B-239615, Oct 11, 1990, Office of General Counsel

B-239615: Oct 11, 1990

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CIVILIAN PERSONNEL - Travel - Temporary duty - Lodging - Leases - DIGEST: An association of extended-stay lodging facilities requested the General Accounting Office to investigate a practice in which certain agencies lease quarters for use by their employees while on temporary duty. note that generally agencies may lease rooms under such circumstances provided that appropriated funds are not used in excess of the maximum per diem rate or actual expenses allowed for the particular area. Lane Executive Director: This is in response to your letters of May 3 and June 7. To provide lodging for employees who are traveling there on temporary duty. It may deny travel entitlements to government employees who are required to stay at the government-leased facilities.

B-239615, Oct 11, 1990, Office of General Counsel

CIVILIAN PERSONNEL - Travel - Temporary duty - Lodging - Leases - DIGEST: An association of extended-stay lodging facilities requested the General Accounting Office to investigate a practice in which certain agencies lease quarters for use by their employees while on temporary duty. note that generally agencies may lease rooms under such circumstances provided that appropriated funds are not used in excess of the maximum per diem rate or actual expenses allowed for the particular area. We advise the association to consider GAO's Bid Protest Procedures for questions relating to procurement matters, and GAO's general claims procedures for questions relating to employees' travel claims.

Mr. Donald V. Lane

Executive Director:

This is in response to your letters of May 3 and June 7, 1990, concerning a practice of the Departments of the Navy, the Air Force and Energy, of directly leasing some apartments, primarily in Northern Virginia, to provide lodging for employees who are traveling there on temporary duty. You question the legality of the practice, which apparently competes with lodging space available through members of your association. You suggest that the practice may violate the government's procurement procedures, such as the preference for competition, and it may deny travel entitlements to government employees who are required to stay at the government-leased facilities.

Generally, we have held that agencies may lease rooms from commercial establishments for employees on temporary duty, provided that appropriated funds are not used in excess of the maximum per diem rate or actual expenses allowed for the particular area. Bureau of Indian Affairs, 60 Comp.Gen. 181 (1981). See also Lt. Commander William J. Harrigan, et al., 62 Comp.Gen. 308 (1983); Robert L. Singson, B-200750, Aug. 4, 1981.

Concerning employees' travel entitlements, employees are entitled to per diem or actual expenses for meals and lodging while on official travel. U.S.C. Sec. 5702(a) (1988). Although under 5 U.S.C. Sec. 5911(e) employees generally are not required to stay in government leased lodging, except under specified circumstances, DOD employees are specifically required to use such quarters, if available, while on temporary duty.

See section 853, DOD Appropriations Act, 1978, Pub.L. No. 95- 111, Sept. 21, 1977, 91 Stat. 908; B-229317, Apr. 27, 1989. We are not aware of a similar requirement applicable to Department of Energy employees, or whether the circumstances of the travel meet the exceptions provided in 5 U.S.C. Sec. 5911.

As to the amount of per diem payable, the Federal Travel Regulations provide that each agency is responsible for giving consideration to factors such as arrangements for lodging provided at no cost to the employee, in authorizing per diem rates for temporary duty. See 41 C.F.R. Sec. 301-7.1(e) (1990). Under that authority an agency should authorize reduced per diem when government-leased lodging is furnished the employee; however, employees staying in such lodging are still entitled to reimbursement for meals and miscellaneous expenses up to the prescribed limit.

As to whether the leasing of lodging space by the agencies you referred to is subject to the provisions of the Competition in Contracting Act of 1984, Pub.L. No. 98-369, 98 Stat. 1175, or any government procurement procedures, this is a question that can be presented to this Office through our Bid Protest Procedures by an "interested party" as defined in 4 C.F.R. Sec. 21 (1990). Enclosed is a copy of our pamphlet, "Bid Protests at GAO: A Descriptive Guide," which describes the bid protest process and contains the applicable regulations.

We trust this information will be helpful to you and your members.