B-37105, OCTOBER 18, 1943, 23 COMP. GEN. 280

B-37105, OCTOBER 18, 1943, 23 COMP. GEN. 280

TRANSPORTATION EXPENSES - EMPLOYEES OF FIXED-PRICE, COST-PLUS CONTRACTORS, ETC., RETURNED TO UNITED STATES FROM FOREIGN MILITARY BASES AT EXPENSE OF WAR DEPARTMENT THE GENERAL PURPOSE OF SECTION 3 (A) OF THE ACT OF JUNE 5, 1952, AUTHORIZING THE SECRETARY OF WAR TO APPOINT OR ASSIGN CIVILIAN EMPLOYEES IN THE UNITED STATES FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND TO PAY THE COSTS OF TRANSPORTATION OF SUCH EMPLOYEES TO AND FROM THE FOREIGN DUTY STATIONS, WAS TO PROVIDE FOR THE TRANSPORTATION OF PERSONS EMPLOYED DIRECTLY BY THE WAR DEPARTMENT IN A MANNER SIMILAR TO THAT UNDER WHICH EMPLOYEES OF CONTRACTORS ENGAGED IN CONSTRUCTION WORK AT NEWLY ACQUIRED FOREIGN BASES ARE TRANSPORTED TO AND FROM THE BASES EITHER THROUGH THE COST-PLUS ARRANGEMENT OR AS ONE OF THE ELEMENTS OF COST INCLUDED IN A FIXED PRICE CONTRACT. THE PROVISIONS OF THE ACT OF JUNE 5, 1942, WHICH AUTHORIZE THE SECRETARY OF WAR TO PAY THE COSTS OF TRANSPORTATION OF CIVILIAN EMPLOYEES TO FOREIGN DUTY STATIONS AND RETURN TO THE UNITED STATES UPON RELIEF THEREFROM, ARE NOT LIMITED TO THOSE PERSONS WHO WERE TRANSPORTED UNDER AUTHORITY OF THE SAID ACT, BUT INCLUDE, ALSO, PERSONS (1) WHO TRAVELED TO A FOREIGN STATION AT THE EXPENSE OF THE UNITED STATES, EITHER MEDIATELY OR IMMEDIATELY, (2) WHO SO TRAVELED WITH THE UNDERSTANDING THAT THEY WOULD BE RETURNED AFTER THE COMPLETION OF THEIR ASSIGNMENT FOR WORK IN OR ON A GOVERNMENT ACTIVITY, AND (3) WHO, UPON RELIEF FROM SUCH ASSIGNMENT ON A WAR DEPARTMENT ACTIVITY, REQUEST TO BE RETURNED. PERSONS WHO WERE TRANSPORTED AT GOVERNMENT EXPENSE FROM THE UNITED STATES TO FOREIGN STATIONS FOR WORK ON NEWLY ACQUIRED FOREIGN MILITARY BASES BY A GOVERNMENT AGENCY OR A COST-PLUS-A-FIXED-FEE CONTRACTOR, WITH THE UNDERSTANDING THAT RETURN TRANSPORTATION WOULD BE FURNISHED, AND WHOSE SERVICES SUBSEQUENTLY WERE UTILIZED ABROAD BY THE