B-50681, FEBRUARY 25, 1963, 42 COMP. GEN. 436

B-50681: Feb 25, 1963

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SUBSISTENCE - PER DIEM - REDUCTION - BREAKDOWN OF PRIVATELY OWNED AUTOMOBILE USED ON OFFICIAL BUSINESS THE BREAKDOWN OR FAILURE IN THE OPERATION OF A PRIVATELY OWNED AUTOMOBILE IN WHICH AN EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS UNDER PROPER ORDERS NEED NO LONGER BE CLASSED AS A MATTER PERSONAL TO THE EMPLOYEE AND NOT INCIDENT TO HIS OFFICIAL DUTY. WHEN AN EMPLOYEE IS DELAYED IN HIS OFFICIAL TRAVEL BY REASON OF THE BREAKDOWN OF HIS AUTOMOBILE. THE USE OF WHICH WAS DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT. IF THE PERIOD OF DELAY WAS REASONABLE AND THE TRAVELER'S ACTION FOLLOWING THE BREAKDOWN OF THE VEHICLE ACCORDS WITH ADMINISTRATIVE INSTRUCTIONS. OR IS APPROVED ADMINISTRATIVELY. 20 COMP.

B-50681, FEBRUARY 25, 1963, 42 COMP. GEN. 436

SUBSISTENCE - PER DIEM - REDUCTION - BREAKDOWN OF PRIVATELY OWNED AUTOMOBILE USED ON OFFICIAL BUSINESS THE BREAKDOWN OR FAILURE IN THE OPERATION OF A PRIVATELY OWNED AUTOMOBILE IN WHICH AN EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS UNDER PROPER ORDERS NEED NO LONGER BE CLASSED AS A MATTER PERSONAL TO THE EMPLOYEE AND NOT INCIDENT TO HIS OFFICIAL DUTY; THEREFORE, WHEN AN EMPLOYEE IS DELAYED IN HIS OFFICIAL TRAVEL BY REASON OF THE BREAKDOWN OF HIS AUTOMOBILE, THE USE OF WHICH WAS DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT, HIS PER DIEM ALLOWANCE SHOULD NOT BE REDUCED, IF THE PERIOD OF DELAY WAS REASONABLE AND THE TRAVELER'S ACTION FOLLOWING THE BREAKDOWN OF THE VEHICLE ACCORDS WITH ADMINISTRATIVE INSTRUCTIONS, OR IS APPROVED ADMINISTRATIVELY. 20 COMP. GEN. 120, MODIFIED.

TO THE SECRETARY OF AGRICULTURE, FEBRUARY 25, 1963:

ON AUGUST 21, 1962, THE CHIEF, FISCAL BRANCH, BUDGET AND FINANCE DIVISION, AGRICULTURAL MARKETING SERVICE, TRANSMITTED HERE THE RECLAIM OF MR. FRANK C. MCCLENDON, COTTON DIVISION, AGRICULTURAL MARKETING SERVICE, DALLAS 2, TEXAS, FOR $17.50 REPRESENTING ONE AND ONE-FOURTH DAYS PER DIEM IN LIEU OF SUBSISTENCE COVERING A PERIOD OF DELAY IN OFFICIAL TRAVEL OCCASIONED BY THE BREAKDOWN OF THE CLAIMANT'S PRIVATELY OWNED AUTOMOBILE.

THE EMPLOYEE IN HIS LETTER OF AUGUST 13, 1962, RECLAIMING THE $17.50 WHICH PREVIOUSLY HAD BEEN DISALLOWED ADMINISTRATIVELY SAYS THAT "THE MEETING WAS SCHEDULED, I WAS TOLD TO ATTEND, THERE WAS NO OTHER TRANSPORTATION AVAILABLE EXCEPT MY PERSONAL CAR. IT IS NOT EXACTLY A "WRECK" BUT IT IS A "HACK AROUND" CAR AND I WOULD HAVE MUCH PREFERRED A NEWER GSA MOTOR POOL CAR IF IT WAS ILABLE.' IT DOES APPEAR, HOWEVER, THAT THERE WAS SCHEDULED BUT TRANSPORTATION.

