B-168758, FEBRUARY 12, 1970, 49 COMP. GEN. 493

B-168758, FEBRUARY 12, 1970, 49 COMP. GEN. 493

SUBSISTENCE -- PER DIEM -- RATES -- INCREASES -- ADMINISTRATIVE IMPLEMENTATION INSTRUCTIONS BY THE DEFENSE CONTRACT AUDIT AGENCY AUTHORIZING A PER DIEM RATE OF $20, AND UP TO A $25 MAXIMUM WHERE THE EMPLOYEE INCURS ACTUAL EXPENSES IN EXCESS OF $20, THAT WERE ISSUED TO PUT INTO EFFECT PUBLIC LAW 91-114, APPROVED NOVEMBER 10, 1969, AND THE IMPLEMENTING JOINT TRAVEL REGULATIONS, INCREASING PER DIEM FROM $16 TO $25 FOR TRAVEL WITHIN THE CONTINENTAL UNITED STATES, MAY NOT BE THE BASIS FOR THE RETROACTIVE APPROVAL OF ADDITIONAL PER DIEM FOR EMPLOYEES ISSUED ORDERS PRIOR TO THE STATUTORY INCREASE, OR FOR REDUCING THE RATE PRESCRIBED BY STATUTE. THERE IS NO AUTHORITY WHEN TAKING REQUIRED ADMINISTRATIVE ACTION TO EFFECT A STATUTORY INCREASE TO APPLY THE INCREASE RETROACTIVELY, AND PER DIEM MAY ONLY BE REDUCED IN THE SPECIAL CIRCUMSTANCES PRESCRIBED BY THE JTR ESTABLISHING THE MANDATORY RATE INCREASE. ALSO THE COMBINATION OF PER DIEM AND ACTUAL EXPENSES PROVIDED IN THE INSTRUCTIONS IS IMPROPER.

TO B. B. WRIGHT, DEFENSE SUPPLY AGENCY, FEBRUARY 12, 1970:

THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 11, 1969, REFERENCE DPSC ZA, REQUESTING A DECISION AS TO THE RATES OF PER DIEM TO BE USED IN COMPUTING ADDITIONAL TRAVEL ALLOWANCES DUE THREE EMPLOYEES OF YOUR AGENCY UNDER THE PROVISIONS OF PUBLIC LAW 91-114, APPROVED NOVEMBER 10, 1969, 5 U.S.C. 5702.

THE STATUTE INCREASED THE MAXIMUM PER DIEM FOR TRAVEL WITHIN THE LIMITS OF THE "CONTINENTAL UNITED STATES" FROM $16 TO $25 AND ALSO THE MAXIMUM SUBSISTENCE EXPENSE REIMBURSEMENT WHICH MAY BE ALLOWED WITHIN THE CONTINENTAL UNITED STATES, AND ELSEWHERE, WHENEVER THE ACTUAL EXPENSE METHOD OF REIMBURSING FOR TRAVEL HAS BEEN AUTHORIZED BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS BECAUSE OF UNUSUAL CIRCUMSTANCES. BUREAU OF THE BUDGET CIRCULAR NO. A-7 WAS AMENDED BY TRANSMITTAL MEMORANDUM NO. 9, NOVEMBER 10, 1969, TO IMPLEMENT THE STATUTE. SUBSEQUENTLY, THE DEFENSE CONTRACT AUDIT AGENCY (DCAA) BY MEMORANDUM OF NOVEMBER 18, 1969, REFERENCE

IN RECOGNITION OF THOSE COSTS TO THE TRAVELER, WHICH HERETOFORE HAVE NOT BEEN COVERED BY THE PER DIEM RATE OF $16.00, DCAA IS AUTHORIZING $20.00 AS A STANDARD TRAVEL ALLOWANCE (EXCEPT FOR MEMPHIS, TENNESSEE, WHICH REMAINS AT $16.00), AND WILL APPROVE UP TO THE MAXIMUM OF $25.00 PER DAY IN THOSE CASES WHERE THE TRAVELER INCURS ACTUAL COST IN EXCESS OF $20.00, BUT NOT IN EXCESS OF $25.00 PER DAY. REIMBURSEMENT FOR THE ADDITIONAL COSTS (IN EXCESS OF $20.00 PER DAY AND IN EXCESS OF $16.00 PER DAY FOR TRAVEL IN THE MEMPHIS AREA) WILL BE MADE UPON CERTIFICATION, AS SHOWN BELOW, BY THE TRAVELER THAT ADDITIONAL EXPENSES; I.E., FOR LODGING, FOOD AND ALLOWABLE MISCELLANEOUS EXPENSE INCIDENT TO TRAVEL, WERE INCURRED. NO RECEIPTS WILL BE REQUIRED IN SUPPORT OF THIS CLAIM.

