B-134739, FEB 1, 1972, 51 COMP GEN 455

B-134739, FEB 1, 1972, 51 COMP GEN 455

MEALS - FURNISHING - MILITARY AIRLIFT COMMAND FLIGHTS - LIABILITY OF GOVERNMENT TRAVELERS THE PRACTICE OF COLLECTING FROM OFFICERS AND CIVILIANS REIMBURSEMENT FOR MEALS PROVIDED THEM ON MILITARY AIRLIFT COMMAND MILITARY FLIGHTS MAY NOT BE DISCONTINUED ON THE BASES THE CHARGES FOR TRANSPORTATION PROVIDED TO GOVERNMENT TRAVELERS ON CONTRACT CHARTER FLIGHTS APPEAR TO BE SUBJECT TO TARIFF RATES FIXED BY THE CIVIL AERONAUTICS BOARD ON SUBSTANTIALLY THE SAME BASIS AS TARIFF RATES ESTABLISHED FOR COMMERCIAL FLIGHTS AND, THEREFORE, THE COST OF IN-FLIGHT MEALS COULD NOT BE IDENTIFIED AS A PART OF THE COST OF EITHER CONTRACT CHARTER FLIGHTS OR PRIVATE COMMERCIAL FLIGHTS, AND THAT THE IN-FLIGHT MEALS ARE NOT EXTRA COMPENSATION WITHIN THE MEANING OF 5 U.S.C. 5536, SINCE THE MEALS SUPPLIED BY THE BASE MESS ARE CHARGEABLE TO FUNDS APPROPRIATED FOR THE OPERATION OF MESSES AND, THEREFORE, COLLECTION FOR THE COST OF THE MEALS FURNISHED IS REQUIRED BY SECTION 810 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1971.

TO THE SECRETARY OF THE AIR FORCE, FEBRUARY 1, 1972:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 7, 1971, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION AS TO WHETHER THE AIR FORCE MAY DISCONTINUE THE PRACTICE OF COLLECTING FROM OFFICERS AND CIVILIANS REIMBURSEMENT FOR MEALS PROVIDED THEM ON MILITARY AIRLIFT COMMAND (MAC) MILITARY FLIGHTS. SECTION 810 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1971, PUBLIC LAW 91-668, 84 STAT. 2031, PROVIDES -

SEC. 810. NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR EXPENSES OF OPERATION OF MESSES *** AT WHICH MEALS ARE SOLD TO OFFICERS OR CIVILIANS, EXCEPT UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, WHICH SHALL (EXCEPT UNDER UNUSUAL OR EXTRAORDINARY CIRCUMSTANCES) ESTABLISH RATES FOR SUCH MEALS SUFFICIENT TO PROVIDE REIMBURSEMENT OF OPERATING EXPENSES AND FOOD COSTS TO THE APPROPRIATIONS CONCERNED: PROVIDED, THAT OFFICERS AND CIVILIANS IN A TRAVEL STATUS RECEIVING A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE SHALL BE CHARGED AT THE RATE OF NOT LESS THAN $2.50 PER DAY: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION PAYMENT FOR MEALS AT THE RATES ESTABLISHED HEREUNDER MAY BE MADE IN CASH OR BY DEDUCTION FROM THE PAY OF CIVILIAN EMPLOYEES. ***

SECTION 5536 OF TITLE 5, U.S. CODE, PROVIDES THAT -

AN EMPLOYEE OR A MEMBER OF A UNIFORMED SERVICE WHOSE PAY OR ALLOWANCES IS FIXED BY STATUTE OR REGULATION MAY NOT RECEIVE ADDITIONAL PAY OR ALLOWANCE *** UNLESS SPECIFICALLY AUTHORIZED BY LAW AND THE APPROPRIATION THEREFORE SPECIFICALLY STATES THAT IT IS FOR THE ADDITIONAL PAY OR ALLOWANCE.

