B-198768.OM, NOV 7, 1980

B-198768.OM, NOV 7, 1980

SUBJECT: CLAIM OF DANIEL DOYLE, Z-2812310

OGC:

WE ARE FORWARDING THE CLAIM OF DANIEL DOYLE. MR. DOYLE, AN EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE, WAS ISSUED TRAVEL ORDERS ON DECEMBER 7, 1976 WHICH AUTHORIZED THE USE OF A PRIVATELY OWNED VEHICLE AT THE RATE OF 15[ PER MILE UPON A TRANSFER TO A NEW DUTY STATION. THE BOTTOM OF THE ORDERS SPECIFIED THAT THE EMPLOYEE WOULD NEED THE CAR FOR OFFICIAL BUSINESS AT THE NEW LOCATION. HOWEVER, THE SAME ORDERS ALSO AUTHORIZED TRANSPORTATION AND PER DIEM FOR A HOUSEHUNTING TRIP (HHT). MR. DOYLE INTERPRETED THE FACE OF THE ORDERS AS AN AUTHORIZATION TO USE HIS POV ON THE HHT AT THE HIGHER RATE OF 15[ PER MILE.

THE FINANCE OFFICE AT GAO PAID MR. DOYLE AT THE 15[ RATE FOR HIS PCS TRAVEL BUT DISALLOWED HIS REQUEST FOR REIMBURSEMENT AT THE HIGHER RATE FOR THE HHT. AS THE BASIS FOR THIS ACTION, THAT OFFICE REFERRED TO FTR 2-2.3 (C)2, WHICH AUTHORIZES THE HIGHER RATE ONLY IF A COMMON CARRIER'S COST EXCEEDS THE COST OF THE POV. GAO'S COST COMPARISON SHOWED THE COST OF THE POV FOR THE HHT AS EXCEEDING THE COMMON CARRIER COST. IN ADDITION, THE FINANCE OFFICE INTERPRETED 2-2.3(C)1 AS APPLICABLE ONLY TO PCS TRAVEL, NOT TO A HHT. THEY ALSO MAINTAIN THAT IT IS GAO "POLICY" NOT TO ALLOW THE HIGHER RATE FOR HHT, AND THEIR SOLE INTENTION WAS TO AUTHORIZE THE 15[ RATE FOR OFFICIAL BUSINESS AT THE NEW DUTY STATION.

COMPTROLLER GENERAL DECISION B-187223, FEBRUARY 18, 1977, ALLOWED THE 15[ MILEAGE RATE FOR A HHT WHEN THE CONDITIONS OF 2-2.3(C)2 (COST COMPARISON) WERE MET. THIS RAISES SEVERAL QUESTIONS:

1. ARE THE PROVISIONS OF FTR 2-2.3(C)1 APPLICABLE TO HOUSEHUNTING TRIPS?

2. PROVIDED THAT THESE FTR PROVISIONS DO APPLY, IF AN AGENCY AUTHORIZES THE USE OF A POV AT THE 15[ RATE (INDICATING THAT THE BASIS FOR THE INCREASED RATE IS FOR USE OF THE POV AT THE NEW DUTY STATION FOR OFFICIAL BUSINESS), AND THE AGENCY ALSO AUTHORIZES A HHT ON THE FACE OF THE SAME ORDERS, CAN THOSE ORDERS BE INTERPRETED AS AN AUTHORIZATION FOR THE 15[ RATE ON A HHT?

3. IN THESE CIRCUMSTANCES, IS A FINANCE OFFICER'S DETERMINATION OF AGENCY "POLICY" SUFFICIENT JUSTIFICATION TO DISALLOW PAYMENT OF THE 15[ RATE ON A HHT?

WE REQUEST YOUR ADVICE IN DETERMINING WHETHER DANIEL DOYLE IS ENTITLED TO REIMBURSEMENT OF EXPENSES AT THE 15[ MILEAGE RATE. THE ADJUDICATOR HANDLING THIS MATTER IS ERIC FELDMAN, WHOSE EXTENSION IS 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858) RETURNED, TOGETHER WITH YOUR FILE Z-2812310.