THE RECORD INDICATES THAT THE THREE EMPLOYEES INVOLVED WERE ISSUED TRAVEL AUTHORIZATIONS ON NOVEMBER 3, 17, AND 18, 1969, RESPECTIVELY. THE AUTHORIZATIONS ISSUED ON NOVEMBER 3 AND 17 PROVIDED FOR PER DIEM IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS, VOLUME 2. ON NOVEMBER 18 THEY WERE AMENDED TO AUTHORIZE THE RATES SPECIFIED IN THE DCAA MEMORANDUM. THE NOVEMBER 18 AUTHORIZATION SPECIFIED THE MEMORANDUM RATES. EACH OF THE EMPLOYEES HAS BEEN PAID PER DIEM AT THE RATE OF $16 PER DAY AND HAS CLAIMED AN ADDITIONAL ALLOWANCE. YOU HAVE SUBMITTED 9 VOUCHERS WITH ALTERNATE TRAVEL ALLOWANCE COMPUTATIONS FOR EACH EMPLOYEE. YOU ASK WHETHER THE DCAA MEMORANDUM RATES MAY BE APPLIED RETROACTIVELY AND WHETHER THE TWO EMPLOYEES WHO SUBMITTED STATEMENTS OF ACTUAL EXPENSES TOTALING UP TO $26.84 PER DAY MAY BE ALLOWED ACTUAL EXPENSES. YOU ALSO ASK, IF THE EMPLOYEES MAY BE ALLOWED ACTUAL EXPENSES, WHETHER PAYMENT SHOULD BE ON THE BASIS OF A MAXIMUM OF $25 FOR ANY GIVEN DAY OR ON THE BASIS OF AN AVERAGE AMOUNT NOT EXCEEDING $25 PER DAY. IT IS FURTHER INDICATED THAT THE THREE CLAIMS HERE INVOLVED ARE REPRESENTATIVE OF SIXTY VOUCHERS BEING HELD FOR FINALIZATION.

A PER DIEM INCREASE AUTHORIZED BY A STATUTE IS NOT AUTOMATIC BUT REQUIRES ADMINISTRATIVE ACTION BEFORE A HIGHER RATE IS EFFECTIVE AND THERE IS NO AUTHORITY FOR RETROACTIVELY INCREASING RATES IN TRAVEL ORDERS ISSUED PRIOR TO THE DATE OF THE STATUTE. 35 COMP. GEN. 148 (1955). IN THE INSTANT CASE THE BUREAU OF THE BUDGET AMENDED THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ON NOVEMBER 10, 1969, TO GIVE IMMEDIATE EFFECT TO THE STATUTE. ALSO, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE APPROVED CHANGES TO THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, EFFECTIVE NOVEMBER 10, 1969, TO GIVE EFFECT TO THE STATUTE, AND STATED THE CHANGES WOULD BE REPRINTED IN CHANGE NO. 53 TO THE JOINT TRAVEL REGULATIONS, VOLUME 2.

JOINT TRAVEL REGULATIONS, PAR. C1002, PROVIDES AS FOLLOWS:

UNDER DEPARTMENT OF DEFENSE DIRECTIVE NO. 5154.20, THE PROVISIONS IN THIS VOLUME, AND SUBSEQUENT AMENDMENTS THERETO, ARE EFFECTIVE ON THE BASIS OF PROMULGATION BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WITHOUT FURTHER ENTITLEMENT IMPLEMENTATION BY THE SEPARATE DEPARTMENTS. THE SEPARATE DEPARTMENTS MAY ISSUE RELATED ADMINISTRATIVE PROCEDURES PROVIDED THEY DO NOT CONTRAVENE OR UNNECESSARILY DUPLICATE THE PROVISIONS IN THIS VOLUME. WE HAVE BEEN ADVISED THAT THE CHANGES WERE PROMULGATED ON NOVEMBER 10, 1969, AND, THEREFORE, ESTABLISH THE PER DIEM ENTITLEMENT OF ALL EMPLOYEES IN THE DEPARTMENT OF DEFENSE. AGENCY INSTRUCTIONS ARE VALID ONLY TO THE EXTENT THAT THEY DO NOT CONTRAVENE THE JTR PROVISIONS.

JOINT TRAVEL REGULATIONS, PAR. 8101-1 AND PAR. 8101-2, AS AMENDED, PROVIDE IN PERTINENT PART AS FOLLOWS:

1. GENERAL. PRESCRIBED BY THE DEPARTMENT OF STATE OR THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, THE RATES OF PER DIEM SPECIFIED IN THIS PARAGRAPH ARE MANDATORY FOR THE CONDITIONS OF TRAVEL STATED UNLESS OTHERWISE PROVIDED. FOR AUTHORITY TO PRESCRIBE LESSER RATES, SEE PAR. C8051.

2. TRAVEL WITHIN THE CONTINENTAL UNITED STATES BY REGULAR SALARIED EMPLOYEES.

A. PER DIEM RATES WITHIN THE CONTINENTAL UNITED STATES. EXCEPT AS OTHERWISE PROVIDED HEREIN, A PER DIEM RATE OF $25 IS PRESCRIBED FOR ALL TRAVEL AND TEMPORARY DUTY WITHIN THE CONTINENTAL UNITED STATES OF REGULAR SALARIED EMPLOYEES. THE METHOD OF COMPUTING THE ALLOWABLE PER DIEM WILL BE AS PRESCRIBED IN CHAPTER 10, PART C. IN VIEW OF THE ABOVE REGULATIONS A PER DIEM RATE OF $25 SHOULD HAVE BEEN PRESCRIBED IN THE ABSENCE OF CIRCUMSTANCES JUSTIFYING (1) THE USE OF AUTHORITY IN PARAGRAPH C8051, JTR, TO PRESCRIBE LESSER RATES, (2) THE APPLICATION OF ANOTHER RATE IN PARAGRAPH C8101, JTR, SUCH AS THE RATE APPLICABLE WHEN GOVERNMENT QUARTERS ARE USED, OR (3) THE USE OF THE ACTUAL EXPENSE ALLOWANCE AUTHORIZED IN JTR, CHAPTER 8, PART D.

THE REGULATIONS CITED ABOVE CLEARLY SET FORTH THE CIRCUMSTANCES UNDER WHICH REDUCED PER DIEM RATES MAY BE PRESCRIBED IN THE DEPARTMENT OF DEFENSE. SO FAR AS THE DCAA MEMORANDUM IS NOT IN ACCORD WITH THE CONTROLLING REGULATIONS IT IS INEFFECTIVE. WE NOTE THAT THE COMBINATION OF PER DIEM AND ACTUAL EXPENSES PURPORTEDLY AUTHORIZED IN THAT MEMORANDUM WOULD NOT BE PROPER IN ANY EVENT. THERE IS NO INDICATION IN THE RECORD OF CIRCUMSTANCES WHICH WOULD PERMIT THE FIXING OF A REDUCED RATE INSTEAD OF THE $25 MANDATORY RATE PRESCRIBED IN JTR, PAR. C8101-2, ITEM A, OR THE AUTHORIZATION OF AN ACTUAL EXPENSE ALLOWANCE UNDER CHAPTER 8, PART D.

IN VIEW OF THE ABOVE THE TRAVELERS WHO WERE AUTHORIZED PER DIEM IN ACCORDANCE WITH JTR SHOULD BE ALLOWED THE DIFFERENCE BETWEEN THE $25 RATE AND THE $16 RATE. INASMUCH AS THE CHANGES WERE PROMULGATED ON NOVEMBER 10, 1969, AND PRESCRIBED MANDATORY PER DIEM RATES EFFECTIVE AS OF THAT DATE, JTR, PAR. C2053-2, PROHIBITING RETROACTIVE AMENDMENT OF TRAVEL ORDERS, IS NOT APPLICABLE. WITH REGARD TO THE AUTHORIZATION AND AMENDMENTS PRESCRIBING THE RATES SPECIFIED IN THE DCAA MEMORANDUM, IT APPEARS THAT THERE ARE NO CIRCUMSTANCES WARRANTING THE FIXING OF OTHER THAN THE MANDATORY RATE OF $25.

THE VOUCHERS, RETURNED HEREWITH, SHOULD BE PROCESSED IN ACCORDANCE WITH THE ABOVE; ALSO, WE SEE NO REASON WHY OTHER SIMILAR VOUCHERS MAY NOT BE HANDLED IN THE SAME MANNER.

WITH RESPECT TO YOUR GENERAL QUESTION CONCERNING AVERAGING OF ACTUAL EXPENSES, SEE B-167820, OCTOBER 7, 1969.