B-90867, JULY 1, 1976, 55 COMP.GEN. 1237

B-90867, JULY 1, 1976, 55 COMP.GEN. 1237

EXPERTS AND CONSULTANTS - COMPENSATION - RATES - DOLLAR LIMITATION DECISION 55 COMP.GEN. 567, APPLICABLE TO EXPERTS AND CONSULTANTS HIRED BY DEPARTMENT OF AGRICULTURE PURSUANT TO DELEGATED AUTHORITY UNDER SECTION 626(A) OF PUBLIC LAW 87-195, AS AMENDED, LIMITS PAY RATES FOR SUCH PERSONNEL TO $100 PER DIEM SINCE THAT IS MAXIMUM AMOUNT AUTHORIZED BY SECTION 626(A). AS NO APPLICABLE LAW SIMILARLY LIMITS PAY RATES OF EXPERTS AND CONSULTANTS HIRED AS AUTHORIZED IN 5 U.S.C. 3109 (1970) BY VIRTUE OF SECTION 702 OF PUBLIC LAW 94-212, GENERAL RULE OF SECTION 3109 GOVERNS PAY RATES FOR SUCH PERSONNEL AND THEY MAY BE COMPENSATED AT RATES NOT IN EXCESS OF $145.36, CURRENTLY THE PER DIEM EQUIVALENT OF THE TOP STEP OF GS-15.

IN THE MATTER OF PAY RATES FOR EXPERTS AND CONSULTANTS, JULY 1, 1976:

R. E. BRECKENKAMP, ACCOUNTING AND FINANCE OFFICER, DEFENSE MAPPING AGENCY AEROSPACE CENTER (DMAAC), ST. LOUIS AIR FORCE STATION, MISSOURI, HAS REQUESTED AN ADVANCE DECISION PURSUANT TO 31 U.S.C. 82D (1970) AS TO WHETHER OR NOT THAT AGENCY MAY PAY EXPERTS AND CONSULTANTS EMPLOYED BY VIRTUE OF SECTION 702 OF PUBLIC LAW 94-212, 90 STAT. 153, 167-8, AT RATES IN EXCESS OF $100 PER DIEM. HE EXPLAINS THAT HE HAS RECEIVED CONTRADICTORY INTERPRETATIONS OF OUR DECISION 55 COMP.GEN. 567 (1975) AND, THUS, IS UNSURE AS TO THE PROPER RATES AUTHORIZED TO BE PAID EXPERTS AND CONSULTANTS BY HIS AGENCY. WHILE IT IS NOT CLEAR FROM THE RECORD BEFORE US, WE MUST ASSUME THAT THE CERTIFYING OFFICER HAS BEFORE HIM VOUCHERS TO WHICH THIS DECISION WILL APPLY.

IN 55 COMP.GEN. 567 (1975) WE HELD THAT THE DEPARTMENT OF AGRICULTURE MAY NOT PAY EXPERTS AND CONSULTANTS IN EXCESS OF $100 PER DIEM WHEN THEY ARE EMPLOYED, THROUGH DELEGATED AUTHORITY, PURSUANT TO SECTION 626(A) OF THE FOREIGN ASSISTANCE ACT OF 1961, PUBLIC LAW 87-195, 75 STAT. 424, AS AMENDED, 22 U.S.C. 2386(A) (1970). THAT SECTION PROVIDES, IN PERTINENT PART, THAT:

EXPERTS AND CONSULTANTS OR ORGANIZATIONS THEREOF MAY AS AUTHORIZED BY SECTION 3109 OF TITLE 5 (OF THE UNITED STATES CODE), BE EMPLOYED FOR THE PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER, AND INDIVIDUALS SO EMPLOYED MAY BE COMPENSATED AT RATES NOT IN EXCESS OF $100 PER DIEM, AND WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, THEY MAY BE PAID ACTUAL TRAVEL EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE AT THE APPLICABLE RATE PRESCRIBED IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED FROM TIME TO TIME. * * *

THUS, SECTION 626(A), AS AMENDED, AUTHORIZES THE EMPLOYMENT OF EXPERTS AND CONSULTANTS IN ACCORDANCE WITH 5 U.S.C. 3109 (1970) SUBJECT TO A MAXIMUM PAY LIMITATION OF $100 PER DIEM.

IN THE CASE OF DMAAC, SECTION 702 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1976, PUBLIC LAW 94-212, 90 STAT. 153, 167, AUTHORIZES THE SECRETARY OF DEFENSE AND THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE, RESPECTIVELY:

TO PROCURE SERVICES IN ACCORDANCE WITH SECTION 3109 OF TITLE 5, U.S.C. UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE; * * *

ABSENT CONTRARY INDICATIONS IN ANY PERTINENT STATUTE AUTHORIZING THE HIRE OF EXPERTS AND CONSULTANTS PURSUANT TO 5 U.S.C. 3109 (1970) THAT THE RATE OF PAY OF SUCH EXPERTS AND CONSULTANTS IS LIMITED TO A SPECIFIC DOLLAR AMOUNT, SUCH AS WAS THE CASE IN 55 COMP.GEN. 567, SUPRA, THEN THE GENERAL RULE FOR DETERMINING PAY RATES FOR EXPERTS AND CONSULTANTS AS FOUND IN 5 U.S.C. 3109 SHOULD BE APPLIED. THAT GENERAL RULE, STATED IN 51 COMP.GEN. 224 (1971), 43 ID. 509 (1967), 29 ID. 267 (1949), AS WELL AS 55 ID. 567, SUPRA, IS THAT THE MAXIMUM RATE AUTHORIZED UNDER 5 U.S.C. 3109 IS THE RATE OF THE TOP STEP PRESCRIBED FOR GS-15. THAT RATE IS PRESENTLY $145.36. SEE UNITED STATES CIVIL SERVICE COMMISSION SALARY TABLE NO. 61 (OCTOBER 1975).

WE ARE UNAWARE OF ANY STATUTE THAT LIMITS THE RATE OF PAY OF EXPERTS AND CONSULTANTS EMPLOYED BY THE DEPARTMENT OF DEFENSE TO A SPECIFIC DOLLAR AMOUNT WHICH IS LESS THAN THAT AUTHORIZED BY 5 U.S.C. 3109. THUS, $145.36 PER DIEM IS THE MAXIMUM RATE EACH SECRETARY MAY SET FOR EXPERTS AND CONSULTANTS IN HIS DEPARTMENT IF EMPLOYED IN ACCORDANCE WITH SECTION 3109 AND BY VIRTUE OF SECTION 702 OF PUBLIC LAW 94-212.

IN VIEW OF THE ABOVE AND SINCE THERE IS NO INDICATION IN THE RECORD THAT THE SECRETARY OF DEFENSE HAS LIMITED THE RATES OF PAY OF EXPERTS AND CONSULTANTS TO LESSER AMOUNTS, DMAAC IS STATUTORILY AUTHORIZED TO HIRE EXPERTS AND CONSULTANTS AT RATES OF PAY NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE TOP STEP OF GS-15, IN ACCORDANCE WITH 5 U.S.C. 3109.