THE ASSISTANT SECRETARY STATES THAT PRIOR TO OUR DECISION OF SEPTEMBER 18, 1963, B-134739, MAC COLLECTED PAYMENT FOR MEALS SERVED TO OFFICERS AND CIVILIANS IN ALL MILITARY AND CONTRACT CHARTER FLIGHTS, BUT THAT SUCH PRACTICE WAS DISCONTINUED ON CONTRACT CHARTER FLIGHTS FOR THE REASON THAT THE FULL PRICE WAS CHARGED FOR THE FLIGHT REGARDLESS OF WHETHER OR NOT THE MEAL WAS ACTUALLY CONSUMED AND IT WAS IMPOSSIBLE TO DETERMINE WHAT PART OF THE PRICE OF THE TICKET WAS SPENT FOR FOOD.

THE LETTER POINTS OUT THAT OFFICERS AND CIVILIANS FLYING BY COMMERCIAL CARRIER ARE PROVIDED WITH IN-FLIGHT MEALS FREE OF CHARGE, WHILE THOSE FLYING AT LOWER COST TO THE GOVERNMENT ON MILITARY AIRCRAFT ARE SERVED MEALS FOR WHICH THEY ARE REQUIRED TO REIMBURSE THE GOVERNMENT. IT IS SUGGESTED THAT THIS SITUATION IS NOT REQUIRED BY THE LANGUAGE OF THE ABOVE -QUOTED STATUTES.

IN SUPPORT OF THAT VIEW IT IS SUGGESTED THAT FOR SECTION 810 TO APPLY IT MUST BE FOUND THAT PROVISION FOR IN-FLIGHT MEALS CONSTITUTES OPERATION OF A "MESS," THAT IS, AN ORGANIZATION DINING AREA (WHETHER IT BE A MESS HALL, WARDROOM OR FIELD MESS), OR WHAT "WOULD BE A RESTAURANT TO A CIVILIAN"; AND THAT, IF IN-FLIGHT MEALS WERE EXTRA COMPENSATION WITHIN THE MEANING OF 5 U.S.C. 5536, THE CURRENT PRACTICE (SANCTIONED BY THIS OFFICE IN OUR DECISION OF SEPTEMBER 18, 1963, B-134739) WOULD BE ILLEGAL.

THE LETTER STATES THAT THE CURRENT PRACTICE IS DISCRIMINATORY IN THAT THOSE WHO FLY MILITARY AIRCRAFT MUST PAY FOR SUCH MEALS WHILE THE COMMERCIAL CARRIER PASSENGER NEED NOT PAY, WITH THE RESULT THAT WHENEVER POSSIBLE OFFICERS AND CIVILIANS MIGHT UTILIZE COMMERCIAL RATHER THAN MILITARY AIRCRAFT, THEREBY INCREASING THE COST TO THE GOVERNMENT, AND THAT THE ADMINISTRATIVE COSTS INVOLVED IN COLLECTING REIMBURSEMENT FOR MEALS FROM PASSENGERS ALMOST COMPLETELY OFFSET THE MONEY COLLECTED.

WHILE IN-FLIGHT MEALS MAY NOT BE CONSUMED IN THE MESS DINING ROOM, WE UNDERSTAND THAT SUCH MEALS ARE SUPPLIED TO MAC BY THE BASE MESS, AND THAT THE COST THEREOF (LIKE OTHER MEALS FURNISHED THEREAT) IS CHARGED TO THE SUBSISTENCE APPROPRIATIONS.

IT THEREFORE SEEMS CLEAR THAT THE COST OF THE IN-FLIGHT MEALS IS AN EXPENSE OF THE BASE MESS AND THAT THE ABOVE-QUOTED APPROPRIATION ACT PROVISION REQUIRES THE COLLECTION OF THE COST THEREOF FROM OFFICERS AND CIVILIANS TO WHOM THE MEALS ARE FURNISHED BY MAC WHILE TRAVELING BY THAT MEANS.

