Accordingly, the award made to Warren Brothers Roads Company should be canceled and, if otherwise proper, the bid of the C. G. Kershaw Contracting Company should be considered for award as the lowest responsible bidder.

The files enclosed with the Assistant Secretary's letter are returned as requested.

[B-143198]

Civilian Personnel-Additional Compensation Restriction-Grant v. Appropriated Funds

Transportation expenses and a weekly stipend paid by a non-Government school from Federal scientific research grant funds to an Indian school teacher, who is attending a science course during a period of annual and education leave, are not expenses directly incurred by the Government within the meaning of section 1 of the act of August 24, 1912, as amended, 25 U.S.C. 275, which prohibits the incurrence of additional salary or expenses on account of education leave for Indian school teachers, such prohibition having application only to direct expenditures from appropriations of the Bureau of Indian Affairs and not to expenses incurred by a non-Government activity but ultimately borne by the Government through operation of the grant system.

To the Secretary of the Interior, June 22, 1960:

On June 13, 1960, your reference C-60-1231.19, your Administrative Assistant Secretary requested our decision concerning the propriety of the acceptance by a teacher employed in the CheyenneEagle Butte School at Eagle Butte, South Dakota, of expenses of transportation plus a weekly stipend, while attending a course in physics at the South Dakota School of Mines and Technology, during a period of annual and educational leave. The weekly stipend is stated to be $75 for the teacher plus $15 for each dependent up to four, and is paid to the teacher by the School of Mines and Technology out of a grant of funds made to the school by the National Science Foundation.

Your doubt in the matter arises from the fact that the act of August 24, 1912, 37 Stat. 518, as amended, 25 U.S.C. 275, which authorizes educational leave for teachers in Indian schools, provides that "no additional salary or expense on account of such leave of absence shall be incurred."

We understand from correspondence submitted that the grant of funds to the South Dakota School of Mines and Technology by the National Science Foundation is not outright and unconditional. It can be revoked by the Foundation after consultation with the grantee as to any funds not obligated by firm commitment. Any funds remaining after completion of the work contemplated by the grant will be returned to the Foundation. Thus, transportation expenses and the

stipend payable to a teacher from an Indian school who attends the physics course conducted by the grantee (South Dakota School of Mines and Technology) essentially would be payable from Government funds.

In the absence of a condition of the grant itself or an understanding agreed upon in connection with such grant or a policy set forth in the Foundation's "Grants for Scientific Research" referred to in the Foundation's letter of November 22, 1959, a copy of which was not transmitted here, our view is that the restriction in the 1912 act against "the payment of additional salary or expense on account of such leave of absence" applies only to direct expenditures from appropriations of the Bureau of Indian Affairs and not to an expense that may be incurred by a non-Government activity but ultimately borne by the Government through the operation of the grant system of the National Science Foundation. To construe the restriction in the 1912 act as applying to a case when the expense is paid by a non-Government institution out of a National Science Foundation grant would appear to be inconsistent with the spirit and purpose of the National Science Foundation Act of 1950 to "strengthen basic research and education in the sciences," see 42 U.S.C. 1862 (b), as well as the provision in the 1960 fiscal year appropriation for the National Science Foundation making available not less than $30,250,000 for tuition, grants, and allowances incident to supplementary training for secondary school science and mathematics teachers.

In this connection we have noted the language appearing in Senate Report No. 468 of June 18, 1957, and House Report No. 453 of May 15, 1957, concerning H.R. 3837, a bill which subsequently was enacted as an amendment to the 1912 act (Public Law 85-89). That language is as follows:

No additional salary or expense shall be incurred by the Government on account of leave under this legislation. [Italics supplied.]

However, the expense of transportation and the weekly stipend payable to the teacher incident to attendance at the physics course in the South Dakota School of Mines and Technology are not directly "incurred by the Government." In fact, they are incurred by the school, a non-Government institution, although they ultimately are paid for from grant funds for which the Government's obligation is incurred when the grant agreement is made. Hence, there is a sound basis for the conclusion that the restriction in the 1912 statute was not intended to apply to the transportation expenses and stipends paid by the South Dakota School of Mines and Technology from the grant awarded it by the National Science Foundation. Therefore, we conclude that the restriction in the 1912 act would not preclude the

South Dakota School of Mines and Technology from paying transportation expenses and weekly stipends to the teacher here involved unless of course there exists some term or condition of the grant, unbeknown to us, embodying the statutory restriction.

[B-142747]

Civilian Employees-Computation of Per Diem-Delays at Terminals

The term "place" as used in the time of departure and arrival provisions of section 6.9c of the Standardized Government Travel Regulations connotes any point at which per diem commences or ceases or at which a change in the per diem rate may occur and, therefore, includes the official station or other point at which travel begins as well as a temporary duty station.

Although the time for the commencement of per diem for periods of delay experienced by employees at air terminals due to flight schedule changes may not be established by an inflexible rule, if it is administratively determined that an employee exercised sound judgment and reason in remaining at the airport until the actual departure of the plane, per diem may be allowed from the scheduled time of departure.

In the case of an employee who is directed to travel on official business from his permanent duty station in Panama to Bogota, Colombia, and who, because of a flight change, remains at the airport from 7:20 a.m. on Monday until 4:00 a.m. on Tuesday, there would be no objection to the payment of per diem from 6:00 a.m. Monday to midnight Tuesday at the Panama rate, provided that the circumstances were such as to warrant a prudent traveler going to and waiting at the airport for that period of time; however, it would appear doubtful that the waiting period could be justified, in which event per diem should be allowed only for the quarter in which departure was scheduled on Monday, commencing again with the first quarter on Tuesday.

