B-166290, JUNE 3, 1969

B-166290, JUNE 3, 1969

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 10, 1969, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (RESEARCH AND DEVELOPMENT), REQUESTING A DECISION WHETHER TEMPORARY LODGING ALLOWANCES ARE PAYABLE TO MEMBERS OF THE UNIFORMED SERVICES UNDER THE PROVISIONS OF PARAGRAPH M4303-3C, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS, OR OTHERWISE, INCIDENT TO OCCUPANCY OF QUARTERS FURNISHED BY THE REPUBLIC OF CHINA UNDER THE CIRCUMSTANCES SET FORTH IN THE LETTER. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 69-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT THE QUARTERS ARE IN REPUBLIC OF CHINA "HOSTELS" LOCATED IN TAIWAN, MATSU, KINMEN, AND PENGHU, AND ARE FURNISHED BY THE REPUBLIC OF CHINA PURSUANT TO AN AGREEMENT DATED JANUARY 1, 1965, BETWEEN THE FOREIGN AFFAIRS SERVICE DEPARTMENT OF THE REPUBLIC OF CHINA AND HEADQUARTERS SUPPORT ACTIVITY, TAIPEI, A COPY OF WHICH WAS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER.

IT APPEARS FROM THAT AGREEMENT THAT THE HOSTELS AND MESSES AT THE NAMED LOCATIONS ARE OPERATED BY THE REPUBLIC OF CHINA FOREIGN AFFAIRS SERVICE DEPARTMENT PRIMARILY FOR USE BY U.S. MILITARY AND GOVERNMENT CIVILIAN PERSONNEL, AND THAT SUCH PERSONNEL PAY FOR MEALS AND A RENTAL CHARGE FOR THE OCCUPANCY OF ROOMS WHICH IS NOT A SERVICE CHARGE. THE

THE ASSISTANT SECRETARY SAYS THAT DOUBT EXISTS AS TO WHETHER THESE PRICES CHARGED FOR ROOMS AND MEALS ARE FIXED BY THE PARTIES TO THE AGREEMENT. QUARTERS MAY BE CONSIDERED TO BE QUARTERS FURNISHED BY A GOVERNMENT CONTRACTOR FOR THE PURPOSE OF ENTITLEMENT TO REDUCED RATE TEMPORARY LODGING ALLOWANCES UNDER PARAGRAPH M4303-3C, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS. ALSO, HE ENCLOSED A MEMORANDUM OF OPINION DATED AUGUST 8, 1968, FROM THE STAFF JUDGE ADVOCATE OF THE MILITARY ASSISTANCE ADVISORY GROUP, REPUBLIC OF CHINA, IN WHICH THE OPINION IS EXPRESSED THAT THE CITED PROVISIONS OF THE REGULATIONS ARE NOT APPLICABLE.

IN THAT MEMORANDUM IT IS STATED THAT THE HOSTELS, OWNED AND OPERATED BY THE REPUBLIC OF CHINA THROUGH THE FOREIGN AFFAIRS SERVICE DEPARTMENT, ARE AN IMPLEMENTATION OF PARAGRAPH 5 OF THE SO-CALLED "MAAG ADMINISTRATIVE AGREEMENT" OF 1952 (TIAS 2712) WHICH IN TURN IMPLEMENTS THE MUTUAL DEFENSE ASSISTANCE AGREEMENT OF 1951 (TIAS 2293). IT FURTHER IS STATED THAT SUCH TREATIES AND AGREEMENTS BETWEEN THE GOVERNMENTS ARE OUTSIDE THE SCOPE OF THE USUAL PROSCRIPTIONS ON GOVERNMENT PROCUREMENT AND CONTRACTING IN GENERAL AND THAT NONE OF THE NORMAL ASPECTS OF COMMERCIAL CONTRACTING ARE TO BE FOUND IN THE CITED GOVERNMENT-TO-GOVERNMENT AGREEMENT. THEREFORE, THE OPINION IS EXPRESSED THAT THE REPUBLIC OF CHINA CANNOT BE R CONSIDERED TO BE ACTING AS A GOVERNMENT CONTRACTOR WITHIN THE MEANING OF PARAGRAPH M4303-3C OF VOLUME 1, JOINT TRAVEL REGULATIONS

