ary 7, 1944, 26 2/24 days at $7, amounting to $182.58, and incidental travel expenses amounting to $15.04.

The appropriation, "Salaries and Expenses, Office of Economic Warfare, 1944," act of July 12, 1943, 57 Stat. 522, 523, which funds were transferred by Executive Order No. 9380 dated September 25, 1943, to the Foreign Economic Administration, under the appropriation title, "Salaries and Expenses, Foreign Economic Administration, 1944,” provides in pertinent part as follows:

*

* including

travel expenses (4) Expenses outside the United States without regard to the Standardized Government Travel Regulations and the Subsistence Expense Act of 1926, as amended (5 U. S. C. 821), and section 901 of the Act of June 29, 1936 (46 U. S. C. 1241), and (5) when specifically authorized or approved by the Executive Director of the Board or such other official as he may designate for the purpose, expenses of employees of the Board, including the transportation of their effects (in accordance with the Act of October 10, 1940), to their first post of duty in a foreign country, or when transferred from one official station to another, and return to the United States [Italics supplied.]

The record before me shows that pursuant to travel authorization No. 4-2418 dated December 4, 1943, authorizing a change of official station from Washington, D. C., to Madrid, Spain, Mr. Rhodes left Washington, D. C., at 12:55 p. m., December 10, 1943, and arrived in Lisbon, Portugal, at 1:50 a. m., December 15, 1943; that pursuant to amended travel authorization No. 4-2418-A dated January 1, 1944, reading as follows:

Letter of Authorization No. 4-2418, dated December 4, 1943, is hereby amended to provide for you to return to Washington, D. C. from Lisbon, Portugal, instead of proceeding to Madrid, Spain, as originally directed and authorized. Circumstances have arisen which make your return to Washington, D. C., essential at this time.

Per diem is authorized as stated in your original Letter of Authorization, to cease upon your arrival in Washington, D. C.

He sailed from Lisbon on the clipper January 3, 1944, and arrived in Washington, D. C., at 6:20 p. m., January 7, 1944.

The amended travel order dated January 1, 1944, authorizing Mr. Rhodes to return to Washington, D. C., from Lisbon, instead of proceeding to Madrid, Spain, as originally directed and authorized, is silent as to the nature of the circumstances making his return to Washington essential. However, you state in your letter that the records of your office reveal that Mr. Rhodes became ill at Lisbon while en route to Madrid, his new official station, which establishes the fact that his return to the United States before the completion of the travel authorized and directed in the original travel order of December 4, 1943, was solely for personal reasons.

In decision of January 25, 1944, 23 Comp. Gen. 537, 538, it was stated:

Referring to paragraph 45 (a) of the Standardized Government Travel Regulations, it long has been considered that during absence from duty on account of personal illness a per diem allowance while in a travel status is not authorized

to be paid-that is, employees in that situation are not regarded as "traveling on official business and away from their designated posts of duty" (quoting from the Subsistence Expense Act of 1926, as amended by the act of January 30, 1942, 56 Stat. 39).

By analogy, there is justified the view that persons reasonably may not be regarded as "serving" the Government in an advisory capacity while away from their homes or places of business during a period of absence from duty because of personal illness. The fact that such persons may be put to additional expense during illness away from home does not justify the conclusion that the appropriation provision under consideration was intended to obligate the Government for payment of a per diem allowance during periods of absence from duty as an advisor because of personal reasons in nowise connected with their official duty. Also, in decision of September 27, 1943, 23 Comp. Gen. 237, it was held, as follows (quoting from the syllabus):

An employee who, while en route on official business from his official headquarters to a temporary duty station received notice of the death of his father, abandoned his official routing and proceeded at his own expense to the home of his father and subsequently returned to his official headquarters is entitled to transportation at Government expense between his official headquarters and the point at which he abandoned his official trip, including per diem in lieu of subsistence for the time necessarily consumed on that portion of the journey. See, also, the decisions therein cited.

While those decisions were rendered more particularly with reference to employees whose official travel was subject to the Subsistence Expense Act of 1926, 44 Stat. 688, as amended, and the Standardized Government Travel Regulations, nevertheless the rule appears equally applicable to official travel not controlled by said statute and regulations, as in the instant case. That is to say, the appropriation for traveling expenses here chargeable may not be regarded as available for travel not performed on official business but for personal reasons. On the basis of the facts stated in your letter, the return trip from Lisbon, Portugal, to Washington, D. C., because of illness, was for personal reasons and no part of the expenses incurred after abandonment of the official trip from Washington, D. C., to Madrid, Spain, including the expenses of the return trip from Lisbon, Portugal, to Washington, D. C., may be charged to the Government.

