B-35907, AUGUST 12, 1943, 23 COMP. GEN. 99

B-35907: Aug 12, 1943

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SCOPE OF FIRST WAR POWERS ACT UNDER EXISTING LAWS AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REIMBURSEMENT TO AN EMPLOYEE FOR THE USE OF A PRIVATELY OWNED AIRPLANE IN CONNECTION WITH HIS OFFICIAL TRAVEL IS AUTHORIZED ONLY ON AN ACTUAL EXPENSE BASIS PURSUANT TO A PROPERLY ISSUED TRAVEL ORDER. - REIMBURSEMENT TO AN EMPLOYEE FOR OFFICIAL TRAVEL BY PRIVATELY OWNED CONVEYANCE IS NOT WITHIN THE SCOPE OF THE CONTRACTING OR PROCUREMENT AUTHORITY OF THE EXECUTIVE DEPARTMENTS. 1943: I HAVE YOUR LETTER OF JUNE 24. BLATT IS DESIGNATED CHIEF OF THE LIGHTING UNIT OF THE AIRPORT DIVISION OF THE CIVIL AERONAUTICS ADMINISTRATION OF THIS DEPARTMENT AND IN HIS OFFICIAL CAPACITY IS REQUIRED TO VISIT AIRPORT PROJECTS AND DISTRICT OFFICES OF THE ADMINISTRATION FOR THE PURPOSE OF INSPECTING LIGHTING FACILITIES.

B-35907, AUGUST 12, 1943, 23 COMP. GEN. 99

OFFICERS AND EMPLOYEES - TRAVEL BY PRIVATELY OWNED AIRPLANE - REIMBURSEMENT UNDER CONTRACT AT SPECIFIED RATE PER FLIGHT-HOUR; SCOPE OF FIRST WAR POWERS ACT UNDER EXISTING LAWS AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS REIMBURSEMENT TO AN EMPLOYEE FOR THE USE OF A PRIVATELY OWNED AIRPLANE IN CONNECTION WITH HIS OFFICIAL TRAVEL IS AUTHORIZED ONLY ON AN ACTUAL EXPENSE BASIS PURSUANT TO A PROPERLY ISSUED TRAVEL ORDER, AND, THEREFORE, COMMUTATION OF SUCH EXPENSES MAY NOT BE MADE UNDER A CONTRACT AUTHORIZING REIMBURSEMENT AT A SPECIFIED RATE PER FLIGHT-HOUR, OR UPON A MILEAGE OR OTHER BASIS. AS EXISTING LAWS AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FIX THE AMOUNTS PAYABLE TO GOVERNMENT EMPLOYEES FOR OFFICIAL TRAVEL BY PRIVATELY OWNED CONVEYANCE AND ALSO PRESCRIBE THE MANNER OF AUTHORIZATION THEREFOR BY TRAVEL ORDER--- RATHER THAN CONTRACT--- REIMBURSEMENT TO AN EMPLOYEE FOR OFFICIAL TRAVEL BY PRIVATELY OWNED CONVEYANCE IS NOT WITHIN THE SCOPE OF THE CONTRACTING OR PROCUREMENT AUTHORITY OF THE EXECUTIVE DEPARTMENTS. WHILE THE PROVISIONS OF THE FIRST WAR POWERS ACT, AUTHORIZING CERTAIN DEPARTMENTS AND AGENCIES TO ENTER INTO CONTRACTS WITHOUT REGARD TO THE LAWS RELATING TO THE MAKING, PERFORMANCE, AMENDMENT, OR MODIFICATION OF CONTRACTS, LIBERALIZED EXISTING STATUTES RELATING TO PROCUREMENT, THEY DID NOT CONTEMPLATE A DEPARTURE, BY THE DEVICE OF A CONTRACT, FROM THE STANDARDS SET BY EXISTING LAWS AND REGULATIONS RESPECTING THE COMPENSATION AND ALLOWANCES, TRAVEL OR OTHERWISE, PAYABLE TO EMPLOYEES OF THE GOVERNMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, AUGUST 12, 1943:

I HAVE YOUR LETTER OF JUNE 24, 1943, RECEIVED HERE JULY 23, AS FOLLOWS:

MR. ROBERT C. BLATT IS DESIGNATED CHIEF OF THE LIGHTING UNIT OF THE AIRPORT DIVISION OF THE CIVIL AERONAUTICS ADMINISTRATION OF THIS DEPARTMENT AND IN HIS OFFICIAL CAPACITY IS REQUIRED TO VISIT AIRPORT PROJECTS AND DISTRICT OFFICES OF THE ADMINISTRATION FOR THE PURPOSE OF INSPECTING LIGHTING FACILITIES, CONSULTING WITH OFFICERS OF THE ADMINISTRATION AND VARIOUS MUNICIPALITIES AS WELL AS OTHER PARTIES HAVING A PROPER INTEREST IN MATTERS UNDER HIS JURISDICTION FOR THE PURPOSE OF FURNISHING ADVICE AND INSTRUCTION. THE FUNCTIONS OF THE LIGHTING UNIT ARE PERFORMED AT THE REQUEST OF THE ARMY OR NAVY IN CONNECTION WITH THE WAR PROGRAM AND FILL AN IMPORTANT AND ESSENTIAL REQUIREMENT OF THE MILITARY SERVICES.

