B-163705, MAY 21, 1968

B-163705, MAY 21, 1968

TO MR. HARRY J. PEDERSEN:

WE REFER TO YOUR LETTER OF FEBRUARY 16, 1968, REQUESTING A DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT IN WHOLE OR IN PART AN ATTACHED TRAVEL VOUCHER WHICH WAS TRANSMITTED THEREWITH IN FAVOR OF DR. JOHN D. DONKER WHO IS A MEMBER OF THE UNIVERSITY OF MINNESOTA TEAM WORKING IN TUNISIA UNDER A COST REIMBURSEMENT TYPE CONTRACT BETWEEN THE UNIVERSITY OF MINNESOTA AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT.

THE VOUCHER COVERS THE TRAVEL EXPENSES OF DR. DONKER'S WIFE FROM MONTREAL, CANADA, TO TUNIS, TUNISIA, AND THOSE OF HIS DAUGHTER FROM MINNEAPOLIS, MINNESOTA, TO ROME, ITALY, PLUS THE ESTIMATED COST OF THE TRANSPORTATION OF AN AUTOMOBILE. IN ADDITION, THE VOUCHER APPEARS TO INCLUDE TRAVEL OF DR. DONKER FROM ROME TO TUNIS. IT IS NOTED THAT ORIGINALLY DR. DONKER DID NOT CLAIM ANY REIMBURSEMENT ON HIS OWN ACCOUNT AND YOUR SPECIFIC QUESTIONS DO NOT RELATE TO DR. DONKER'S TRAVEL. MOREOVER, THE FILE DOES NOT CLEARLY ESTABLISH AS TOWHAT PART, IF ANY, OF DR. DONKER'S TRAVEL WAS INTENDED TO HAVE BEEN REIMBURSABLE UNDER THE CONTRACT.

THE RECORD INDICATES THAT DR. DONKER ACCOMPANIED BY HIS WIFE WAS IN NEW YORK ON OTHER BUSINESS OF THE UNIVERSITY OF MINNESOTA AND FROM THERE HE AND HIS WIFE TRAVELED TO MONTREAL FOR PERSONAL REASONS. DR. DONKER INDICATES THAT THE OTHER BUSINESS OF THE UNIVERSITY ALSO REQUIRED HIM TO TRAVEL TO DUROPE. APPARENTLY, IT WAS HIS PURPOSE TO COMBINE THE COMPLETION OF THE OTHER BUSINESS IN EUROPE WITH A SIGHT SEEING TRIP. DR. DONKER AND HIS WIFE LEFT MONTREAL ON JULY 4, 1967, BY A FOREIGN SHIP (CANADIAN PACIFIC LINES) AND ARRIVED IN SCOTLAND ON JULY 10, 1967. THE NEXT DAY THEY WERE JOINED BY THEIR DAUGHTER WHO TRAVELED BY NORTHWEST ORIENT AIRLINES (AMERICAN CARRIER) TO NEW YORK AND BY BRITISH OVERSEAS AIRWAYS TO SCOTLAND. THE FILE FAILS TO REVEAL THE LOCATION OF THE FAMILY UNTIL SEPTEMBER 7, 1967, WHEN DR. DONKER INDICATES THAT HE AND HIS FAMILY LEFT COPENHAGEN, DENMARK, BY PRIVATELY OWNED AUTOMOBILE AND TRAVELED THROUGH GERMANY AND AUSTRIA TO ROME, ITALY (SOME INDIRECT TRAVEL INVOLVED) WHERE THEY ARRIVED ON SEPTEMBER 11, 1967. THE DAUGHTER ENTERED SCHOOL IN ROME AND DR. AND MRS. DONKER THEN LEFT ROME ON SEPTEMBER 24, 1967, BY AUTOMOBILE AND PROCEEDED TO THE SOUTHERN PART OF ITALY (PALERMO, SICILY), WHERE THEY EMBARKED ON A FERRY (PRESUMABLY WITH AUTOMOBILE) AND ARRIVED IN TUNIS ON SEPTEMBER 27, 1967. DR. DONKER INDICATES THAT HE WAS FURNISHED TRANSPORTATION ON THE FERRY BY THE GOVERNMENT.

DR. DONKER DOES NOT CLAIM ANY TRANSPORTATION OR PER DIEM IN LIEU OF SUBSISTENCE FOR HIMSELF EXCEPT THE TRAVEL VOUCHER DOES SHOW ITEMS OF PER DIEM FOR HIMSELF AFTER HE DEPARTED FROM ROME.

PARAGRAPH XIX.A.2 OF APPENDIX A TO THE CONTRACT PROVIDES IN PART THAT:

"THE CONTRACTOR SHALL BE REIMBURSED FOR ACTUAL TRANSPORTATION COSTS AND TRAVEL ALLOWANCES OF TRAVELERS FROM NORMAL PLACE OF RESIDENCE IN THE UNITED STATES (OR OTHER LOCATION AS APPROVED BY THE CONTRACTING OFFICER) TO POST OF DUTY IN THE COOPERATING COUNTRY AND RETURN TO NORMAL PLACE OF RESIDENCE IN THE UNITED STATES (OR OTHER LOCATION AS APPROVED BY THE CONTRACTING OFFICER) UPON COMPLETION OF SERVICES BY THE STAFF MEMBER. SUCH TRANSPORTATION COSTS SHALL NOT BE REIMBURSED IN AN AMOUNT GREATER THAN ECONOMY CLASS COMMERCIAL SCHEDULED AIR TRAVEL BY THE MOST EXPEDITIOUS ROUTE * * * SUCH TRAVEL ALLOWANCES FOR SUCH TRAVELERS SHALL BE AT THE RATE OF $6 PER DAY FOR PERSONS ELEVEN YEARS OF AGE OR OVER, AND $3 PER DAY FOR PERSONS UNDER ELEVEN YEARS OF AGE, AND NOT MORE THAN THE TRAVEL TIME REQUIRED BY SCHEDULED ECONOMY CLASS COMMERCIAL AIR CARRIER USING THE MOST EXPEDITIOUS ROUTE AND COMPUTED IN ACCORDANCE WITH THE U.S. STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AS FROM TIME TO TIME AMENDED. * * *"

SUBPARAGRAPH A.6 OF SUCH SECTION IS AS FOLLOWS:

"WHEN TRAVEL IS PERFORMED BY AN INDIRECT ROUTE FOR THE PERSONAL CONVENIENCE OF THE TRAVELER, THE ALLOWABLE COSTS OF SUCH TRAVEL WILL BE COMPUTED ON THE BASIS OF THE COST OF ECONOMY CLASS AIR FARE VIA THE DIRECT USUALLY TRAVELED ROUTE. IF SUCH COSTS INCLUDE FARES FOR AIR OR OCEAN TRANSPORTATION BY FOREIGN FLAG CARRIERS, APPROVAL FOR INDIRECT TRAVEL BY SUCH FOREIGN FLAG CARRIERS MUST BE OBTAINED FROM AID WASHINGTON OR THE MISSION BEFORE SUCH TRAVEL IS UNDERTAKEN, OTHERWISE ONLY THAT PORTION OF TRAVEL ACCOMPLISHED BY U.S. FLAG CARRIERS WILL BE REIMBURSABLE WITHIN THE ABOVE LIMITATION OF ALLOWABLE COSTS.'

PARAGRAPH XIX.F IS IN PART AS FOLLOWS:

"LIMITATION ON TRANSPORTATION

"1. INTERNATIONAL AIR TRANSPORTATION. ALL INTERNATIONAL AIR TRAVEL UNDER THIS CONTRACT SHALL BE MADE ON U.S. FLAG CARRIERS. EXCEPTIONS TO THIS RULE WILL BE ALLOWED IN THE FOLLOWING SITUATIONS PROVIDED THAT THE CONTRACTOR CERTIFIES TO THE FACTS IN THE VOUCHER OR OTHER DOCUMENTS RETAINED AS PART OF HIS CONTRACT RECORDS TO SUPPORT HIS CLAIM FOR REIMBURSEMENT AND FOR POST AUDIT BY A.I.D.:

"/A) WHERE A FLIGHT BY A U.S. CARRIER IS NOT SCHEDULED TO ARRIVE IN TIME FOR THE CONDUCT OF OFFICIAL BUSINESS.

"/B) WHERE A FLIGHT BY U.S. CARRIER IS SCHEDULED BUT DOES NOT HAVE ACCOMMODATIONS AVAILABLE WHEN RESERVATIONS ARE SOUGHT.

"/C) WHERE THE DEPARTURE TIME, ROUTING, OR OTHER FEATURES OF A U.S. CARRIER FLIGHT WOULD INTERFERE WITH OR PREVENT THE SATISFACTORY PERFORMANCE OF OFFICIAL BUSINESS.

"/D) WHERE A SCHEDULED FLIGHT BY A U.S. CARRIER IS DELAYED BECAUSE OF WEATHER, MECHANICAL OR OTHER CONDITIONS TO SUCH AN EXTENT THAT USE OF A NON U.S. CARRIER IS IN THE GOVERNMENT'S INTEREST.

"/E) WHERE THE APPROPRIATE CLASS OF ACCOMMODATIONS IS AVAILABLE ON BOTH U.S. AND NON-U.S. CARRIERS, BUT THE USE OF THE U.S. CARRIERS WILL RESULT IN HIGHER TOTAL U.S. DOLLAR COST TO THE CONTRACT DUE TO ADDITIONAL PER DIEM OR OTHER EXPENSES.

"/F) WHERE THE APPROPRIATE CLASS OF ACCOMMODATIONS IS AVAILABLE ONLY ON A NON U.S. CARRIER AND THE COST OF TRANSPORTATION AND RELATED PER DIEM IS LESS THAN THE COST OF AVAILABLE ACCOMMODATIONS OF ANOTHER CLASS ON A U.S. CARRIER AND RELATED PER DIEM.

"2. INTERNATIONAL OCEAN TRANSPORTATION. ALL INTERNATIONAL OCEAN TRANSPORTATION OF PERSONS AND THINGS WHICH IS TO BE REIMBURSED IN U.S. DOLLARS UNDER THIS CONTRACT SHALL BE BY U.S. FLAG VESSELS TO THE EXTENT THEY ARE AVAILABLE.'

SECTION IX OF APPENDIX D IS IN PART AS FOLLOWS:

"IX. SOURCE OF REIMBURSEMENT OF FOLLOWING COSTS

"OBLIGATIONS ASSUMED BY THE COOPERATING GOVERNMENT, THROUGH THE MINISTRY, OR BY THE MISSION, AT NO CHARGE TO THE CONTRACTOR:

"E. INTERNATIONAL TRAVEL AND TRANSPORTATION

"1. NOTWITHSTANDING PROVISIONS OF APPENDIX A-XIX-A-2, THE MINISTRY WILL PROVIDE FROM TRUST FUNDS FOR ALL AIR TRANSPORTATION (EXCLUDING TRAVEL ALLOWANCES) OF AUTHORIZED PERSONNEL FROM POINT OF ORIGIN IN THE UNITED STATES TO POST OF DUTY IN THE COOPERATING COUNTRY AND RETURN.'

THE SPECIFIC QUESTIONS SUBMITTED FOR DECISION ARE AS FOLLOWS:

1. PAYMENT OF OCEAN TRANSPORTATION FOR MRS. DONKER SINCE REIMBURSEMENT WILL NOT BE IN U.S. DOLLARS?

2. PAYMENT OF THE NORTHWEST ORIENT AIRLINES PORTION OF MISS DONKER'S TRANSPORTATION?

3. PAYMENT OF PER DIEM ON A CONSTRUCTIVE BASIS?

4. PAYMENT OF MILEAGE AND OTHER COSTS IN AN AMOUNT NOT TO EXCEED THE TRANSPORTATION COST OF THE VEHICLE FROM THE EUROPEAN FACTORY TO TUNISIA?

UNDER THE EXPRESS LANGUAGE OF PARAGRAPH XIX.A.2 OF APPENDIX A OF THE CONTRACT THE MAXIMUM AMOUNT OF REIMBURSEMENT WHICH COULD BE MADE IN THE CASE OF EITHER DR. DONKER'S WIFE OR DAUGHTER WOULD BE THE CONSTRUCTIVE COST OF TRANSPORTATION BY ECONOMY AIR TO DR. DONKER'S STATION IN TUNIS WHICH WE UNDERSTAND WOULD BE $315 PLUS ONE DAYS PER DIEM OF $6 IN THE CASE OF THE WIFE, AND $392 PLUS 1-1/4 DAYS PER DIEM IN THE CASE OF THE DAUGHTER. CONCERNING YOUR SPECIFIC QUESTIONS, WE NOTE THAT PARAGRAPH XIX.A.6 OF APPENDIX A PROVIDES THAT FOREIGN FLAG CARRIERS MAY NOT BE USED FOR INDIRECT TRAVEL UNLESS APPROVED IN ADVANCE, OTHERWISE ONLY THAT PORTION OF THE TRAVEL ACCOMPLISHED BY THE U.S. CARRIERS WILL BE REIMBURSABLE. HOWEVER, PARAGRAPH XIX.F.2 AND OTHER PROVISIONS OF THE CONTRACT INDICATE THAT THE LIMITATION APPLIES ONLY WHERE REIMBURSEMENT IS MADE TO A FOREIGN OCEAN CARRIER IN AMERICAN DOLLARS. WE UNDERSTAND THAT THE OCEAN TRANSPORTATION PROCURED BY MRS. DONKER WAS NOT REIMBURSED IN AMERICAN DOLLARS BUT RATHER IN TUNISIA FUNDS. THUS, UNDER THE CONTRACT IT IS REASONABLY CLEAR THAT DR. DONKER MAY BE REIMBURSED FOR THE OCEAN TRANSPORTATION OF MRS. DONKER. HOWEVER, THE TOTAL AMOUNT ALLOWABLE ON ACCOUNT OF MRS. DONKER'S TRAVEL MAY NOT EXCEED THE CONSTRUCTIVE COST OF ECONOMY AIR TRAVEL INCLUDING APPLICABLE PER DIEM, DIRECT FROM MONTREAL TO TUNIS.

CONCERNING THE AIR TRANSPORTATION COSTS OF MISS DONKER (DAUGHTER) FROM NEW YORK THERE IS CONSIDERABLE DOUBT WHETHER THE PROVISIONS OF SECTION IX.E OF APPENDIX D WERE NOT INTENDED, IN PART AT LEAST, TO OVERCOME THE LIMITATION FOUND ELSEWHERE IN THE CONTRACT REQUIRING TRAVEL ONLY ON AMERICAN AIRLINES. IN VIEW OF SUCH DOUBT WE WILL NOT OBJECT TO REIMBURSING DR. DONKER FOR THE AIR TRAVEL OF MISS DONKER FROM NEW YORK TO GLASGOW AS WELL AS THE AIR TRAVEL FROM MINNEAPOLIS TO NEW YORK. HOWEVER, THE TOTAL AMOUNT ALLOWABLE ON ACCOUNT OF THE TRAVEL OF MISS DONKER MAY NOT EXCEED THE CONSTRUCTIVE COSTS OF ECONOMY AIR, PLUS APPLICABLE PER DIEM, FROM MINNEAPOLIS TO TUNIS BY DIRECT ROUTE.

ANSWERING YOUR THIRD QUESTION SPECIFICALLY THE PAYMENT OF PER DIEM ON A CONSTRUCTIVE BASIS MAY NOT EXCEED THE CONSTRUCTIVE COST OF PER DIEM THAT WOULD BE PAYABLE HAD DIRECT TRAVEL BEEN PERFORMED BY ECONOMY AIR.

WE NOTE THAT IN LETTERS FROM DR. DONKER DATED OCTOBER 6, 1967, AND DECEMBER 13, 1967, HE ONLY CLAIMS $774.75 WHICH INCLUDES $300.75 FOR AIR TRANSPORTATION OF HIS DAUGHTER, $274 FOR AIR TRANSPORTATION OF HIS WIFE, AND $200 FOR EXPENSES OF WIFE AND DAUGHTER EQUIVALENT TO THE AMOUNT ESTIMATED FOR TRANSPORTATION BY AUTOMOBILE. IN VIEW OF THE AMBIGUITY CONTAINED IN THE CONTRACT AS TO JUST WHAT EXPENSES ARE COVERED THEREBY AND AS THE AMOUNT OF $774.75 DOES NOT EXCEED THE CONSTRUCTIVE COST OF AIR TRANSPORTATION OF HIS DAUGHTER AND WIFE PLUS THE ESTIMATED COST OF TRANSPORTATION OF HIS AUTOMOBILE WHICH EXPENSES WERE AUTHORIZED IN THE CONTRACT, WE BELIEVE IT WOULD BE REASONABLE TO STATE SETTLEMENT ON THE BASIS OF $774.75 IF DR. DONKER STILL IS AGREEABLE TO ACCEPTING THAT AMOUNT. UNDER SUCH CIRCUMSTANCES NO ANSWER TO YOUR FOURTH QUESTION APPEARS NECESSARY.