B-28741, OCTOBER 16, 1942, 22 COMP. GEN. 359

B-28741: Oct 16, 1942

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CONTRACTS - COST-PLUS - EMPLOYEES' TRANSPORTATION EXPENSES BETWEEN PLACE OF LODGING AND PLACE OF TEMPORARY DUTY UNDER A COST-PLUS-A-FIXED-FEE CONTRACT PROVIDING THAT REIMBURSEMENT FOR TRANSPORTATION AND TRAVELING EXPENSES OF THE CONTRACTOR'S EMPLOYEES IN CONNECTION WITH THE CONTRACT WORK WILL BE LIMITED TO THE ACTUAL COST OF TRANSPORTATION AND AN ALLOWANCE OF $6 PER DAY "IN LIEU OF ALL OTHER EXPENSES. " THE EXPENSE AN EMPLOYEE IN A TRAVEL STATUS INCURS FOR TRANSPORTATION BETWEEN HIS HOTEL OR PLACE OF LODGING AND PLACE OF TEMPORARY DUTY IS NOT REIMBURSABLE. UNDER WHICH GOVERNMENT EMPLOYEES ARE ALLOWED THE EXPENSE OF TRAVEL BETWEEN PLACE OF LODGING AND PLACE OF TEMPORARY DUTY. THERE IS SUBMITTED HEREWITH FOR ADVANCE DECISION A VOUCHER IN FAVOR OF THE KELLY SPRINGFIELD ENGINEERING COMPANY ON CONTRACT NO.

B-28741, OCTOBER 16, 1942, 22 COMP. GEN. 359

CONTRACTS - COST-PLUS - EMPLOYEES' TRANSPORTATION EXPENSES BETWEEN PLACE OF LODGING AND PLACE OF TEMPORARY DUTY UNDER A COST-PLUS-A-FIXED-FEE CONTRACT PROVIDING THAT REIMBURSEMENT FOR TRANSPORTATION AND TRAVELING EXPENSES OF THE CONTRACTOR'S EMPLOYEES IN CONNECTION WITH THE CONTRACT WORK WILL BE LIMITED TO THE ACTUAL COST OF TRANSPORTATION AND AN ALLOWANCE OF $6 PER DAY "IN LIEU OF ALL OTHER EXPENSES," THE EXPENSE AN EMPLOYEE IN A TRAVEL STATUS INCURS FOR TRANSPORTATION BETWEEN HIS HOTEL OR PLACE OF LODGING AND PLACE OF TEMPORARY DUTY IS NOT REIMBURSABLE, IN THE ABSENCE OF CIRCUMSTANCES COMPARABLE TO THOSE ENUMERATED IN PARAGRAPH 8 (B), STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, UNDER WHICH GOVERNMENT EMPLOYEES ARE ALLOWED THE EXPENSE OF TRAVEL BETWEEN PLACE OF LODGING AND PLACE OF TEMPORARY DUTY.

COMPTROLLER GENERAL WARREN TO COL. C. H. FARISH, U.S. ARMY, OCTOBER 16, 1942:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM HEADQUARTERS, SERVICES OF SUPPLY, FISCAL DIVISION, YOUR LETTER OF JULY 29, 1942, AS FOLLOWS:

1. THERE IS SUBMITTED HEREWITH FOR ADVANCE DECISION A VOUCHER IN FAVOR OF THE KELLY SPRINGFIELD ENGINEERING COMPANY ON CONTRACT NO. W ORD-634 DATED MARCH 24, 1942, COVERING REIMBURSEMENT FOR EXPENDITURES IN THE AMOUNT OF $71.80 FOR TRAVEL EXPENSES OF CERTAIN EMPLOYEES OF THE ABOVE MENTIONED FIRM.

2. THIS VOUCHER WAS SUBMITTED TO THE UNDERSIGNED, A DISBURSING OFFICER IN THE FINANCE OFFICE, U.S. ARMY, PITTSBURGH, PA., FOR PAYMENT.

