B-173119, AUG 20, 1971, 51 COMP GEN 100

B-173119: Aug 20, 1971

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ENGAGED IN FLOATING PLANT OPERATIONS MAY NOT BE OBTAINED BY CONTRACT IN LIEU OF THE INDIVIDUAL ALLOWANCE TO EACH EMPLOYEE THAT IS PRESCRIBED BY THE SECTION FOR EMPLOYEES PREVENTED FROM BOARDING A VESSEL BECAUSE OF HAZARDOUS WEATHER CONDITIONS OR BECAUSE THE VESSEL IS IN A SHIPYARD UNDERGOING REPAIRS SINCE THE PURPOSE OF SECTION 5947 IS TO SUBSTITUTE AN ALLOWANCE WHEN QUARTERS AND SUBSISTENCE CANNOT BE PROVIDED ON BOARD A VESSEL. THE FURNISHING OF QUARTERS IN ACCORDANCE WITH 5 U.S.C. 5911 IS NOT PRECLUDED. OUR OPINION IS REQUESTED REGARDING THE PROVISIONS OF 5 U.S.C. 5947 AS ENACTED BY PUBLIC LAW 91-656. IS DETERMINED TO BE EQUITABLE TO THE EMPLOYEE CONCERNED. ARE NOT AVAILABLE ON THE VESSEL WHILE IT IS UNDERGOING REPAIRS.

B-173119, AUG 20, 1971, 51 COMP GEN 100

VESSELS - CREWS - QUARTERS AND SUBSISTENCE ON BOARD VESSELS - UNAVAILABLE THE QUARTERS AND SUBSISTENCE AUTHORIZED BY 5 U.S.C. 5947 TO BE FURNISHED ABOARD VESSELS WITHOUT CHARGE TO EMPLOYEES OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ENGAGED IN FLOATING PLANT OPERATIONS MAY NOT BE OBTAINED BY CONTRACT IN LIEU OF THE INDIVIDUAL ALLOWANCE TO EACH EMPLOYEE THAT IS PRESCRIBED BY THE SECTION FOR EMPLOYEES PREVENTED FROM BOARDING A VESSEL BECAUSE OF HAZARDOUS WEATHER CONDITIONS OR BECAUSE THE VESSEL IS IN A SHIPYARD UNDERGOING REPAIRS SINCE THE PURPOSE OF SECTION 5947 IS TO SUBSTITUTE AN ALLOWANCE WHEN QUARTERS AND SUBSISTENCE CANNOT BE PROVIDED ON BOARD A VESSEL, AND THE AUTHORITY TO FURNISH QUARTERS OR SUBSISTENCE, OR BOTH, "ON VESSELS, WITHOUT CHARGE" DOES NOT AUTHORIZE THE FURNISHING OF QUARTERS AND SUBSISTENCE OFF A VESSEL WITHOUT CHARGE IN LIEU OF AN ALLOWANCE PAYMENT. HOWEVER, THE FURNISHING OF QUARTERS IN ACCORDANCE WITH 5 U.S.C. 5911 IS NOT PRECLUDED.

TO THE SECRETARY OF THE ARMY, AUGUST 20, 1971:

THIS REFERS TO LETTER OF MAY 26, 1971, REFERENCE ENGGC-C, FROM MR. E. MANNING SELTZER, GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY. OUR OPINION IS REQUESTED REGARDING THE PROVISIONS OF 5 U.S.C. 5947 AS ENACTED BY PUBLIC LAW 91-656, APPROVED JANUARY 8, 1971, AS THEY AFFECT THE FURNISHING ASHORE BY CONTRACT OF QUARTERS AND SUBSISTENCE TO CREW MEMBERS UNDER THE CIRCUMSTANCES DESCRIBED HEREIN.

SECTION 5947, TITLE 5, U.S.C. PROVIDES IN PERTINENT PART:

SEC 5947. QUARTERS, SUBSISTENCE, AND ALLOWANCES FOR EMPLOYEES OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ENGAGED IN FLOATING PLANT OPERATIONS.

(A) AN EMPLOYEE OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ENGAGED IN FLOATING PLANT OPERATIONS, MAY BE FURNISHED QUARTERS OR SUBSISTENCE, OR BOTH, ON VESSELS, WITHOUT CHARGE, WHEN THE FURNISHING OF THE QUARTERS OR SUBSISTENCE, OR BOTH, IS DETERMINED TO BE EQUITABLE TO THE EMPLOYEE CONCERNED, AND NECESSARY IN THE PUBLIC INTEREST, IN CONNECTION WITH SUCH OPERATIONS.

