Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
            _______________________________________________
 
                             July 23, 1999
            _______________________________________________
 
 
                            GSBCA 15012-TRAV
 
 
                     In the Matter of DESIREE FRAY
 
 
        Desiree Fray, Cape Town, South Africa, Claimant.
 
        Edith Moore, Embassy Pretoria Budget & Fiscal Office, United
   States Embassy, Pretoria, South Africa, appearing  for Department
   of State.
 
   BORWICK, Board Judge.
 
        Ms.  Desiree Fray, claimant,  is a foreign  service national
   employed  by the United  States Consulate General,  United States
   Department  of State  (agency)  in Cape  Town, Republic  of South
   Africa.  She  took a business trip  to Washington, D.C., and,  on
   her  return  leg admittedly  violated  the  Fly  America  Act  by
   unnecessarily  using   a  foreign  flag   carrier--South  African
   Airways--between London  and  Cape Town.   Upon  her return,  the
   agency settled her travel voucher  by assessing a Fly America Act
   penalty of $1357.88; it determined that she owed a balance due on
   her travel  voucher of  $1286.40.  Claimant  seeks relief  on the
   grounds that she relied on the misleading booking of the agency's
   travel   agent  and   that   the  amount   of   the  penalty   is
   disproportionate.  
 
        We  sustain the  agency's assessment  of a  Fly America  Act
   penalty   since  claimant   has   not   demonstrated   that   the
   circumstances   of  her  travel  fall  within  the  statutory  or
   regulatory  exception to that Act s requirements.   Nevertheless,
   we  grant the claim in part.   The agency misapplied the standard
   regulatory formula for  assessing the  penalty and  arrived at  a
   penalty  that was  disproportionate  to  the  offense.    Correct
   application of the formula results in a penalty of $729.51  and a
   balance due of $658.03.
 
        The facts are  as follows.  On October 26,  1998, the agency
   authorized claimant's travel  from Cape Town to  Washington, D.C.
   and  return.   For  her trip  to  Washington on  October 31,  the
   agency's travel agent  booked claimant on American  Airlines from
   Cape Town  to Miami, Florida  and from Miami to  Washington, D.C.
   For her  return leg to Cape  Town commencing on November  14, the
   travel agent booked claimant through Europe since flights to Cape
   Town through Miami  were not available  on that day.   The agency
   booked  claimant  on  United Airlines  from  Washington,  D.C. to
   London on November 14 and on South African Airways from London to
   Cape Town on November 21, allowing  for claimant's week of  leave
   in London.   The untaxed  price shown  on the  ticket was  12,610
   South African  Rands.  Because  the fares for a  direct return to
   Cape Town through Miami on American Airlines and for a return  to
   Cape Town  through London on  United Airlines  and South  African
   Airways were the same, the  travel agent assumed that the booking
   of South African Airways through London was acceptable.  
 
 
        American Airlines and United Airlines are United States flag
   carriers,   holding   Federal   Aviation   Administration   (FAA)
   certificates  pursuant to  49  U.S.C.    41102  (Supp. II  1996).
   South  African  Airways is  not  a  United States  flag  carrier.
   Claimant  could  have returned  to  Cape Town  from  London using
   United  Airlines  through  Frankfort,  Germany, or  using  United
   States  flag carrier  code-share service  through  Amsterdam, The
   Netherlands.  
 
        Upon  claimant's return to  Cape Town, claimant  submitted a
   travel   voucher  for  her  expenses  totaling  $2318.48.    Upon
   examination  of her voucher,  the agency concluded  that claimant
   had violated the  Fly America Act by using  South African Airways
   on her return leg from London  to Cape Town instead of  available
   United States  flag  carriers or  code-sharing arrangements  with
   United  States  flag  carriers  on  that  segment.    The  agency
   calculated a  Fly America  Act penalty of  $1357.88.   The agency
   then subtracted  $1357.88 plus her  travel advance of  $2247 from
   the total requested.  That  calculation resulted in a balance due
   the United  States Government of $1286.40.   Claimant appealed to
   this Board.    
 
        The Fly America Act provides in pertinent part:
 
        (a)    Transportation   by    air   carriers    holding
        certificates.--A department . . . of  the United States
        Government shall take  necessary steps  in ensure  that
        the transportation of passengers and property by air is
        provided  by an air carrier holding a certificate under
        section 41102 of this title if 
 
             (1) the department 
 
                  (A) obtains the  transportation for
                  itself. . . .
 
                  . . . .
 
             (2) the transportation is authorized by the certificate
   or  regulation or exemption  of the Secretary  of Transportation;
   and
 
             (3) the air carrier is 
 
                  (A)      available,     if      the
                  transportation is  between a  place
                  in the  United States  and a  place
                  outside the United States.
 
             . . . .
 
        (c)  Proof.--  The  Administrator  of General  Services
        shall prescribe  regulations under  which agencies  may
        allow   the  expenditure   of   an  appropriation   for
        transportation in  violation of this section  only when
        satisfactory proof  is presented showing  the necessity
        for the transportation.
 
   49 U.S.C.     40118(a), (c), 41102.
 
        While  clumsily worded, the  statute in effect  requires the
   Government to obtain its  employees' air transportation involving
   destinations within  the United  States from  United States  flag
   carriers  unless the Government  can show that  transportation by
   foreign air carrier is necessary.    
 
        The  Administrator of  General Services  implements  the Fly
   America Act in  the Federal Travel Regulation (FTR).   The latest
   version of  the FTR  provides that for  all federally  funded air
   travel, federal  employees must  use United  States flag  carrier
   service unless:
 
        (a) Use of a foreign flag carrier is deemed a matter of
        necessity    in     accordance    with     Sec.    301-
        10.138;[foot #] 1 or
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 Foreign air transportation is  deemed a necessity
   when service by United States  flag carrier is available, but the
   carrier  cannot provide  the transportation  needed  or will  not
   accomplish  the agency  mission.  Necessity  includes but  is not
   limited to the following: the agency has determined that use of a
   foreign carrier is necessary for medical reasons or when use of a
   foreign air carrier is required to avoid unreasonable risk to the
   traveler's safety as determined by the prior written  approval of
   the agency and supported by a Federal Aviation Administration and
   Department of State  travel advisory notice, or when the traveler
   cannot  purchase his  or her  authorized  class of  service in  a
   United  States  flag carrier  and  a  seat  is available  in  the
   authorized class of  service on a  foreign air  carrier.  41  CFR
   301-10.138. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        (b) The transportation is provided under a bilateral or
        multilateral air transportation agreement  to which the
        United  States  Government  and  the  government  of  a
        foreign country  are parties, and  which the Department
        of Transportation has determined meets the requirements
        of the Fly America Act; or 
 
        (c)  [The employee  is] an officer  or employee  of the
        Department of State, United States Information  Agency,
        United  States  International  Development  Cooperation
        Agency or the Arms Control Disarmament Agency, and [the
        employee's] travel  is paid with funds  appropriated to
        one of these  agencies, and [the employee's]  travel is
        between two places outside the United States; or
 
        (d) No [United States] flag carrier provides service on
        a particular leg  of the route,  in which case  foreign
        air carrier service may be used but only to or from the
        nearest interchange  point on a usually  traveled route
        to connect with United States flag carrier service; or
 
        (e) A [United States] flag carrier involuntary reroutes
        [the employee's] travel on a foreign air carrier; or
 
        (f) Service on a foreign  carrier would be three  hours
        or less,  and use  of  the United  States flag  carrier
        would  at least double [the employee's] en-route travel
        time; or 
 
        (g)  When the costs of transportation are reimbursed in
        full by a  third party such as a  foreign government or
        international agency. 
 
   41 CFR 301-10.135 (1998).  Claimant has not demonstrated that any
   of these exceptions applies here.   
 
        Foreign air carrier service may  not be used solely based on
   the cost  of an  employee's  ticket.   41 CFR  301-10.139.   Thus
   neither the  travel agent nor  claimant can justify use  of South
   African Airways from London to Cape  Town on the ground that  the
   fare is  the same as  using United  States flag carriers  for all
   segments.  
 