TO BEST EFFECTUATE THE AIRPORT LIGHTING PROGRAM OF THE ADMINISTRATION AND TO INCREASE THE EFFICIENCY OF THE FUNCTIONS PERFORMED BY MR. BLATT IN HIS OFFICIAL CAPACITY, IT IS PROPOSED TO NEGOTIATE A CONTRACT WITH HIM FOR THE RENTAL OF A 65 H. P. TAYLOR CRAFT DELUXE MODEL BC12-65 AIRCRAFT OWNED BY HIM FOR A RENTAL CONSIDERATION OF $7.00 PER FLIGHT HOUR. THIS FIGURE HAS BEEN DETERMINED BY THE ADMINISTRATION TO REPRESENT A REASONABLE AND PROPER RENTAL PRICE FOR THE AIRPLANE IN QUESTION AND IT IS BELIEVED WILL NO MORE THAN MEET THE ACTUAL COST OF MAINTENANCE AND OPERATION OF THE AIRCRAFT WHILE ENGAGED IN OFFICIAL BUSINESS OF THE CIVIL AERONAUTICS ADMINISTRATION. A COPY OF THE PROPOSED CONTRACT IS ENCLOSED FOR YOUR CONSIDERATION.

THE PROPOSED ACTION WILL BE EXERCISED BY THE CIVIL AERONAUTICS ADMINISTRATION UNDER THE AUTHORITY CONTAINED IN EXECUTIVE ORDER 9116 ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THE PROSECUTION OF THE WAR WILL THEREBY BE FACILITATED WITHIN THE INTENT OF SAID ORDER.

MR. BLATT'S OFFICIAL DUTIES REQUIRE HIS PRESENCE UNDER A MORE OR LESS FIXED SCHEDULE AT VARIOUS AIRPORTS AND DISTRICT OFFICES THROUGHOUT THE UNITED STATES, MANY OF WHICH ARE LOCATED REMOTELY FROM RAILROAD CARRIERS. THE SYSTEM OF PRIORITIES CURRENTLY IN EFFECT WITH RESPECT TO TRAVEL BY COMMERCIAL AIRLINES PRECLUDES THE EFFICIENT AND SATISFACTORY USE THEREOF. CONSIDERABLE TIME IS OFTEN LOST IN ATTEMPTING TO USE SUCH FACILITIES AND, AS A MATTER OF FACT ASSURANCE OF ACCOMMODATIONS THEREON IS EXTREMELY UNCERTAIN. THIS IS ALSO TRUE WITH RESPECT TO RAILROAD TRAVEL. THE SAVING IN TIME BY THE USE OF HIS PRIVATELY OWNED AIRCRAFT IS AN IMPORTANT AND VITAL FACTOR FROM THE VIEWPOINT OF RENDERING AN ESSENTIAL SERVICE TO THE MILITARY AS WELL AS TO COMMERCIAL AVIATION INCLUDING OF COURSE, THE ELEMENT OF SAFETY. AFTER CONSIDERING THE SAVINGS MADE NOT ONLY IN TIME WHICH CAN BE DEVOTED TO HIS OFFICIAL DUTIES RATHER THAN WASTED BY A SLOWER METHOD OF TRANSPORTATION INCLUDING CONSIDERABLE "LAY-OVER TIME," AS WELL AS THE SAVINGS MADE IN SUBSISTENCE, IT IS THE OPINION OF THE ADMINISTRATION THAT THE RENTAL CONSIDERATION PROPOSED TO BE PAID BY MR. BLATT REPRESENTS A LESSER EXPENSE TO THE GOVERNMENT THAN WOULD ORDINARILY BE ENTAILED BY THE USE OF OTHER FACILITIES WHICH, DUE TO WAR ECONOMY ARE LESS EFFICIENT AND ENTIRELY INADEQUATE TO MEET THE REQUIREMENTS OF THE ADMINISTRATION.