THE ADMINISTRATIVE DISALLOWANCE OF THE CLAIM WAS PREDICATED UPON THE HOLDING IN 20 COMP. GEN. 120, WHICH READS IN PART AS FOLLOWS:

THE PER DIEM AND MILEAGE ALLOWANCES * * * ARE LIMITED BY THE CONTROLLING STATUES STRICTLY TO PERIODS THE OFFICER OR EMPLOYEE IS ON OFFICIAL BUSINESS AS DISTINGUISHED FROM PERIODS SPENT ON UNOFFICIAL OR PRIVATE BUSINESS OR ANY PERIODS OF DELAYED OR INTERRUPTED TRAVEL NOT DUE TO CAUSES INCIDENT TO OR INHERENT IN THE OFFICIAL DUTY TO BE PERFORMED.

THE BREAK-DOWN OR FAILURE IN THE OPERATION OF A PRIVATELY OWNED AUTOMOBILE IN WHICH AN EMPLOYEE IS TRAVELING ON OFFICIAL BUSINESS UNDER PROPER ORDERS CLEARLY MUST BE CLASSED AS A MATTER PERSONAL TO THE EMPLOYEE AND NOT INCIDENT TO HIS OFFICIAL DUTY.

WE HAVE REEXAMINED THE RULE SET FORTH IN 20 COMP. GEN. 120 AND NOW ARE OF THE OPINION THAT AN EXCEPTION SHOULD BE MADE TO THAT RULE WHEN THE USE OF A PRIVATELY OWNED VEHICLE FOR THE PERFORMANCE OF OFFICIAL DUTIES IS DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT. THE BREAKDOWN OF THE EMPLOYEE'S VEHICLE USED FOR THE PERFORMANCE OF OFFICIAL TRAVEL UNDER SUCH CIRCUMSTANCES AND THE RESULTANT DELAY REASONABLY MAY BE VIEWED AS BEING INCIDENT TO THE OFFICIAL TRAVEL. 20 COMP. GEN. 120 IS MODIFIED ACCORDINGLY. IT FOLLOWS THAT IF THE PERIOD OF DELAY IS REASONABLE AND THE TRAVELER'S ACTION FOLLOWING THE BREAKDOWN OF THE VEHICLE ACCORDS WITH ADMINISTRATIVE INSTRUCTIONS, OR IS APPROVED ADMINISTRATIVELY, THE TRAVELER'S PER DIEM ALLOWANCE SHOULD NOT BE REDUCED BECAUSE OF SUCH DELAY.

THE RECORD DOES NOT CLEARLY SHOW WHETHER THE USE OF THE AUTOMOBILE IN THIS CASE WAS DETERMINED TO BE ADVANTAGEOUS TO THE GOVERNMENT. NEITHER IS THERE EVIDENCE IN THE RECORD BEFORE US CONCERNING THE REASONABLENESS OF THE PERIOD OF DELAY OR WHETHER CLAIMANT'S COURSE OF ACTION FOLLOWING THE BREAKDOWN OF HIS AUTOMOBILE WAS SPECIFICALLY AUTHORIZED OR APPROVED.

SHOULD AN ADMINISTRATIVE REEXAMINATION OF THE FACTS IN CLAIMANT'S CASE DISCLOSE THAT THE USE OF THE AUTOMOBILE WAS ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OF ADVANTAGE TO THE GOVERNMENT, THAT THE PERIOD OF DELAY WAS REASONABLE UNDER THE CIRCUMSTANCES, AND SHOULD PROPER ADMINISTRATIVE APPROVAL BE GIVEN TO THE COURSE OF ACTION FOLLOWED BY THE CLAIMANT AFTER THE BREAKDOWN OF HIS AUTOMOBILE, WE WOULD HAVE NO OBJECTION TO THE ADMINISTRATIVE ALLOWANCE OF THE CLAIM, IF OTHERWISE CORRECT.