        The FTR warns  employees in its  question and answer  format
   that  a   federal  employee  "will  not  be  reimbursed  for  any
   transportation  cost for  which you  improperly  use foreign  air
   carrier  service."   41 CFR  301-10.143.   The FTR  provides that
   agencies   must  establish   internal   procedures  for   denying
   reimbursement to travelers when use  of a foreign air carrier was
   neither authorized nor otherwise permitted.  Id.  
 
        The agency  has promulgated  in its  Foreign Affairs  Manual
   (FAM) regulations  and the formula  for recapturing  appropriated
   funds used  for improper travel  on a foreign  air carrier.   The
   formula is: "(Sum of certified carrier segment mileage authorized
   DIVIDED BY Sum  of all segment  mileage authorized MULTIPLIED  BY
   Fare  payable  by  Government) MINUS  (Sum  of  certified carrier
   segment  mileage traveled DIVIDED  BY Sum of  all segment mileage
   traveled MULTIPLIED BY through fare paid)."  6 FAM 135.14.   That
   formula meets  the intent of  the Fly America Act  in recapturing
   from  the employee the  agency expenditure of  appropriated funds
   for improper foreign air travel.  
 
 
        The first half  of the formula establishes  the fare payable
   by the Government based on the ratio of certified carrier segment
   miles authorized  to all segment  miles authorized.   Here, since
   the return trip to Cape Town from Washington, D.C. through London
   was  authorized, instead  of  a  return trip  to  Cape Town  from
   Washington,  D.C.  through  Miami, the  agency  concedes  that if
   claimant  had  used  certified  carrier  segment  miles  for  all
   segments of her trip the full fare would have been payable.  
 
        The  second half  of the  formula establishes  the ratio  of
   certified carrier  segment miles  traveled to  the total  segment
   miles  traveled and  multiplies  the through  fare  paid by  that
   ratio.  The  product is then subtracted from  the fare payable by
   the Government.   Here  the agency derived  a ratio  of certified
   carrier  mileage to  total miles  traveled of  .379.   The agency
   concedes this ratio was based on its mistake of counting only the
   Washington, D.C. to London segment of the trip on United Airlines
   as  certified segment  miles traveled.   The agency  neglected to
   count  the segment claimant traveled on American Airlines between
   Cape Town and Washington, D.C.  If we count those miles, then the
   ratio of  certified segment miles  traveled to all  segment miles
   traveled is .670823.  Completion  of the formula with the correct
   ratio, using the fare of 12,610 South African Rands  as stated on
   the airline ticket, derives a  Fly America Act penalty of $729.51
   and a balance due of $658.03.[foot #] 2 
 
        Claimant  maintains that  she should  not be liable  for the
   penalty because she only followed the advice of her travel agent,
   and that improper  use of the  foreign flag carrier  was not  her
   fault.   Agency regulations, however, provide that: "the traveler
   is  responsible for the  correct performance of  official travel,
   for the payment of any charges incurred through failure to comply
   with  the governing  regulations,  regardless  of  who  may  have
   assisted the traveler in making travel arrangements."  6 FAM 115.
   In the context of the Fly America Act, it has long  been the rule
   that,  because the  requirement  for use  of  United States  flag
   carriers is imposed directly by  statute, all persons are charged
   with notice of it.  For  this reason and because Government funds
   may  not be used  to pay  for unnecessary  travel by  foreign air
   carrier,  the traveler is personally liable for any cost incurred
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2 The  agency uses an  exchange rate of  5.69 South
   African Rands  to the Dollar.   Claimant does not  challenge that
   rate and we use it as well. 
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   because of  his or  her failure to  comply with  the requirement,
   regardless  of  who  gave  the  traveler  the  erroneous  advice.
   Jasinder S. Jaspal, 60 Comp. Gen. 718 (1981).
 
 
        Here, claimant is responsible for the costs of the London to
   Cape  Town segment of her  trip which was  flown on South African
   Airways.   Claimant's Fly  America Act penalty  is $729.51.   The
   balance claimant owes the Government for her trip is $658.03.
 
 
 
                                 __________________________
                                 ANTHONY S. BORWICK
                                 Board Judge