B-176295, AUG 4, 1972

B-176295: Aug 4, 1972

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AN IMPLICIT PREREQUISITE TO THE GOVERNMENT ASSUMING THE COST OF THE SHIPMENT OF THE VEHICLE IS THAT AT THE TIME OF SHIPMENT IT IS OWNED BY THE EMPLOYEE. THE OWNERSHIP REQUIREMENT IS NOT SATISFIED. REIMBURSEMENT IS NOT AUTHORIZED. SECRETARY: REFERENCE IS MADE TO A LETTER DATED JUNE 15. AS TYPICAL OF THE CLASS OF SITUATION HERE INVOLVED THERE HAS BEEN BROUGHT TO OUR ATTENTION THE CLAIM INVOLVING AN EMPLOYEE WHO WAS TRANSFERRED FROM PANAMA TO PORT LOUIS. OR AIR TRANSPORTATION OF THE MOTOR VEHICLE IS NECESSARY OR EXPEDIENT FOR ALL OR ANY PART OF THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION. THE REGULATIONS PERTAINING TO THE PRESENT CLAIM ARE AS FOLLOWS (REFERENCES ARE TO 6 FOREIGN AFFAIRS MANUAL): "165.1 AUTHORIZED TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES "A TRAVEL AUTHORIZATION WHICH INCLUDES AUTHORITY FOR THE TRANSPORTATION OF EFFECTS CONSTITUTES AUTHORITY FOR THE TRANSPORTATION OF ONE MOTOR VEHICLE OWNED BY THE EMPLOYEE ...

B-176295, AUG 4, 1972

CIVILIAN EMPLOYEE - PRIVATELY-OWNED VEHICLE - SHIPMENT DECISION THAT THE DEPARTMENT OF STATE MAY NOT REIMBURSE AN EMPLOYEE THE COSTS INCURRED FOR THE SHIPMENT OF A VEHICLE FROM ITS PLACE OF MANUFACTURE TO THE EMPLOYEE'S POST OF ASSIGNMENT. UNDER THE CONTROLLING REGULATIONS, AN IMPLICIT PREREQUISITE TO THE GOVERNMENT ASSUMING THE COST OF THE SHIPMENT OF THE VEHICLE IS THAT AT THE TIME OF SHIPMENT IT IS OWNED BY THE EMPLOYEE. IN THE SITUATION CITED HEREIN, THE OWNERSHIP REQUIREMENT IS NOT SATISFIED, AND REIMBURSEMENT IS NOT AUTHORIZED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JUNE 15, 1972, FROM YOUR ASSISTANT SECRETARY FOR ADMINISTRATION WHICH REQUESTS OUR DECISION AS TO WHETHER THE DEPARTMENT OF STATE MAY PROPERLY REIMBURSE AN EMPLOYEE THE COSTS INCURRED FOR THE SHIPMENT OF A VEHICLE FROM ITS PLACE OF MANUFACTURE TO THE EMPLOYEE'S POST OF ASSIGNMENT.

AS TYPICAL OF THE CLASS OF SITUATION HERE INVOLVED THERE HAS BEEN BROUGHT TO OUR ATTENTION THE CLAIM INVOLVING AN EMPLOYEE WHO WAS TRANSFERRED FROM PANAMA TO PORT LOUIS, MAURITIUS. AS STATED IN THE LETTER OF JUNE 15, 1972, THE RECORD INDICATES THAT:

"*** THIS CLAIM ARISES UNDER SECTION 913 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AND IMPLEMENTING REGULATIONS (6 FOREIGN AFFAIRS MANUAL 165).

"SECTION 913 (22 U.S.C. SEC 1138), IN RELEVANT PART, PROVIDES:

"THE SECRETARY MAY, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, TRANSPORT FOR OR ON BEHALF OF AN OFFICER OR EMPLOYEE OF THE (FOREIGN) SERVICE, A PRIVATELY OWNED MOTOR VEHICLE IN ANY CASE IN WHICH HE SHALL DETERMINE THAT WATER, RAIL, OR AIR TRANSPORTATION OF THE MOTOR VEHICLE IS NECESSARY OR EXPEDIENT FOR ALL OR ANY PART OF THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION.

THE REGULATIONS PERTAINING TO THE PRESENT CLAIM ARE AS FOLLOWS (REFERENCES ARE TO 6 FOREIGN AFFAIRS MANUAL):

"165.1 AUTHORIZED TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES

"A TRAVEL AUTHORIZATION WHICH INCLUDES AUTHORITY FOR THE TRANSPORTATION OF EFFECTS CONSTITUTES AUTHORITY FOR THE TRANSPORTATION OF ONE MOTOR VEHICLE OWNED BY THE EMPLOYEE ... WHEN SUCH TRANSPORTATION HAS BEEN DETERMINED TO BE NECESSARY OR EXPEDIENT, UNLESS PROHIBITED BY REGULATION OR ADMINISTRATIVE ACTION. ...