Accordingly, the voucher forwarded with your letter may not be certified for payment in its present form. In the settlement of any claim for expenses incurred on official business from Washington, D. C., to Lisbon, Portugal, and while in Lisbon, prior to the time the official trip to Madrid, Spain, was abandoned, there should be charged against the claimant the cost of transportation expenses incurred on transportation requests or otherwise for the return trip from Lisbon to Washington.

The voucher and supporting papers are returned herewith.

(B-41487)

CONTRACTS-COST-PLUS-CAFETERIA OPERATING LOSSES

Where, in connection with performance of a cost-plus-a-fixed-fee contract providing for determination by the contracting officer of allowable items of cost thereunder in accordance with T. D. 5000, the contractor found it necessary, in order to obtain or retain personnel, to operate a cafeteria at its plant in view of the remoteness from other eating places and an unsuccessful effort to interest outside concerns in the operation of accessible eating facilities, such operation may be considered as incident to and necessary for the performance of the contract work, and expenditures, approved by the contracting officer as allowable items of cost, representing operating losses incurred by the contractor may be reimbursed.

Comptroller General Warren to Col. H. V. Brown, U. S. Army, May 9, 1944: There has been received from the Director, Fiscal Division, Army Service Forces, bureau vouchers Nos. 275, 429 and 469, in the amounts of $14,415.95, $4,095.30 and $738.71, respectively, in favor of Hughes Tool Company, a cost-plus-a-fixed-fee contractor, under contract No. W 535 ac-23989, dated January 15, 1942, with the request that an advance decision be rendered on the propriety of their payment. The vouchers cover proposed payments to the Hughes Tool Company for losses sustained by the contractor, in the operation of a cafeteria, in connection with the contract work. With respect to the particular item of cost here involved, article 3 (b) of the contract provides, as to allowable items of cost, in part, as follows:

For purposes of determining the amounts payable to the Contractor under this contract, allowable items of cost will be determined by the Contracting Officer in accordance with regulations for the determination of the cost of performing a contract as promulgated by the Treasury Department in Section 26.9 of Chapter I of Title 26 of Code of Federal Regulations, as contained in T. D. 5000 *

*

Said Treasury Decision 5000 sets forth under section 26.9, paragraph (a) thereof, the following general rule for the guidance of the contracting officer in determining whether an expense incurred by the contractor is an allowable item of cost:

* * *

The cost of performing a particular contract or subcontract shall be the sum of (1) the direct costs and (2) the proper proportion of any indirect costs * * incident to and necessary for the performance of the contract or the subcontract.

Thus, it would seem that one of the general criteria or tests to be applied in determining whether the expenditures involved constitute proper items of cost is: Were such expenditures necessary to the performance of the contract work? In this connection the contractor in its letter of November 8, 1943, to the Army Air Forces representative states, in part, as follows:

1. The Strut Plant was built for the Defense Plant Corporation and was started on July 10, 1941, on a site nine miles from the center of the city of Houston and outside the city limits.

2. It was built especially for the making of airplane struts and it has been used exclusively for the purpose of performing the above contract at all times. At the time the Strut Plant was built, it was apparent that some arrangements would have to be made for feeding the employees, since the Plant is located in the

country, nine miles from the down-town district. There was no eating house within several miles of the Plant and none nearer than nine miles that could accommodate our employees, and transportation was a critical problem.

We were able to arrange with the Houston Electric Company to give us shuttle bus service from the end of the nearest line, some two miles away, at shift change time only.

The Plant started operation the latter part of February, and by August our employment had reached approximately 1,000, and it was felt that there was enough potential business there to interest a caterer in making a contract to operate an eating facility. We approached Henke and Pillot and J. Weingarten, two of the largest and most responsible food firms in the city, and were turned down very emphatically.

The above detailed history of the cafeteria operations is given you, to show that the expense incurred was necessary and directly in connection with the subject contract, as it would have been absolutely impossible to keep employees to operate the Plant, unless we took care of the food situation.

