B-181151, JAN 3, 1975

B-181151: Jan 3, 1975

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IN LIEU OF COMMON CARRIER AS AUTHORIZED IN TRAVEL AUTHORIZATION IS ENTITLED TO PAYMENT FOR CONSTRUCTIVE COSTS OF TRAVEL VIA COMMON CARRIER EVEN THOUGH FPMR. SINCE FTR 1-4.3 AND 1-2.2 WERE NOT AMENDED. IS NOT IMCOMPATIBLE WITH EMPLOYEE'S OFFICIAL BUSINESS. WAS DETAILED FROM HIS OFFICIAL STATION IN BISMARCK. NEWELL WAS AUTHORIZED TO TRAVEL VIA COMMON CARRIER BETWEEN STATIONS. NEWELL SPECIFICALLY REQUESTED THAT THE USE OF PRIVATE AUTOMOBILE BE AUTHORIZED AND THAT HIS REQUEST WAS DENIED DUE TO THE NATIONAL ENERGY SHORTAGE. NEWELL'S CLAIM FOR REIMBURSEMENT ON A CONSTRUCTIVE COST BASIS WAS FORWARDED TO THIS OFFICE BECAUSE THE CERTIFYING OFFICER WAS UNCERTAIN OF THE EFFECT OF A RECENT AMENDMENT TO THE FEDERAL TRAVEL REGULATIONS ON THE CLAIM PRESENTED.

B-181151, JAN 3, 1975

EMPLOYEE WHO TRAVELED BY P.O.V. IN LIEU OF COMMON CARRIER AS AUTHORIZED IN TRAVEL AUTHORIZATION IS ENTITLED TO PAYMENT FOR CONSTRUCTIVE COSTS OF TRAVEL VIA COMMON CARRIER EVEN THOUGH FPMR, TEMPORARY REGULATION A-9 DISCOURAGES TRAVEL BY PRIVATELY OWNED CONVEYANCE BY PROVIDING AN ADDITIONAL CONSIDERATION - ENERGY CONSERVATION - IN SELECTION OF MODE OF TRAVEL TO BE AUTHORIZED, SINCE FTR 1-4.3 AND 1-2.2 WERE NOT AMENDED, PERMITTING REIMBURSEMENT, ON CONSTRUCTIVE COST BASIS, OF EMPLOYEE WHO TRAVELS BY MEANS OF P.O.V., PROVIDED THAT USE OF P.O.V. IS NOT IMCOMPATIBLE WITH EMPLOYEE'S OFFICIAL BUSINESS.

LAWRENCE B. NEWELL:

LAWRENCE B. NEWELL, AN EMPLOYEE OF THE BUREAU OF RECLAMATION, DEPARTMENT OF INTERIOR, WAS DETAILED FROM HIS OFFICIAL STATION IN BISMARCK, NORTH DAKOTA, TO FOREST GROVE, OREGON, FOR THE PERIOD FEBRUARY 4, 1974, TO APRIL 5, 1974. UNDER TRAVEL AUTHORIZATION NO. MS 52-74, DATED JANUARY 23, 1974, MR. NEWELL WAS AUTHORIZED TO TRAVEL VIA COMMON CARRIER BETWEEN STATIONS. THE RECORD FURTHER INDICATES THAT MR. NEWELL SPECIFICALLY REQUESTED THAT THE USE OF PRIVATE AUTOMOBILE BE AUTHORIZED AND THAT HIS REQUEST WAS DENIED DUE TO THE NATIONAL ENERGY SHORTAGE. NEVERTHELESS, MR. NEWELL DID NOT TRAVEL BY THE MODE OF TRAVEL AUTHORIZED. RATHER, HE USED HIS PRIVATELY OWNED AUTOMOBILE IN LIEU OF COMMON CARRIER TRANSPORTATION. MR. NEWELL HAS NOW SUBMITTED A TRAVEL VOUCHER CLAIMING $171 ON A CONSTRUCTIVE COST BASIS FOR COMMERCIAL AIR TRAVEL BETWEEN BISMARCK, NORTH DAKOTA, AND FOREST GROVE, OREGON.

MR. NEWELL'S CLAIM FOR REIMBURSEMENT ON A CONSTRUCTIVE COST BASIS WAS FORWARDED TO THIS OFFICE BECAUSE THE CERTIFYING OFFICER WAS UNCERTAIN OF THE EFFECT OF A RECENT AMENDMENT TO THE FEDERAL TRAVEL REGULATIONS ON THE CLAIM PRESENTED. ON FEBRUARY 6, 1974, THE GENERAL SERVICES ADMINISTRATION (GSA) ISSUED FEDERAL PROPERTY MANAGEMENT REGULATIONS, (FPMR), TEMPORARY REGULATION A-9, WHICH AMENDS THE FEDERAL TRAVEL REGULATIONS (FTR), FPMR 101-7, BY INCREASING THE MILEAGE ALLOWANCES FOR THE USE OF PRIVATELY OWNED CONVEYANCES AND BY REQUIRING THAT THE CONSERVATION OF ENERGY SOURCES BE CONSIDERED AS A MAJOR FACTOR IN DETERMINING THE MODE OF TRAVEL TO BE AUTHORIZED AS MOST ADVANTAGEOUS TO THE GOVERNMENT. ONE APPARENT PURPOSE OF THE TEMPORARY REGULATION WAS TO LIMIT THE INSTANCES IN WHICH TRAVEL BY PRIVATELY OWNED CONVEYANCE WOULD BE AUTHORIZED. AS A RESULT, THE CERTIFYING OFFICER HAS QUESTIONED WHETHER MR. NEWELL IS ENTITLED TO ANY REIMBURSEMENT FOR TRAVEL EXPENSES SINCE HE TRAVELED BY A MODE OF TRAVEL WHICH WAS NOT AUTHORIZED AND WHICH THE TEMPORARY REGULATION WAS INTENDED TO DISCOURAGE.

