B-194158, B-194900, JULY 18, 1980, 59 COMP.GEN. 612

B-194158, B-194900, JULY 18, 1980, 59 COMP.GEN. 612

TRAVEL EXPENSES - TEMPORARY DUTY - RENTAL OF APARTMENT - SECURITY DEPOSIT FORFEITURE - DEPOSIT REIMBURSEMENT - TRAVEL CANCELLED EMPLOYEE OF THE INTERNAL REVENUE SERVICE, WHO WAS SCHEDULED FOR AN EXTENDED TEMPORARY DUTY ASSIGNMENT, MADE A NONREFUNDABLE $150 DEPOSIT TO LEASE AN APARTMENT. SUBSEQUENTLY THE ASSIGNMENT WAS CANCELLED, AND THE DEPOSIT WAS FORFEITED THROUGH NO FAULT OF THE EMPLOYEE. EMPLOYEES MAY BE REIMBURSED REASONABLE DEPOSITS MADE IN ANTICIPATION OF ORDERED TRAVEL WHEN TRAVEL IS CANCELLED AND DEPOSITS ARE FORFEITED. OVERRULES B-194900, SEPT. 14, 1979. THIS DECISION WAS LATER MODIFIED (AMPLIFIED) BY B-198699, OCT. 6, 1980, AND MODIFIED (EXTENDED) BY 60 COMP.GEN.-- (B-196851, AUGUST 6, 1981).

MATTER OF: CHRIS C. RAINEY AND SIDNEY A. MORSE, JULY 18, 1980:

BY A LETTER OF FEBRUARY 13, 1979, ELIZABETH A. ALLEN, AN AUTHORIZED CERTIFYING OFFICER WITH THE INTERNAL REVENUE SERVICE, REQUESTED AN ADVANCE DECISION ON THE RECLAIM VOUCHER OF CHRIS C. RAINEY FOR REIMBURSEMENT OF A FORFEITED RENT DEPOSIT IN THE AMOUNT OF $150.

MR. RAINEY, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE WHOSE DUTY STATION IS LAFAYETTE, LOUISIANA, WAS SELECTED TO TEACH A TAX AUDITOR COURSE IN NEW ORLEANS, LOUISIANA, FROM NOVEMBER 27 TO DECEMBER 22, 1978. HE WAS SCHEDULED TO REPORT TO NEW ORLEANS ON NOVEMBER 6, 1978, TO BEGIN PREPARATION FOR THE COURSE. HIS REPORTING INSTRUCTIONS, DATED OCTOBER 18, 1978, ADVISED THAT NO RESERVATIONS HAD BEEN MADE FOR OUT-OF TOWN INSTRUCTORS. ON OCTOBER 19, 1978, HE MADE ARRANGEMENTS TO RENT AN APARTMENT FOR THE PERIOD NOVEMBER 5 THROUGH DECEMBER 21, 1978, AT $345 PER MONTH. ON OCTOBER 23, 1978, HE DEPOSITED $150 TO GUARANTEE THE APARTMENT. SUBSEQUENTLY THE TRAINING ASSIGNMENT WAS CANCELLED, AND HE FORFEITED THE DEPOSIT.

MR. RAINEY WAS SENT TO NEW ORLEANS ON AN UNRELATED MATTER FROM NOVEMBER 7 UNTIL NOVEMBER 9, 1978, AND SECURED HOTEL LODGING FOR THE NIGHTS OF NOVEMBER 7 AND 8. THE AGENCY DISALLOWED MR. RAINEY'S CLAIM FOR THE $150 APARTMENT DEPOSIT WHICH HE CLAIMED ON THE VOUCHER FOR THAT TRAVEL. HOWEVER, THE ACCOUNTING UNIT SUGGESTED THAT HE SHOULD HAVE STAYED IN THE APARTMENT ON NOVEMBER 7 AND 8. MR. RAINEY POINTED OUT IN FILING HIS RECLAIM VOUCHER THAT THE COST OF THAT COURSE OF ACTION WOULD HAVE BEEN MORE THAN THE COST OF HIS STAYING IN A HOTEL IN THAT IT WOULD HAVE REQUIRED PAYING A FULL MONTH'S RENT OF $345 ($150 DEPOSIT $195) FOR TWO NIGHTS LODGING.

REIMBURSEMENT OF THE FORFEITED DEPOSIT IS UNRELATED TO MR. RAINEY'S SUBSEQUENT TRIP TO NEW ORLEANS AND SHOULD BE CONSIDERED SEPARATELY. HAS BEEN REIMBURSED FOR THAT TRIP AND NO EXPENSES FROM THAT TRIP ARE AT ISSUE HERE.

REGARDING THE FORFEITED RENT DEPOSIT THE EFFECT OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7, MAY 1973) AT PARAGRAPHS 1-1.3A AND 1-7.3 IS TO ENCOURAGE THE USE OF LODGINGS AT REDUCED RATES FOR EXTENDED ASSIGNMENT. MR. RAINEY ACTED JUDICIOUSLY IN SECURING LODGING ACCOMMODATIONS AT A REDUCED RATE. A MOTEL OR HOTEL ROOM RENTED ON A DAILY BASIS WOULD HAVE COST SUBSTANTIALLY MORE THAN THE APARTMENT HE INTENDED TO OCCUPY.