3. CONTRACT W-ORD-634 UNDER ARTICLE III-A, PAR. D, IN PART PROVIDES FOR REIMBURSEMENT TO THE CONTRACTOR AS FOLLOWS: "TRANSPORTATION AND TRAVELING EXPENSES OF EMPLOYEES OF THE CONTRACTOR AS ARE ACTUALLY INCURRED IN CONNECTION WITH SUCH WORK; AND COSTS AND EXPENSES REIMBURSED TO EMPLOYEES OF THE CONTRACTOR TRANSFERRED TO OR FROM THE PROJECT ON ACCOUNT OF TRANSPORTATION OF THEMSELVES, THEIR FAMILIES, AND THEIR HOUSEHOLD GOODS. REIMBURSEMENT FOR TRANSPORTATION AND TRAVELING EXPENSES WILL BE LIMITED TO THE COST OF TRANSPORTATION INCLUDING PULLMAN WHERE NECESSARY AND AN ALLOWANCE OF SIX DOLLARS ($6.00) PER DAY IN LIEU OF ALL OTHER EXPENSES. TRANSPORTATION BY AUTOMOBILE ON SUCH REQUIRED TRAVEL SHALL BE REIMBURSED AT THE RATE OF FIVE CENTS (?05) PER MILE AS REPRESENTING THE ACTUAL COST OF SUCH TRANSPORTATION.' THIS OFFICE IS IN DOUBT AS TO THE PROPRIETY OF THAT PART OF THE PROPOSED PAYMENT AS PERTAINS TO LOCAL FARES PAID BY THE EMPLOYEE WHILE ON TEMPORARY DUTY, THE INCLUSION OF WHICH BRINGS THE DAILY ALLOWANCE TO AN AMOUNT IN EXCESS OF $6.00, IN VIEW OF DEFINITION OF "TRANSPORTATION" AS SHOWN IN STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH DOES NOT INCLUDE LOCAL FARES FOR TRAVEL BETWEEN PLACE OF LODGING AND PLACE OF TEMPORARY DUTY.

IT IS STATED IN YOUR LETTER OF THE SAME DATE TO THE CHIEF OF FINANCE THAT THE LOCAL FARES REFERRED TO IN PARAGRAPH 3 OF THE ABOVE-QUOTED LETTER COVER TRANSPORTATION OF THE EMPLOYEE FROM HIS HOTEL OR PLACE OF LODGING TO THE PLACE WHERE HIS TEMPORARY DUTY WAS TO BE PERFORMED.

THE PERTINENT PROVISIONS OF THE CONTRACT ARE AS FOLLOWS:

TITLE III

ARTICLE III-A. * * *

1. THE CONTRACTOR SHALL BE REIMBURSED IN THE MANNER HEREINAFTER DESCRIBED FOR SUCH OF ITS ACTUAL EXPENDITURES IN THE PERFORMANCE OF THE WORK UNDER THIS CONTRACT, AS MAY BE APPROVED OR RATIFIED BY THE CONTRACTING OFFICER, AND AS ARE INCLUDED IN BUT NOT LIMITED TO THE FOLLOWING ITEMS;

D. TRANSPORTATION AND TRAVELING EXPENSES OF EMPLOYEES OF THE CONTRACTOR AS ARE ACTUALLY INCURRED IN CONNECTION WITH SUCH WORK; AND COSTS AND EXPENSES REIMBURSED TO EMPLOYEES OF THE CONTRACTOR TRANSFERRED TO OR FROM THE PROJECT ON ACCOUNT OF TRANSPORTATION OF THEMSELVES, THEIR FAMILIES AND THEIR HOUSEHOLD GOODS.

