B-207527, NOVEMBER 29, 1982, 62 COMP.GEN. 63

B-207527, NOVEMBER 29, 1982, 62 COMP.GEN. 63

SUBSISTENCE - PER DIEM - "LODGINGS-PLUS" BASIS - COMPUTATION - AVERAGE COST OF LODGINGS - ANNUAL LEAVE EFFECT AN EMPLOYEE RENTED A HOUSE FOR A MONTH WHILE ON TEMPORARY DUTY, RATHER THAN OBTAINING LODGINGS ON A DAILY BASIS. HE WENT ON ANNUAL LEAVE FOR 1 DAY DURING THE PERIOD BUT CONTINUED TO OCCUPY THE RENTED LODGINGS THAT NIGHT. THE EMPLOYEE'S AVERAGE COST OF LODGING FOR THE PURPOSE OF PER DIEM COMPUTATION ON A LODGINGS-PLUS BASIS IS TO BE DETERMINED BY PRORATING THE TOTAL RENTAL COST OVER THE 30 DAYS OF TEMPORARY DUTY, EXCLUDING THE DAY OF ANNUAL LEAVE, IF THE AGENCY DETERMINES THE EMPLOYEE ACTED PRUDENTLY IN OBTAINING THE LODGINGS FOR A MONTH AND THE COST TO THE GOVERNMENT DOES NOT EXCEED THE COST OF SUITABLE LODGING AT A DAILY RATE.

MATTER OF: JESUS SOTO, JR. - PER DIEM - COMPUTATION OF AVERAGE COST OF LODGINGS - ANNUAL LEAVE, NOVEMBER 29, 1982:

THIS DECISION IS IN RESPONSE TO A REQUEST FROM MS. BETTY GILLHAM, AN AUTHORIZED CERTIFYING OFFICER OF THE BONNEVILLE POWER ADMINISTRATION (BPA), DEPARTMENT OF ENERGY, FOR ADVICE AS TO THE PROPER METHOD OF DETERMINING THE AVERAGE COST OF LODGING WHEN COMPUTING PER DIEM BY THE LODGINGS-PLUS METHOD WHEN AN EMPLOYEE GOES ON ANNUAL LEAVE AT A TEMPORARY DUTY SITE.

JESUS SOTO, JR., AN EMPLOYEE OF BPA, IN VANCOUVER, WASHINGTON, WAS ASSIGNED TO TEMPORARY DUTY IN MADRAS, OREGON, FOR THE MONTH OF MARCH 1982. HE RENTED A HOUSE FOR THE MONTH AT A COST THE BPA HAS INFORMED US DID NOT EXCEED THE COST OF RENTING A SUITABLE MOTEL OR HOTEL AT A DAILY RATE. MR. SOTO TOOK 1 DAY OF ANNUAL LEAVE "IN THE FIELD" DURING THIS PERIOD AND THE BPA STATED IT APPEARED HE STAYED THAT EVENING IN THE HOUSE HE HAD RENTED. IN COMPUTING MR. SOTO'S AVERAGE COST OF LODGING, THE BPA PRORATED THE RENTAL COST OVER 31 DAYS INSTEAD OF THE 30 DAYS USED BY MR. SOTO. HE WAS THEREFORE REIMBURSED AN AMOUNT EQUAL TO 30 DAYS OF PER DIEM AT $42 PER DAY, RATHER THAN 30 DAYS AT $43, TO WHICH HE CLAIMS ENTITLEMENT. THE BPA HAS ASKED IF THE METHOD OF COMPUTATION USED WAS CORRECT OR WHETHER TO OMIT FROM THE COMPUTATION OF AVERAGE LODGING COST THE NIGHT WHEN MR. SOTO WAS IN AN ANNUAL LEAVE STATUS AT THE TEMPORARY DUTY SITE AND WAS NOT IN A PER DIEM STATUS.