WAR DEPARTMENT MAY BE RETURNED TO THE UNITED STATES, IF REQUEST THEREFOR IS MADE UPON RELIEF FROM DUTY, AT THE EXPENSE OF THE WAR DEPARTMENT PURSUANT TO THE AUTHORITY VESTED IN THE SECRETARY OF WAR UNDER THE ACT OF JUNE 5, 1942, TO ASSIGN CIVILIAN EMPLOYEES TO FOREIGN DUTY STATIONS AND TO PAY THE COSTS OF TRANSPORTATION TO AND FROM SUCH STATIONS. WHERE AN EMPLOYEE OF A FIXED-PRICE CONTRACTOR WAS TRANSPORTED FROM THE UNITED STATES TO A FOREIGN STATION FOR WORK ON NEWLY ACQUIRED FOREIGN MILITARY BASES, WITH THE UNDERSTANDING THAT RETURN TRANSPORTATION WOULD BE FURNISHED, AND HIS SERVICES WITH THE CONTRACTOR WERE TERMINATED IN ORDER THAT THEY MAY BE UTILIZED MORE EFFECTIVELY BY THE WAR DEPARTMENT, THE COST OF RETURN TRANSPORTATION MAY BE PAID BY THE WAR DEPARTMENT UNDER AUTHORITY OF THE ACT OF JUNE 5, 1942, AUTHORIZING PAYMENT TO CIVILIAN EMPLOYEES OF COSTS OF TRANSPORTATION TO AND FROM FOREIGN STATIONS, BUT THE CONTRACTING OFFICER SHOULD BE NOTIFIED OF ANY SUCH TRANSFERS IN ORDER THAT THE CONTRACT PRICE MAY BE THE SUBJECT OF AN AMENDMENT ADJUSTING ANY ACTUAL SAVINGS IN COSTS TO THE CONTRACTOR. CITIZENS OF THE UNITED STATES WHO ARE EMPLOYED ON A WAR DEPARTMENT PROJECT WHILE RESIDING ABROAD, BUT WHO WENT ABROAD INITIALLY FOR PERSONAL OR BUSINESS REASONS, MAY NOT, UPON SEPARATION FROM SERVICE, BE FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES UNDER THE ACT OF JUNE 5, 1942, AUTHORIZING THE SECRETARY OF WAR TO PAY THE TRANSPORTATION EXPENSES OF CIVILIAN EMPLOYEES TO AND FROM FOREIGN DUTY STATIONS, BUT IF THE POSITIONS TO BE FILLED ARE NOT CLASSIFIED AND THE SALARY RATES ARE NOT FIXED BY LAW OR REGULATION, TRANSPORTATION TO ANY AGREED POINT COULD BE PROVIDED AT THE END OF THE TERM OF SERVICE, NOT UNDER THE SAID STATUTE, BUT AS PART OF THE COMPENSATION FIXED IN ADVANCE FOR THE EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 18, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED SEPTEMBER 15, 1943, AS FOLLOWS:

VARIOUS OVERSEAS COMMANDS AND TECHNICAL SERVICES OF THE WAR DEPARTMENT HAVE A GREAT NEED FOR CIVILIAN PERSONNEL TO PERFORM CONSTRUCTION OR SUPERVISORY WORK, AND OTHER ESSENTIAL SERVICES AT INSTALLATIONS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES. FOR VARIOUS REASONS QUALIFIED PERSONNEL IS NOT ALWAYS AVAILABLE IN THE NATIVE LABOR MARKET OF THE AREA AND IT BECOMES NECESSARY TO RECRUIT UNITED STATES CITIZENS FOR SUCH SERVICE, EITHER IN THE UNITED STATES OR IN THE AREA CONCERNED. EXPERIENCE HAS REVEALED THAT AMERICAN CITIZENS LOCATED IN THE GENERAL AREA OF SUCH INSTALLATIONS REPRESENT AN AVAILABLE SOURCE OF NEEDED PERSONNEL, BUT IT IS AN ESSENTIAL CONDITION OF THEIR EMPLOYMENT THAT THEY BE ASSURED TRANSPORTATION TO THE UNITED STATES UPON COMPLETION OF THEIR SERVICE AND THAT FUNDS BE MADE AVAILABLE THEREFOR.

IN MANY INSTANCES THE PERSONNEL RECEIVED TRANSPORTATION TO THE STATION AS PART OF AN EMPLOYMENT AGREEMENT WITH A CONTRACTOR, USUALLY A COST PLUS A FIXED FEE CONTRACTOR, ENGAGED ON A PROJECT IN THE AREA AND ARE ENTITLED ON TERMINATION OF EMPLOYMENT TO RETURN TRANSPORTATION; THUS, THE GOVERNMENT BY DIRECTLY AGREEING TO RETURN THE EMPLOYEE WOULD BE INCURRING NO ADDITIONAL EXPENSE. IN SOME INSTANCES, IT IS DESIRABLE TO TAKE OVER EMPLOYEES PRIOR TO THE TERMINATION OF THEIR EMPLOYMENT CONTRACT. SIMILARLY, ANOTHER BUREAU OF THE WAR DEPARTMENT, OR AN AGENCY OF THE GOVERNMENT OTHER THAN THE WAR DEPARTMENT, MAY HAVE TRANSPORTED THE EMPLOYEES TO THE INSTALLATION. SOME OF THESE PERSONS MAY HAVE BEEN TEMPORARY RESIDENTS OF THE AREA; OR MAY HAVE PROVIDED THEIR OWN TRANSPORTATION IN ORDER TO SECURE EMPLOYMENT, OR MAY HAVE BEEN APPOINTED BY TRANSFER FROM THE UNITED STATES AND RECEIVED TRANSPORTATION AS A CHANGE IN DUTY STATION. UNLESS THE WAR DEPARTMENT IS ABLE TO ASSURE AND PAY FOR RETURN TRANSPORTATION A FAILURE TO UTILIZE THE LIMITED AVAILABLE MANPOWER WOULD RESULT.

SECTION 3A OF THE ACT OF 5 JUNE 1942 ( PUBLIC LAW 580 (56 STAT. 314/- 77TH CONGRESS) PROVIDES AS FOLLOWS:

"SEC. 3. (A) THAT THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO EFFECT APPOINTMENTS OF CIVILIAN EMPLOYEES IN THE UNITED STATES, OR TO EFFECT THE TRANSFER OF SUCH EMPLOYEES IN THE FEDERAL SERVICE IN THE UNITED STATES, FOR DUTY AT ANY POINT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA AT WHICH IT MAY BE FOUND NECESSARY TO ASSIGN SUCH CIVILIAN EMPLOYEES, AND TO PAY THE COSTS OF TRANSPORTATION OF SUCH EMPLOYEES FROM THE PLACE OF ENGAGEMENT IN THE UNITED STATES, OR FROM THE PRESENT POST OF DUTY IN THE UNITED STATES OR ALASKA, IF ALREADY IN THE FEDERAL SERVICE, TO THE POST OF DUTY OUTSIDE THE UNITED STATES AND RETURN UPON RELIEF THEREFROM, AND TO PROVIDE FOR THE SHIPMENT OF PERSONAL EFFECTS OF PERSONS SO APPOINTED OR TRANSFERRED FROM THE PLACE OF ENGAGEMENT OR TRANSFER TO THE POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA AND RETURN UPON RELIEF THEREFROM.'

IF THE PERSON HAD RETURNED TO THE UNITED STATES, IT WOULD BE CLEAR BEYOND DOUBT THAT AN ARRANGEMENT COULD BE MADE UNDER PUBLIC LAW 580 TO EMPLOY HIM IN THE UNITED STATES AND PAY HIS TRANSPORTATION TO AND FROM THE FOREIGN INSTALLATION. YOUR DECISION IS REQUESTED ON THE PROPRIETY OF ARRANGING FOR RETURN TRANSPORTATION, PURSUANT TO PUBLIC LAW 580, OR OTHERWISE, IN THE FOLLOWING SPECIFIC SITUATIONS:

1. MAY UNITED STATES CITIZENS BE EMPLOYED IN PLACES OUTSIDE THE UNITED STATES AND BE FURNISHED TRANSPORTATION TO THE UNITED STATES UPON SEPARATION FROM SERVICE IF THE EMPLOYEE HAD BEEN FURNISHED TRANSPORTATION TO THE FOREIGN STATION BY A COST PLUS A FIXED FEE GOVERNMENT CONTRACTOR UNDER AN AGREEMENT PROVIDING FOR RETURN TRANSPORTATION? MAY THE DEPARTMENT SO ARRANGE WHERE IT OBTAINS THE DISCONTINUANCE OF THE EMPLOYMENT OF THE PERSON BY THE COST PLUS A FIXED FEE CONTRACTOR AFTER A DETERMINATION THAT HIS SERVICES COULD BE MORE EFFECTIVELY UTILIZED BY THE DEPARTMENT ITSELF?

