Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                        _______________________
 
                           September 29, 1998
                        ________________________
 
 
                            GSBCA 14425-RELO
 
 
                   In the Matter of GORDON D. GIFFIN
 
 
        Gordon D. Giffin, Ottawa, Canada, Claimant.
 
        Donald S. Hays,  Executive Director, Bureau of  European and
   Canadian Affairs,  Department of State, Washington, DC, appearing
   for Department of State.
 
   HYATT, Board Judge.
 
        Claimant,  Gordon D. Giffin, is the United States Ambassador
   to  Canada.  In 1997, Ambassador Giffin and his family moved from
   Atlanta,  Georgia  to Ottawa,  Canada.   In connection  with this
   move, the Department of State authorized reimbursement of various
   costs  of   relocation,  including  a   predeparture  subsistence
   allowance under the  Foreign Transfer Allowance Provision  of the
   Department      of      State       Standardized      Regulations
   (STR).[foot #] 1    The   Department  of  State,  on   behalf  of
   Ambassador Giffin, has asked the Board to review the Department's
   disallowance of the cost of meals claimed under this predeparture
   allowance.   For the reasons  stated, we conclude that  the State
   Department may reimburse the meal expenses.
    
                               Background
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 This allowance  is  authorized under  5 U.S.C.   
   5924 (1994).   Although  entitlement to  most  of the  allowances
   authorized under chapter 59 of 5 U.S.C. is reviewed by the Office
   of Personnel Management (OPM), rather  than by the Board, OPM has
   expressed the view  that allowances that compensate  for expenses
   of relocation are more comparable to the types of  cases reviewed
   by the Board  under chapter 57 of  5 U.S.C., and has  declined to
   decide  these types  of cases.   The  Chairman of this  Board has
   agreed  that this Board  will resolve  claims such  as Ambassador
   Giffin's.   Michael J.  Krell, GSBCA 13710-RELO(REIN)  (Sept. 23,
               _________________
   1998); Susan Drach, GSBCA 13863-RELO, 98-1 BCA   29,442.  
          ___________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Ambassador Giffin was authorized a predeparture allowance to
   cover a  ten-day "pack-out"  period in advance  of the  move from
   Atlanta.  He was advised that this allowance would cover the cost
   of a hotel room, if needed, as well as actual subsistence, not to
   exceed approximately  $330 per  day.   During the ten-day  period
   preceding the Giffin family's departure from Atlanta, their home,
   including all dishes and food preparation utensils was completely
   packed  up.   The beds  remained in  the house  until immediately
   prior to departure.   To minimize costs to  the State Department,
   the Giffins slept at the house, although it was  necessary to eat
   all meals at  restaurants.  Ambassador Giffin was  not advised at
   any  time   prior  to  or   during  the   pack-out  period   that
   reimbursement  of  the predeparture  costs  was conditional  upon
   leaving the house  altogether and moving to a  hotel.  Ambassador
   Giffin estimates that the lodgings cost savings was approximately
   $1500-$2000.
 
        Upon  arriving  in  Ottawa,  Ambassador  Giffin  submitted a
   travel voucher claiming  reimbursement for the cost  of the meals
   ($882)  consumed by  the  Giffins  during  this  ten-day  period.
   Ambassador  Giffin was then informed that  these meal costs could
   not be reimbursed  because he did not  move out of his  house and
   incur the  cost of   hotel accommodations.  The  State Department
   does  not otherwise question the reasonableness of or eligibility
   for recovery of these meal expenses. 
 
                               Discussion
 
        The predeparture allowance authorized  for Ambassador Giffin
   and  his family  is  provided  for under  5  U.S.C.    5924(2)(A)
   (1994), which states that a  transfer allowance may be granted to
   an  employee   for  extraordinary,   necessary,  and   reasonable
   subsistence  and   other  relocation   expenses,  not   otherwise
   compensated for,  incurred incident  to the  process of  becoming
   established at a post  of assignment in a  foreign country.   The
   allowance includes costs incurred  in the United States prior  to
   departure  for  a foreign  post.    This statutory  provision  is
   implemented in the STR.  Under STR 241.2c, one of the elements of
   the  foreign  transfer  allowance  is  predeparture   subsistence
   expenses for 
 
             lodging,  meals  (including  tips),  laundry,
             cleaning and  pressing expenses  in temporary
             quarters  for  employee  and  each member  of
             family  for  up  to   10  days  before  final
             departure from a post in the United States to
             a  post in a foreign area, beginning not more
             than  30   days  after   they  have   vacated
             residence quarters.  
 
        The  State Department  personnel  responsible for  reviewing
   Ambassador Giffin's claim  interpret this provision to  mean that
   the  employee must have  physically  vacated  permanent residence
   quarters  in order  to qualify  for reimbursement  of meals.   In
   forwarding Ambassador  Giffin's claim, the Executive Director for
   the Bureau of Foreign  and Canadian Affairs inquires  whether the
   Board might grant an exception to the rule.
 
