B-169234, MAY 4, 1970, 49 COMP. GEN. 753

B-169234, MAY 4, 1970, 49 COMP. GEN. 753

SUBSISTENCE -- PER DIEM -- ACTUAL EXPENSES -- DETERMINATION ALTHOUGH UTILITY CHARGES ORDINARILY ARE INCLUDED IN THE PRICE OF A HOTEL OR MOTEL ROOM, THE INCLUSION BY AN EMPLOYEE WHO RENTED AN APARTMENT WHILE IN A TRAVEL STATUS OF A SEPARATE CHARGE FOR ELECTRICITY AS PART OF HIS LODGING EXPENSES APPEARS PROPER UNDER AN ADMINISTRATIVE REGULATION GIVING EFFECT TO PUBLIC LAW 91-114, WHICH INCREASED THE DAILY MAXIMUM PER DIEM RATE AND ACTUAL SUBSISTENCE ALLOWANCE PAYABLE WITHIN THE CONTINENTAL UNITED STATES. HOWEVER, THE REGULATION IN REQUIRING THE ACTUAL EXPENSES OF LODGINGS SUPPORTED BY RECEIPTS TO BE ADDED TO A FLAT AMOUNT FOR FOOD AND OTHER SUBSISTENCE EXPENSES GOES TOO FAR IN THE USE OF ACTUAL EXPENSES TO DETERMINE AN EMPLOYEE'S PER DIEM ENTITLEMENT UNDER SECTION 6.12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND THE REGULATION SHOULD BE CORRECTED.

TO BEECHER F. LEWIS, UNITED STATES DEPARTMENT OF THE INTERIOR, MAY 4, 1970:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 26, 1970, REFERENCE SPA FMF, REQUESTING OUR DECISION AS TO THE ALLOWABILITY OF A VOUCHER FOR $14.21 IN FAVOR OF MR. AUGUST D. COPELAND, AN EMPLOYEE OF YOUR AGENCY, FOR ELECTRICITY FOR THE APARTMENT HE RENTED WHILE IN TRAVEL STATUS.

THE RECORD INDICATES THAT FOR THE PERIOD JANUARY 1-31, 1970, MR. COPELAND SUBMITTED A TRAVEL VOUCHER IN THE AMOUNT OF $433.21, $279 FOR FOOD (31 DAYS AT THE RATE OF $9 PER DAY) AND $154.21 FOR LODGING. THE VOUCHER WAS PAID WITH THE EXCEPTION OF AN ITEM OF $14.21 REPRESENTING THE AMOUNT OF AN ELECTRIC BILL FOR 13 DAYS.

WHILE THE TRAVEL AUTHORIZATION WAS NOT FORWARDED, YOU INDICATE THAT THERE IS FOR APPLICATION THE PER DIEM RATES PRESCRIBED IN SOUTHWESTERN POWER ADMINISTRATION MANUAL, PART 347.3.1 APPENDIX 2. THE REGULATIONS, AS AMENDED EFFECTIVE NOVEMBER 18, 1969, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

A. SUBJECT TO THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, UNLESS TRAVEL IS AUTHORIZED ON AN ACTUAL SUBSISTENCE EXPENSE BASIS AS PROVIDED IN 347.4.1, THE PER DIEM ALLOWANCE FOR TEMPORARY DUTY TRAVEL OF SPA EMPLOYEES WITHIN THE CONTINENTAL UNITED STATES SHALL BE AS FOLLOWS:

1. FOR TRAVEL WITHIN THE SIX-STATE AREA OF SPA OPERATIONS (ARKANSAS, KANSAS, LOUISIANA, MISSOURI, OKLAHOMA, AND TEXAS) THE ALLOWANCE IN LIEU OF SUBSISTENCE SHALL BE $9.00 PER DAY FOR FOOD AND OTHER SUBSISTENCE EXPENSES, PLUS NOT TO EXCEED $12.00 PER DAY FOR ACTUAL LODGING EXPENSES, INCLUDING TAX. RECEIPTS FOR LODGING EXPENSES SHALL BE ATTACHED TO THE TRAVELER'S REIMBURSEMENT VOUCHER TO DOCUMENT LODGING EXPENSES.

THE ELECTRIC BILL WAS ADMINISTRATIVELY DISALLOWED DUE TO DOUBT AS TO WHETHER IT COULD BE CONSIDERED LODGING EXPENSE. MR. COPELAND RECLAIMS THE ITEM ON THE GROUND THAT THE ELECTRIC SERVICE WAS USED TO FURNISH HEAT, LIGHTS, AND HOT WATER FOR THE RENTED APARTMENT.

YOU RECOGNIZE THAT THE ADMINISTRATIVE REGULATION CITED PERMITS THE PAYMENT OF LODGING EXPENSE, BUT YOU EXPRESS THE OPINION THAT IT MAY BE IN CONFLICT WITH SECTION 6.12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR). YOU REQUEST OUR DECISION AS TO WHETHER THE PRESENT VOUCHER MAY BE PAID AND, IF SO, WHETHER OTHER UTILITY BILLS SHOULD BE CONSIDERED AS PART OF MR. COPELAND'S LODGING EXPENSE PROVIDED LODGING DOES NOT EXCEED $12 PER DAY.

THE DIRECTOR, BUREAU OF THE BUDGET, AMENDED SGTR BY TRANSMITTAL MEMORANDUM NO. 9, NOVEMBER 10, 1969, TO GIVE EFFECT TO PUBLIC LAW 91 114, NOVEMBER 10, 1969, 5 U.S.C. 5702(A), WHICH INCREASED THE DAILY MAXIMUM PER DIEM RATE AND ACTUAL SUBSISTENCE ALLOWANCE PAYABLE WITHIN THE CONTINENTAL UNITED STATES TO $25 AND $40, RESPECTIVELY. THE AMENDING MEMORANDUM STRESSES THE FACT THAT THE INCREASED RATES ARE MAXIMUM RATES AND THAT THE REGULATIONS PLACE THE RESPONSIBILITY ON EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. THE MEMORANDUM ALSO CITES SEVERAL FACTORS TO BE CONSIDERED IN SETTING PER DIEM RATES, SUCH AS ESTABLISHED COST EXPERIENCE IN THE LOCALITIES WHERE LODGING AND MEALS WILL BE REQUIRED. THE ADMINISTRATIVE REGULATION IN QUESTION WAS APPARENTLY CONSIDERED A PRACTICAL METHOD OF COMPLYING WITH THE CRITERIA IN THE MEMORANDUM WITHOUT PRESCRIBING RATES FOR EACH AND EVERY LOCALITY WHERE TRAVELERS MIGHT PERFORM TEMPORARY DUTY. YOUR DOUBT AS TO THE PROPRIETY OF THE ADMINISTRATIVE REGULATION APPARENTLY STEMS FROM THE FACT THAT IT PROVIDES FOR A VARIABLE SUBSISTENCE ALLOWANCE BASED ON ACTUAL COSTS OF LODGING. THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SECTION 6.2, SGTR) PROVIDES FOR SUBSISTENCE IN THE FORM OF A DEFINITE RATE OF PER DIEM OR REIMBURSEMENT OF ACTUAL EXPENSES (SECTION 6.12, SGTR). THE LATTER REQUIRES AN ITEMIZATION OF ALL LODGING AND SUBSISTENCE EXPENSES.

WE HAVE RECOGNIZED THAT A PER DIEM RATE MAY BE DETERMINED BY REFERENCE TO AN EMPLOYEE'S AVERAGE LODGING COST WHILE IN A TRAVEL STATUS PERFORMING TEMPORARY DUTY. SEE COPY OF OUR REGULATIONS IN THAT RESPECT (CGO 1.17) WHICH DO NOT REQUIRE RECEIPTS FOR LODGING. ALSO NOTE THAT THE LODGING IS ROUNDED OFF TO THE NEXT HIGHEST DOLLAR. HOWEVER, SEE OUR DECISION OF FEBRUARY 12, 1970, 49 COMP. GEN. 493, WHEREIN WE QUESTIONED THE VALIDITY OF A REGULATION WHICH PROPOSED TO COMBINE ACTUAL EXPENSES WITH PER DIEM. IN THAT CASE THE REGULATION STATED THAT AN AMOUNT UP TO $25 PER DAY WOULD BE APPROVED WHERE THE TRAVELER INCURS ACTUAL COST IN EXCESS OF $20, BUT NOT IN EXCESS OF $25 PER DAY.

IN THE INSTANT CASE THE REGULATION REQUIRES THE ACTUAL EXPENSES OF LODGING SUPPORTED BY RECEIPTS (WITH NO AVERAGING OR ROUNDING OFF) TO BE ADDED TO A FLAT AMOUNT FOR FOOD AND OTHER SUBSISTENCE EXPENSES. THIS IN OUR OPINION GOES TOO FAR IN THE USE OF ACTUAL EXPENSES TO DETERMINE AN EMPLOYEE'S PER DIEM RATE AND IS OBJECTIONABLE ON THE SAME GROUNDS AS THE REGULATION DISAPPROVED OF IN OUR DECISION OF FEBRUARY 12, 1970, ABOVE. WHILE WE WILL NOT INTERPOSE ANY OBJECTION TO PAYMENT OF PER DIEM IN ACCORDANCE WITH TRAVEL ORDERS PREPARED UNDER SUCH REGULATIONS, WE SUGGEST THAT THIS DECISION BE BOUGHT TO THE ATTENTION OF THE PROPER ADMINISTRATIVE OFFICIAL SO THAT THE REGULATION MAY BE CORRECTED.

AS TO THE PRIMARY QUESTION OF WHETHER A SEPARATE CHARGE FOR ELECTRICITY SHOULD BE INCLUDED IN LODGING EXPENSES, WE POINT OUT THAT CERTAIN 1TILITY CHARGES SUCH AS ELECTRICITY ARE ORDINARILY INCLUDED IN THE PRICE OF A HOTEL OR MOTEL ROOM AND HAVE OTHERWISE BEEN REGARDED AS A NECESSARY PART OF THE TOTAL COST OF QUARTERS OR LODGING. IN VIEW OF THIS THE INCLUSION OF THE ELECTRICITY CHARGE AS A PART OF LODGING EXPENSES APPEARS PROPER.

THE VOUCHER IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE PROPER.