B-62021, DECEMBER 13, 1946, 26 COMP. GEN. 409

B-62021: Dec 13, 1946

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TRAVELING EXPENSES - FARES - USE OF UPPER BERTH WHERE LOWER BERTH UNAVAILABLE WHILE THE USE OF AN UPPER BERTH WHEN ALL LOWER BERTHS ARE UNAVAILABLE IS NOT REQUIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2. PROVIDING THAT EMPLOYEES ON OFFICIAL BUSINESS ARE TO EXERCISE THE SAME CARE AS ONE TRAVELING ON PERSONAL BUSINESS. SUCH ALLOWANCES SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRANSPORTATION UNLESS IT IS CERTIFIED. THAT LOWEST FIRST-CLASS ACCOMMODATIONS ARE NOT AVAILABLE OR THAT USE OF A COMPARTMENT OR SUCH OTHER ACCOMMODATIONS AS MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY CONCERNED OR SUCH SUBORDINATES AS HE MAY DESIGNATE.

B-62021, DECEMBER 13, 1946, 26 COMP. GEN. 409

TRAVELING EXPENSES - FARES - USE OF UPPER BERTH WHERE LOWER BERTH UNAVAILABLE WHILE THE USE OF AN UPPER BERTH WHEN ALL LOWER BERTHS ARE UNAVAILABLE IS NOT REQUIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AND PARAGRAPH 13 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NEVERTHELESS, IN VIEW OF PARAGRAPH 1 OF SAID REGULATIONS, PROVIDING THAT EMPLOYEES ON OFFICIAL BUSINESS ARE TO EXERCISE THE SAME CARE AS ONE TRAVELING ON PERSONAL BUSINESS, THE ACCEPTANCE OF AN UPPER BERTH IN LIEU OF SUPERIOR ACCOMMODATIONS IN SUCH CASES MIGHT BE REQUIRED UNDER CERTAIN CIRCUMSTANCES--- THERE BEING AN ADMINISTRATIVE RESPONSIBILITY RESPECTING COMPLIANCE WITH THE SPIRIT AS WELL AS THE LETTER OF THE REGULATIONS. 26 COMP. GEN. 360, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, DECEMBER 13, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 12, 1946 ( FAC-E), AS FOLLOWS:

SECTION 10 OF THE ACT OF MARCH 3, 1933, AS AMENDED BY SECTION 6, ( PUBLIC LAW 600, 79TH CONGRESS, APPROVED AUGUST 2, 1946, (60 STAT. 808) PROVIDES AS FOLLOWS:

"SEC. 10. WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRANSPORTATION MAY BE ALLOWED, SUCH ALLOWANCES SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRANSPORTATION UNLESS IT IS CERTIFIED, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, THAT LOWEST FIRST-CLASS ACCOMMODATIONS ARE NOT AVAILABLE OR THAT USE OF A COMPARTMENT OR SUCH OTHER ACCOMMODATIONS AS MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY CONCERNED OR SUCH SUBORDINATES AS HE MAY DESIGNATE, IS REQUIRED FOR PURPOSES OF SECURITY.'

PARAGRAPH 2C, CIRCULAR NO. A-7, REVISED, ISSUED BY THE BUREAU OF THE BUDGET ON SEPTEMBER 5, 1946, AMENDS PARAGRAPH 13 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS TO PROVIDE, INSOFAR AS HERE PERTINENT, AS FOLLOWS:

"/A) TRAIN ACCOMMODATIONS

(1) SLEEPING-CAR ACCOMMODATIONS: ONE STANDARD LOWER BERTH WHEN NIGHT TRAVEL IS INVOLVED EXCEPT THAT THE LOWEST FIRST-CLASS ACCOMMODATION AVAILABLE MAY BE ALLOWED ON CERTIFICATION BY THE TRAVELER ON HIS TRAVEL EXPENSE VOUCHER THAT, AT TIME RESERVATION WAS MADE, THE ACCOMMODATION, IF SUPERIOR TO A STANDARD LOWER BERTH, WAS THE LOWEST FIRST-CLASS AVAILABLE, WHICH CERTIFICATION WILL BE ACCEPTED AS PRIMA FACIE EVIDENCE. * * *"

QUESTION HAS ARISEN WHETHER A GOVERNMENT TRAVELER, UNABLE TO SECURE A STANDARD LOWER BERTH ON A TRAIN WHERE BOTH A STANDARD UPPER BERTH AND A FORM OF ACCOMMODATION MORE COSTLY THAN A STANDARD LOWER BERTH ARE AVAILABLE, MAY PROPERLY TAKE THE MORE COSTLY ACCOMMODATION, AS, FOR EXAMPLE, A COMPARTMENT.

