B-182853, JAN 30, 1976

B-182853: Jan 30, 1976

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ALTHOUGH FTR PARAS. 1-7.1B AND 1-8 (MAY 1973) PROVIDE THAT TIPS TO PORTERS AND HOTEL EMPLOYEES WILL BE COVERED BY THE TRAVELER'S PER DIEM ALLOWANCE OR ACTUAL SUBSISTENCE ALLOWANCE. IF EXPENDITURES ARE ADMINISTRATIVELY DETERMINED TO BE NECESSARY. SINCE THERE IS NOTHING IN THE STATUTE OR IMPLEMENTING REGULATIONS PRECLUDING AN AGENCY HEAD FROM PRESCRIBING A DAILY LIMITATION ON THE AMOUNT THAT MAY BE PAID A TRAVELER FOR LODGING WHO IS BEING REIMBURSED ON AN ACTUAL EXPENSE BASIS. WAS AUTHORIZED TO TRAVEL FROM WASHINGTON. HE WAS ORIGINALLY AUTHORIZED PER DIEM AT A RATE NOT TO EXCEED $25 PER DAY. THIS AUTHORIZATION WAS CHANGED BY AN AMENDMENT TO ACTUAL SUBSISTENCE EXPENSES ON THE BASIS OF HIS DAILY COST OF LODGING PLUS $12 PER DAY FOR MEALS AND MISCELLANEOUS EXPENSE.

B-182853, JAN 30, 1976

1. ALTHOUGH FTR PARAS. 1-7.1B AND 1-8 (MAY 1973) PROVIDE THAT TIPS TO PORTERS AND HOTEL EMPLOYEES WILL BE COVERED BY THE TRAVELER'S PER DIEM ALLOWANCE OR ACTUAL SUBSISTENCE ALLOWANCE, THOSE SECTIONS RELATE TO EXPENDITURES MADE FOR PERSONAL SERVICES RENDERED TO THE CLAIMING EMPLOYEE. IF EXPENDITURES ARE ADMINISTRATIVELY DETERMINED TO BE NECESSARY, REASONABLE AND PRIMARILY RELATED TO THE TRANSACTION OF OFFICIAL BUSINESS, AN EMPLOYEE HAVING AUTHORITY FOR MANAGING AND COORDINATING CONFERENCE MAY BE REIMBURSED UNDER THE AUTHORITY OF FTR PARA. 1-9.1D (MAY 1973) (MISCELLANEOUS TRAVEL EXPENSES). 2. SINCE THERE IS NOTHING IN THE STATUTE OR IMPLEMENTING REGULATIONS PRECLUDING AN AGENCY HEAD FROM PRESCRIBING A DAILY LIMITATION ON THE AMOUNT THAT MAY BE PAID A TRAVELER FOR LODGING WHO IS BEING REIMBURSED ON AN ACTUAL EXPENSE BASIS, THE AGENCY HEAD MAY BY REGULATION OR AGENCY WIDE POLICY PLACE A LIMITATION ON LODGING.

JOHNSTON E. LUTON - REIMBURSEMENT FOR TIPS TO PORTERS AND HOTEL EMPLOYEES:

THIS ACTION CONCERNS THE PROPRIETY OF CERTIFYING FOR PAYMENT A RECLAIM VOUCHER SUBMITTED BY MR. JOHNSTON E. LUTON, AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION (GSA), REPRESENTING REIMBURSEMENT FOR AMOUNTS PAID BY HIM AS TIPS TO A PORTER AND HOTEL EMPLOYEES INCIDENT TO PERFORMING TEMPORARY DUTY IN CONNECTION WITH A CONFERENCE.

MR. LUTON, GSA'S DIRECTOR OF MANAGEMENT SERVICES, WAS AUTHORIZED TO TRAVEL FROM WASHINGTON, D.C., TO VAIL, COLORADO, TO ATTEND AN OFFICE OF MANAGEMENT SERVICES CONFERENCE. HE WAS ORIGINALLY AUTHORIZED PER DIEM AT A RATE NOT TO EXCEED $25 PER DAY. THIS AUTHORIZATION WAS CHANGED BY AN AMENDMENT TO ACTUAL SUBSISTENCE EXPENSES ON THE BASIS OF HIS DAILY COST OF LODGING PLUS $12 PER DAY FOR MEALS AND MISCELLANEOUS EXPENSE, NOT TO EXCEED $32 PER DAY. SINCE A BUS WAS TO BE PROVIDED TO TRANSPORT ALL OF THE PARTICIPANTS AT ONE TIME FROM THE AIRPORT AT DENVER, COLORADO, TO VAIL, THE PARTICIPANTS TEMPORARILY PLACED THEIR PERSONAL LUGGAGE IN A ROOM PROVIDED BY THE AIRLINE AND WAITED FOR ALL OF THE PARTICIPANTS TO ARRIVE. MR. LUTON ENGAGED A PORTER TO MOVE THE LUGGAGE OF ALL THE PARTICIPANTS FROM THIS ROOM TO THE BUS AND PAID HIM $10 FOR THIS SERVICE. UPON COMPLETION OF THE CONFERENCE, HE ALSO TIPPED TWO HOTEL EMPLOYEES A TOTAL OF $20 FOR SPECIAL SERVICES RENDERED BY THEM IN CONNECTION WITH THE CONDUCT OF THE CONFERENCE.