IN THE EVENT IT IS DETERMINED THAT THE QUARTERS IN QUESTION ARE NOT LODGINGS FURNISHED BY A GOVERNMENT CONTRACTOR WITHIN THE CONTEMPLATION OF PARAGRAPH M4303-3C, THE ASSISTANT SECRETARY REQUESTS ADVICE WHETHER ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE EXISTS OTHERWISE. IN THIS CONNECTION, HE POINTS OUT THAT PARAGRAPH M4303-1 OF THE REGULATIONS STATES THAT THE ALLOWANCE IS FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS, AND SAYS IT IS APPARANT THAT THE MEALS FURNISHED UNDER THE AGREEMENT ARE NOT AVAILABLE TO THE PUBLIC GENERALLY.

SECTION 405 OF TITLE 37, U.S.C. PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER INCIDENTAL EXPENSES.

PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES GENERALLY TTHAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS. THE ALLOWANCES ARE AUTHORIZED WHEN SUCH EXPENSES ARE INCURRED BY A MEMBER (1) UPON INITIAL ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES PENDING ASSIGNMENT TO GOVERNMENT QUARTERS OR COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT QUARTERS; (2) WHEN IT BECOMES NECESSARY FOR A MEMBER ONCE ESTABLISHED IN PERMANENT QUARTERS TO AGAIN UTILIZE SUCH TEMPORARY ACCOMMODATIONS AND RESTAURANTS WHILE SEEKING FURTHER PERMANENT QUARTERS, OR (3) IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE OF THE UNITED STATES AFTER TERMINATION OF ASSIGNMENT OF GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT QUARTERS.

PARAGRAPH M4303-3C OF THE REGULATIONS PROVIDES THAT WHEN THE HOTEL OR HOTEL-LIKE ACCOMMODATIONS ARE FURNISHED BY A GOVERNMENT CONTRACTOR, WITH OR WITHOUT CHARGE TO THE MEMBER, THE DAILY AMOUNT OF THE TEMPORARY LODGING ALLOWANCE UNDER THAT SUBPARAGRAPH WILL BE EQUAL TO ONE-HALF OF THE ALLOWANCE OTHERWISE AUTHORIZED PLUS THE AMOUNT PAID BY THE MEMBER FOR QUARTERS.

THE TEMPORARY LODGING ALLOWANCE PROVISIONS OF THE JOINT TRAVEL REGULATIONS DO NOT SPECIFICALLY PROVIDE FOR PAYMENT OF THE ALLOWANCE INCIDENT TO THE OCCUPANCY OF QUARTERS FURNISHED BY A FOREIGN GOVERNMENT. AND IT IS TO BE NOTED THAT THE REGULATIONS PROVIDE (PARAGRAPH M4256-6 TABLE RULE 1) THAT THE TEMPORARY DUTY ALLOWANCES OUTSIDE THE UNITED STATES ARE REDUCED WHEN MEALS AND/OR QUARTERS ARE FURNISHED WITH OR WITHOUT CHARGE BY A FOREIGN GOVERNMENT, THUS INDICATING LOWER COSTS TO THE MEMBER THAN ARE INCURRED IN HOTELS AND PUBLIC RESTAURANTS.

HOTEL OR HOTEL-LIKE ACCOMMODATIONS FURNISHED BY A GOVERNMENT CONTRACTOR NORMALLY ARE QUARTERS WHICH THE CONTRACTOR HAS PROVIDED FOR HIS EMPLOYEES INCIDENT TO THE PERFORMANCE OF A CONTRACT WITH THE GOVERNMENT AND WHICH HE MAKES AVAILABLE TO MEMBERS OF THE UNIFORMED SERVICES. WE AGREE WITH THE OPINION OF AUGUST 8, 1968, THAT NONE OF THE NORMAL ASPECTS OF COMMERCIAL CONTRACTING ARE FOUND IN THE AGREEMENT HERE INVOLVED AND IN THESE CIRCUMSTANCES IT IS OUR VIEW THAT THE REPUBLIC OF CHINA MAY NOT BE REGARDED AS A GOVERNMENT CONTRACTOR WITHIN THE MEANING OF PARAGRAPH M4303- 3C OF THE JOINT TRAVEL REGULATIONS. INSTEAD, IT APPEARS THAT THESE HOSTELS ARE QUARTERS FURNISHED BY A FOREIGN GOVERNMENT.