THE BPA PRORATED THE RENTAL COST OVER 31 DAYS, INCLUDING THE DAY OF ANNUAL LEAVE, BECAUSE MR. SOTO OCCUPIED THE HOUSE ON THAT EVENING. THE BPA DETERMINED THAT MR. SOTO'S OCCUPANCY OF THE HOUSE MANDATED THE INCLUSION OF THAT DAY IN THE COMPUTATIONS BASED ON OUR DECISION IN JAMES K. GIBBS, 57 COMP.GEN.821 (1978). IN THAT DECISION WE HELD THAT WHERE AN EMPLOYEE ON TEMPORARY DUTY RENTS LODGINGS BY THE WEEK OR MONTH RATHER THAN BY THE DAY, BUT OCCUPIES THE ACCOMMODATIONS FOR A LESSER PERIOD BECAUSE HE VOLUNTARILY RETURNS HOME ON WEEKENDS, THE AVERAGE COST OF LODGING MAY BE DERIVED BY PRORATING THE RENTAL COST OVER THE NUMBER OF NIGHTS THE ACCOMMODATIONS ARE ACTUALLY OCCUPIED. THIS DECISION REVERSED PRIOR DECISIONS WHERE WE HELD THAT IN THE WEEKEND RETURN SITUATION, THE AVERAGE COST OF LODGING HAD TO BE DERIVED BY DIVIDING THE RENTAL COST BY THE ENTIRE NUMBER OF DAYS IN THE RENTAL PERIOD.

IN ADDITION TO THE JAMES K. GIBBS DECISION, WE HAVE PERMITTED THE PRORATION OF THE MONTHLY OR WEEKLY RENTAL COST OVER THE NIGHTS OF ACTUAL OCCUPANCY RATHER THAN THE ENTIRE RENTAL PERIOD WHERE THE EMPLOYEE ACTED REASONABLY OR PRUDENTLY IN RENTING LODGING BY THE MONTH. IN ONE CASE WE USED THE LESSER NUMBER WHERE THE EMPLOYEE KNEW HE WOULD BE ON TEMPORARY ASSIGNMENT FOR LESS THAN THE RENTAL PERIOD (22 DAYS), BUT THE MONTHLY RENTAL WAS LESS THAN THE AMOUNT THE EMPLOYEE WOULD HAVE BEEN REQUIRED TO PAY BASED ON THE DAILY RENTAL RATE. WILLIAM R. GILLETTE, B-183341, MAY 13, 1975.

WE DO NOT BELIEVE THAT MR. SOTO'S OCCUPANCY OF HIS RENTED LODGING ON THE DAY HE WAS IN A NON-PER DIEM STATUS REQUIRES INCLUSION OF THAT DAY IN THE COMPUTATION OF HIS AVERAGE COST OF LODGING. PARAGRAPH 1 7.3C(1)(A) OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973), PROVIDES THAT IN DETERMINING THE AVERAGE COST OF LODGING AN AGENCY SHOULD "DIVIDE THE TOTAL AMOUNT PAID FOR LODGINGS DURING THE PERIOD COVERED BY THE VOUCHER BY THE NUMBER OF NIGHTS FOR WHICH LODGINGS WERE OR WOULD HAVE BEEN REQUIRED WHILE AWAY FROM THE OFFICIAL STATION."

WE BELIEVE THAT INHERENT IN THE PHRASE "FOR WHICH LODGINGS WERE OR WOULD HAVE BEEN REQUIRED" IS THE CONCEPT THAT THE LODGINGS ARE REQUIRED IN CONNECTION WITH THE TEMPORARY DUTY. THEREFORE, SINCE MR. SOTO DID NOT PERFORM OFFICIAL BUSINESS ON THE DAY HE WAS ON ANNUAL LEAVE, HIS LODGINGS FOR THAT NIGHT WERE NOT INCIDENT TO HIS TEMPORARY DUTY.

THEREFORE, WE CONCLUDE THAT WHERE AN EMPLOYEE, SUCH AS MR. SOTO, IS ON ANNUAL LEAVE DURING A TEMPORARY DUTY ASSIGNMENT THAT DAY (OR DAYS) OF ANNUAL LEAVE IS NOT TO BE INCLUDED IN THE COMPUTATION OF THE AVERAGE COST OF LODGING. AS IN JAMES K. GIBBS, AND WILLARD R. GILLETTE, HOWEVER, WE FEEL THIS METHOD OF COMPUTATION SHOULD BE CONTINGENT UPON A DETERMINATION THAT (1) THE EMPLOYEE ACTED PRUDENTLY IN OBTAINING LODGINGS FOR A LONGER PERIOD THAN A DAY, AND (2) THE COST TO THE GOVERNMENT DOES NOT EXCEED THAT WHICH WOULD HAVE BEEN INCURRED HAD THE EMPLOYEE OBTAINED SUITABLE LODGINGS AT THE DAILY RATE.