in this connection, there is for noting that the contractor may undertake to perform the contract at its original bid price without prejudicing its right to prosecute, upon the completion thereof, any claim for increased costs which it may believe itself entitled to recover because of the delay. On the other hand, if the contractor fails to perform, the bid bond, which it is understood the contractor furnished, will be subject to forfeiture, and the contractor will be liable for any additional excess costs incurred by The Alley Dwelling Authority in having the work performed by another contractor. While it is realized that it would be in interests of the Government to have the contractor complete its contract, yet I am constrained to hold that under the facts and circumstances now of record there is not authority of law for permitting The Alley Dwelling Authority to negotiate with the contractor for the purpose of increasing the contract price to the extent of the amount of the excess costs shown to have been attributable to the delay in furnishing the preference rating certificates and in giving notice to proceed. The copy of the specifications covering the project, which was obtained informally from your agency, is returned herewith. (B-28425) SUBSISTENCE-FRACTIONAL PER DIEMS-COMPUTATION OF TIME OF DEPARTURE AND ARRIVAL Where an employee performs official travel by a privately or Government-owned automobile-rather than by common carrier-the minimum of three hours' absence from the designated post of duty required as a condition to payment of a fractional per diem in lieu of subsistence under paragraph 51 of the Standardized Government Travel Regulations must be computed from the time of departure from and arrival at the corporate limits of the designated post of duty, and not from the time of departure from the office located within the corporate limits of the designated post of duty. Acting Comptroller General Elliott to the Administrator of Veterans' Affairs, September 8, 1942: I have your letter of August 25, 1942, as follows: Paragraph 46 of Standarized Government Travel Regulations contains the following: "Under no circumstances will per diem in lieu of subsistence be allowed an employee at his official station." Paragraph 3 of Standarized Government Travel Regulations contains the following: "Designated post of duty and official station mean one and the same, the limits of which will be the corporate limits of the city or town in which the officer or employee is stationed, * * "" * Paragraph 48 (b) of Standarized Government Travel Regulations contains the following: "The time of arrival at and departure from a place will be considered as the hour at which the train, boat, or other conveyance used by the traveler actually leaves or arrives at its regular terminal." Paragraph 51 of Standarized Government Travel Regulations contains the following: * no per diem will be allowed * exceeding three hours." for any absence not In view of the foregoing provisions of Standarized Government Travel Regulations a question has arisen as to whether an employee of the Veterans Administration Facility, Bronx, New York, who was required to perform official travel in a Government owned vehicle to the Veterans Administration Facility, Northport, New York for the purpose of accompanying a Veterans Administration patient, under a travel order providing for payment of per diem allowance at the rate of $6.00 per day, may be paid $1.50 per diem allowance as claimed by him for travel according to the following schedule: Left Veterans Administration Facility, Bronx, New York, 4:00 P. M. Arrived Veterans Administration Facility, Northport, New York, 5:50 P. M. Arrived Veterans Administration Facility, Bronx, New York, 7:45 P. M. Time in New York City was 1 hour 30 minutes. Time outside of New York City was 2 hours 15 minutes. Information has been received from the Facility to the effect that it is frequently necessary for chauffeurs to be sent on trips in excess of three hours duration, in order to accompany psychotic patients to other facilities. It is recognized that the time consumed by an employee in travel by common carrier from the carrier's regular terminal to the limits of the city in which his official station is located, is properly, under Paragraph 48 (b) of the travel regulations, to be included in the period of time for which per diem allowance is payable. It is also understood that the cited provision of Paragraph 46 of the travel regulations is intended to prohibit payment of per diem allowance for time consumed by an employee in performing official duties at his official station. However, with regard to authorized travel of an employee in Government owned motor vehicle, it is not entirely clear whether the cited provision of Paragraph 46 is to be construed as prohibiting inclusion of the time consumed in travel from the Facility grounds to the city limits in the computation of travel time for per diem allowance purposes. It is therefore requested that I be advised in the premises. The act of January 30, 1942, Public Law 424, 56 Stat. 39, 40, provides as follows: That section 3 of the Subsistence Expense Act of 1926 (44 Stat. 688), as amended by the Act of June 30, 1932 (47 Stat. 405), is hereby further amended to read as follows: "Sec. 3. Civilian officers and employees of the departments and establishments, while traveling on official business and away from their designated posts of duty, shall be allowed, in lieu of their actual expenses for subsistence and all fees or tips to porters and stewards, a per diem allowance to be prescribed by the heads of the departments and establishments concerned at a rate not to exceed $6 within the limits of the continental United States, and not to exceed an average of $7 beyond the limits of the continental United States." [Italics supplied.] Paragraph 3 of the Standardized Government Travel Regulations