GENERALLY AN INDIVIDUAL EMPLOYEE IS RESPONSIBLE FOR RESERVING AND PAYING FOR HIS LODGING OUT OF HIS TRAVEL ALLOWANCE. WHEN HE DOES NOT ENTER A TRAVEL STATUS BECAUSE A PLANNED ASSIGNMENT IS CANCELLED, HE NORMALLY INCURS NO EXPENSES. MR. RAINEY'S SITUATION IS ONE OF THOSE OCCASIONS WHERE EXPENSES ARE INCURRED WITHOUT TRAVEL BEING PERFORMED.

IT IS WELL ESTABLISHED THAT IN SIMILAR SITUATIONS WHEN THE GOVERNMENT IS A PARTY TO THE AGREEMENT (A GOVERNMENT OFFICIAL ACTING IN HIS OFFICIAL CAPACITY MAKES THE HOTEL, MOTEL, OR OTHER RESERVATION), THE FORFEITED ROOM CHARGE OR DEPOSIT MAY BE PAID BY THE GOVERNMENT. SEE 41 COMP.GEN. 780(1962); 51 ID. 453(1972); B-192767, MAY 3, 1979. HOWEVER, THOSE DECISIONS AS WELL AS B-181266, DECEMBER 5, 1974, CONTAIN LANGUAGE TO THE EFFECT THAT IF AN EMPLOYEE WHO IS REIMBURSED ON A PER DIEM BASIS MADE THE RESERVATIONS, HE COULD NOT BE REIMBURSED THE FORFEITED DEPOSIT. HOWEVER, THAT CONCLUSION IS NOT CONSISTENT WITH THE CONCLUSION REACHED IN 48 COMP.GEN. 75(1968). IN DISCUSSING A DEPARTMENT OF DEFENSE PROPOSAL TO ISSUE REGULATIONS WE HELD THAT REGULATIONS COULD BE ISSUED PERMITTING REIMBURSEMENT OF FORFEITED DEPOSITS ON AN ACTUAL EXPENSE BASIS IF THE EXPENSE WAS INCURRED IN ANTICIPATION OF TRAVEL UNDER VALID TRAVEL ORDERS WHICH WERE CANCELLED PRIOR TO THE COMMENCEMENT OF TRAVEL. WE ARE AWARE OF NO REGULATIONS WHICH HAVE BEEN ISSUED UNDER THAT DECISION. HOWEVER, IN MATTER OF SIDNEY A. MORSE, B-194900, SEPTEMBER 14, 1979, A CONTRARY RULE WAS APPLIED AND SOME OTHER DECISIONS HAVE FAILED TO RECOGNIZE THE AUTHORITY CONTAINED THEREIN AND HAVE RESTATED THE PRIOR RULE IN CONTEXTS WHERE IT WAS NOT CONTROLLING.

UPON FURTHER EVALUATION WE HAVE DETERMINED THAT THE RULE STATED IN 48 COMP.GEN. 75 REGARDING REIMBURSEMENT OF FORFEITED DEPOSITS WAS CORRECT AND SHOULD BE AFFIRMED. OUR CONCLUSION IN THAT REGARD IS NOT BASED UPON A NEW PROVISION OF LAW BUT UPON A REEVALUATION OF EXISTING LAW IN LIGHT OF ACTUAL CIRCUMSTANCES ENCOUNTERED BY GOVERNMENT TRAVELERS. THUS, IT IS OUR VIEW THAT REIMBURSABLE TRAVEL COSTS MAY INCLUDE FORFEITED DEPOSITS. WHILE THE ISSUANCE OF REGULATIONS PROVIDING FOR PAYMENT OF THESE COSTS AND PRESCRIBING CONDITIONS WOULD BE USEFUL, REGULATIONS ARE NOT REQUIRED TO PERMIT REIMBURSEMENT. ACCORDINGLY, WE HOLD THAT WHEN AN EMPLOYEE OR MEMBER OF THE UNIFORMED SERVICES IN REASONABLE EXPECTATION OF ORDERED TRAVEL RESERVES A ROOM FOR WHICH HE MUST PAY A DEPOSIT AND FORFEITS THAT DEPOSIT BECAUSE HIS OFFICIAL TRAVEL IS CANCELLED, THE GOVERNMENT WILL REIMBURSE REASONABLE COSTS INCURRED. SIMILARLY, IN A DECISION ISSUED TODAY, B-195352, WE HELD THAT IF AN EMPLOYEE OR MEMBER RENTS ACCOMMODATIONS FOR A PERIOD OF TIME INCIDENT TO LONG-TERM TEMPORARY DUTY BUT IS REQUIRED TO LEAVE THE TEMPORARY DUTY SITE EARLY BECAUSE OF A CHANGE IN ORDERS AND IS UNABLE TO OBTAIN A REFUND OF AN APPROPRIATE PART OF THE REND PAID THE GOVERNMENT WILL REIMBURSE THE EMPLOYEE FOR RENT COVERING THE PERIOD WHEN THE QUARTERS WERE NOT OCCUPIED DUE TO A CHANGE IN ORDERS, PROVIDED THAT THE EMPLOYEES ACTED REASONABLY IN RENTING THE ROOM IN THE CIRCUMSTANCES INVOLVED.

ACCORDINGLY, THE RECLAIM VOUCHER OF MR. RAINEY IN THE AMOUNT OF $150 MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER. THE DECISION IN MORSE, SUPRA, IS OVERRULED AND INSTRUCTIONS WILL BE ISSUED TO PERMIT PAYMENT OF THE FORFEITED DEPOSIT IN THAT CASE.