In the computation of per diem when the actual time of departure from a terminal precedes the scheduled time, the actual time, within reasonable limits, may be regarded as the scheduled time for commencement of per diem; for example, an employee who in the computation of the applicable per diem rate actually departs Panama at 11:50 a.m. on Monday when the scheduled time of departure is 12: 20 p.m. on Monday and arrives at the temporary duty station in Caracas, Venezuela, at 6:10 p.m. the same day and departs on Wednesday at 6:15 a.m.-the scheduled departure was earlier-arriving in Panama at 12:10 p.m., the actual arrival times should be used at Caracas and at Panama. Where the departure of an employee who is transferred from New York to Paris is delayed from 7:00 p.m., March 6, 1960, to 7:00 p.m., March 10, due to a dock strike, no per diem should be allowed for the period prior to 6:00 p.m. on March 10.

To the Secretary of State, June 23, 1960:

On April 25, 1960, your Assistant Secretary for Administration requested our decision on several questions concerning the per diem in lieu of subsistence allowable under certain provisions of the Standardized Government Travel Regulations, as amended by Bureau of the Budget Circular No. A-7. The letter specifically refers to the amendments contained in Transmittal Memorandum No. 10 effective August 1, 1959. The questions presented will be considered in that light.

Question 1 is as follows:

The opening sentence of section 6.9c provides "The time of departure from, or arrival at, a place shall be regarded as the hour at which the train, airplane, boat or other conveyance used by the employee is scheduled to leave from, or actually arrives at, its terminal, whether located within or beyond the official station..." Notwithstanding the prohibition contained in Standardized Government Travel Regulations, section 6.8 against the payment of per diem at permanent duty station, does the word "place" as used in section 6.9c above, in so far as it pertains to departure, apply to departure from official duty station and/or other place where travel commences but not to departure from temporary duty places enroute?

The term "place" as used in section 6.9c of the Standardized Government Travel Regulations includes, within the purview of that section, any point at which per diem in lieu of subsistence commences or ceases or at which a change in per diem rate may occur. Therefore, it may include official station or other point at which travel commences, as well as a temporary duty station. In light of that conclusion the discussions in the fourth paragraph of the letter require no comment.

Question 2

An employee traveling from the continental United States to a duty point beyond the continental limits of the United States for temporary duty of one week is scheduled to leave his official station by air on a flight schedule to depart at 2:30 p.m. and arrive at duty point at 7:00 p.m. However, due to a delay, the flight does not leave until 9:00 p.m. the same day, arriving at duty point at 2:30 a.m. the next day.

Question a. If the employee waits and takes the delayed flight, would he be entitled to per diem from 12:00 noon at the allowable rate for destination duty point?

Question b. If under the same conditions set forth in (2) above, the employee, in order not to delay his departure, is able to exchange his tickets at the airport for a flight on another airline which is scheduled to depart and does depart at 6:30 p.m. and arrives at duty point at midnight the same day, would he be entitled to per diem from 12:00 noon at the allowable rate for the destination duty point?

The change effected in section 6.9c by amendments to the travel regulation promulgated under Transmittal Memorandum No. 10 is one designed to remedy the hardships occasionally imposed on travelers by the application of the "actual time of departure" rule. Therefore, if it be administratively determined that the traveler exercised the sound judgment and reason contemplated by section 1.1 of the Standardized Government Travel Regulations in going to the airport and remaining there during the period of delay, there would be no objection to the allowance of per diem beginning with the scheduled time of departure. We are unable from the facts presented to furnish categorical answers to the questions presented under 2.

Question 3

An employee has orders to travel by air from his official station Panama, Panama, for temporary duty in Bogota, Colombia and return within the same calendar day to official station. Due to a delay, the scheduled and actual de

parture and arrival times are as follows:

Question. Would the employee be entitled to per diem from 6:00 a.m. Monday to midnight Tuesday at the Panama rate?

If the circumstances were such as to warrant a prudent traveler within the purview of section 1.1, Standardized Government Travel Regulations, in going to and waiting at the airport from 7:20 a.m. Monday until 4:00 a.m. Tuesday, the question is answered in the affirmative. However, it would appear doubtful that waiting at the airport could be justified and it may be that per diem should be allowed only for the quarter in which departure was scheduled on Monday, commencing again with the first quarter of Tuesday.

Question 4

The scheduled and actual

An employee is scheduled to leave from his official station Panama, Panama, for temporary duty in Caracas, Venezuela and return. departure and arrival times are as follows:

Question. What are the maximum allowable rates of per diem in this case and how would per diem be computed?

When actual times of departure precede the scheduled time, the actual time, within reasonable limits, may be regarded as the scheduled time. Thus, in the case presented the traveler may be regarded as departing Panama at 11:50 a.m. Monday and departing Caracas at 5:45 a.m. Wednesday. The actual arrival times should be used at Caracas and at Panama as required by regulations. The applicable rates should be determined and the computation made accordingly. Question 5

An employee commencing travel from his official station New York, New York, under transfer orders to Paris, France, has reservations on the S.S. "United States" scheduled to sail at 7:00 p.m. March 6, 1960. However, due to a dock strike he is unable to board the vessel until the afternoon of March 10, the day the vessel is rescheduled to sail at 7:00 p.m.

Question. Under these circumstances would the employee be entitled to per diem at the $6 rate from 6:00 p.m. March 6 to midnight March 10, 1960, unless the Department authorized a different rate of per diem under Standardized Government Travel Regulations, section 6.2c (3) (b) ?