quoted in your letter-which must be applied by this office as written— specifically defines the term "designated posts of duty", appearing in the Subsistence Expense Act, as the "corporate limits of the city or town in which the officer or employee is stationed." While it is the authorized practice pursuant to paragraph 48 (b) of the regulations to compute per diem in lieu of subsistence from the time an employee departs from and arrives at the regular terminal in a city or town (which is the designated post of duty of the employee) when transportation is by a common carrier, such as a train, boat, or bus which has an established "regular terminal", nevertheless, paragraph 46 of the regulations precludes payment of any per diem in lieu of subsistence for any time an employee spends at his designated post of duty or official station when transportation is by means other than a common carrier, such as by a privately-owned or Governmentowned automobile having no "regular terminal." Compare decisions stating the rule for payment of mileage for travel performed by privately-owned automobile, which rule is that mileage begins at the corporate limits of the designated post of duty or official station. 12 Comp. Gen. 453; 16 id. 577; 17 id. 574. You are advised, therefore, that when transportation is by a privately-owned or Government-owned automobile, the minimum of three hours' absence from the designated post of duty for which a fractional per diem in lieu of subsistence is authorized to be paid under paragraph 51 of the regulations must be computed from the time of departure from and arrival at the corporate limits of the designated post of duty, and not from the time a Government-owned automobile leaves the office located within the corporate limits of the designated post of duty. Thus, in the illustration given, the employee is not entitled to any per diem in lieu of subsistence. (B-27271, B-27272, B-27654, B-28053, B-28060, B-28062, B-28078, B-28098, B-28099, B-28102) UNIFORM AND EQUIPMENT ALLOWANCE-ARMY OFFICERS A period of active duty training of 3 months or less which was commenced by a member of the Officers' Reserve Corps but not completed because of the physical unfitness of the officer is not required to be counted as one of the active duty training periods of 3 months or less a total of 3 of which completed in separate fiscal years would preclude the officer from receiving the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, upon acceptance for extended active duty. A person who was commissioned subsequent to September 26, 1941, in the Army of the United States after having previously held a commission in the Officers' Reserve Corps or in the Regular Army is not entitled, upon being accepted for extended active duty, to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, for persons originally commissioned on or subsequent to September 26, 1941, in the Army of the United States. A person who was accepted prior to September 26, 1941, for extended active duty as an Officers' Reserve Corps officer but who, subsequent to September 26, 1941, and prior to March 9, 1942, accepted a commission in the Regular Army is not serving under an original commission so as to entitle him to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, for officers originally commissioned subsequent to September 26, 1941, in the Army of the United States or certain components thereof; nor is he entitled to the allowance authorized by said section for Officers' Reserve Corps officers commissioned prior to September 26, 1941. A period of active duty training of 3 months or less as a member of the National Guard is not required to be counted by an Officers' Reserve Corps officer as one of the active duty training periods of 3 months or less a total of 3 of which completed in separate fiscal years would preclude the officer from receiving the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, upon acceptance for extended active duty. Membership of a person in the National Guard intervening between two separate commissions in the Officers' Reserve Corps does not affect his rights as an Officers' Reserve Corps officer to the uniform and equipment allowances authorized for such officers by the act of May 14, 1940, as amended, for the active duty training periods "following their original appointment" mentioned therein, or to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, for such an officer who is accepted for extended active duty and who has not completed his first 3 periods of active duty training of 3 months or less in separate fiscal years "following his original appointment." A National Guard officer who has served on active duty since September 16, 1940, in his capacity as such an officer is not entitled to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, for persons originally commissioned on or subsequent to September 26, 1941, in the Army of the United States, and for Officers' Reserve Corps officers commissioned prior to September 26, 1941. An active duty training period of 3 months or less completed by an Officers' Reserve Corps officer, even though such period be immediately followed by extended active duty, is required to be counted as one of the active duty training periods of 3 months or less a total of 3 of which completed in separate fiscal years would preclude the officer from receiving the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, upon acceptance for extended active duty. A person commissioned in the Army of the United States subsequent to September 26, 1941, who previously had held a commission in the Marine Corps Reserve is entitled, upon acceptance for extended active duty, to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, for persons originally commissioned on or subsequent to September 26, 1941, in the Army of the United States. The right of an officer in the Army of the United States or in the