REIMBURSEMENT FOR TRANSPORTATION AND TRAVELING EXPENSES WILL BE LIMITED TO THE COST OF TRANSPORTATION, INCLUDING PULLMAN WHERE NECESSARY AND AN ALLOWANCE OF SIX DOLLARS ($6.00) PER DAY IN LIEU OF ALL OTHER EXPENSES. TRANSPORTATION BY AUTOMOBILE ON SUCH REQUIRED TRAVEL SHALL BE REIMBURSED AT THE RATE OF FIVE CENTS (?05) PER MILE AS REPRESENTING THE ACTUAL COST OF SUCH TRANSPORTATION.

ALL TRAVEL SHALL BE EITHER AUTHORIZED OR APPROVED IN WRITING BY THE CONTRACTING OFFICER. SHOULD THE CONTRACTOR OR ANY REPRESENTATIVE THEREOF, REMAIN IN A TRAVEL STATUS IN EXCESS OF SIX (6) DAYS AT ANY ONE TIME, NOT INCLUDING THE TIME CONSUMED IN TRAVEL, THE COST FOR SUCH EXCESS TRAVEL STATUS SHALL BE AT THE EXPENSE OF THE CONTRACTOR, UNLESS OTHERWISE ORDERED IN WRITING BY THE CONTRACTING OFFICER.

YOUR LETTER WAS FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE TO THE CHIEF OF ORDNANCE REQUESTING HIS REMARKS AND RECOMMENDATION THEREON. THE VIEWS OF THE CHIEF OF ORDNANCE ARE EXPRESSED IN HIS REPLY OF AUGUST 25, 1942, TRANSMITTED WITH YOUR LETTER, AND ARE, IN PERTINENT PART, AS FOLLOWS:

2. * * *

* * * THE CONTRACT PROVISION UNDER WHICH SUCH LOCAL FARES WERE APPROVED BY ORDNANCE, AND UNDER WHICH REIMBURSEMENT IS SOUGHT, IS TITLE III, ARTICLE III-A-1-D * * * IT WILL BE NOTED THAT THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE NOT INCORPORATED IN THE ABOVE SECTION, NOR IS ANY REFERENCE MADE THERETO IN ANY OTHER SECTION OF THE CONTRACT.

3. IT IS THE OPINION OF THE ORDNANCE DEPARTMENT, THEREFORE, THAT REIMBURSEMENT TO COST-PLUS-A-FIXED-FEE CONTRACTORS UNDER THE PROVISIONS OF THE INSTANT CONTRACT IS IN NO WAY CONTROLLED BY DEFINITIONS IN STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NOR SUBJECT TO THE RULINGS GIVEN BY THE GENERAL ACCOUNTING OFFICE WITH RESPECT TO SUCH TRAVEL REGULATIONS. * * *

4. * * *

IT MIGHT ALSO BE SAID THAT WHERE THE NEGOTIATING PARTIES TO THE CONTRACTS HAVE DISCUSSED THE TRAVEL PROVISIONS, AND HAVE AGREED THAT THE GOVERNMENT TRAVEL REGULATIONS SHALL GOVERN AND BE INTERPRETATIVE OF THE REIMBURSEMENT OF TRAVEL PAYMENT, OR WHERE THE TRAVEL ORDERS ISSUED HAVE INCORPORATED THE TRAVEL REGULATIONS THEREIN, THEN SUCH TRAVEL REGULATIONS WILL GOVERN.

BUT * * * IF---

THE INTENT OF THE PARTIES AS MANIFESTED BY THE ACTIONS OF THE PARTIES IS NOT INDICATIVE OF THE FACT THAT THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ARE APPLICABLE, THEN, AND THIS IS THE SITUATION INVOLVED IN THE INSTANT CASE, THE APPLICATION OF SUCH TRAVEL REGULATIONS AND THE DEFINITIONS THEREIN, IS NOT ONLY IN ERROR, BUT IS ASSUMING A POSITION CONTRA TO THE CONTRACT ITSELF AND TO THE MANIFEST, INTENT OF THE CONTRACTING PARTIES.