"A. IT IS HEREBY DETERMINED THAT TRANSPORTATION OF A PRIVATELY OWNED MOTOR VEHICLE BY WATER, RAIL, OR AIR IS NECESSARY OR EXPEDIENT WHEN:

"(1) NEITHER THE AUTHORIZED NOR THE ACTUAL POINTS OF ORIGIN AND DESTINATION ARE CONNECTED BY A HARD-SURFACED, ALL-WEATHER HIGHWAY OR BY VEHICULAR FERRY, OR BOTH. ...

"165.2-1 SHIPMENTS FROM THE UNITED STATES AND BETWEEN OVERSEAS POSTS

"THE COST OF TRANSPORTING A MOTOR VEHICLE IS ALLOWABLE ONLY WHEN OWNED BY THE EMPLOYEE OR A MEMBER OF THE EMPLOYEE'S FAMILY AUTHORIZED TO TRAVEL. ... NO EXPENSES ARE ALLOWABLE IN EXCESS OF THE COST OF TRANSPORTATION BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION OR BETWEEN THE FACTORY SITE AND THE AUTHORIZED DESTINATION, WHICHEVER INVOLVES THE LESSER COST.

"*** BECAUSE OF THE DISTANCE FROM THE RESIDENCE AREA TO THE PLACE OF WORK IN MAURITIUS AND THE LACK OF A ROAD FROM PANAMA TO MAURITIUS, THE EMPLOYEE WAS AUTHORIZED TO SHIP HER PRIVATELY OWNED FOREIGN AUTOMOBILE FROM THE PRIOR POST TO THE NEW POST IN CONFORMANCE WITH THE ABOVE LAW AND REGULATIONS. AFTER BEING AT THE POST FOR ONE MONTH, THE EMPLOYEE LEARNED THAT HER AUTOMOBILE HAD NOT BEEN SHIPPED FROM PANAMA. UPON ADVICE OF THE ADMINISTRATIVE OFFICER AND HER SUPERVISOR AT HER POST, THE EMPLOYEE AUTHORIZED THE CAR TO BE SOLD IN PANAMA AND PURCHASED A NEW AUTOMOBILE LOCALLY.

"THE SHIPPING CHARGES FOR THE NEW CAR FROM THE FACTORY IN TOKYO TO PORT LOUIS AMOUNTED TO $268.66. PRIOR TO THE SUBMISSION OF THE VOUCHER FOR THIS AMOUNT, SIMILAR TRANSPORTATION COSTS OF LOCALLY PURCHASED, PRIVATELY OWNED VEHICLES OF OTHER EMPLOYEES AT THE POST HAD BEEN PAID. WHEN THIS VOUCHER WAS SUBMITTED TO EAST AFRICAN FINANCIAL MANAGEMENT SERVICES (EAFMS) IN NAIROBI THE POST WAS INFORMED THAT THE INTERPRETATION OF 6 FAM 165.2-1 REQUIRED THAT THE CAR BE OWNED BY THE EMPLOYEE AT THE TIME THE SHIPMENT COMMENCED. THE POST OFFICERS HAD INTERPRETED THE REGULATIONS AS REQUIRING ONLY THAT THE CAR BE OWNED AT THE TIME THE TRANSPORTATION COSTS WERE PAID. AT THE TIME THE ADMINISTRATIVE OFFICER AND THE SUPERVISOR GAVE THE ADVICE TO PURCHASE A CAR LOCALLY, THEY WERE NOT AWARE OF THE DIFFERING INTERPRETATION. APPARENTLY EAFMS INTERPRETATION IS THE GENERAL ACCOUNTING OFFICE'S INTERPRETATION OF THE APPLICABLE LAW AND REGULATIONS; THE REASON GIVEN FOR THE REJECTION WAS A 'GAO SETTLEMENT CERTIFICATE OF APRIL 19, 1971'. AS A RESULT OF THAT INTERPRETATION, THE VOUCHER WAS NOT PAID."

WITH REGARD TO THE TYPE OF SITUATION HERE INVOLVED, WE RECENTLY HELD IN OUR DECISION B-175176, MARCH 31, 1972, COPY ENCLOSED, THAT UNDER THE CONTROLLING REGULATIONS AN IMPLICIT PREREQUISITE TO THE GOVERNMENT ASSUMING THE COST OF THE SHIPMENT OF THE VEHICLE IS THAT AT THE TIME OF SHIPMENT IT IS OWNED BY THE EMPLOYEE. WE NOTE THAT THE BASIC LEGISLATION (22 U.S.C. 1138) SPECIFICALLY DESCRIBES THE VEHICLE TO BE SHIPPED AS BEING "PRIVATELY OWNED." THEREFORE, THE PROVISIONS OF 6 FAM 165.1, WHICH INDICATE THAT AT THE TIME OF SHIPMENT THE TITLE TO THE MOTOR VEHICLE SHOULD BE IN THE NAME OF THE EMPLOYEE, ARE IN AGREEMENT WITH THE STATUTE. IN THE TYPE OF SITUATION HERE INVOLVED, IT CANNOT BE SAID THAT THE REQUIREMENT OF OWNERSHIP IS SATISFIED.

ACCORDINGLY, AND ON THE BASIS OF THE CONTROLLING STATUTE AND REGULATIONS, IT IS OUR VIEW THAT REIMBURSEMENT FOR SHIPPING COSTS OF THE TYPE PROPOSED WOULD NOT BE PROPER.