2. MAY SUCH AN ARRANGEMENT BE MADE WITH AN EMPLOYEE WHO WAS FURNISHED TRANSPORTATION AND IS ENTITLED TO RETURN TRANSPORTATION BY A FIXED PRICE CONTRACTOR?

3. MAY SUCH AN ARRANGEMENT BE MADE IF THE EMPLOYEE WAS FURNISHED TRANSPORTATION AND IS ENTITLED TO RETURN TRANSPORTATION BY SOME GOVERNMENTAL AGENCY OTHER THAN THE WAR DEPARTMENT SUCH AS THE NAVY OR THE ALCAN HIGHWAY COMMISSION?

4. MAY EMPLOYEES, WHO, PRIOR TO PASSAGE OF PUBLIC LAW 580, WERE TRANSFERRED TO THE FOREIGN STATION UNDER PROPER TRAVELING ORDERS (AS CHANGE IN DUTY STATION) BE RETURNED TO THE UNITED STATES UPON SEPARATION FROM THE SERVICE?

5. MAY UNITED STATES CITIZENS EMPLOYED IN PLACES OUTSIDE THE UNITED STATES BE FURNISHED TRANSPORTATION TO THE UNITED STATES UPON SEPARATION FROM THE SERVICE IF, IMMEDIATELY PRIOR TO EMPLOYMENT, THEY HAD BEEN RESIDENTS AT THEIR PLACE OF DUTY (TEMPORARY OR INDEFINITE/? IF SO, IS TRANSPORTATION TO LEGAL DOMICILE IN THE UNITED STATES AUTHORIZED, OR ONLY TO THE NEAREST POST OF ENTRY?

ANY CONSIDERATION OF POLICY UNDER PUBLIC LAW 580 WHICH WOULD PREVENT THE TRANSPORTATION OF THE EMPLOYEE FROM THE FOREIGN STATION IN SITUATIONS WHERE HIS PRESENCE AT SUCH STATION HAD NOTHING TO DO WITH GOVERNMENT WORK WOULD NOT APPLY WHERE THE EMPLOYEE LEFT THE UNITED STATES FOR THE PURPOSE OF WORKING AT THE FOREIGN STATION OR HAD THE OBLIGATION OF SOME PARTY TO ARRANGE FOR HIS RETURN TRANSPORTATION. APART FROM THE STATUTE, IT WOULD SEEM THAT AUTHORITY TO ARRANGE FOR RETURN TRANSPORTATION SHOULD EXIST UNDER THE UNUSUAL SITUATIONS INVOLVED, NOTWITHSTANDING THE WELL ESTABLISHED RULE THAT ORDINARILY, PAYMENT OF THE TRAVEL EXPENSE OF A CIVILIAN EMPLOYEE FROM HIS DUTY STATION IS UNAUTHORIZED SINCE IT WOULD BE ADDITIONAL COMPENSATION IN THE GUISE OF TRAVELING EXPENSE (13 COMP. GEN. 390; 14 COMP. GEN. 564). IF THE DEPARTMENT IS ABLE TO ENTER INTO SUCH AGREEMENT WITH INDIVIDUALS ALREADY LOCATED IN THE AREA, SUBSTANTIAL SAVINGS IN TIME AND MONEY WILL ACCRUE TO THE GOVERNMENT SINCE IT THEN WILL BE UNNECESSARY TO RECRUIT AND TRANSPORT PERSONNEL FROM THE UNITED STATES. IT IS APPARENT THAT IF EMPLOYEES INVOLVED IN THE ABOVE SITUATION HAD RETURNED TO THE UNITED STATES, THE DEPARTMENT, ACTING PURSUANT TO PUBLIC LAW 580, COULD ARRANGE FOR THEIR TRANSPORTATION TO AND FROM A FOREIGN STATION AND IT WOULD SEEM STRANGE, THEREFORE, THAT NO RIGHT SHOULD EXIST TO ARRANGE FOR SUCH TRANSPORTATION FROM THE FOREIGN STATION WHEN THE PERSONNEL ARE ALREADY LOCATED THERE, ESPECIALLY WHEN THE FINANCIAL BURDEN OF ARRANGING FOR RETURN TRANSPORTATION MAY ALREADY BE ON THE GOVERNMENT.