(B) NOTWITHSTANDING SECTION 5536 OF THIS TITLE, AN EMPLOYEE ENTITLED TO THE BENEFITS OF SUBSECTION (A) OF THIS SECTION WHILE ON A VESSEL, MAY BE PAID, IN PLACE OF THESE BENEFITS, AN ALLOWANCE FOR QUARTERS OR SUBSISTENCE, OR BOTH, WHEN -

(1) ADVERSE WEATHER CONDITIONS OR SIMILAR CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE OR THE CORPS OF ENGINEERS PREVENT TRANSPORTATION OF THE EMPLOYEE FROM SHORE TO THE VESSEL; OR

(2) QUARTERS OR SUBSISTENCE, OR BOTH, ARE NOT AVAILABLE ON THE VESSEL WHILE IT IS UNDERGOING REPAIRS.

(C) THE QUARTERS OR SUBSISTENCE, OR BOTH, OR ALLOWANCES IN PLACE THEREOF, MAY BE FURNISHED OR PAID ONLY UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE ARMY.

IT IS INDICATED IN THE LETTER THAT IN THE SITUATION CONTEMPLATED BY SUBSECTION 5947B(2), QUOTED ABOVE, WHEN A DREDGE IS UNDERGOING REPAIRS IT MAY BE FEASIBLE TO OBTAIN SUBSISTENCE AND QUARTERS FOR EMPLOYEES BY CONTRACT AT LESS EXPENSE THAN WOULD BE INVOLVED IN PAYING INDIVIDUAL ALLOWANCES AND REQUIRING EACH EMPLOYEE TO OBTAIN MEALS AND QUARTERS ON AN INDIVIDUAL BASIS. THE OPINION IS EXPRESSED THAT 5 U.S.C. 5947 MAY BE INTERPRETED AS PERMITTING THE FURNISHING OF SUBSISTENCE AND QUARTERS BY CONTRACT RATHER THAN THE PAYMENT OF AN ALLOWANCE THEREFOR WHEN EMPLOYEES ARE TEMPORARILY OFF THE VESSEL WHILE IT IS UNDERGOING REPAIRS. IT IS STATED IN THE LETTER:

A LITERAL INTERPRETATION OF 5 U.S.C. 5947 MIGHT SEEM TO REQUIRE THAT THE SUBSISTENCE AND QUARTERS ARE TO BE FURNISHED ON THE VESSEL. HOWEVER, WHEN ONE OF THE CONDITIONS OF EMPLOYMENT, NAMELY THE FURNISHING OF SUBSISTENCE AND QUARTERS, IS MADE IMPOSSIBLE BY THE GOVERNMENT'S ACTION IN PLACING THE VESSEL IN THE REPAIR YARDS, THE DUTY STATION BECOMES NOT ONLY THE VESSEL ITSELF, BUT ALSO THE REPAIR YARD AND ENVIRONS. IT IS OUR OPINION THAT A REASONABLE INTERPRETATION OF 5 U.S.C. 5947 WOULD AUTHORIZE THE FURNISHING OF SUBSISTENCE AND QUARTERS BY CONTRACT AT SUCH TIMES AS DREDGE CREW MEMBERS MUST BE TEMPORARILY OFF THE VESSEL DUE TO ITS UNDERGOING REPAIRS.

SINCE OUR INTERPRETATION DOES RELATE TO THE LEGALITY OF EXPENDITURE OF PUBLIC FUNDS UNDER WHAT WOULD BE RECURRING CONTRACTS, WE ARE REQUESTING AN ADVANCE OPINION OF THE COMPTROLLER GENERAL CONCERNING THE PROPRIETY OF SUCH CONTRACTS FOR FURNISHING QUARTERS AND/OR SUBSISTENCE.

OUR REVIEW OF THE LEGISLATIVE HISTORY OF 5 U.S.C. 5947 INDICATES NOTHING THAT WOULD SUPPORT THE INTERPRETATION SUGGESTED. THE PURPOSE OF SECTION 5947, AS INDICATED IN THE HOUSE CONFERENCE REPORT NO. 91 1685, IS TO GRANT AN ADDITIONAL ALLOWANCE TO EMPLOYEES OF THE CORPS OF ENGINEERS ENGAGED IN FLOATING PLANT OPERATIONS WHEN THEY ARE PREVENTED FROM BOARDING THE VESSEL UNDER CIRCUMSTANCES BEYOND THEIR CONTROL, SUCH AS HAZARDOUS WEATHER CONDITIONS OR WHILE THE VESSEL IS IN A SHIPYARD FOR REPAIRS. THE LEGISLATIVE HISTORY CONTAINS REFERENCES TO THE ALLOWANCE PROVIDED FOR BY THE ACT IN TERMS OF WHEN EMPLOYEES CANNOT BE ON THE VESSELS. IT IS STATED IN HOUSE REPORT NO. 1865 AS FOLLOWS:

THE PROBLEM HAS RESULTED BECAUSE THESE VESSELS MUST OPERATE ON EXTENDED SCHEDULES, SUCH AS 24 HOURS PER DAY FOR AT LEAST 5 DAYS PER WEEK, AND OFTEN ON A 7-DAY-PER-WEEK SCHEDULE. THE CREW COMPLEMENT FOR MOST OF THESE VESSELS IS LARGE, VARYING FROM 50-125. UNDER THIS TYPE OF SCHEDULE, IT IS NECESSARY TO USE SEPARATE CREWS ON A ROTATING SHIFT BASIS, WITH CREW CHANGES OCCURRING EVERY 5 TO 12 DAYS. CREW CHANGES FREQUENTLY REQUIRE TRANSPORTATION OF THE CREW BY LAUNCH FROM A DESIGNATED PICKUP POINT, TO THE DREDGE WHENEVER THE DREDGE CANNOT USE A BERTH OR DOCK. UNDER ADVERSE WEATHER CONDITIONS, SUCH AS HEAVY FOG OR SEVERE STORMS, IT IS IMPRACTICABLE TO TRANSPORT THE CREW TO THE DREDGE TO BEGIN ITS SHIFT. UNDER THESE OR SIMILAR CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEES, THERE HAS BEEN NO AUTHORITY TO FURNISH AN ALLOWANCE IN LIEU OF FURNISHING SUBSISTENCE AND QUARTERS THAT ARE AVAILABLE TO THEM ON THE VESSEL. THE CREW MEMBERS HAVE HAD TO OBTAIN FOOD AND LODGINGS AT THEIR OWN EXPENSE IN AVAILABLE ACCOMMODATIONS, UNTIL TRANSPORTATION COULD BE FURNISHED.

THE NATURE OF DREDGING OPERATIONS IS SUCH THAT THESE VESSELS MUST RECEIVE A MAJOR OVERHAUL APPROXIMATELY EVERY 12 TO 18 MONTHS. SINCE THESE ARE LARGE VESSELS ESSENTIAL TO MAINTAINING NAVIGABLE DEPTHS IN MAJOR HARBORS OF THE UNITED STATES, EVERY EFFORT IS MADE TO ARRANGE AN OVERHAUL SCHEDULE TO RETURN THEM TO SERVICE IN THE SHORTEST POSSIBLE TIME. THUS, IT IS SOMETIMES NECESSARY TO SCHEDULE REPAIRS TO THE GALLEY, MESSING, AND QUARTERING FACILITIES SIMULTANEOUS WITH THE REPAIRS TO THE HULL AND OPERATING MACHINERY. DURING THESE PERIODS, CREW MEMBERS ASSISTING IN THE OVERHAUL MUST PROVIDE THEIR OWN FOOD AND LODGINGS IN PUBLIC ACCOMMODATIONS, SINCE IT IS NOT POSSIBLE TO USE THE MESSING AND QUARTERING FACILITIES ABOARD THE VESSEL.

THE HOUSE REPORT GIVES THE FOLLOWING EXPLANATION OF SUBSECTION (B) OF THE NEW SECTION 5947:

SUBSECTION (B) OF THE NEW SECTION 5947 CONTAINS ADDITIONAL AUTHORITY FOR THE CORPS OF ENGINEERS TO FURNISH AN APPROPRIATE ALLOWANCE IN PLACE OF THE QUARTERS OR SUBSISTENCE WHEN CIRCUMSTANCES BEYOND THE CONTROL OF THE CORPS OF ENGINEERS OR THE EMPLOYEE PREVENT THE FURNISHING OF THE QUARTERS OR SUBSISTENCE. IT IS EXPECTED THAT THIS AUTHORITY WILL BE UTILIZED PARTICULARLY IN THOSE CASES WHERE HAZARDOUS WEATHER CONDITIONS PREVENT THE EMPLOYEE FROM BOARDING THE VESSEL, OR WHEN EMPLOYEES WHO ARE ON DUTY WITH THE VESSEL ARE PREVENTED FROM BEING FURNISHED QUARTERS OR SUBSISTENCE ON THE VESSEL WHILE IT IS UNDERGOING REPAIRS IN A SHIPYARD.

IN VIEW OF THE ABOVE, AND THE SPECIFIC LANGUAGE OF THE ACT AUTHORIZING THE FURNISHING OF QUARTERS OR SUBSISTENCE "ON VESSELS, WITHOUT CHARGE" WE DO NOT FEEL THAT AN INTERPRETATION OF THE ACT AS AUTHORIZING THE FURNISHING OF QUARTERS AND SUBSISTENCE OFF THE VESSEL, WITHOUT CHARGE, IN LIEU OF AN ALLOWANCE CAN BE LEGALLY JUSTIFIED. THIS CONCLUSION IS NOT INTENDED TO PRECLUDE THE FURNISHING OF QUARTERS IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5911. SEE 44 COMP. GEN. 626 (1965).

THE QUESTION IS ANSWERED ACCORDINGLY.