THAT IT WAS NOT THE INTENT OF THE ORDNANCE DEPARTMENT, AND OF THE CONTRACTOR IN CASE TO BE BOUND BY THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE DEFINITIONS THEREIN, IS INDICATED BY THE FACT THAT THE ORDNANCE DEPARTMENT HAS STATED IN EVERY CASE WHERE A CONTRACTING OFFICER'S REPRESENTATIVE OR A CONTRACTOR SOUGHT AN INTERPRETATION OF THE TRAVEL SECTION THAT:

"UNDER COST OF TRANSPORTATION REIMBURSEMENT FOR THE REASONABLE AND USUAL USE OF TAXICAB SERVICE, ETC., IS ALLOWED.'

IT MAY BE STATED TOO, THAT THE ORDNANCE DEPARTMENT CONSIDERS THE USE BY THE TRAVELER OF TAXICABS AND STREET CARS FOR THE PURPOSE OF SECURING MEALS, RETURNING TO LODGINGS, ETC., AND THE PAYING OF LOCAL FARES THEREFOR AS ENTIRELY REASONABLE AND CONSISTENT WITH THE TRAVEL PROVISIONS OF THE CONTRACT. * * *

THE ORDNANCE DEPARTMENT IS, HOWEVER, UNABLE TO AGREE WITH THE FEELING OF THE FINANCE OFFICER THAT THE DEFINITIONS IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS SHOULD REGULATE TRAVEL ACTIVITIES OF COST-PLUS-A-FIXED- FEE CONTRACTORS FOR THE REASON, BEFORE STATED, THAT THE REGULATIONS DO NOT APPLY, AND FOR THE FURTHER REASON THAT THE PARTIES HAVE THEMSELVES DEFINED THE TERM "TRANSPORTATION," AND THEIR TRAVEL ACTIONS HAVE BEEN IN ACCORDANCE WITH THAT DEFINITION.

EVEN ACTING ON THE ASSUMPTION THAT THE TERM TRANSPORTATION IS AMBIGUOUS, THERE IS NO RULE OF CONTRACT CONSTRUCTION WHICH REQUIRES RESORT TO STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FOR A DEFINITION. TO THE CONTRARY, THE RULE IS TO LOOK TO THE PRACTICAL INTERPRETATION OF THE PARTIES WHICH PRACTICAL INTERPRETATION IS OF GREAT WEIGHT, IF NOT CONTROLLING, IN ASCERTAINING THEIR INTENTIONS AT THE TIME OF EXECUTION. SEE 21 COMP. GEN. 470. * * *

5. ACCORDINGLY, IT IS THE OPINION OF THE ORDNANCE DEPARTMENT THAT WHERE THE CONTRACTOR HAS ACTED IN RELIANCE UPON THE ORIGINAL UNDERSTANDING AS STATED BY THE CONTRACT NEGOTIATORS AND THOSE REPRESENTING THE CHIEF OF ORDNANCE, HE IS ENTITLED TO BE REIMBURSED THE COST OF TRANSPORTATION INCLUDING THE COST OF LOCAL FARES.

THIS OFFICE IS UNABLE TO AGREE WITH THE INTERPRETATION PLACED UPON THE INVOLVED CONTRACT PROVISIONS BY THE CHIEF OF ORDNANCE AS INDICATED BY THE ABOVE-QUOTED PORTION OF HIS LETTER.

WHILE, AS STATED BY THE CHIEF OF ORDNANCE, THE PRACTICAL INTERPRETATION OF THE PARTIES IS OF GREAT WEIGHT IN DETERMINING THEIR TRUE INTENT AS TO DOUBTFUL PROVISIONS OF A CONTRACT, YET THIS PRINCIPLE HAS NO APPLICATION IN CASES WHERE THE CONTRACT SPEAKS IN CLEAR AND UNAMBIGUOUS TERMS. IN THE INSTANT CASE, CONCEDING THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO BE INAPPLICABLE, THE LANGUAGE OF THE CONTRACT ITSELF ON THE SUBJECT IS NOT CONSIDERED AMBIGUOUS, OR SUSCEPTIBLE OF THE INTERPRETATION CONTENDED FOR.

