B-173858, OCT 26, 1971

B-173858, OCT 26, 1971

CIVILIAN EMPLOYEE - TRAVEL ON FOREIGN FLAG AIRLINE DECISION HOLDING MR. BARRY SIDMAN, EMPLOYEE OF AID, LIABLE FOR TRAVEL PERFORMED ON FOREIGN-FLAG AIRLINE BY HIM AND HIS FAMILY INCIDENT TO TRAVEL BY AN INDIRECT ROUTE FROM RIO DE JANEIRO, BRAZIL TO WASHINGTON, D.C., FOR HOME LEAVE AND TRANSFER. USE OF FOREIGN-FLAG AIRLINES AT THE TIME UNDER APPLICABLE LAWS AND REGULATIONS COULD NOT HAVE BEEN AUTHORIZED IN THE FIRST INSTANCE, NOR COULD THIS PROHIBITION HAVE BEEN WAIVED. THE FACT THAT ADMINISTRATIVE PERSONNEL APPROVED REVISED ITINERARY IS IMMATERIAL SINCE REGULATIONS MAKE THE TRAVELER RESPONSIBLE. THE GOVERNMENT NOT BEING LIABLE, ABSENT SPECIFIC AUTHORIZATION, FOR NEGLIGENT ACTS OF ITS AGENTS, BILLING OF SIDMAN IS PROPER.

TO MR. RICHARD J. HENRY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1971, TRANSMITTED TO OUR OFFICE BY LETTER OF AUGUST 13, 1971, FROM THE VOUCHER EXAMINING BRANCH, REFERENCE C/FRD/VEB:4-MEV, WHEREIN YOU REQUEST OUR DECISION AS TO WHETHER MR. BARRY SIDMAN, AN EMPLOYEE OF YOUR AGENCY, IS LIABLE FOR THE PUBLISHED AIRLINE FARE FOR TRAVEL PERFORMED ON A FOREIGN-FLAG AIRLINE BY HIM AND HIS FAMILY INCIDENT TO TRAVEL BY AN INDIRECT ROUTE FROM RIO DE JANEIRO, BRAZIL, TO WASHINGTON, D.C., FOR HOME LEAVE AND TRANSFER.

THE RECORD INDICATES THAT ON AUGUST 19, 1970, TRANSPORTATION WAS AUTHORIZED FOR MR. SIDMAN, HIS WIFE, AND HIS DAUGHTER FROM RIO DE JANEIRO TO WASHINGTON INCIDENT TO MR. SIDMAN'S TRAVEL FOR 5 DAYS CONSULTATION IN AID/W (AGENCY FOR INTERNATIONAL DEVELOPMENT, WASHINGTON), HOME LEAVE, AND TRANSFER ON ROTATION ASSIGNMENT. TRAVEL AND NECESSARY EXPENSES WERE AUTHORIZED IN ACCORDANCE WITH AID MANUAL ORDER NO. 560.2. PURSUANT TO SUCH AUTHORIZATION THE SIDMANS WERE FURNISHED TICKETS FOR THE TRAVEL ON AN AMERICAN AIRLINE. THEREAFTER MR. SIDMAN ADVISED HIS AGENCY THAT HE WISHED TO VACATION IN EUROPE BEFORE REPORTING FOR DUTY IN WASHINGTON. LEAVE FOR MR. SIDMAN AND A CHANGE IN HIS ITINERARY WERE AUTHORIZED. THE AUTHORIZATION TO THE AMERICAN CARRIER ADVISED THAT ALL COSTS IN EXCESS OF THE ECONOMY FARE DIRECT FROM RIO DE JANEIRO TO WASHINGTON WERE TO BE BORNE BY MR. SIDMAN. THE FARE PER PERSON BY THE DIRECT ROUTE WAS $330 AND THE FARE FROM RIO DE JANEIRO TO WASHINGTON VIA FRANKFURT AND COLOGNE, GERMANY, WAS $635. THE SIDMANS TRAVELED BY FOREIGN AIR CARRIER FROM RIO DE JANEIRO TO GERMANY AND FROM GERMANY TO THE UNITED STATES BY AN AMERICAN CARRIER. MR. SIDMAN PAID THE DIFFERENCE OF $305 PER PERSON IN FARES DIRECTLY TO THE AMERICAN CARRIER. YOU NOW PROPOSE TO BILL MR. SIDMAN FOR AN AMOUNT OF $367.50 ON THE BASIS OF SECTIONS 115 AND 134.4 OF AID MANUAL ORDER NO. 560.2.

