B-45959, DECEMBER 5, 1944, 24 COMP. GEN. 434

B-45959: Dec 5, 1944

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PURSUANT TO WHICH THE CONSULTANT WAS EMPLOYED. 24 COMP. 1944: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23. AS FOLLOWS: THERE ARE SUBMITTED HEREWITH STANDARD FORM 1067 VOUCHERS IN FAVOR OF THE DELAWARE. WHICH WERE ISSUED BY RALPH CLARK LIMBER. LIMBER WAS. " IN VIEW OF YOUR RULING IN 23 C.G. 17 THAT SPECIALISTS EMPLOYED UNDER CONTRACT ARE CIVILIAN OFFICERS AND EMPLOYEES OF THE U.S. MAY IT BE ASSUMED THAT TRANSPORTATION EXPENSES INCURRED BY THEM IN TRAVELING FROM THEIR REGULAR PLACES OF DUTY OR RESIDENCES TO POINTS OF DUTY DESIGNATED BY THE ADMINISTRATOR UNDER PROPER TRAVEL ORDERS ARE CORRECTLY PAYABLE FROM REGULAR TRAVEL FUNDS AVAILABLE TO THIS OFFICE FOR OFFICIAL TRAVEL OF OFFICERS AND EMPLOYEES.

B-45959, DECEMBER 5, 1944, 24 COMP. GEN. 434

TRAVELING EXPENSES - INTERMITTENT EMPLOYEES' TRAVEL BETWEEN DUTY STATION AND HOME - APPROPRIATION AVAILABILITY IN THE ABSENCE OF STATUTORY AUTHORITY FOR THE NATIONAL HOUSING AGENCY TO PAY THE TRAVELING EXPENSES OF CONSULTANTS, COMPENSATED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS, TO AND FROM THEIR HOMES, SUCH EXPENSES OF A CONSULTANT EMPLOYED BY THE AGENCY UNDER A CONTRACT PROVIDING FOR PAYMENT OF ACTUAL TRANSPORTATION EXPENSES TO AND FROM HIS HOME, IN ADDITION TO HIS PER DIEM COMPENSATION, CONSTITUTE, NOT TRAVELING EXPENSES CHARGEABLE TO A TRAVELING EXPENSE APPROPRIATION, BUT A PART OF HIS COMPENSATION CHARGEABLE TO THE SPECIAL ITEM IN THE AGENCY'S APPROPRIATION FOR THE TEMPORARY EMPLOYMENT OF PERSONS WITHOUT REGARD TO THE CLASSIFICATION LAWS, ETC., PURSUANT TO WHICH THE CONSULTANT WAS EMPLOYED. 24 COMP. GEN. 147, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO BEN E. LEWIS, NATIONAL HOUSING AGENCY, DECEMBER 5, 1944:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1944, AS FOLLOWS:

THERE ARE SUBMITTED HEREWITH STANDARD FORM 1067 VOUCHERS IN FAVOR OF THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY ( BILL NO. 551477) AND THE PULLMAN COMPANY ( BILLS NOS. V-47806-A AND V-48009-A) REPRESENTING BILLING FOR U.S. GOVERNMENT TRANSPORTATION REQUESTS NOS. HAA-19851, 19852 AND 19853, RESPECTIVELY, WHICH WERE ISSUED BY RALPH CLARK LIMBER, CONSULTANT, ON JUNE 14 AND 15, 1944,IN EXCHANGE FOR FIRST CLASS ROUND TRIP FARE AND PULLMAN ACCOMMODATIONS FROM SYRACUSE, N.Y. TO WASHINGTON, D.C. AND RETURN.