THE ADMINISTRATION HAS CONSIDERED EVERY ALTERNATIVE BUT HAS DETERMINED THAT THE PROPOSED ACTION IS THE MOST DESIRABLE AND THAT THE SUCCESSFUL PROSECUTION OF THE WAR WILL BE FACILITATED BY ENTERING INTO SUCH A CONTRACT WITH MR. BLATT. THERE ARE SEVERAL OTHER OFFICERS OF THE ADMINISTRATION WHO ARE IN A LIKE POSITION AS REGARDS THE TIME ELEMENT AND DEGREE OF EFFICIENCY WITH RESPECT TO THEIR WAR FUNCTIONS AND WHERE THE GOVERNMENT'S INTEREST WOULD BE BEST SERVED BY ENTERING INTO A SIMILAR CONTRACT.

IT WILL BE APPRECIATED IF YOU WILL FURNISH YOUR OPINION AS TO THE PROPRIETY OF THE NEGOTIATION OF SUCH A CONTRACT UNDER THE WAR POWERS OF THE ADMINISTRATION OF CIVIL AERONAUTICS ON THE BASIS OF AN HOURLY RATE IN LIEU OF ACTUAL EXPENSE NOT TO EXCEED COST BY AVAILABLE COMMON CARRIER, SUCH ACTUAL EXPENSE BEING EXCEPTIONALLY DIFFICULT, IF NOT IMPOSSIBLE TO DETERMINE.

THE DRAFT OF PROPOSED CONTRACT ENCLOSED WITH YOUR LETTER EMPLOYS THE TERMINOLOGY OF A RENTAL CONTRACT FOR THE HIRE OF MR. BLATT'S AIRPLANE BY THE CIVIL AERONAUTICS ADMINISTRATION, BUT THE FACTS OF THE CONTEMPLATED PLAN, AS DETAILED IN YOUR LETTER, MANIFESTLY CONSTITUTE AN ARRANGEMENT FOR THE TRANSPORTATION OF THE EMPLOYEE IN HIS OWN VEHICLE TO THE SEVERAL POINTS WHERE HIS WORK REQUIRES HIM TO BE, AND FOR SOME MEASURE OF REIMBURSEMENT OR COMPENSATION TO HIM FOR THE EXPENSE SO CAUSED. TRANSPORTATION AND REIMBURSEMENT THEREFOR IN SUCH CASES ARE THE SUBJECT OF A NUMBER OF STATUTORY ENACTMENTS, AND OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ISSUED UPON APPROVAL OF THE PRESIDENT "FOR THE GUIDANCE OF CIVILIAN OFFICIALS AND EMPLOYEES OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS.' THE LAWS AND REGULATIONS CAREFULLY DELIMIT THE SUMS WHICH MAY BE PAID FOR THE PURPOSES SET FORTH IN YOUR LETTER AND, ALSO, PRESCRIBE THE MANNER OF THEIR AUTHORIZATION BY TRAVEL ORDER RATHER THAN BY CONTRACT. ACCORDINGLY, IT MUST BE, AND IS, CONSIDERED THAT REIMBURSEMENT TO AN EMPLOYEE FOR THE TRANSPORTATION OF HIMSELF IN A PRIVATE CONVEYANCE FOR OFFICIAL TRAVEL IS NOT WITHIN THE AMBIT OF THE CONTRACTING OR PROCUREMENT AUTHORITY OF THE EXECUTIVE DEPARTMENTS.

THAT CONCLUSION FOLLOWS REGARDLESS OF WHETHER THERE BE UTILIZED THE PROVISIONS OF EXECUTIVE ORDER NO. 9116, WHICH EXTENDS TO THE CIVIL AERONAUTICS ADMINISTRATION THE AUTHORITY, UNDER THE FIRST WAR POWERS ACT, 55 STAT. 838 (50 U.S.C. APP. 611),"WITHIN THE LIMITS OF THE AMOUNTS APPROPRIATED THEREFOR TO ENTER INTO CONTRACTS * * * WITHOUT REGARD TO THE PROVISIONS OF LAW RELATING TO THE MAKING, PERFORMANCE, AMENDMENT, OR MODIFICATION OF CONTRACTS.' AS EXPLAINED IN THE COMMITTEE REPORTS, THAT ACT WAS INTENDED TO, AND DID, LIBERALIZE EXISTING STATUTES RELATING TO PROCUREMENT (21 COMP. GEN. 835), BUT IT HAS NOT BEEN UNDERSTOOD TO HAVE CONTEMPLATED, THROUGH THE DEVICE OF A CONTRACT, ANY DEPARTURE FROM THE STANDARDS SET BY LAW FOR THE COMPENSATION AND ALLOWANCES, TRAVEL OR OTHERWISE, PAYABLE TO EMPLOYEES OF THE GOVERNMENT.