MR. DANIEL DOYLE, AN EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE, HAS REQUESTED REIMBURSEMENT FOR A HOUSE-HUNTING TRIP AT THE RATE OF 15 CENTS PER MILE INSTEAD OF THE 8 CENTS PER MILE ALLOWED BY THE FINANCE OFFICER ON THE BASIS OF "GAO POLICY." YOU ASK SEVERAL QUESTIONS BASED ON THIS CLAIM.

QUESTION NUMBER ONE AS TO THE APPLICABILITY OF FTR PARA. 2-2.3(C)1 IS CLEARLY ANSWERED IN THE TEXT OF THE DECISION WHICH YOU CITE, STEPHEN V. FOWKES, B-187223, FEBRUARY 18, 1977, WHERE IN THE PENULTIMATE PARAGRAPH OF PAGE 4 OF THE DECISION WE STATE:

"ALTHOUGH WE HELD IN B-162521, OCTOBER 19, 1967, THAT UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56, REV. OCTOBER 12, 1966, THE PROVISION ALLOWING A DETERMINATION OF HIGHER RATES WAS INAPPLICABLE TO HOUSE-HUNTING TRIPS, THIS IS NOT THE CASE UNDER THE FEDERAL TRAVEL REGULATIONS NOW IN EFFECT. PARAGRAPH 2-4.2 OF THE FEDERAL TRAVEL REGULATIONS MAKES IT CLEAR THAT THE MILEAGE ALLOWANCE FOR HOUSE-HUNTING TRIPS 'SHALL BE AS PROVIDED IN 2-2.3B AND C.'"

QUESTIONS NUMBERED TWO AND THREE WILL BE ANSWERED JOINTLY IN DENYING MR. DOYLE'S CLAIM FOR REIMBURSEMENT AT THE RATE OF 15 CENTS PER MILE FOR EXPENSES INCURRED INCIDENT TO THE HOUSE-HUNTING TRIP. GENERALLY, TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED AS AND WHEN TRAVEL IS PERFORMED UNDER COMPETENT ORDERS. WE HAVE RECOGNIZED AN EXCEPTION WHICH PERMITS RETROACTIVE MODIFICATION OF ORDERS WHERE THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDER. WE HAVE ALSO ALLOWED RETROACTIVE AMENDMENT OF A TRAVEL ORDER WHOSE PROVISIONS ARE CLEARLY IN CONFLICT WITH A LAW, AGENCY REGULATION, OR INSTRUCTION. SEE 57 COMP.GEN. 367 (1978), AND LAWRENCE C. WILLIAMS, B-194792, JANUARY 16, 1980.

IN THIS REGARD, THE FILE CONTAINS A COPY OF A JANUARY 1979 MEMORANDUM FROM THE CHIEF, ADMINISTRATIVE FINANCE, TO THE CLAIMANT WHICH PROVIDES IN PART:

"OUR POLICY REGARDING REIMBURSEMENT OF POV COSTS INCURRED FOR HOUSEHUNTING TRIPS IS THAT FOR ONE PERSON MAKING THE TRIP, $.08 A MILE WILL BE ALLOWED AND IF TWO OR MORE PERSONS MAKE THE TRIP, $.10 A MILE WILL BE ALLOWED.

"IF APPROVED BY APPROPRIATE OFFICIALS, WE DO PAY THE HIGHER $.15 A MILE RATE, BUT ONLY FOR THE ACTUAL RELOCATION WHICH NECESSITATED THE AVAILABILITY OF YOUR POV TO USE IN OFFICIAL BUSINESS. YOUR HOUSEHUNTING TRIP WOULD NOT FALL INTO THIS CATEGORY."