IN RESPONSE TO AN INFORMAL INQUIRY BY THIS OFFICE AS TO THE PERIOD OF OCCUPANCY OF THESE HOSTELS AND THE RATES CHARGED, BY LETTER OF APRIL 30, 1969, THE OFFICE OF THE COMPTROLLER OF THE NAVY ADVISED US, IN PART, AS FOLLOWS:

"INFORMATION HAS BEEN OBTAINED FROM THE HEADQUARTERS SUPPORT ACTIVITY IN TAIPEI THAT THE FACILITIES IN QUESTION ARE OCCUPIED BY MEMBERS AND THEIR DEPENDENTS ON A TEMPORARY BASIS:

(A) INCIDENT TO ARRIVAL AT A NEW PERMANENT STATION AND PENDING THE OCCUPANCY OF PERMANENT LIVING ACCOMMODATIONS; AND

(B) AFTER VACATING PERMANENT LIVING ACCOMMODATIONS PRIOR TO DETACHMENT AND DEPARTURE UNDER PERMANENT CHANGE-OF-STATION ORDERS.

"IN ADDITION, WE ARE INFORMED THAT THE RATES CHARGED FOR THIS TEMPORARY OCCUPANCY ARE:

ENLISTED: MEMBERS 68 CENTS

DEPENDENTS OVER 18 YEARS 68 CENTS

DEPENDENTS UNDER 18 YEARS 75 CENTS

OFFICERS:MEMBERS $1.00

DEPENDENTS OVER 18 YEARS $1.00

DEPENDENTS UNDER 18 YEARS 75 CENTS

"MEALS ARE NOT AVAILABLE TO MEMBERS OR THEIR DEPENDENTS AT THESE HOSTELS-

SECTION 403 OF TITLE 37, U.S. CODE, AS AMENDED, PROVIDES A BASIC ALLOWANCE FOR QUARTERS RANGING FROM $60 TO $85.20 FOR ENLISTED MEMBERS WITHOUT DEPENDENTS AND FROM $60 TO $120 FOR THOSE WITH DEPENDENTS. FOR OFFICERS WITHOUT DEPENDENTS THE BASIC ALLOWANCE FOR QUARTERS RANGES FROM $85.20 TO $160.20 AND FOR THOSE WITH DEPENDENTS FROM $110.10 TO $201.

GENERALLY, MEMBERS STAYING AT THESE HOSTELS WOULD PAY LESS FOR THEIR QUARTERS THAN THEY RECEIVE AS QUARTERS ALLOWANCE AND, IN VIEW OF THE LOW RATES CHARGED, IT SEEMS APPARENT THEY DO NOT INCUR THE MORE THAN NORMAL EXPENSES THAT WOULD BE INCURRED FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS. ALSO, ALTHOUGH THE AGREEMENT PROVIDES FOR THE FURNISHING OF MEALS, IT NOW APPEARS THAT MEALS ARE NOT AVAILABLE FOR MEMBERS AND THEIR DEPENDENTS AT THE HOSTELS AND IT IS NOT SHOWN THAT THE MEALS ARE OBTAINED IN PUBLIC RESTAURANTS.

SINCE THE HOSTELS DO NOT QUALIFY AS HOTEL OR HOTEL-LIKE ACCOMMODATIONS FURNISHED BY A GOVERNMENT CONTRACTOR, THE MEMBERS ARE NOT ENTITLED TO TEMPORARY LODGING ALLOWANCE UNDER PARAGRAPH M4303-3C, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS. ALSO, SINCE IT IS NOT SHOWN THAT THE MEMBERS INCUR MORE THAN NORMAL COSTS FOR HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS, THERE IS NO ENTITLEMENT TO THE ALLOWANCE UNDER OTHER PROVISIONS OF THE JOINT TRAVEL REGULATIONS.