ARTICLE III-A-1-D OF TITLE III OF THE CONTRACT, SUPRA, REQUIRES THAT REIMBURSABLE TRANSPORTATION AND TRAVEL EXPENSES BE INCURRED IN CONNECTION WITH WORK UNDER THE CONTRACT. NOR WILL ANY CONNECTION WITH SUCH WORK, HOWEVER REMOTE, SUFFICE. 21 COMP. GEN. 466, 470. THE FAIR IMPORT OF THIS PROVISION OF THE CONTRACT IS THAT THE EXPENSES CONTEMPLATED ARE NOT THE USUAL AND EVERY DAY TRANSPORTATION OR TRAVEL EXPENSES OF THE EMPLOYEE, BUT EXPENSES WHICH RESULT DIRECTLY FROM AND ARE OCCASIONED BY PERFORMANCE OF WORK UNDER THE CONTRACT. TRIPS BY A TRAVELER FROM HIS HOTEL TO A RESTAURANT FOR MEALS COULD NOT REASONABLY BE TERMED TRANSPORTATION IN CONNECTION WITH HIS WORK. AND, IN THE ABSENCE OF SPECIAL CIRCUMSTANCES COMPARABLE TO THOSE ENUMERATED IN PARAGRAPH 8 (B) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, TRAVEL FROM ONE'S PLACE OF LODGING TO HIS PLACE OF EMPLOYMENT AND RETURN IS A NORMAL PERSONAL EXPENSE INCIDENT TO WORK IN GENERAL, AND NOT DIRECTLY CONNECTED WITH THE PARTICULAR TEMPORARY WORK IN WHICH THE EMPLOYEE MAY BE ENGAGED.

IN ADDITION TO THIS THE CONTRACT REQUIRES THAT ALL TRAVEL BE AUTHORIZED OR APPROVED IN WRITING BY THE CONTRACTING OFFICER. IN THE PRESENT CASE, AS SHOWN BY TRAVEL ORDER NO. 214 ATTACHED TO THE VOUCHER, THE EMPLOYEE WAS AUTHORIZED TO TRAVEL BY RAIL FROM CUMBERLAND, MARYLAND, TO PHILADELPHIA, PENNSYLVANIA, FROM THERE TO NEW YORK CITY, AND THENCE BACK TO CUMBERLAND, WITH THE EXPRESS DIRECTION THAT "REIMBURSEMENT FOR TRANSPORTATION WILL BE LIMITED TO THE COST BY THE SHORTEST AND MOST DIRECT ROUTES BETWEEN POINTS INDICATED ABOVE" (ITALICS SUPPLIED), AND THAT HIS SUBSISTENCE WOULD BE LIMITED TO $6 PER DAY IN LIEU OF ALL OTHER EXPENSES.

THE QUESTIONED TRAVEL IN THIS CASE APPEARS FROM THE RECORD TO HAVE BEEN ENTIRELY PERFORMED DURING THE TRAVELER'S FIVE-DAY STAY IN PHILADELPHIA, AND IF, AS STATED IN YOUR LETTER OF JULY 29, 1942, TO THE CHIEF OF FINANCE, IT CONSISTED SOLELY OF TRAVEL FROM HIS HOTEL OR PLACE OF LODGING TO HIS TEMPORARY DUTY STATION, IT MUST BE HELD THAT IT IS NOT "TRANSPORTATION" WITHIN THE MEANING OF ARTICLE III-A-1-D OF THE CONTRACT, AND THAT IT IS NOT REIMBURSABLE AS SUCH OR IN ADDITION TO THE $6 PER DAY ALLOWABLE AS TRAVELING EXPENSES "IN LIEU OF ALL OTHER EXPENSES.'