Since it appears that there were no adequate luncheon facilities within a radius of several miles from the contract plant and that without facilities as here involved the contractor would have been unable to obtain or retain employees "to operate the plant," it necessarily may be presumed that the operation of the cafeteria was incident. to and necessary for the performance of the contract. Moreover, it appears that the contracting officer has approved the expenditures as being allowable items of cost under the contract terms.

Furthermore, the record indicates that the cafeteria was operated solely for the performance of the instant contract and that the contractor took every reasonable care to keep the losses to a minimum.

Accordingly, the vouchers, together with the supporting papers, are returned herewith, and you are advised that payment thereon is authorized, if otherwise correct.

(B-41658)

TRAVELING EXPENSES-CONSULTANTS EMPLOYED ON A PER DIEM

BASIS

A consultant employed by the War Department on a per diem basis who performed official travel between his official station and his temporary duty station, which happened to be his home, is not precluded from receiving payment of per diem for travel time between his official station and temporary duty station, if properly authorized, solely because of the fact that his temporary duty station happens to be his home. 22 Comp. Gen. 392, distinguished.

Comptroller General Warren to Harold H. Siewerdsen, War Department, May 9, 1944:

Reference is made to your letter of April 26, 1944, as follows:

There has been submitted to me for certification a reimbursement travel voucher in the amount of $34.27 representing travel performed in the interest of the government by Dr. Herbert A. Toops, Expert Consultant to the Office, Secretary of War, paid at the rate of $25.00 per diem.

Dr. Toops is employed as Professor of Psychology in charge of the Statistical Laboratories at the Ohio State University, Columbus, Ohio, which is also his home. The university has loaned Dr. Toops to the Office, Secretary of War to serve as an Expert Consultant in connection with Personnel Statistics, which at times necessitates his returning to the university to use Hollerith Statistical

Equipment. This equipment is not available to Dr. Toops in Washington, D. C. At such times as he makes these trips to Columbus, Ohio he is on government time and is performing official work at the university for the government as indicated by certified time sheets. Per diem was to be paid while enroute only between these two points.

The 22nd Comptroller General 392, wherein it is held that "Consultants are required to bear the transportation and travel expenses from and to their homes to and from their posts of duty * *"" does not in my opinion apply to this

*

particular case, due to the fact that travel from Washington, D. C. to Columbus, Ohio was made in the interest of the government. Therefore it is felt that the enclosed voucher can be certified for payment.

Your early decision in this matter will be greatly appreciated.

It is understood from your letter that Washington, D. C., is the official station, and Columbus, Ohio, the home of Dr. Toops; also, that temporary duty is performed by him at the Ohio State University located at Columbus, Ohio, his home, and that no per diem is claimed while on temporary duty at Columbus, his home, but only for travel time between Washington, D. C., his official station, and Columbus, his temporary duty station, which also happens to be his home. The travel order dated March 14, 1944, authorizes payment of per diem in lieu of subsistence and other expenses for the time of travel.

If such be the facts, that is, if the trips from Washington, D. C., to Columbus, Ohio, and return, were performed on official business, rather than as personal travel to and from his home, from and to his official station-verification of the accuracy of the facts being an administrative responsibility-there is no legal objection to payment of per diem for travel time between Washington and Columbus and return, while traveling on official business, solely because of the fact that Columbus happens to be the home of the traveler. On that basis the rule stated in 22 Comp. Gen. 392, to which you refer, would not be for application here. Cf. 9 Comp. Gen. 140; 19 id. 414.

Assuming that the facts are as above understood, the voucher, if otherwise correct, may be certified for payment. The memorandum copy of the voucher and other related papers are returned herewith.

(B-41663)

LEAVES OF ABSENCE-RESTORATION OF CREDITS AND DEBITS AFTER RETURN FROM MILITARY SERVICE

When a former employee is restored to his civilian position, or to a position of like seniority, status and pay under the terms and conditions of the Selective Training and Service Act of 1940, he is to be considered as having been on furlough or leave of absence during his period of active military service, and is to be restored with the same leave status (as to both credits and debits) as he had when he left his civilian position to enter the active military service.

Comptroller General Warren to the Secretary of the Interior, May 10, 1944:

There has been received a letter dated April 24, 1944, from the Administrator, Southwestern Power Administration, Tulsa, Oklahoma (file Accounting: DGW: MP: be), reading as follows: