUESTION IS NEGATIVE WILL IT BE PERMISSIBLE TO INCLUDE IN THE CONTRACT A REQUIREMENT THAT THE CONTRACTOR PROVIDE FOOD AND LODGING WITH AN APPROPRIATE AMOUNT THEREFOR TO BE DEDUCTED FROM THE PARTICIPANT'S PER DIEM PAYMENT IN ACCORDANCE WITH TRAVEL REGULATIONS?

WE UNDERSTAND THAT THE AUTHORITY UNDER WHICH THE CONTRACT WOULD BE ENTERED INTO IS THAT CONTAINED IN CHAPTER 41 OF TITLE 5, UNITED STATES CODE. SECTION 4105 OF THAT TITLE IS IN PART AS FOLLOWS:

(A) THE HEAD OF AN AGENCY, WITHOUT REGARD TO SECTION 5 OF TITLE 41, MAY MAKE AGREEMENTS OR OTHER ARRANGEMENTS FOR THE TRAINING OF EMPLOYEES OF THE AGENCY BY, IN, OR THROUGH NON-GOVERNMENT FACILITIES UNDER THIS CHAPTER. SECTION 4109 OF TITLE 5 IS IN PART AS FOLLOWS:

(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118 (A) (8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY---

(2) PAY, OR REIMBURSE THE EMPLOYEE FOR, ALL OR A PART OF THE NECESSARY EXPENSES OF THE TRAINING, WITHOUT REGARD TO SECTION 529 OF TITLE 31, INCLUDING AMONG THE EXPENSES THE NECESSARY COSTS OF---

(A) TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE OR, IN THE CASE OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, SECTIONS 404 AND 405 OF TITLE 37, AND THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES;

UNDER THE QUOTED SECTION 4109 AN AGENCY MAY PAY THE NECESSARY EXPENSES OF TRAINING ON BEHALF OF THE EMPLOYEE OR IT MAY REIMBURSE THE EMPLOYEE FOR NECESSARY TRAINING EXPENSES PAID BY HIM INCIDENT TO AUTHORIZED TRAINING. WE FIND NOTHING IN THE SECTION PRECLUDING AN AGENCY FROM CONTRACTING WITH A TRAINING FACILITY TO FURNISH OR PAY FOR ALL NECESSARY FACILITIES AND ACCOMMODATIONS--- INCLUDING MEALS AND LODGING (OR A PER DIEM ALLOWANCE IN LIEU THEREOF) AND TRANSPORTATION--- INCIDENT TO SUCH TRAINING.

HOWEVER, THE AMOUNTS PAYABLE TO A CONTRACTOR ON ACCOUNT OF TRAVEL EXPENSES AND PER DIEM MAY NOT EXCEED THE AMOUNT THE BUREAU COULD EXPEND UNDER 5 U.S.C. 4109 (A), ABOVE, WERE IT TO PAY THE TRAVEL AND PER DIEM TO THE EMPLOYEE PARTICIPATING IN THE TRAINING DIRECTLY. THEREFORE, OUR OPINION IS THAT A PROVISION SHOULD BE INCLUDED IN THE CONTRACT FOR ADJUSTMENT OF THE CONTRACT PRICE IN THE EVENT MORE OR LESS THAN THE CONTEMPLATED NUMBER OF PERSONS ATTEND THE TRAINING WORKSHOPS WITH RESULTANT DIFFERENCES IN CONTEMPLATED EXPENDITURES BY THE CONTRACTOR FOR TRAVEL AND PER DIEM. IN SUCH CONNECTION IT OCCURS TO US THAT IT WOULD BE SIMPLER AND MORE PRACTICAL TO INCLUDE A PROVISION IN THE CONTRACT TO THE EFFECT THAT THE CONTRACT PRICE IS EXCLUSIVE OF THE TRAVEL EXPENSES AND PER DIEM PAYABLE BY THE CONTRACTOR TO OR ON BEHALF OF BUREAU EMPLOYEES ATTENDING THE WORKSHOPS, AND THAT IN ADDITION TO THE CONTRACT PRICE THE CONTRACTOR IS ENTITLED TO REIMBURSEMENT FOR THE ACTUAL AMOUNTS OF TRAVEL AND TRANSPORTATION EXPENSES (INCLUDING PER DIEM) PAID TO OR ON BEHALF OF BUREAU EMPLOYEES ATTENDING SUCH WORKSHOPS BUT IN NO EVENT TO EXCEED THE AMOUNTS THE BUREAU COULD HAVE PAID DIRECTLY ON SUCH ACCOUNT UNDER THE PROVISIONS OF 5 U.S.C. 4109 (A). YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

CONCERNING YOUR SECOND QUESTION, THE FISCAL YEAR APPROPRIATION CHARGEABLE WITH THE TRAVEL OF THE BUREAU EMPLOYEES CONCERNED WOULD BE THE APPROPRIATION AVAILABLE AT THE TIME THE TRAVEL EXPENSES ARE INCURRED. THE FISCAL YEAR LIMITATION ON THE OBLIGATION OF THE 1968 FISCAL YEAR FUNDS CANNOT BE AVOIDED BY EMBODYING A PROVISION IN THE CONTEMPLATED CONTRACT COVERING TRAVEL AND PER DIEM OF EMPLOYEES IN THE SUCCEEDING FISCAL YEAR.

IN VIEW OF OUR REPLY TO YOUR FIRST QUESTION NO ANSWER IS REQUIRED TO BE MADE TO YOUR THIRD QUESTION.