B-195221.OM, APR 3, 1980

B-195221.OM, APR 3, 1980

SUBJECT: RECONSIDERATION OF TEMPORARY DUTY TRAVEL CLAIM OF MR. DONALD R. BUELL - B-195221-O.M.

DIRECTOR, CLAIMS DIVISION:

RETURNED HEREWITH IS CLAIMS FILE NO. Z-2787423 CONCERNING THE CLAIM OF MR. DONALD R. BUELL FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH HIS TEMPORARY DUTY TRAVEL, IN RESPONSE TO YOUR REQUEST THAT WE RECONSIDER THE DECISION REACHED IN THE AUGUST 27, 1979 MEMORANDUM IN MR. BUELL'S CASE.

IN B-195221-O.M., AUGUST 27, 1979, WE RULED THAT AN FAA EMPLOYEE TRAVELING ON GOVERNMENT BUSINESS AS AUTHORIZED BY PRIVATELY OWNED CONVEYANCE (AIRCRAFT), WHO WAS ACCOMPANIED BY ANOTHER EMPLOYEE OF THE SAME AGENCY PERFORMING THE SAME AUTHORIZED TRAVEL, MAY INCLUDE THE COMMON CARRIER CONSTRUCTIVE COSTS OF THAT PASSENGER IN COMPUTING HIS REIMBURSEMENT, NOT TO EXCEED ALLOWABLE MILEAGE.

YOU QUESTION THE PROPRIETY OF SUCH A RULING, CITING TO 58 COMP.GEN. 305 (1979) AS BEING IN APPARENT CONFLICT. YOU ALSO EXPRESS THE VIEW THAT WHERE A PASSENGER CONTRIBUTES TO THE EXPENSES OF OPERATION OF A PRIVATE CONVEYANCE, SUCH ADDITIONAL PAYMENT TO THE OPERATOR WOULD CONSTITUTE A WINDFALL TO HIM WITHOUT PROVISION BEING MADE TO ASSURE THE PASSENGER THAT HE WOULD BE REIMBURSED.

IN 58 COMP.GEN. 305, SUPRA, IT WAS HELD THAT WHERE A GOVERNMENT EMPLOYEE IS AUTHORIZED TO USE HIS AUTOMOBILE ON A MILEAGE BASIS, REIMBURSEMENT MAY NOT EXCEED THE COSTS OF TRANSPORTATION BY COMMON CARRIER AND MAY NOT INCLUDE THE COMMON CARRIER CONSTRUCTIVE COSTS FOR OTHER GOVERNMENT EMPLOYEES BEING TRANSPORTED AS PASSENGERS IN THE ABSENCE OF QUALIFYING LANGUAGE IN THE TRAVEL ORDERS OR ADMINISTRATIVE APPROVAL OF THOSE ARRANGEMENTS.

IN THAT CASE, IT WAS NOT APPARENT THAT THE PASSENGER WAS WITH THE SAME AGENCY OR TRAVELING TO THE SAME DESTINATION FOR THE SAME PURPOSE AS THE VEHICLE OPERATOR. IN THE PRESENT CASE, BOTH MR. BUELL AND MR. HOERMAN WERE FAA EMPLOYEES. THEY WORKED AT THE SAME REGIONAL OFFICE AND WERE BOTH AUTHORIZED TRAVEL TO ATTEND THE SAME CONFERENCE. CONSIDERING THE FACT THAT MR. HOERMAN'S TRAVEL ORDERS WERE NOT ISSUED UNTIL 14 DAYS AFTER MR. BUELL'S TRAVEL BY PRIVATE AIRCRAFT WAS AUTHOORIZED, AND THE ONLY PRACTICAL MODE OF TRAVEL TO THEIR DESTINATION WAS BY AIRCRAFT, WE ASSUMED THAT THE APPROPRIATE ADMINISTRATIVE APPROVAL WAS GRANTED FOR THEM TO TRAVEL TOGETHER IN MR. BUELL'S AIRCRAFT.

WITH REGARD TO THE QUESTION OF POSSIBLE WINDFALL TO MR. BUELL AND THERE BEING NO MEANS OF INSURING THAT EXPENSES PAID FOR BY MR. HOERMAN WOULD BE REIMBURSED TO HIM, IT IS TO BE NOTED THAT THE DISPOSITION IN OUR AUGUST 27, 1979 MEMORANDUM STILL WOULD BE CONSIDERABLY LESS THAN THE MILEAGE CEILING. FURTHER, THERE IS NOTHING IN THE LAW OR REGULATIONS WHICH REQUIRES A PASSENGER IN THESE CIRCUMSTANCES TO SHARE IN OR CONTRIBUTE TOWARDS THE COST OF OPERATING THE AUTOMOBILE OR AIRPLANE. IN FACT, THE FTR, CHAPTER 1, PART 4, 1-4.5, PROVIDES THAT NO DEDUCTION SHALL BE MADE FROM THE MILEAGE OTHERWISE PAYABLE TO THE EMPLOYEE BY REASON OF THE FACT THAT OTHER PASSENGERS (WHETHER OR NOT GOVERNMENT EMPLOYEES) MAY TRAVEL WITH HIM AND CONTRIBUTE TO DEFRAYING THE OPERATING EXPENSES.

WITH REGARD TO YOUR INQUIRY CONCERNING THE RELEVANCE OF THE CASES CITED FOR COMPARISON PURPOSES, YOUR ATTENTION IS DIRECTED TO QUESTION 5 OF 55 COMP.GEN. 1247, AND THE RESPONSE THERETO WHICH APPEARS ON PAGE 1250. WAS HELD THAT CORRESPONDING COMMERCIAL AIRLINE FARES OF ALL TRAVELERS OF THE AGENCY IN AN OFFICIAL TRAVEL STATUS ACCOMPANYING THE PILOT, WHEN TRAVEL WAS BY AERO CLUB AIRCRAFT OR PRIVATE AIRCRAFT, COULD BE USED TO COMPUTE THE CONSTRUCTIVE COST CEILING OF COMMON CARRIER TRAVEL FOR THE PILOT. IN THE OTHER CASE, B-166755-O.M., MAY 12, 1969, THE POINT WAS MADE THEREIN THAT, FOR THE PURPOSE OF COMPUTING MILEAGE FOR A GOVERNMENT EMPLOYEE WHO WAS SUPPLYING TRANSPORTATION TO OTHER EMPLOYEES FOR VOLUNTARY WEEKEND RETURN TRAVEL TO OFFICIAL STATION, THE COMPOSITE VALUE OF PER DIEM SAVED BY THE GOVERNMENT FOR EACH EMPLOYEE PASSENGER WAS PERMITTED TO BE USED TO INCREASE THE COSTS TO BE USED BY THE DRIVER FOR REIMBURSEMENT PURPOSES, BUT NOT TO INCREASE THE MILEAGE RATE OR DISTANCE TRAVELED IN COMPUTING THE MILEAGE PAYABLE. WHILE NOT SPECIFICALLY STATED THEREIN, WE ASSUME THE OTHER EMPLOYEES WERE IN AN OFFICIAL TRAVEL STATUS, AND EMPLOYED BY THE SAME AGENCY.

ACCORDINGLY, WE CONSIDER THE ACTION TAKEN IN B-195221-O.M., AUGUST 27, 1979, TO BE APPROPRIATE.