IT IS RECOGNIZED THAT APPLICABLE LAW, AS QUOTED HEREINBEFORE, LIMITS ALLOWANCE FOR TRANSPORTATION TO THE LOWEST FIRST-CLASS RATE, EXCEPT AS OTHERWISE MADE PERMISSIBLE BY LAW, AND IT IS RECOGNIZED, ALSO, THAT A STANDARD UPPER BERTH IS UNDOUBTEDLY THE LEAST EXPENSIVE OF ALL FIRST CLASS RAIL SLEEPING ACCOMMODATIONS. HOWEVER, THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS HAVE LONG ESTABLISHED THE STANDARD LOWER BERTH AS THE CRITERION FOR DETERMINING RELATED TRAVEL ALLOWANCES, ACTUAL OR CONSTRUCTIVE, FOR FEDERAL EMPLOYEES TRAVELING ON OFFICIAL GOVERNMENT BUSINESS. FURTHERMORE, THE LANGUAGE OF THE AMENDED PARAGRAPH 13 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WOULD APPEAR TO INDICATE, BY ITS TREATMENT OF THE MATTER OF THE CERTIFICATION BY THE TRAVELER, THAT, WHERE NO STANDARD LOWER BERTH IS AVAILABLE, THE NEXT LEAST EXPENSIVE, ALTHOUGH SUPERIOR, SLEEPING-CAR ACCOMMODATION WILL BE ALLOWED. IN THIS REGARD, ATTENTION IS DIRECTED PARTICULARLY TO THE APPARENTLY UNIFORM REQUIREMENT FOR A TRAVELER'S CERTIFICATION WHENEVER A STANDARD LOWER BERTH IS NOT OBTAINABLE. IF THE TRAVELER WERE TO BE REQUIRED TO TAKE AN AVAILABLE AND OBVIOUSLY LESS COSTLY STANDARD UPPER BERTH IN LIEU OF AN UNAVAILABLE STANDARD LOWER BERTH, THERE WOULD SEEM TO BE NO NEED FOR THE CERTIFICATION.

IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE ISSUED, YOUR DECISION IN THE MATTER WILL BE GREATLY APPRECIATED.

IN DECISION OF NOVEMBER 25, 1946, B-61606, 26 COMP. GEN. 360, IN ANSWER TO A SIMILAR SUBMISSION IT WAS STATED:

* * * THE COST OF A LOWER BERTH CONSISTENTLY HAS BEEN REGARDED AS THE "LOWEST FIRST-CLASS TE," AS APPLIED TO SLEEPING-CAR ACCOMMODATIONS -- EXCEPT WHEN THE EXPEDITION OF PUBLIC BUSINESS REQUIRED THE USE OF A TRAIN MADE UP EXCLUSIVELY OF SUPERIOR ACCOMMODATIONS (FOR EXAMPLE, ROOMETTES), IN WHICH CASE ROOMETTES WERE CONSIDERED TO BE THE LOWEST FIRST-CLASS ACCOMMODATIONS BY THE FACILITY USED. SEE 23 COMP. GEN. 9, 289 AND 532. WHILE THE PRESENT LAW AND REGULATIONS ARE MORE LIBERAL THAN THERETOFORE TO THE EXTENT THAT THE "LOWEST FIRST-CLASS ACCOMMODATION AVAILABLE MAY BE ALLOWED ON CERTIFICATION BY THE TRAVELER ON HIS TRAVEL EXPENSE VOUCHER THAT, AT TIME RESERVATION WAS MADE, THE ACCOMMODATION, IF SUPERIOR TO A STANDARD LOWER BERTH, WAS THE LOWEST FIRST-CLASS AVAILABLE," NO CHANGE HAS BEEN MADE WITH RESPECT TO THE USE OF THE COST OF A LOWER BERTH AS THE STANDARD FOR DETERMINING THE LOWEST FIRST-CLASS RATE FOR NIGHT TRAVEL. HENCE, THE COST OF A LOWER BERTH STILL IS CONSIDERED AS BEING THE LOWEST FIRST CLASS RATE, AS APPLIED TO SLEEPING-CAR ACCOMMODATIONS, AND WHEN A LOWER BERTH IS USED FOR NIGHT TRAVEL NO CERTIFICATE WITH RESPECT TO ANY LOWER CLASS OF ACCOMMODATIONS IS REQUIRED.

WHILE, UNDER THE LAW AND PARAGRAPH 13 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS CURRENTLY IN EFFECT, A TRAVELER IS NOT NECESSARILY REQUIRED TO ACCEPT AN UPPER BERTH WHEN ALL STANDARD LOWER BERTHS ASSIGNED TO THE TRAIN USED BY HIM ARE UNAVAILABLE BECAUSE OF THEIR HAVING BEEN PREVIOUSLY RESERVED, THERE IS NOT FOR DISREGARDING THE REQUIREMENT IN PARAGRAPH 1 OF THE SAID REGULATIONS PROVIDING THAT EMPLOYEES TRAVELING ON OFFICIAL BUSINESS "ARE EXPECTED TO EXERCISE THE SAME CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON PERSONAL BUSINESS.' HENCE, THERE WELL MAY BE CONCEIVED CASES WHERE THE APPLICATION OF THE PROVISIONS OF SAID PARAGRAPH 1 OF THE TRAVEL REGULATIONS WOULD REQUIRE THE USE OF AN UPPER BERTH, INSTEAD OF OBTAINING SUPERIOR ACCOMMODATIONS IN THE FORM OF A COMPARTMENT, ROOMETTE, ETC., WHEN NO STANDARD LOWER BERTH IS AVAILABLE AT TIME OF TRAVEL; AND THERE EXISTS IN THAT CONNECTION AN ADMINISTRATIVE RESPONSIBILITY TO SEE TO IT THAT THE TRAVEL REGULATIONS ARE COMPLIED WITH IN SPIRIT AS WELL AS IN THE LETTER THEREOF.