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B-90867, MAY 17, 1971

B-90867 May 17, 1971
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SECRETARY: THIS IS IN REPLY TO LETTER OF MARCH 19. UNDER THE TERMS OF SUCH AGREEMENTS EXPERTS AND CONSULTANTS ARE EMPLOYED UNDER THE AUTHORITY OF 22 U.S.C. 2386. THE PREVIOUS LIMITATION OF $75 PER DIEM WAS INCREASED TO THE CURRENT RATE BY SECTION 302(B)(1) OF PUBLIC LAW 88- 633. AT THE TIME OF THE INCREASE THE TOP STEP OF GRADE GS-15 WAS $21. AT THE PRESENT TIME THE TOP STEP OF GRADE GS-15 IS $31. SINCE THE PER DIEM RATE WAS APPARENTLY SET TO AUTHORIZE PAYMENT OF COMPENSATION TO THE EXPERTS AND CONSULTANTS INVOLVED IN EXCESS OF THE TOP RATE FOR GS-15 AND SUCH RATE NOW EXCEEDS THE $100 LIMITATION. OUR DECISION IS REQUESTED AS TO WHETHER THEY MAY BE COMPENSATED AT RATES NOT TO EXCEED $121.28 PER DAY.

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B-90867, MAY 17, 1971

RATE OF PAY - EXPERTS AND CONSULTANTS DECISION THAT EXPERTS AND CONSULTANTS EMPLOYED UNDER THE PROVISIONS OF 22 U.S.C. 2386 MAY NOT BE PAID IN EXCESS OF $100 PER DAY. THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-633 WHICH RAISED THE LIMIT FROM $75 TO $100 PER DAY CLEARLY INDICATES A PURPOSE OF PAYING EXPERTS AND CONSULTANTS AT RATES IN EXCESS OF GS-15 (NOW $121.28 PER DAY) BUT ALSO SHOWS AN INTENT TO RESERVE THE FIXING OF THE SPECIFIC RATE LIMITATION TO THE CONGRESS. THEREFORE, EXPERTS AND CONSULTANTS EMPLOYED UNDER 22 U.S.C. 2386 MAY NOT BE PAID IN EXCESS OF $100 PER DAY.

TO MR. SECRETARY:

THIS IS IN REPLY TO LETTER OF MARCH 19, 1971, FROM THE ACTING ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING OUR DECISION AS TO WHETHER EXPERTS AND CONSULTANTS EMPLOYED UNDER THE PROVISIONS OF 22 U.S.C. 2386 MAY BE PAID IN EXCESS OF $100 PER DAY.

UNDER THE PROVISIONS OF CHAPTER 32, TITLE 22, U.S.C. YOUR DEPARTMENT ENTERS INTO PARTICIPATING AGENCY SERVICE AGREEMENTS WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT. UNDER THE TERMS OF SUCH AGREEMENTS EXPERTS AND CONSULTANTS ARE EMPLOYED UNDER THE AUTHORITY OF 22 U.S.C. 2386, WHICH PROVIDES IN PART AS FOLLOWS:

"EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF MAY AS AUTHORIZED BY SECTION 3109 OF TITLE 5 BE EMPLOYED FOR THE PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER, AND INDIVIDUALS SO EMPLOYED MAY BE COMPENSATED AT RATES NOT IN EXCESS OF $100 PER DIEM *** ." THE PREVIOUS LIMITATION OF $75 PER DIEM WAS INCREASED TO THE CURRENT RATE BY SECTION 302(B)(1) OF PUBLIC LAW 88- 633, APPROVED OCTOBER 7, 1964. AT THE TIME OF THE INCREASE THE TOP STEP OF GRADE GS-15 WAS $21,590 PER ANNUM, OR $83.04 PER DAY. AT THE PRESENT TIME THE TOP STEP OF GRADE GS-15 IS $31,523 PER ANNUM, OR $121.28 PER DAY. SINCE THE PER DIEM RATE WAS APPARENTLY SET TO AUTHORIZE PAYMENT OF COMPENSATION TO THE EXPERTS AND CONSULTANTS INVOLVED IN EXCESS OF THE TOP RATE FOR GS-15 AND SUCH RATE NOW EXCEEDS THE $100 LIMITATION, OUR DECISION IS REQUESTED AS TO WHETHER THEY MAY BE COMPENSATED AT RATES NOT TO EXCEED $121.28 PER DAY.

REGARDING THE INCREASE IN THE RATE LIMITATION PAGE 26 OF HOUSE REPORT NO. 1443, 88TH CONGRESS, 2D SESSION, STATES THE FOLLOWING:

"SECTION 302(B) AMENDS SECTION 626 OF THE ACT WHICH RELATES TO EXPERTS, CONSULTANTS AND RETIRED OFFICERS IN TWO RESPECTS.

"PARAGRAPH (1) AUTHORIZES AN INCREASE IN THE MAXIMUM COMPENSATION THAT MAY BE PAID SUCH INDIVIDUALS FROM $75 PER DIEM TO $100 PER DIEM. WHEN THE PRESENT LIMIT OF $75 PER DIEM WAS ESTABLISHED IN 1954, THE ANNUAL EQUIVALENT OF THAT RATE WAS SUBSTANTIALLY HIGHER THAN THE SALARY RATE FOR EMPLOYEES UNDER THE GENERAL SCHEDULE. SINCE THAT TIME SALARY INCREASES FOR FEDERAL EMPLOYEES HAVE ELIMINATED THIS DIFFERENCE. THIS FACT COMBINED WITH INCREASES IN PREVAILING RATES OUTSIDE THE GOVERNMENT HAS SUBSTANTIALLY REDUCED THE INCENTIVE VALUE OF THE $75 PER DIEM RATE. THE CURRENT FISCAL YEAR, 17 AGENCIES HAVE RECEIVED AUTHORIZATION TO PAY A MAXIMUM RATE OF $100 PER DIEM TO EXPERTS AND CONSULTANTS."

WHILE THE ABOVE INDICATES THAT THE PURPOSE OF THE STATUTORY PROVISION WAS TO AUTHORIZE PAYMENT TO THE EXPERTS AND CONSULTANTS IN QUESTION AT RATES IN EXCESS OF THAT FOR THE TOP OF GRADE GS-15, IT ALSO SHOWS AN INTENT TO RESERVE THE FIXING OF THE SPECIFIC RATE LIMITATION TO THE CONGRESS. MOREOVER, THE AUTHORITY CONFERRED BY PUBLIC LAW 88-633 TO PERMIT PAYMENT AT RATES NOT IN EXCESS OF $100 PER DIEM TO EXPERTS AND CONSULTANTS IS COMPLETELY INDEPENDENT OF THE AUTHORITY IN 5 U.S.C. 3109 TO PERMIT PAYMENT TO EXPERTS AND CONSULTANTS GENERALLY AT RATES NOT IN EXCESS OF THE RATE FOR GS-15. SEE B-147212, OCTOBER 4, 1961, COPY ENCLOSED.

IN VIEW OF THE ABOVE IT IS OUR OPINION THAT THE EXPERTS AND CONSULTANTS IN QUESTION MAY NOT BE PAID AT RATES IN EXCESS OF $100 PER DIEM.

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