SECTION 115 OF THE REGULATIONS CITED PROVIDES THAT THE TRAVELER IS RESPONSIBLE FOR THE CORRECT PERFORMANCE OF OFFICIAL TRAVEL AND FOR THE PAYMENT OF ANY CHARGES INCURRED THROUGH FAILURE TO COMPLY WITH THE GOVERNING REGULATIONS, REGARDLESS OF WHO MAY HAVE ASSISTED HIM IN MAKING HIS TRAVEL ARRANGEMENTS, AND FOR THE VALUE OF TICKETS IN HIS POSSESSION PURCHASED WITH GOVERNMENT FUNDS OR THROUGH THE EXCHANGE OF TRANSPORTATION REQUESTS. SECTION 134.4 OF THE REGULATIONS STATES THAT WHEN AIR TRAVEL IS PERFORMED BY AN INDIRECT ROUTE, OR DELAYED, OR INTERRUPTED FOR PERSONAL CONVENIENCE, USE OF A FOREIGN-FLAG AIRLINE CANNOT EXCEED THAT WHICH WOULD HAVE BEEN NECESSARY FOR TRAVEL PERFORMED ON A DIRECT, USUALLY TRAVELED ROUTE. THIS REGULATION ALSO STATES THAT FOR AUDIT PURPOSES, THE PUBLISHED AIRLINE FARES FOR THE FOREIGN CARRIER SEGMENTS ON THE DIRECT ROUTE AND ON THE ROUTE ACTUALLY TRAVELED WILL SERVE AS THE BASIS FOR COMPARISON.

IN THE INSTANT CASE THE RECORD INDICATES THAT THE SIDMANS COULD HAVE TRAVELED DIRECTLY FROM RIO DE JANEIRO TO WASHINGTON BY AN AMERICAN AIRLINE. THEREFORE, THE SEGMENTS OF TRAVEL BY FOREIGN AIR CARRIER FROM RIO DE JANEIRO TO GERMANY ARE SUBJECT TO THE PROVISIONS OF SECTION 134.4 OF THE REGULATIONS. YOU ADVISE THAT THE PUBLISHED AIRLINE FARES FOR ONE PERSON FOR THE FOREIGN CARRIER SEGMENTS OF THE ROUTE ACTUALLY TRAVELED TOTAL $452. YOU PROPOSE TO BILL MR. SIDMAN FOR THE DIFFERENCE BETWEEN THE PUBLISHED AIRLINE FARES OF THE FOREIGN AIRLINE, $452, LESS $305, THE AMOUNT PAID TO THE AMERICAN AIRLINE FOR THE HIGHER FARES ASSESSED FOR TRAVEL BY THE INDIRECT ROUTE, OR AN ADDITIONAL AMOUNT OF $147 PER TRAVELER. THE TOTAL AMOUNT TO BE BILLED IS $367.50, WHICH IS 2 1/2 TIMES THE ADDITIONAL AMOUNT ASSESSED FOR TWO ADULT TRAVELERS AND ONE MINOR TRAVELER.

THE REGULATIONS IN QUESTION WERE PROMULGATED PURSUANT TO THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C.1136. SINCE THE REGULATIONS ARE STATUTORY IN NATURE THEY MAY NOT BE WAIVED. IN THIS CONNECTION TRANSMITTAL LETTER GS-152, APRIL 14, 1971, WHICH AMENDED VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL, WHICH INCLUDES THE REGULATIONS INVOLVED IN THIS CASE, TO ELIMINATE THE PENALTY PROVISION FOR THE USE OF A FOREIGN AIRLINE, STATES THAT THE CHANGES IN REGULATIONS ARE NOT RETROACTIVE AND ANY PENALTIES ASSESSED FOR UNAUTHORIZED USE OF A FOREIGN-FLAG AIRLINE FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF THE REVISION CANNOT BE REVOKED ON THE BASIS OF THE CHANGES. THE USE OF THE FOREIGN AIRLINE COULD NOT HAVE BEEN AUTHORIZED UNDER THE REGULATIONS IN EFFECT DURING THE PERIOD THE TRAVEL WAS PERFORMED. THE RECORD INDICATES THAT ADMINISTRATIVE PERSONNEL APPROVED THE REVISED ITINERARY AND MAY HAVE FAILED TO POINT OUT THE PENALTY CLAUSE OF THE REGULATIONS TO MR. SIDMAN. HOWEVER, THIS IS IMMATERIAL SINCE SECTION 115 OF THE REGULATIONS STATES THAT THE TRAVELER IS RESPONSIBLE FOR TRAVEL PERFORMED BY HIM INVOLVING TRANSPORTATION REQUESTS REGARDLESS OF WHO MAY HAVE ASSISTED HIM IN MAKING HIS TRAVEL ARRANGEMENTS. THIS REGULATION IS IN ACCORDANCE WITH THE ESTABLISHED RULE THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE UNITED STATES MAY NOT BE LIABLE FOR THE NEGLIGENT ACTS OF ITS AGENTS. SEE B-168546, DECEMBER 24, 1969; AND B-147614, DECEMBER 28, 1961. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THE PROPOSED BILLING IS PROPER.

THE VOUCHER FOR $7.50 COVERING PER DIEM FOR MR. SIDMAN AND HIS DEPENDENTS IN CONNECTION WITH THE TRAVEL IN QUESTION AND THE FILE ATTACHED THERETO, WHICH CONTAINS A BILL FOR COLLECTION TO SECURE REIMBURSEMENT OF A TRAVEL ADVANCE OF $112, ARE RETURNED HEREWITH. WE HAVE BEEN INFORMALLY ADVISED THAT THE AMOUNT OF PER DIEM IS NOT IN QUESTION. THEREFORE, WE HAVE NO OBJECTION TO THE PROCESSING OF THE VOUCHER AND RELATED BILL.