 
        In  his response, Ambassador Giffin argues that no exception
   is necessary.   In his  view, the Department's  interpretation of
   the  regulation  is   unduly  restrictive   and  encourages   the
   unnecessary expenditure of taxpayer  funds in circumstances  such
   as those presented  in this claim.   His house had been  sold and
   fully packed-out  in anticipation of  the move to Ottawa.   Other
   than the beds, furniture and personal property were not available
   for the  Giffins' convenience.   In Mr.  Giffin's view,  once the
   packing  was completed,  the  house  was  no  longer  effectively
   occupied  as a permanent residence.   To conclude otherwise gives
   the  transferring   employee  a  "perverse  incentive"  to  incur
   substantial  and  unnecessary  lodging expenses  in  order  to be
   reimbursed for meals subsistence expenses.      
 
        The  Department   of  State  Standardized   Regulations  are
   promulgated  by the  Secretary of  State and  have the  force and
   effect of law.  As such, the Board does not have the authority to
   waive   or  carve  an  exception  to  the  application  of  these
   regulations.    Robert D.  Chelburg,  B-158033 (Nov.  8,  1994). 
   Nonetheless, we see no reason why the agency would necessarily be
   barred from paying these expenses under the  existing language of
   the  regulation.  The interpretation advanced by State Department
   personnel  in reviewing  Mr. Giffin's  voucher is similar  to the
   approach adopted  by the  Comptroller General  in construing  the
   requirements   of   the  Federal   Travel   Regulation's  (FTR's)
   provisions on  eligibility  for  temporary  quarters  subsistence
   expenses  (TQSE), which, until amended in 1997, defined temporary
   quarters  as lodging  intended  for temporary  occupancy obtained
   "after  vacating the  residence occupied  when  the transfer  was
   authorized."        41     CFR    302-5.2(c)    (1996).[foot #] 2
   Although this language is not  identical to the STR provision, it
   does incorporate the  similar notion of "vacating"  the permanent
   residence.[foot #] 3        The    Comptroller    General    also
   recognized,  in strictly  limited  circumstances,  the notion  of
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2 In 1997, the FTR was revised to define "temporary
   quarters"  as  "lodging  obtained for  the  purpose  of temporary
   occupancy from  a commercial or  private source."  The   language
   limiting  such quarters  to those  occupied  "after vacating  the
   residence occupied"  at the time of authorization of the transfer
   has been  eliminated.  See  Patricia A. Tobin,  GSBCA 14483-RELO,
                          ___  _________________
   98-1 BCA   29,663.
 
        [foot #] 3 It  has  been recognized  that TQSE,  as provided
   under   regulations   promulgated   by   the   General   Services
   Administration, and  the predeparture  allowance of  STR 241  are
   similar in purpose but not necessarily identical  with respect to
   the determination  of eligibility for  reimbursement of expenses.
   Alan Hurdus, B-256937 (Apr. 27, 1995).   
   ___________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   "constructive  vacation" of  permanent quarters.    The principal
   issue  is whether the  circumstances of the  claimant's continued
   occupancy of the permanent residence may be regarded as temporary
   occupancy.  
 
 
        Under  the precedent developed by the Comptroller General in
   the context of   the FTR, permanent quarters could be regarded as
   constructively vacated, even though the claimant had not actually
   moved out of them, where the facts  of that situation showed that
   the employee intended  to vacate the permanent  residence and was
   not  able  to use  these  quarters  in  the usual  and  customary
   fashion.    For example,  the Comptroller applied the  concept of
   constructive  vacation where a  household had been  packed up and
   the moving van was scheduled to arrive but was delayed because of
   a mechanical  breakdown.  Beverly  L. Driver, B-181032  (Aug. 19,
   1974).   In another case, the employee  and his family had packed
   ninety percent of the household goods before traveling to the new
   duty station, and  like the Giffins, slept on  the mattresses and
   ate  meals out  on  weekends  when they  returned  to the  former
   permanent  residence  to  prepare  it  for sale.    The  employee
   explained that  until  the  household  goods were  moved  it  was
   necessary to return  home on the weekends to  perform maintenance
   and  retain insurance coverage.    There, the Comptroller General
   stated that  a residence may  be considered to have  been vacated
   when the family has ceased to occupy it for the purposes intended
   and agreed  in this particular  case that the employee  had, "for
   all intents  and purposes vacated  his residence at the  old duty
   station since it  was no longer suited  for permanent residence."
   John L. Reid, B-227193 (Oct. 16, 1987).
 
        Although the facts  of Reid are not completely  on all fours
   with those in this case, the parallel is strong.  The Giffins did
   not have  the use of  their furniture and  household possessions,
   which had  been packed, and, as  such, their house  was no longer
   suited  for permanent  residence .    Given the  prudence of  the
   Giffins in minimizing  their expenses, see Alan  Hurdus, B-256937
   (Apr. 27, 1995), and the  concept of constructive vacation of the
   permanent residence, it  is our  view that  the State  Department
   may,  under its regulation,  determine that Ambassador  Giffin is
   eligible to be reimbursed the costs of the meals claimed.  
   _________________________________
 
                                      CATHERINE B. HYATT
                                      Board Judge