THUS, IT IS AGENCY POLICY TO ALLOW AN 8 CENT PER MILE RATE FOR HOUSE HUNTING TRIPS. AND INDEPENDENT DISCUSSIONS WITH THE CHIEF, ADMINISTRATIVE FINANCE, AND EVALUATIVE SAMPLINGS OF TRAVEL VOUCHERS PREPARED DURING THE PERIOD OF MR. DOYLE'S CLAIM, CONFIRMED THE STATEMENT OF POLICY SET OUT ABOVE IN REGARD TO MILEAGE RATES FOR HOUSE HUNTING FROM THE CHIEF, ADMINISTRATIVE FINANCE'S MEMORANDUM.

FURTHER, WE HAVE RECENTLY HELD THAT, UNLIKE FTR PARA. 2-4.3C, WHICH REQUIRES A HOUSE HUNTING TRIP TO BE AUTHORIZED IN ADVANCE, THE LANGUAGE OF FTR PARA. 2-4.2 PROVIDES THAT THE MODE OF TRANSPORTATION INCIDENT TO HOUSE HUNTING MAY BE AUTHORIZED OR ALLOWED. THE TERM "ALLOWED" AS DOES THE TERM "APPROVED," CONNOTES ADMINISTRATIVE ACTION AFTER THE FACT. SEE THOMAS W. ROCHFORD, B-197960, AUGUST 6, 1980, AND CASES CITED THEREIN.

WE FIND THAT THE STIPULATION OF THE APPLICABLE MILEAGE RATE INCIDENT TO MR. DOYLE'S HOUSE HUNTING TRIP, LIKE THE MODE OF TRANSPORTATION IN THE ROCHFORD CASE, MAY EITHER BE AUTHORIZED IN ADVANCE OR APPROVED DURING OR AFTER THE HOUSE HUNTING TRIP. THEREFORE, SINCE MR. DOYLE'S TRAVEL ORDER WAS SILENT ON THE REIMBURSEMENT RATE APPLICABLE TO HIS HOUSE HUNTING TRIP, AND SINCE THE CHIEF, ADMINISTRATIVE FINANCE, HAS DOCUMENTED THE INTENT TO AUTHORIZE THE LOWER 8 CENT PER MILE RATE, RETROACTIVE RATE-SETTING SHALL BE PERMITTED TO BRING THE TRAVEL AUTHORIZATION INTO ACCORD WITH AGENCY POLICY.

THUS, WHILE A REASONABLE PERSON MAY WELL HAVE CONSTRUED THE TRAVEL ORDER IN MR. DOYLE'S CASE AS AUTHORIZING THE HIGHER RATE OF 15 CENTS PER MILE FOR HOUSE HUNTING EXPENSES, THAT REASONABLE CONSTRUCTION BY ITSELF DOES NOT PRECLUDE CORRECTIVE AGENCY ACTION IN ACCORDANCE WITH OUR DETERMINATION HERE.

HOWEVER, TO PRECLUDE FUTURE MISUNDERSTANDINGS WE ARE FORWARDING A COPY OF THIS MEMORANDUM TO THE CHIEF, ADMINISTRATIVE FINANCE, WITH THE SUGGESTION THAT OUR POLICY BE IMPLEMENTED IN GAO ORDER 0300.1, AND CLEARLY SHOWN ON ALL FUTURE TRAVEL ORDERS ISSUED AUTHORIZING HOUSE HUNTING TRIPS.

DIGEST

GAO EMPLOYEE REQUESTS REIMBURSEMENT FOR A HOUSE-HUNTING TRIP AT THE RATE OF 15 CENTS PER MILE INSTEAD OF THE 8 CENTS PER MILE CERTIFIED BY THE FINANCE OFFICER. SINCE THE EMPLOYEE'S TRAVEL ORDER WAS SILENT ON THE REIMBURSEMENT RATE APPLICABLE TO HIS HOUSE-HUNTING TRIP, AND SINCE THE CHIEF, ADMINISTRATIVE FINANCE, HAS DOCUMENTED THE INTENT TO AUTHORIZE THE LOWER 8 CENT PER MILE RATE, RETROACTIVE RATE-SETTING SHALL BE PERMITTED TO BRING THE TRAVEL AUTHORIZATION INTO ACCORD WITH AGENCY POLICY.