B-156456, APR. 22, 1965

B-156456, APR. 22, 1965

TO THE HONORABLE ROBERT C. WEAVER, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

YOUR LETTER OF APRIL 1, 1965, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTAIN PAYMENTS MADE TO AN EMPLOYEE OF YOUR AGENCY INCIDENT TO THE USE OF HIS PRIVATELY-OWNED AUTOMOBILE FOR OFFICIAL TRAVEL.

WE NOTE THAT THE TRAVEL ORDER IS NOT ENTIRELY CLEAR IN THIS CASE CONCERNING WHETHER OR NOT A DETERMINATION WAS MADE THAT TRAVEL BY PRIVATELY-OWNED AUTOMOBILE AT THE RATE OF 10 CENTS PER MILE WAS MORE ADVANTAGEOUS TO THE GOVERNMENT. ONE OF THE ITEMS CHECKED ON THE TRAVEL ORDER AS APPLICABLE (10.B-2) INDICATES THAT TRAVEL BY PRIVATELY-OWNED AUTOMOBILE IS AUTHORIZED AT THE RATE OF 10 CENTS PER MILE "PROVIDED IT HAS BEEN ADMINISTRATIVELY DETERMINED IN ADVANCE THAT BECAUSE OF THE NATURE OF YOUR DUTIES TRAVEL BY PRIVATE CONVEYANCE IS NECESSARY AND MORE ADVANTAGEOUS TO THE GOVERNMENT THAN USE OF COMMON CARRIER.' THAT LANGUAGE CONSIDERED ALONE WOULD SEEM TO INDICATE THAT A SEPARATE DETERMINATION WOULD HAVE TO BE MADE THAT TRAVEL ON THE BASIS SPECIFIED WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT. HOWEVER, THE INSTRUCTIONS FOR PREPARING THE TRAVEL ORDER (ENCLOSED WITH THE ORDER) STATE AS FOLLOWS WITH RESPECT TO ITEM 10.B-2: "ENTER AN "X" IN THIS SUB-BLOCK IF IT HAS BEEN PREDETERMINED THAT THIS MODE OF TRAVEL WILL BE MORE ADVANTAGEOUS TO THE GOVERNMENT.' APART FROM THIS INCONSISTENCY IT APPARENTLY WAS THE INTENT AND THE EMPLOYEE APPARENTLY UNDERSTOOD THAT UNDER OTHER PROVISIONS OF THE TRAVEL ORDER HE WAS TO BE PAID MILEAGE FOR THE USE OF HIS PRIVATELY-OWNED AUTOMOBILE AT THE PREVAILING NATIONWIDE RATE FOR GOVERNMENT-OWNED STANDARD SEDANS ).066 CENTS PER MILE FOR THE FIRST 1,000 MILES AND .062 CENTS PER MILE FOR EACH MILE OVER 1,000). IN ADDITION, HOWEVER, THE EMPLOYEE WAS PAID AN ALLOWANCE OF $17 PER MONTH FOR PARKING, PRESUMABLY REPRESENTING THE COST OF PARKING A GOVERNMENT VEHICLE HAD ONE BEEN USED. YOUR LETTER SAYS THAT---

"AFTER THE SIXTH PAYMENT, A CENTRAL OFFICE AUDITOR QUESTIONED THE INCLUSION IN THE "PREVAILING GSA RATE" COMPUTATION OF THE $17 MONTHLY PARKING ALLOWANCE, PAYMENT OF WHICH TOTALED $102 FOR THE SIX MONTHS. SINCE THE AUDIT EXCEPTION, MR. HUFFORD HAS BEEN PAID ON ACCOUNT OF OFFICIAL USE OF HIS PRIVATELY OWNED VEHICLE ONLY AT THE PREVAILING GSA MILEAGE RATE.'

THE STATUTORY AUTHORITY FOR THE PAYMENT OF PARKING FEES IS CONTAINED IN 5 U.S.C. 837, IN PART, AS FOLLOWS:

"* * * IN ADDITION TO THE MILEAGE ALLOWANCES PROVIDED FOR IN THIS SECTION, THERE MAY BE ALLOWED REIMBURSEMENT FOR THE ACTUAL COST OF PARKING FEES, FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL LS.'

THE APPLICABLE PROVISION OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ISSUED IN IMPLEMENTATION OF THE STATUTE PROVIDES THAT "REIMBURSEMENT FOR THE COST OF AUTOMOBILE PARKING FEES, FERRY FARES, AND BRIDGE, ROAD AND TUNNEL TOLLS ALSO WILL BE ALLOWED UNLESS THE TRAVEL ORDER OR OTHER ADMINISTRATIVE DETERMINATION RESTRICTS THEIR ALLOWANCE.'

IN THE PRESENT CASE THERE IS NOTHING IN THE TRAVEL ORDER OR IN THE ADMINISTRATIVE REGULATIONS SET FORTH IN YOUR LETTER SPECIFICALLY RESTRICTING THE ALLOWANCE OF THE ACTUAL COST OF PARKING FEES IN ADDITION TO MILEAGE. IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION OR REGULATION RESTRICTING SUCH ALLOWANCE, PAYMENT OF THE ACTUAL COST OF PARKING INCIDENT TO THE OFFICIAL USE BY THE EMPLOYEE OF HIS PRIVATELY- OWNED AUTOMOBILE WOULD APPEAR TO BE PROPER.

HOWEVER, THE EMPLOYEE IN QUESTION WAS NOT REIMBURSED THE ACTUAL COST OF PARKING BUT RATHER WAS PAID A MONTHLY ALLOWANCE IN LIEU OF REIMBURSEMENT ON AN ACTUAL COST BASIS. THIS WAS IMPROPER AS THERE IS NO AUTHORITY OF LAW FOR PAYING AN EMPLOYEE A COMMUTED ALLOWANCE COVERING PARKING FEES. THEREFORE THE MONTHLY ALLOWANCE PAYMENTS AS MADE WERE UNAUTHORIZED.

IN THE EVENT THE EMPLOYEE CAN ESTABLISH BY APPROPRIATE EVIDENCE THE ACTUAL COST OF PARKING FEES INCURRED INCIDENT TO THE PERFORMANCE OF OFFICIAL DUTIES, REIMBURSEMENT MAY BE EFFECTED UPON SUCH BASIS PROVIDED, OF COURSE, NO ADMINISTRATIVE DETERMINATION HAS BEEN MADE RESTRICTING REIMBURSEMENT FOR PARKING FEES.

THE FOREGOING IS PREDICATED UPON THE ASSUMPTION THAT THE USE OF THE EMPLOYEE'S AUTOMOBILE AT THE PREVAILING GSA MILEAGE RATE WAS EITHER AUTHORIZED AS MORE ADVANTAGEOUS TO THE GOVERNMENT OR THAT SUCH MILEAGE RATE PLUS THE ACTUAL PARKING FEES IS LESS THAN COMPARATIVE COMMON CARRIER COST. BOTH THE CONTROLLING STATUTE (5 U.S.C. 837) AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AUTHORIZE REIMBURSEMENT ON A MILEAGE BASIS-- - AT NOT TO EXCEED 12 CENTS PER MILE--- FOR TRAVEL BY PRIVATELY-OWNED AUTOMOBILE WHENEVER SUCH MODE OF TRAVEL IS AUTHORIZED OR APPROVED AS MORE ADVANTAGEOUS TO THE GOVERNMENT, EXCEPT THAT NO DETERMINATION OF ADVANTAGE IS REQUIRED WHEN PAYMENT ON A MILEAGE BASIS IS LIMITED TO THE COST OF TRAVEL BY COMMON CARRIER.

THE IMPLEMENTING REGULATIONS OF REGION V (HHFA REGION V REGIONAL ADMINISTRATOR'S CIRCULAR NO. 2, DATED SEPTEMBER 16, 1963) ARE QUOTED IN PART IN YOUR LETTER AS FOLLOWS:

"E.TRAVEL BY PRIVATELY-OWNED AUTOMOBILE.

"1. ADVANTAGE TO THE GOVERNMENT. TRAVEL BY PRIVATELY-OWNED AUTOMOBILE AT A 10 CENT PER MILE RATE MAY BE ALLOWED BY AUTHORIZING OFFICERS (* * * REGIONAL DIRECTOR OF ADMINISTRATION) UPON A FINDING THAT SUCH TRANSPORTATION IS MORE ADVANTAGEOUS TO THE GOVERNMENT THAN TRAVEL BY COMMON CARRIER OR GOVERNMENT-OWNED VEHICLE. THIS MODE OF TRANSPORTATION MUST BE APPROVED IN ADVANCE OF THE TRAVEL, INCLUDING THOSE INSTANCES WHERE THE TRAVELER HOLDS A BLANKET TRAVEL ORDER.

"2. NO ADVANTAGE TO THE GOVERNMENT. IN THE ABSENCE OF A FINDING OF ADVANTAGE TO THE GOVERNMENT, AN EMPLOYEE MAY USE HIS OWN AUTOMOBILE WITH REIMBURSEMENT FOR MILEAGE AS FOLLOWS:

"B. ON SHORTER TRIPS AND LONG TRIPS REQUIRING NUMEROUS OFFICIAL STOPS AND/OR LOCAL OFFICIAL TRAVEL AT TEMPORARY DUTY POINTS, REIMBURSEMENT WILL BE LIMITED TO THE PREVAILING NATIONWIDE RATES ESTABLISHED FOR GOVERNMENT- OWNED STANDARD SEDANS WHICH ARE PRESENTLY SET AT $ .066 FOR THE FIRST 1000 MILES AND $ .062 FOR EACH MILE OVER 1000 * * *. NO COMPARATIVE COST STATEMENT IN THE TRAVEL VOUCHER IS REQUIRED.'

ON FIRST IMPRESSION THE QUOTED REGULATIONS APPEAR CONTRARY TO THE BASIC STATUTE AND IMPLEMENTING REGULATIONS OF THE BUREAU OF THE BUDGET SINCE THEY APPEAR TO AUTHORIZE REIMBURSEMENT ON A MILEAGE BASIS (AT PREVAILING GSA MILEAGE RATES FOR GOVERNMENT-OWNED STANDARD SEDANS) WITHOUT REGARD TO COMMON CARRIER COMPARATIVE COST AND WITHOUT THE NECESSITY FOR A DETERMINATION OF ADVANTAGE TO THE GOVERNMENT. IF THAT IS THE INTENT OF SUCH REGULATIONS THEY ARE INVALID AND AN EMPLOYEE COULD BE PAID NO MORE THAN COMMON CARRIER COMPARATIVE COST.

ON THE OTHER HAND PARAGRAPH E.2 OF THE ADMINISTRATIVE REGULATIONS WOULD BE REGARDED AS A DETERMINATION AT THE REGIONAL LEVEL THAT THE USE OF A PRIVATE AUTOMOBILE ON SHORTER TRIPS AND ON LONG TRIPS REQUIRING NUMEROUS OFFICIAL STOPS AND/OR LOCAL OFFICIAL TRAVEL AT TEMPORARY DUTY POINTS IS MORE ADVANTAGEOUS TO THE GOVERNMENT AND THAT FOR SUCH TRAVEL REIMBURSEMENT WILL BE LIMITED TO PREVAILING GSA RATES FOR GOVERNMENT VEHICLES, EXCEPT WHEN THE AUTHORIZING OFFICER IN THE FIELD MAKES A FURTHER DETERMINATION OF ADVANTAGE TO THE GOVERNMENT IN WHICH EVENT MILEAGE UP TO THE 10-CENT RATE COULD BE ALLOWED. THE ADMINISTRATIVE REGULATIONS VIEWED IN THIS LIGHT WOULD NOT BE INVALID. IN ANY EVENT SUCH REGULATIONS AS PRESENTLY WORDED ARE AMBIGUOUS AND CONFUSING AND SHOULD BE CLARIFIED.

UNDER THE CIRCUMSTANCES, THE MILEAGE PAYMENTS AS MADE IN THE INSTANT CASE NEED NOT BE DISTURBED. MOREOVER, AS INDICATED ABOVE, THE EMPLOYEE IS ENTITLED TO ACTUAL PARKING FEES INCURRED--- BUT NOT TO A COMMUTED ALLOWANCE THEREFOR. CONCERNING YOUR QUESTION AS TO AUTHORITY TO NOW APPROVE A 10-CENT MILEAGE RATE FOR THE TRAVEL IN QUESTION, IT SUFFICES TO SAY THAT SINCE THE TRAVEL HAS BEEN COMPLETED UNDER AN ORDER WHICH WAS UNDERSTOOD TO LIMIT MILEAGE REIMBURSEMENT TO THE PREVAILING AVERAGE GSA RATE FOR GOVERNMENT VEHICLES, THE TRAVEL ORDER MAY NOT NOW BE MODIFIED RETROACTIVELY TO AUTHORIZE PAYMENT OF A HIGHER RATE.