B-123354, APR. 23, 1957

B-123354, APR. 23, 1957

TO THE SECRETARY OF COMMERCE:

ON MARCH 25, 1957, THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED THAT, IN ANTICIPATION OF THE PASSAGE BY CONGRESS OF AN ACT PERMITTING THE PAYMENT OF TRANSPORTATION AND PER DIEM TO TEMPORARY UNCLASSIFIED EMPLOYEES, THE BUREAU OF PUBLIC ROADS BE GRANTED AN EXCEPTION FROM THE RULING OF OUR OFFICE OF B-123354, DATED AUGUST 24, 1956, 36 COMP. GEN. 161, FOR THE 1957 CONSTRUCTION SEASON.

THE LEGISLATION PROPOSED WOULD PERMIT THE PAYMENT OF TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE TO TEMPORARY EMPLOYEES OF THE BUREAU OF PUBLIC ROADS ON DIRECT FEDERAL HIGHWAY PROJECTS, THE PROPOSED BILL READING AS FOLLOWS:

"TO AUTHORIZE THE PAYMENT BY THE BUREAU OF PUBLIC ROADS OF TRANSPORTATION AND SUBSISTENCE COSTS TO TEMPORARY EMPLOYEES ON DIRECT FEDERAL HIGHWAY PROJECTS.

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT FUNDS AUTHORIZED TO BE APPROPRIATED UNDER THE FEDERAL-AID ROAD ACT APPROVED JULY 11, 1916, AS AMENDED AND SUPPLEMENTED, FOR DIRECT FEDERAL HIGHWAY PROJECTS, AND FUNDS MADE AVAILABLE TO THE BUREAU OF PUBLIC ROADS FROM OTHER FEDERAL AGENCIES FOR SUCH FEDERAL PROJECTS SHALL BE AVAILABLE, UNDER REGULATIONS APPROVED BY THE SECRETARY OF COMMERCE, FOR PAYMENT OF TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE EXPENSES, IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949, FOR TRAVEL OF TEMPORARY EMPLOYEES BETWEEN POINTS OF HIRE AND PROJECT LOCATIONS AND WHILE PERFORMING DUTY AT PROJECT LOCATIONS.'

IN OUR DECISION OF AUGUST 24, 1956, WE HELD, QUOTING FROM THE SYLLABUS:

"SEASONAL EMPLOYMENT CONTRACTS WHICH PROVIDE FOR THE PAYMENT OF TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE IN ADDITION TO SALARIES FOR TEMPORARY EMPLOYEES ENGAGED ON ROAD CONSTRUCTION PROJECTS IN SPARSELY POPULATED, MOUNTAINOUS AREAS ARE UNAUTHORIZED AND SHOULD BE REVISED TO PROVIDE ONLY FOR PAYMENT OF COMPENSATION.'

WE HAVE INFORMALLY ASCERTAINED FROM THE BUREAU OF PUBLIC ROADS THAT IN THE WESTERN REGION THEY ALREADY HAVE ENTERED INTO SOME SEASONAL CONTRACTS FOR THE YEAR 1957 AND THE EMPLOYEES ARE ALREADY WORKING OR WILL BE IN THE VERY NEAR FUTURE.

WE UNDERSTAND THE BUREAU OF THE BUDGET HAS ADVISED YOUR DEPARTMENT THAT THERE IS NO OBJECTION TO THE SUBMISSION OF THE PROPOSED BILL TO CONGRESS FOR ITS CONSIDERATION. THE PROPOSED BILL IN ITS PRESENT FORM,HOWEVER, WOULD OPERATE PROSPECTIVELY AND, UNLESS THERE IS A RETROSPECTIVE FEATURE ADDED, IT WOULD NOT TAKE CARE OF ANY SEASONAL CONTRACTS ENTERED INTO DURING THE 1957 CONSTRUCTION SEASON PRIOR TO THE EFFECTIVE DATE OF ITS PASSAGE.

SINCE OUR DECISION OF AUGUST 24, 1956, HELD THAT CONTRACTS FOR FUTURE SEASONS SHOULD PROVIDE FOR THE PAYMENT OF COMPENSATION ONLY, REGARDLESS OF THE FACTORS INCLUDED IN ESTABLISHING THE COMPENSATION RATE, AND AS WE DO NOT VIEW THE PAYMENT OF THE PER DIEM AND TRANSPORTATION, AS SUCH, AS PROPER, WE WOULD NOT BE JUSTIFIED IN GRANTING AN EXCEPTION TO OUR RULING. HOWEVER, IN RECOGNITION OF THE AUTHORITY OF YOUR DEPARTMENT TO INCLUDE THESE ITEMS AS FACTORS IN ARRIVING AT AN APPROPRIATE RATE OF COMPENSATION FOR THE SEASONAL EMPLOYEES CONCERNED, OUR OFFICE WILL WITHHOLD FURTHER ACTION IN THE MATTER PENDING CONSIDERATION OF THE LEGISLATIVE PROPOSAL BY THE 85TH CONGRESS.