WE AGREE WITH THE SUGGESTION IN THE ASSISTANT SECRETARY'S LETTER THAT IN- FLIGHT MEALS ARE NOT EXTRA COMPENSATION WITHIN THE MEANING OF 5 U.S.C. 5536, WHEN SUPPLIED WITHOUT CHARGE ON CONTRACT CHARTER FLIGHTS.

OUR DECISION OF SEPTEMBER 18, 1963, B-134739, WHICH SANCTIONED THE DISCONTINUANCE OF COLLECTION FOR IN-FLIGHT MEALS ON SUCH FLIGHTS, NOTED THAT PREVIOUSLY THE GOVERNMENT HAD PROCURED COMMERCIAL TRANSPORTATION BY FORMAL ADVERTISING WITH THE RESULT THAT THE CONTRACTS INCLUDED SPECIFIC PROVISIONS REQUIRING THE CONTRACTOR TO SERVE MEALS WHICH WERE DESCRIBED IN DETAIL; THAT IT WAS GENERALLY CONSIDERED THAT THE CARRIERS INCLUDED THE COST OF PROVIDING SUCH MEALS IN COMPUTING THEIR BID PRICES SO THAT APPROPRIATED FUNDS WERE BEING EXPENDED FOR THE PURCHASE OF MEALS FURNISHED TO PASSENGERS; AND THAT IN ORDER THAT THE GOVERNMENT BE REIMBURSED FOR THE COST OF MEALS FURNISHED OFFICERS AND CIVILIANS, AS REQUIRED BY THE ANNUAL APPROPRIATION ACTS, THE DEPARTMENT OF THE AIR FORCE INITIATED PROCEDURES FOR COLLECTING FOR IN-FLIGHT MEALS.

THE SITUATION CHANGED. LATER TRANSPORTATION CHARGES WERE BASED UPON A MINIMUM RATE ESTABLISHED BY THE CIVIL AERONAUTICS BOARD, WHICH TRADITIONALLY HAD CONSIDERED THE EXPENSE OF SERVING IN-FLIGHT MEALS TO BE AN INDIRECT COST APPROPRIATE FOR DISTRIBUTION TO ALL BUSINESS OF THE AIRLINE. THUS, THE RATES APPROVED BY THE BOARD WERE IDENTICAL FOR THE SAME CLASS OF SERVICE BETWEEN THE SAME TWO POINTS REGARDLESS OF WHETHER THE CARRIER SERVED MEALS TO PASSENGERS, AND WHEN MEALS WERE SERVED, THEY SERVED ALL PASSENGERS WITHOUT REGARD TO WHETHER THEY PAID FOR THEIR MEALS, SO THAT IT WAS IMPOSSIBLE TO COMPUTE TARIFFS SO AS TO PAY FOR TRANSPORTATION BUT NOT FOR FOOD.

SINCE THE CHARGES FOR TRANSPORTATION PROVIDED TO GOVERNMENT TRAVELERS ON CONTRACT CHARTER FLIGHTS APPEARED TO BE SUBJECT TO TARIFF RATES FIXED BY THE CIVIL AERONAUTICS BOARD ON SUBSTANTIALLY THE SAME BASIS AS TARIFF RATES WERE ESTABLISHED FOR PRIVATE COMMERCIAL FLIGHTS, WE CONCLUDED THAT THE COST OF IN-FLIGHT MEALS TO THE GOVERNMENT COULD NOT BE IDENTIFIED AS A PART OF THE COST OF EITHER CONTRACT CHARTER FLIGHTS OR PRIVATE COMMERCIAL FLIGHTS.

THE MEALS HERE INVOLVED, HOWEVER, ARE FURNISHED BY THE GOVERNMENT FROM FUNDS APPROPRIATED FOR THE OPERATION OF MESSES. HENCE, AS ALREADY STATED, THE ABOVE-QUOTED APPROPRIATION ACT PROVISIONS REQUIRE THAT THE COSTS OF SUCH MEALS BE COLLECTED FROM OFFICERS AND CIVILIANS.

THE QUESTION IS ANSWERED IN THE NEGATIVE.