THE STATUE QUOTED IN PART IN YOUR LETTER IS A RESTATEMENT OF A SIMILAR PROVISION UNDER TITLE I OF THE FIFTH SUPPLEMENT NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED APRIL 5, 1941, 55 STAT. 127, AND THE LEGISLATIVE RECORDS PERTAINING TO BOTH ACTS CLEARLY ESTABLISH THAT THE PROBLEM CONFRONTING YOUR DEPARTMENT, AND PRESENTED TO THE CONGRESS, WAS THE LACK OF ESSENTIAL MANPOWER IN THE VICINITY OF THE NEWLY ACQUIRED FOREIGN MILITARY BASES AND THE NECESSITY FOR TRANSPORTING PERSONNEL FROM THIS COUNTRY TO CARRY OUT THE PLANS THERE PROJECTED. THE UNDERTAKING TO RETURN THE EMPLOYEES WAS EQUALLY ESSENTIAL IN ORDER TO MAKE FEASIBLE THE ACCEPTANCE OF SUCH ASSIGNMENTS BY PERSONS LOCATED AT A DISTANCE FROM THE PLACES WHERE THEY WERE NEEDED. IT IS EVIDENT THE GENERAL PURPOSE WAS TO MAKE A SIMILAR PROVISION FOR THOSE EMPLOYED BY THE CONTRACTORS WHO HAD UNDERTAKEN THE WORK OF CONSTRUCTION AND WHOSE EMPLOYEES ARE TRANSPORTED TO AND FROM THE BASES, ULTIMATELY AT GOVERNMENT EXPENSE, EITHER THROUGH THE COST PLUS ARRANGEMENT OR AS ONE OF THE ELEMENTS OF COST FOR WHICH THE FIXED PRICE WAS AGREED UPON.

THE NEW STATUTORY PROVISION FOR THE RETURN OF THE DEPARTMENT'S EMPLOYEES WAS COUPLED WITH THE AUTHORITY TO PAY FOR THEIR OUTWARD JOURNEY IN ORDER TO LIMIT THE RIGHT OF RETURN TO THOSE PERSONS WHO WENT OUT AT GOVERNMENT EXPENSE WITH THE CONTEMPLATION OF RETURN UPON COMPLETION OF THE PROJECT. BUT IT SEEMS IMMATERIAL TO THAT PURPOSE WHETHER THE EMPLOYEES BEING RETURNED WERE ORIGINALLY TAKEN TO THE WORK SITE UNDER THAT PARTICULAR STATUTORY AUTHORITY, AND SINCE NO SUCH APPARENTLY PURPOSELESS LIMITATION WAS EXPRESSLY STATES, IT IS NOT TO BE IMPLIED. AT THE TIME OF THE ENACTMENT, JUNE 5, 1942, MANY OF THE PERSONS AFFECTED ALREADY WERE ON DUTY ABROAD; HENCE, THE RETURN JOURNEY IS NOT TO BE LIMITED TO THOSE PERSONS WHO WENT OUT UNDER THE SAME AUTHORITY; RATHER THE PERSONS TO BE RETURNED WOULD SEEM TO ENCOMPASS THOSE (1) WHO TRAVELED TO THE FOREIGN POST AT THE EXPENSE OF THE UNITED STATES, EITHER MEDIATELY OR IMMEDIATELY, (2) WHO SO TRAVELED WITH THE UNDERSTANDING THEY WOULD BE RETURNED AFTER THE COMPLETION OF THEIR ASSIGNMENT FOR WORK IN OR ON A GOVERNMENT ACTIVITY, AND (3) WHO, UPON RELIEF FROM SUCH ASSIGNMENT ON A WAR DEPARTMENT ACTIVITY, REQUEST TO BE RETURNED.