A NUMBER OF THE CONSIDERATIONS SUGGESTED IN YOUR LETTER WERE PRESENTED PREVIOUSLY, IN LETTER FROM THE FORMER CIVIL AERONAUTICS AUTHORITY DATED DECEMBER 14, 1938, IN WHICH DECISION WAS REQUESTED ON THE PAYMENT OF MILEAGE TO ITS EMPLOYEES FOR TRAVEL IN THEIR PRIVATE PLANES. THE REPLY OF JANUARY 4, 1939, 18 COMP. GEN. 588, WAS AS FOLLOWS.

IN THE ABSENCE OF A STATUTE SO PROVIDING IT IS NOT PERMISSIBLE TO COMMUTE TRAVELING EXPENSES AND THUS REIMBURSE AN EMPLOYEE AT A RATE PER DIEM OR PER MILE. SEE 4 COMP. GEN. 735. THE ONLY STATUTE AUTHORIZING MILEAGE TO CIVIL EMPLOYEES IN A TRAVEL STATUS IS THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED, WHICH COVERS ONLY OFFICIAL TRAVEL BY THE EMPLOYEE'S OWN MOTORCYCLE OR OWN AUTOMOBILE AND CAN NOT, THEREFORE, BE APPLIED TO THE USE OF A PRIVATELY OWNED AIRPLANE. ACCORDINGLY, WHEN AN OFFICER OR EMPLOYEE IS AUTHORIZED TO TRAVEL BY HIS PRIVATELY OWNED AIRPLANE HE MAY BE REIMBURSED ONLY ON AN ACTUAL EXPENSE BASIS NOT TO EXCEED THE COST BY AVAILABLE COMMON CARRIER AS PROVIDED IN PARAGRAPH 12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

IN THE 77TH CONGRESS, TWO BILLS WERE INTRODUCED TO PROVIDE MILEAGE FOR TRAVEL BY PRIVATE PLANE, BUT THEY FAILED OF ENACTMENT. S. 1822; H.R. 6384. UNDER THE PRESENT LAWS ( 5 U.S.C. 73 AND 73B 18 STAT. 452 AND 47 STAT. 1516) ONLY ACTUAL EXPENSES MAY BE ALLOWED FOR SUCH TRAVEL (ASIDE FROM THE PER DIEM IN LIEU OF SUBSISTENCE); AND UNDER PARAGRAPH 12 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, ACTUAL EXPENSES MAY INCLUDE ONLY,"COST OF GASOLINE, OIL, AND FEED OF HORSES, AND IN ADDITION THERETO GARAGE OR HANGAR RENT AND STABLING OF HORSES, WHILE OFFICIALLY DETAINED EN ROUTE, AND BRIDGE, FERRY, AND OTHER TOLLS.' SAID PARAGRAPH OF THE REGULATIONS FURTHER PROVIDES THAT: " CHARGES FOR REPAIRS, DEPRECIATION, REPLACEMENTS, GREASE, ALCOHOL, FLUSHING CRANK CASES, TOWAGE, AND LIKE SPECULATIVE EXPENSES WILL NOT BE ALLOWED; NOR FOR THE USE OF A PRIVATELY OWNED CONVEYANCE (OTHER THAN ACTUAL EXPENSE THEREOF AS ABOVE AUTHORIZED).' IF, AS HAS BEEN SUGGESTED (SEE LETTER OF DECEMBER 29, 1938, FROM THE CIVIL AERONAUTICS AUTHORITY, AND COMPARE 15 COMP. GEN. 270), THE TRAVEL REGULATIONS DO NOT LIST ALL PROPER ITEMS OF EXPENSE, THE APPROPRIATE REMEDY IS TO PROPOSE A REVISION OF PARAGRAPH 12, OR TO RESUBMIT TO THE CONGRESS A PROPOSAL FOR LEGISLATION TO SANCTION A COMMUTATION OF SUCH COSTS UPON A MILEAGE, HOURLY, OR OTHER BASIS. THE PAYMENT OF SUCH A COMMUTATION UNDER CONTRACT IS NOT NOW AUTHORIZED. COMP. GEN. 724; 4 ID. 116.

THERE IS NOTED THE NEW AUTHORITY FOR THE HIRE OF AIRCRAFT WHICH IS CONTAINED IN THE APPROPRIATION FOR GENERAL ADMINISTRATION OF THE OFFICE OF THE ADMINISTRATOR OF CIVIL AERONAUTICS ( PUBLIC LAW 105, APPROVED JULY 1, 1943, 57 STAT. 293). HOWEVER, AS THE FACTS IN THE PRESENT CASE ARE UNDERSTOOD, THERE IS INVOLVED HERE NOT THE RENTING OF A PLANE FOR THE GENERAL PURPOSES OF THE ADMINISTRATION BUT MERELY AN ARRANGEMENT TO REIMBURSE THE OFFICER FOR THE EXPENSE OF HIS TRANSPORTATION IN A PRIVATELY OWNED PLANE.