Officers' Reserve Corps to the uniform and equipment allowance authorized by the act of March 9, 1942, is not affected, insofar as such right depends upon whether or not his commission is an original one, by commissioned service in the World War (1917-18) in any component of the Army of the United States except the Regular Army. The right of an Officers' Reserve Corps officer on extended active duty to the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, is not affected by the fact that he performed one year of active duty from June 1, 1936, to May 31, 1937. Where an Officers' Reserve Corps officer performed continuous active duty from June 13, 1934, to September 30, 1935, with the Civilian Conservation Corps, although under separate orders for periods of 3 months or less, no period of such service is to be counted as an active duty training period of 3 months or less, a total of 3 of which completed in separate fiscal years would preclude the officer from receiving the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, upon acceptance for extended active duty. The right of an Officers' Reserve Corps officer on extended active duty to the uniform and equipment allowance authorized by section 2 of the act of March 9, 1942, is not affected by the fact that such period of extended active duty commenced on July 16, 1939. A period of active duty training of 3 months or less completed by an Officers' Reserve Corps officer in the same fiscal year he had completed a prior similar training period is not to be counted as one of the active duty training periods of 3 months or less a total of 3 of which completed in separate fiscal years would preclude the officer from receiving the uniform and equipment allowance authorized for such officers by section 2 of the act of March 9, 1942, upon acceptance for extended active duty. Decision by Assistant Comptroller General Elliott, September, 9, 1942: There have been received from several Army disbursing officers requests for decisions as to the propriety of payment of the $150 uniform and equipment allowance under the act of March 9, 1942, Public Law 492, to officers of the Army under various situations and conditions of services. The act of March 9, 1942, Public Law 492, 56 Stat. 148, 149, provides: That the Act of May 14, 1940 (Public, Numbered 511, Seventy-Sixth Congress), be, and the same is hereby, amended to read as follows: "That officers of the Officers' Reserve Corps of the Army shall be entitled to an allowance for uniforms and equipment of $50 per annum upon completion, in separate fiscal years, of each of their first three periods of active duty training of three months or less following their original appointment." Sec. 2. Any person originally commissioned below the grade of major, on or subsequent to September 26, 1941, an officer in the Army of the United States or in any component thereof, except the Army Nurse Corps, from any source except graduates of the United States Military Academy, shall be entitled to an allowance of $150 for uniforms and equipment, which shall be payable, in the case of an officer of the Regular Army, upon acceptance of such commission, and in the case of other officers, when they shall have been ordered to, found qualified and accepted for active duty in the military service of the United States for a period of more than three months within three years from the date of, and under their respective original commissions: Provided, That any officer of the Officers' Reserve Corps commissioned prior to September 26, 1941, who has received any allowance under the provisions of the Act of May 14, 1940 (Public, Numbered 511, Seventy-sixth Congress), as originally approved, or who would have been entitled to receive such allowance if he had completed any duty prescribed in the said Act and, in either case, who has not completed his first three periods of active duty training of three months or less in separate fiscal years following his original appointment, shall be entitled to receive the allowance provided in this section, if he has been or shall be ordered to, found qualified, and accepted for active duty for a period in excess of three months under his commission: Provided, however, That any sum which shall have been paid to any officer under the provisions of section 1 of this Act or under the provisions of the Act of June 3, 1941 (Public, Numbered 97, Seventyseventh Congress), as an allowance for uniforms and equipment shall be deducted from the amount payable to him under this section: And provided further, That payment to any officer of the allowance provided in this section shall disqualify such officer thereafter from receiving the allowance provided in section 1 hereof or section 4 of the Act of June 3, 1941 (Public, Numbered 97, Seventy-seventh Congress). Preliminary to consideration of the particular cases it is proper to point out that (1) the act in section 1 is limited to members of the Officers' Reserve Corps; (2) that the enacting clause of section 2 relates only to persons originally commissioned below the grade of major in the Army of the United States or its components as therein provided subsequent to September 26, 1941, and therefore excludes all officers of the National Guard commissioned therein prior to that date; and (3) that in the first proviso in section 2 officers of the Officers' Reserve Corps commissioned prior to September 26, 1941, without limitation as to rank or grade, if otherwise within the terms of the act, are included. This bare statement indicates the act is prima facie discriminatory and does not operate uniformly as to all officers of the Army of the United States coming to duty from civil life and now in the service and that as to officers not originally commissioned below the grade of major on or after September 26, 1941, it is more beneficial to members of the Officers' Reserve Corps than to officers of other components. |