PARAGRAPH 1 OF TEMPORARY REGULATION A-9 DESCRIBES THE TWO-FOLD PURPOSE OF THE REGULATION:

"THIS REGULATION ESTABLISHES INCREASES IN THE MILEAGE ALLOWANCES FOR THE USE OF A PRIVATELY OWNED CONVEYANCE ON OFFICIAL BUSINESS AND PROVIDES ADDITIONAL FACTORS TO BE CONSIDERED IN SELECTING A PARTICULAR MODE OF TRAVEL."

THE INCREASE IN THE MILEAGE ALLOWANCES FOR THE USE OF PRIVATELY OWNED CONVEYANCES IS IMMATERIAL IN THIS CASE SINCE BY USING EITHER MILEAGE RATE THE COST EXCEEDS THE COMMON CARRIER COST. IMPLEMENTING THE SECOND PURPOSE, THE TEMPORARY REGULATION AMENDS FTR 1-2.2B AND 1-2.2C WHICH DEFINE THE CRITERIA TO BE CONSIDERED IN SELECTING A PARTICULAR MODE OF TRAVEL AND ESTABLISH A PREFERENCE ORDER FOR THE DIFFERENT MODES OF TRAVEL. THESE PROVISIONS WERE AMENDED TO ENSURE THAT THE EFFICIENT USE OF ENERGY RESOURCES IS GIVEN FULL CONSIDERATION IN DETERMINING THE APPROPRIATE MODE OF TRAVEL TO BE AUTHORIZED.

HOWEVER, THE AMENDMENTS TO FTR 1-2.2B AND 1-2.2C ONLY AFFECT DETERMINATIONS OF AUTHORIZED MODES OF TRAVEL AND DO NOT AFFECT THE GOVERNMENT'S OBLIGATION TO REIMBURSE FOR TRAVEL EXPENSES, ON A CONSTRUCTIVE COST BASIS, AN EMPLOYEE WHO TRAVELS BY A MODE OF TRANSPORTATION OTHER THAN THAT AUTHORIZED. THE TEMPORARY REGULATION DID NOT AMEND FTR 1-4.3, WHICH PROVIDES:

"WHEN USE OF PRIVATELY OWNED CONVEYANCE IS IN LIEU OF COMMON CARRIER TRANSPORTATION.

"WHENEVER A PRIVATELY OWNED CONVEYANCE IS USED FOR OFFICIAL PURPOSES AS A MATTER OF PERSONAL PREFERENCE IN LIEU OF COMMON CARRIER TRANSPORTATION UNDER 1-2.2D, PAYMENT FOR SUCH TRAVEL SHALL BE MADE ON THE BASIS OF THE ACTUAL TRAVEL PERFORMED, COMPUTED UNDER 1-4.1 AT THE MILEAGE RATE PRESCRIBED IN 1-4.2A PLUS THE PER DIEM ALLOWABLE FOR THE ACTUAL TRAVEL. THE TOTAL ALLOWABLE SHALL BE LIMITED TO THE TOTAL CONSTRUCTIVE COST OF APPROPRIATE COMMON CARRIER TRANSPORTATION INCLUDING CONSTRUCTIVE PER DIEM BY THAT METHOD OF TRANSPORTATION. ***"

UNDER THIS PROVISION, AN EMPLOYEE MUST BE REIMBURSED FOR THE CONSTRUCTIVE COST OF THE MODE OF TRAVEL AUTHORIZED WHEN HE USES A PRIVATELY OWNED CONVEYANCE AS A MATTER OF PERSONAL PREFERENCE OR CONVENIENCE IN LIEU OF THE MODE OF TRAVEL AUTHORIZED, PROVIDED OF COURSE THAT THE USE OF A PRIVATELY OWNED CONVEYANCE IS COMPATIBLE WITH THE PERFORMANCE OF THE EMPLOYEE'S OFFICIAL BUSINESS AS REQUIRED BY FTR 1-2.2D. CF. B-176512, OCTOBER 25, 1972.

THERE IS NO INDICATION IN THE RECORD THAT MR. NEWELL'S REQUEST TO USE A PRIVATELY OWNED AUTOMOBILE WAS DENIED BECAUSE THE USE OF A PRIVATELY OWNED CONVEYANCE WAS INCOMPATIBLE WITH HIS OFFICIAL BUSINESS. ALTHOUGH THE RECORD IS NOT ENTIRELY CLEAR ON THIS POINT, THE ONLY EVIDENCE IN THE RECORD INDICATES THAT THE REQUEST WAS DENIED BECAUSE OF THE ENERGY CRISIS AND NOT BECAUSE THE USE OF A PRIVATELY OWNED CONVEYANCE WOULD INTERRUPT OR INTERFERE WITH THE CLAIMANT'S OFFICIAL DUTIES. ACCORDINGLY, MR. NEWELL'S CLAIM FOR THE CONSTRUCTIVE COST OF TRAVEL BY COMMERCIAL AIRCRAFT FROM BISMARCK, NORTH DAKOTA, TO FOREST GROVE, OREGON, IS APPROPRIATE FOR PAYMENT.