MR. LIMBER WAS, AT THE TIME OF INCURRING THESE EXPENSES, A CONTRACT EMPLOYEE RECEIVING PER DIEM COMPENSATION WHEN ACTUALLY EMPLOYED, UNDER THE CONDITIONS OF CONTRACT NO. HA/200/A-3, ENTERED INTO PURSUANT TO THE FOLLOWING PROVISION OF THE APPROPRIATION AUTHORITY FOR THE OFFICE OF THE ADMINISTRATOR, NATIONAL HOUSING AGENCY, FOR THE FISCAL YEAR 1944: "NOT TO EXCEED $5000 FOR TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, FOR LEGAL OR OTHER SPECIAL SERVICES WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES, AND THE CLASSIFICATION ACT OF 1923, AS AMENDED; "

IN VIEW OF YOUR RULING IN 23 C.G. 17 THAT SPECIALISTS EMPLOYED UNDER CONTRACT ARE CIVILIAN OFFICERS AND EMPLOYEES OF THE U.S. GOVERNMENT, MAY IT BE ASSUMED THAT TRANSPORTATION EXPENSES INCURRED BY THEM IN TRAVELING FROM THEIR REGULAR PLACES OF DUTY OR RESIDENCES TO POINTS OF DUTY DESIGNATED BY THE ADMINISTRATOR UNDER PROPER TRAVEL ORDERS ARE CORRECTLY PAYABLE FROM REGULAR TRAVEL FUNDS AVAILABLE TO THIS OFFICE FOR OFFICIAL TRAVEL OF OFFICERS AND EMPLOYEES, OR IS IT INCUMBENT UPON THIS OFFICE TO CHARGE THESE VOUCHERS TO THE $5000 SPECIAL EMPLOYMENT FUND?

AN EXECUTED COPY OF CONTRACT NO. HA/200/A-3, DATED JUNE 13, 1944, A CERTIFIED TRUE COPY OF TRAVEL ORDER NO. 569 ISSUED TO MR. LIMBER ON JUNE 13, 1944, AND THE REQUIRED STANDARD FORM 1012 VOUCHER RECORD OF OFFICIAL USE OF THE TRANSPORTATION REQUESTS INVOLVED ARE ATTACHED.

THE HOLDING IN THE DECISION REFERRED TO IN YOUR LETTER, 23 C.G. 17, SUPRA, THAT SPECIALISTS EMPLOYED UNDER CONTRACT ARE CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT WAS NOT AN ALL-PURPOSE HOLDING BUT ONE FOR THE PURPOSE OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75. HENCE, THAT DECISION HAS NO APPLICATION HERE.

PARAGRAPH 3 OF THE CONTRACT OF EMPLOYMENT MENTIONED IN YOUR LETTER PROVIDES AS FOLLOWS:

3. THE ADMINISTRATOR AGREES TO PAY SAID RALPH CLARK LIMBER FOR SAID SERVICES AT THE RATE OF $22.00 PER DIEM FOR SUCH DAYS AS SAID RALPH CLARK LIMBER IS ACTUALLY EMPLOYED, AND IN ADDITION THERETO TO FURNISH SAID RALPH CLARK LIMBER ACTUAL TRANSPORTATION EXPENSES WHILE TRAVELING FROM HIS AFORESAID ADDRESS TO WASHINGTON, D.C. OR SUCH OTHER PLACE AS MAY BE DESIGNATED BY THE ADMINISTRATOR, AND RETURN, FOR EACH PERIOD OF EMPLOYMENT.

IN DECISION OF AUGUST 21, 1944, 24 COMP. GEN. 147, IT WAS STATED AT PAGE 149, AS FOLLOWS:

REFERRING TO QUESTION 1 (B), THE APPROPRIATION ITEM FOR "TRAVELING EXPENSES (NOT TO EXCEED $7,250,000)," APPEARING IN THE CURRENT APPROPRIATION ACT, MAY BE REGARDED AS AVAILABLE FOR ANY AUTHORIZED TRAVELING EXPENSES INCURRED BY THE OFFICE OF PRICE ADMINISTRATION, INCLUDING EXPENSES OF PERSONS OR ORGANIZATIONS EMPLOYED AND PAID COMPENSATION WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS PURSUANT TO THE SPECIAL AUTHORITY AND WITHIN THE LIMITATION OF THE ITEM OF $30,000 CONTAINED IN THE SAME APPROPRIATION ACT. COMMUTATION RATES OF PER DIEM AND MILEAGE MAY BE PAID TO SUCH PERSONS OR ORGANIZATIONS ONLY IF PROVIDED FOR IN THEIR CONTRACTS OR AGREEMENTS OF EMPLOYMENT; OTHERWISE TRAVELING EXPENSES MUST BE REIMBURSED TO THEM ON AN ACTUAL EXPENSE BASIS. SEE 21 COMP. GEN. 409, AND THE DECISIONS THEREIN CITED. COMPARE 20 COMP. GEN. 361, 363.

THAT RULE WAS STATED IN THE LIGHT OF THE AUTHORITY CONTAINED IN SECTION 201 OF THE " NATIONAL WAR AGENCY APPROPRIATION ACT, 1945," APPROVED JUNE 28, 1944, 58 STAT. 545, PUBLIC LAW 372, FOR---

* * * TRAVEL EXPENSES TO AND FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, INCLUDING TRAVEL IN PRIVATELY OWNED AUTOMOBILE (AND INCLUDING PER DIEM IN LIEU OF SUBSISTENCE AT PLACE OF EMPLOYMENT), OF PERSONS EMPLOYED INTERMITTENTLY AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS AS CONSULTANTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS.

THAT PROVISION WAS MADE APPLICABLE TO THE OFFICE OF PRICE ADMINISTRATION BY A PROVISION APPEARING IN THE " SECOND DEFICIENCY APPROPRIATION ACT, 1944" APPROVED JUNE 28, 1944, 58 STAT. 601, PUBLIC LAW 375.

HOWEVER, I FIND NO CORRESPONDING AUTHORITY IN THE APPROPRIATION ACTS APPLICABLE TO THE NATIONAL HOUSING AGENCY TO PAY THE TRAVELING EXPENSES "TO AND FROM THEIR HOMES OR REGULAR PLACES OF USINESS" OF CONSULTANTS WHO RECEIVED COMPENSATION ON PER DIEM WHEN ACTUALLY EMPLOYED BASIS, AS IN THAT CASE, BUT ONLY "TO PERSONS SERVING, WHILE AWAY FROM THEIR HOMES, WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, IN AN ADVISORY CAPACITY TO THE AGENCY.' (QUOTING FROM THE APPROPRIATION ITEM " OFFICE OF THE ADMINISTRATOR" UNDER THE HEAD " NATIONAL HOUSING AGENCY" APPEARING IN THE " INDEPENDENT OFFICES APPROPRIATION ACT, 1944," APPROVED JUNE 27, 1944, 58 STAT. 375, PUBLIC LAW 358.) 22 COMP. GEN. 231; 23 ID. 90.

HENCE, THE AUTHORITY TO PAY MR. LIMBER HIS TRAVELING EXPENSES FROM AND TO HIS HOME, SYRACUSE, NEW YORK, TO AND FROM HIS OFFICIAL STATION, WASHINGTON, D.C., ARISES NOT FROM ANY STATUTE, BUT SOLELY FROM THE TERMS OF THE CONTRACT OF EMPLOYMENT, AND UPON THAT BASIS THE AMOUNT OF TRAVELING EXPENSES INCURRED, AS INDICATED ON THE VOUCHER FORWARDED WITH YOUR LETTER, CONSTITUTES, NOT TRAVELING EXPENSES CHARGEABLE TO TRAVELING EXPENSE ITEMS AVAILABLE TO THE NATIONAL HOUSING AGENCY, BUT A PART OF HIS COMPENSATION WHICH IS REQUIRED TO BE CHARGED TO THE $5,000 SPECIAL EMPLOYMENT FUND AUTHORIZED BY THE APPROPRIATION ITEM QUOTED IN THE SECOND PARAGRAPH OF YOUR LETTER. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.