Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                                 

                           June 8, 2005
                                                 


                         GSBCA 16621-TRAV


                 In the Matter of FELIX VALENTIN


     Felix Valentin, Caguas, PR, Claimant.

     Louis D. LoPresti, Regional Finance Officer, Office of the Assistant Secretary for
Administration and Management, Department of Labor, Boston, MA, appearing for
Department of Labor.

DANIELS, Board Judge (Chairman).

     A civilian employee "must always use a contract city-pair fare for schedule air
passenger transportation service" unless one or more of five specified conditions exists.  41
CFR 301-10.107 (2004).  One  of those conditions is that "[t]he contractor's flight schedule
is inconsistent with explicit policies of [the employee's] Federal department or agency with
regard to scheduling travel during normal working hours."  Id. 301-10.107(b).  These
provisions of the Federal Travel Regulation (FTR) are pivotal to our settlement of a claim
brought by Felix Valentin, an employee of the Department of Labor.

     Mr. Valentin was directed to travel from San Juan, Puerto Rico, to Hartford,
Connecticut, on official business in July 2004.  He asked Omega Travel, his agency's
contract travel agent, to make airline reservations for him.  Omega proposed a flight leaving
San Juan at 5:23 p.m. and arriving in Hartford at 9:11 p.m. and a return flight leaving
Hartford at 7:05 a.m. and arriving in San Juan at 10:55 a.m.  Mr. Valentin did not accept this
itinerary.  Omega then proposed a flight leaving San Juan at 8:20 a.m. and arriving in
Hartford at 5:22 p.m. and a return flight leaving Hartford at 8:22 a.m. and arriving in San
Juan at 3:55 p.m.  (The second set of flights involved one stop each way.)   Mr. Valentin
accepted this itinerary and actually traveled in accordance with it.

     The fare for the second set of flights was more expensive than the fare for the first set. 
[Foot # 1 ]  The Department of Labor has reimbursed Mr. Valentin only for the fare of the
less expensive set.  The employee claims the difference between the actual cost of his flights
and the amount of reimbursement he has received.

****************** Footnote Begin **********
[Foot # 1 ]       The agency assumes that the first set of fares were contract city-pair fares and
the second set were not.  The contract carrier for the San Juan-to-Hartford route in July 2004
was American Airlines, and both itineraries were exclusively on that carrier.  We do not
know whether American Airlines offered contract city-pair fares on only some of its flights
between these two cities.  For the purpose of resolving this case, we assume along with the
agency that the carrier did so.
****************** Footnote End ************


     Among the reasons given by Mr. Valentin in support of his claim is that under agency
policy, without special permission (which he did not have), employees must travel during
official working hours, and his official working hours are during the day.  We asked the
agency to provide a copy of its policy, and it did so.  The policy states:

     Scheduling Travel. -- Travel During Duty Hours.  DOL [Department of
     Labor] Agencies and Authorizing Officials will ensure that Temporary Duty
     (TDY) travel by employees will be performed during their normal duty hours.

The policy lists four exceptions to this rule, but the agency does not contend that any of them
applies to Mr. Valentin's situation.  Nor does the agency contend that the flights originally
proposed by Omega were during the employee's normal duty hours.

     The only reasons cited by the agency for not reimbursing Mr. Valentin for the full cost
of his airfare are that the lower fares were more advantageous to the Government and that
the employee did not, prior to flying, complete a form requesting permission to accept a fare
other than the city-pair fare.  The agency's own travel policy renders these arguments non-
persuasive.  The policy provides that travel by employees "will be performed during their
normal duty hours," not that it will be performed during these hours only when that is less
expensive for the agency.  We have no evidence that Mr. Valentin could have flown at
contract city-pair fares during his normal duty hours, so whether he completed a form before
or after flying to Hartford, the agency, consistent with its policy and the FTR, would have
to grant permission to accept a higher fare.  See Abdul Kaliq Raja, GSBCA 14029-TRAV,
97-1 BCA   28,944.

     We conclude that because an explicit policy of the Department of Labor required Mr.
Valentin to travel during normal working hours, even though the employee's travel cost more
than the contract city-pair fares for the route he took, the agency is responsible for the entire
cost of the airfare.

     Having resolved the case on this ground, we do not consider Mr. Valentin's
alternative reason for not accepting the itinerary originally proposed by Omega. 
Nevertheless, we note that reason because it highlights a matter which merits consideration
by the agency responsible for the FTR, the General Services Administration.   Mr. Valentin
states that he declined the night flight from San Juan to Hartford in part because he is a
diagnosed claustrophobic and gets panic attacks when he travels at night.  He has submitted
to his agency documentation of this medical condition and has requested reasonable
accommodation of it.  The agency has asked a physician to evaluate this request.

     The FTR permits an agency to authorize and approve an employee's use of first-class
or other premium-class seats on airplanes when such use "is necessary to accommodate a
disability or other special need."  41 CFR 301-10.123(b), -10.124(c).  (A "disability," for the
purposes of the FTR, is "a physical or mental impairment that substantially limits one or
more major life activities."  Id. 300-3.1.)  The provision of the FTR regarding use of contract
city-pair fare does not mention accommodation of a disability or other special need, however. 
Thus, the regulation is not clear as to whether, if an employee has a disability which can be
reasonably accommodated by allowing him to take a flight which does not have a city-pair
fare, the agency has authority to make that accommodation.

     Suppose the Department of Labor were to conclude that Mr. Valentin is
claustrophobic, that his claustrophobia is a disability, and that this disability can reasonably
be accommodated by allowing him to fly during the day.  Suppose further that the only
daytime flights which will take him to temporary duty locations at appropriate times do not
have city-pair fares.  May the agency authorize him to take one of those flights?  We urge the
writers of the FTR to address this question, so as to avoid the need for a determination by this
Board if the matter arises again in such a way that it must be decided by us.





                                   _________________________ 
                                   STEPHEN M. DANIELS
                                   Board Judge