THE GSA OFFICE OF FINANCE DETERMINED THAT THE AMOUNTS PAID TO THE PORTER AND THE HOTEL EMPLOYEES WERE EXPENSES COVERED BY THE REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES AUTHORIZED FOR MR. LUTON. ACCORDINGLY, A PORTION OF THE TIP TO THE HOTEL EMPLOYEES AND THE ENTIRE AMOUNT PAID TO THE PORTER WERE ADMINISTRATIVELY DISALLOWED SINCE THESE AMOUNTS WERE IN EXCESS OF THE MAXIMUM SPECIFIED IN HIS TRAVEL ORDERS FOR REIMBURSEMENT FOR HIS ACTUAL EXPENSES FOR MEALS AND MISCELLANEOUS EXPENSES. HOWEVER, MR. LUTON CONTENDS THAT THESE EXPENSES SHOULD NOT BE INCLUDED AS A PORTION OF HIS REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES BECAUSE THE SERVICES WERE NOT RENDERED TO HIM PERSONALLY BUT WERE A PART OF THE EXPENSE OF TRANSPORTING PARTICIPANTS TO THE CONFERENCE AND FOR SPECIAL SERVICES RENDERED BY THE HOTEL EMPLOYEES IN CONNECTION WITH THE CONDUCT OF THE CONFERENCE.

THUS, THE CERTIFYING OFFICER HAS ASKED WHETHER THESE EXPENDITURES WERE PROPERLY INCLUDED AS A PART OF MR. LUTON'S REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES. HE ALSO ASKS WHETHER IT WAS PROPER FOR THE OFFICIAL WHO AUTHORIZED THE $32 DAILY RATE TO LIMIT THE EMPLOYEE'S REIMBURSEMENT TO $12 PER DAY IN THE ABSENCE OF LODGING EXPENSE.

FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 1.7.1B (MAY 1973) PROVIDES THAT, AMONG OTHER EXPENSES, THE PER DIEM ALLOWANCE INCLUDES "*** ALL FEES AND TIPS TO WAITERS, PORTERS, BAGGAGE MEN, BELLBOYS, HOTEL MAIDS (AND) DINING ROOM STEWARDS ***." A TRAVELER AUTHORIZED REIMBURSEMENT FOR HIS ACTUAL SUBSISTENCE EXPENSES UNDER FTR PARA. 1-8 (MAY 1973) WOULD BE ENTITLED TO REIMBURSEMENT FOR THE SAME TYPES OF EXPENSES. THEREFORE, EXPENDITURES IN THE NATURE OF TIPS TO PORTERS AND HOTEL EMPLOYEES ARE ORDINARILY FOR INCLUSION IN THE TRAVELER'S CLAIM FOR THE PER DIEM ALLOWANCE OR, ALTERNATIVELY, AS PART OF THE CLAIM FOR ACTUAL SUBSISTENCE EXPENSES.

HOWEVER, FTR PARAS. 1-7.1 AND 1-8 (MAY 1973) PRIMARILY RELATE TO EXPENDITURES MADE FOR PERSONAL SERVICES RENDERED TO THE TRAVELER AS DISTINGUISHED FROM EXPENSES NECESSARILY AND PRIMARILY INCURRED AS INCIDENT TO THE TRANSACTION OF OFFICIAL BUSINESS. SEE 40 COMP.GEN. 11, 12 (1960); 35 COMP.GEN. 361 (1955); 27 COMP.GEN. 52, 53 (1947). FOR EXPENDITURES IN THE LATTER CATEGORY, FTR PARA. 1-9.1D (MAY 1973) PROVIDES THAT EXPENSES "*** NECESSARILY INCURRED BY THE TRAVELER IN CONNECTION WITH THE TRANSACTION OF OFFICIAL BUSINESS, SHALL BE ALLOWED WHEN APPROVED."