IN THAT VIEW, AND UPON THOSE CONDITIONS, THE PERSONS DESCRIBED IN YOUR FIRST THREE QUESTIONS ARE ELIGIBLE FOR RETURN AT THE EXPENSE OF THE WAR DEPARTMENT. AS TO THOSE CASES COVERED BY YOUR SECOND QUESTION- - EMPLOYEES OF FIXED-PRICE CONTRACTORS--- THE CONTRACTING OFFICERS SHOULD BE NOTIFIED OF ANY SUCH TRANSFERS IN ORDER THAT THE CONTRACT PRICE MAY BE THE SUBJECT OF AN AMENDMENT APPROPRIATELY TO ADJUST FOR ANY ACTUAL SAVING IN COSTS TO THE CONTRACTOR. THE EXACT SITUATION CONTEMPLATED IN YOUR FOURTH QUESTION IS NOT CLEARLY UNDERSTOOD, BUT IF THE INVOLVED PERSONS COMPLY WITH THE THREE CONDITIONS SPECIFIED, SUPRA, PARTICULARLY THE INITIAL UNDERSTANDING AS TO THEIR RETURN BY THE GOVERNMENT, THAT CLASS, LIKEWISE, WOULD COME WITHIN THE PURVIEW OF THE ACT.

YOUR FIFTH QUESTION SUGGESTS THE QUITE DIFFERENT SITUATION OF CITIZENS OF THE UNITED STATES RESIDING ABROAD WHO MAY BECOME EMPLOYEES. SOME OF THEM MAY NEVER HAVE BEEN IN THIS COUNTRY; THE OTHERS MAY HAVE GONE ABROAD AT ANY TIME IN THE PAST, FOR PERSONAL OR BUSINESS REASONS, WITH OR WITHOUT ANY INTENTION TO RETURN. THE PURPOSE OF THE 1942 ACT IS TO MAKE IT POSSIBLE TO UTILIZE ABROAD THE SERVICE OF PERSONS RESIDENT IN THIS COUNTRY, WHOSE TRAVEL BOTH WAYS IS MOTIVATED, NOT BY A PERSONAL DESIRE TO CHANGE THEIR COUNTRY OF RESIDENCE, BUT BY THEIR WILLINGNESS TO SERVE AT WHATEVER DISTANT POINT THEY MAY BE NEEDED. THE FACT THAT RESIDENTS ABROAD COULD REPATRIATE THEMSELVES--- IF THEY COULD MAKE THEIR WAY HERE--- AND THEN, UNDER THIS STATUTE, COULD BE EMPLOYED AND TAKEN TO AND FROM A FOREIGN POST IS NOT A REASON TO CHARGE THE GOVERNMENT WITH THE EXPENSE OF THEIR ORIGINAL REPATRIATION, UNDER A STATUTE CONTEMPLATING AN ENTIRELY DIFFERENT OBJECTIVE. IN GENERAL, THEREFORE, YOUR FIFTH QUESTION IS ANSWERED IN THE NEGATIVE. 18 COMP. GEN. 125. EVEN IN SUCH CASES, HOWEVER, IF THE POSITIONS TO BE FILLED ARE NOT CLASSIFIED, AND THE SALARY RATES ARE NOT FIXED BY LAW OR REGULATION, TRANSPORTATION TO ANY AGREED POINT COULD BE PROVIDED AT THE END OF THE TERM OF SERVICE, NOT UNDER THE STATUTE ABOVE CONSIDERED, BUT AS PART OF THE COMPENSATION FIXED IN ADVANCE FOR THE EMPLOYMENT. 19 COMP. GEN. 71, WITH WHICH COMPARE 16 COMP. GEN. 852.