CONSIDERING THE FACT THAT THE CONFERENCE LOCATION WAS NOT SERVICED BY REGULAR OR CONVENIENT TRANSPORTATION, A GROUP DEPARTURE BY CHARTERED BUS, AS WELL AS THE CONSEQUENTIAL COMBINED STORAGE AND GROUP PORTERAGE OF LUGGAGE, MAY HAVE BEEN NECESSARY TO FACILITATE ORDERLY TERMINAL DEPARTURE, ORGANIZED CONFERENCE ARRIVAL AND THE TIMELY COMMENCEMENT OF CONFERENCE BUSINESS. ALTHOUGH WE RECOGNIZE THAT THE PORTERAGE OF BAGGAGE RESULTED IN THE RENDITION OF A PERSONAL SERVICE TO THE CONFERENCE PARTICIPANTS, THE PORTER'S FEE COULD BE REGARDED AS A CHARGE WHICH MAY NOT HAVE OCCURRED EXCEPT FOR THE ARRANGEMENTS SPECIFICALLY DESIGNED TO FACILITATE THE TRANSACTION OF OFFICIAL BUSINESS. SEE B-150400, MARCH 15, 1963; 37 COMP. GEN. 408 (1957). SIMILARLY, THE AMOUNTS PAID BY MR. LUTON TO THE HOTEL EMPLOYEES COULD BE VIEWED AS REPRESENTING AN EXPENSE PRIMARILY RELATED TO THE CONDUCT OF THE CONFERENCE AND, HENCE, TO THE TRANSACTION OF OFFICIAL BUSINESS.

IN VIEW OF THE FOREGOING, WE DO NOT BELIEVE THE EXPENSES IN QUESTION NEED NECESSARILY BE REGARDED AS PERSONAL SERVICE EXPENDITURES REQUIRED TO BE COVERED BY THE PER DIEM ALLOWANCE OR REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES. THEREFORE, IF MR. LUTON HAD AUTHORITY RESPECTING THE COORDINATION AND MANAGEMENT OF GSA'S PARTICIPATION AT THE CONFERENCE, THE AMOUNTS PAID BY MR. LUTON TO THE PORTER AND TWO HOTEL EMPLOYEES MAY BE CONSIDERED FOR REIMBURSEMENT UNDER FTR PARA. 1-9.1D (MAY 1973) AS A MISCELLANEOUS TRAVEL EXPENSE INCURRED BY HIM IN CONNECTION WITH THE TRANSACTION OF OFFICIAL BUSINESS. SEE B-166810, JULY 17, 1969.

ACCORDINGLY, MR. LUTON MAY BE REIMBURSED FOR THE EXPENSES IN QUESTION, IF THE EXPENDITURES ARE ADMINISTRATIVELY APPROVED AND DETERMINED TO BE NECESSARY, REASONABLE, AND PRIMARILY CONNECTED WITH THE TRANSACTION OF OFFICIAL BUSINESS.

CONCERNING THE MAXIMUMS SPECIFIED IN MR. LUTON'S TRAVEL ORDER FOR COST OF HOTEL ROOM PLUS $12 PER DAY NOT TO EXCEED $32, SUBSECTION 5702(C) OF TITLE 5, U.S.C. (1970), PROVIDES THAT, UNDER REGULATIONS PRESCRIBED UNDER 5 U.S.C. SEC. 5707, THE HEAD OF THE AGENCY CONCERNED MAY PRESCRIBE CONDITIONS UNDER WHICH AN EMPLOYEE MAY BE REIMBURSED FOR THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP, NOT TO EXCEED THE AMOUNT NAMED IN THE TRAVEL AUTHORIZATION. SECTION 5707 PROVIDES THAT THE ADMINISTRATOR OF GENERAL SERVICES SHALL PRESCRIBE REGULATIONS RELATING TO TRAVEL AND SUBSISTENCE EXPENSES AND MILEAGE ALLOWANCES. THE REGULATIONS ISSUED BY THE ADMINISTRATOR OF GENERAL SERVICES ARE CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973). FTR PARA. 1-8.1B PROVIDES THAT THE HEADS OF AGENCIES SHALL PRESCRIBE CONDITIONS UNDER WHICH REIMBURSEMENT MAY BE AUTHORIZED OR APPROVED FOR THE ACTUAL AND NECESSARY SUBSISTENCE EXPENSES OF A TRAVELER.

WHILE THE STATUTE AND REGULATIONS PLACE A LIMITATION ON THE AMOUNT OF ACTUAL DAILY EXPENSE THAT MAY BE PAID TO A TRAVELER, THERE IS NOTHING IN THE STATUTE OR REGULATION THAT AUTHORIZES THE HEAD OF AN AGENCY TO PLACE A LIMITATION ON EACH SEGMENT THAT GOES TO MAKE UP THE ACTUAL EXPENSE. NEITHER IS THERE ANYTHING IN THE STATUTE OR REGULATION THAT WOULD PRECLUDE THE HEAD OF AN AGENCY PLACING A LIMITATION ON THE AMOUNT THAT MAY BE PAID FOR DAILY LODGING PLUS A SPECIFIED AMOUNT FOR MEALS AND MISCELLANEOUS EXPENSES.

THUS, THE $12 DAILY LIMITATION IN THE ABSENCE OF LODGING EXPENSE APPEARS PROPER IF IT IS BASED ON AN ADMINISTRATIVE REGULATION OR AGENCY WIDE POLICY.