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



                                                 

                          June 29, 2006
                                                 


                         GSBCA 16883-RELO


                In the Matter of MARILYN B. LAMBOI


     Marilyn B. Lamboi, Ridgeland, MS, Claimant.

     JoAnne Rountree, Supervisor, Travel Section, Financial Services Center, Department
of Veterans Affairs, Austin, TX, appearing for Department of Veterans Affairs.

DANIELS, Board Judge (Chairman).

     This case calls on us to consider the impact of General Services Administration (GSA)
Bulletin FTR (Federal Travel Regulation) 05-06, which addresses travel and associated
relocation expenses of federal employees to areas impacted by Hurricane Katrina.

                            Background

     The Department of Veterans Affairs (VA) transferred Marilyn B. Lamboi to its
medical center in Jackson, Mississippi, in 2005.  In so doing, the VA authorized her to
receive temporary quarters subsistence expenses (TQSE), computed under the actual expense
method, for a period of seventy-five days. 

     As directed in her orders, Ms. Lamboi reported to Jackson on October 1.  Slightly
more than a month earlier, on August 28, Hurricane Katrina had devastated the Gulf Coast
and the President had declared that an emergency existed in the State of Mississippi.  By the
time Ms. Lamboi arrived in Jackson, hotels in the area were fully occupied and their
proprietors were unwilling to grant the government rate to federal employees who wished
to stay there.  The government rate for Jackson at that time was the standard rate for travelers
to locations in the continental United States (CONUS), $60 per day for lodging (plus $31 per
day for meals and incidental expenses).  Ms. Lamboi paid $70 per day ($78.45 including tax)
to rent a hotel room for each of the seventy-four days she lived in temporary quarters in
Jackson.

     Ms. Lamboi asked the VA to reimburse her for the difference in cost between the
amount she paid and the standard government rate.  The agency declined to do so.  The
employee asks us to review that determination.

                            Discussion

     GSA Bulletin FTR 05-06 was issued on September 2, 2005.

     [It] informs agencies that certain provisions of the FTR governing the
     authorization of actual subsistence expenses for official travel (both TDY
     [temporary duty] and relocation) are temporarily waived as a result of
     Hurricane Katrina, because it is expected that finding lodging facilities and/or
     adequate meals may be difficult, and distances involved may be great resulting
     in increased costs for per diem expenses.

See 70 Fed. Reg. 53,798 (Sept. 12, 2005).

     For relocation travel, among the provisions of the FTR that were waived were   

     Section 302-6.102[,] which limits the per diem reimbursement to the standard
     CONUS rate for TQSE.  Agencies may authorize subsistence expenses at the
     locality per diem rate under the provisions of   301-11.101 or as an actual
     expense reimbursement allowance under    301-11.300 - 306.

     The bulletin was originally in effect from the date of issuance through March 1, 2006. 
GSA Bulletin FTR 06-05, which was issued on January 31, 2006, extended this period
through September 30, 2006.

     Let us put the bulletin's impact into context.  The FTR states that when an agency
authorizes a transferred employee to receive reimbursement of TQSE by the actual expense
method, the employee is entitled to be paid the actual TQSE incurred, provided that the
expenses are reasonable and do not exceed the maximum allowable amount.  The "maximum
allowable amount" is the "maximum daily amount" multiplied by the number of days the
employee incurs authorized TQSE.  The "maximum daily amount" for a single employee
within CONUS is the standard CONUS rate for each of the first thirty days in temporary
quarters and three-quarters of that rate for each additional day.  41 CFR 302-6.100, -6.102
(2005).  Section 302-6.102   the provision that has been waived for travel affected by the
hurricane   is the one that keys the "maximum daily amount" to the standard CONUS rate.

     The other provisions noted in the part of the bulletin with which we are concerned
address reimbursement to temporary duty travelers for costs of lodging and meals and
incidental expenses.  This reimbursement is generally effected under one of two payment
methods, lodgings-plus per diem (see 41 CFR 301-11.101) or actual expenses (see 41 CFR
301-11.300 to -11.306).  The bulletin directs agencies to establish, for TQSE payments to
transferred employees affected by the hurricane, a different maximum daily amount from the
standard CONUS rate for the first thirty days in temporary quarters and three-quarters of that
rate for additional days.  The rate to be used is one permitted for temporary duty travelers
  either the per diem rate for the locality in question under the lodgings-plus per diem
method or the actual expenses incurred by the employee, subject to regulatory restrictions.

     The VA's Travel Policy Division issued Travel Notice 05-02 to inform VA offices
about the contents of GSA Bulletin FTR 05-06.  The travel notice states, "VA offices should
ensure that all allowable costs are reimbursed properly and in accordance with the waiver
of regulations."  Although the travel notice garbles some of the provisions of the GSA
bulletin and badly misstates others, it reports accurately that among the waived regulations
pertaining to relocated employees is "41 CFR 302-6.102 limiting per diem to the standard
CONUS rate for temporary quarters; reimbursement may be approved based upon the actual
expenses incurred or the GSA per diem rate for the locality of the temporary quarters."

     When Ms. Lamboi asked the VA to apply the provisions of the GSA bulletin and the
VA travel notice to her situation, the agency did not contest her statement that hotel rooms
in Jackson, Mississippi, could not be rented at the government rate during the fall of 2005
due to the impact of Hurricane Katrina.  The agency instead used the following rationale to
reject her claim:  The GSA per diem rate for Jackson was the same as the standard CONUS
rate when she was in temporary quarters in that city, so using the per diem rate for Jackson
instead of the standard CONUS rate would have no effect on the amount the VA could
reimburse this employee.  Secretary of Veterans Affairs Anthony J. Principi had signed a
memorandum which states, "Actual expense may not be approved for travel related to
permanent change of station travel including en route travel, travel related to a househunting
trip, or temporary quarters subsistence allowance (41 CFR 302-4.200, 302-5.13 and
302-6.102)."  Reimbursing Ms. Lamboi for TQSE based on her actual expenses would
contravene Secretary Principi's directive, so it could not be permitted, either.

     We agree with the VA that because the per diem rate for Jackson was the same as the
standard CONUS rate, using the former instead of the latter would not increase the amount
of TQSE which Ms. Lamboi could receive.  We do not believe that Secretary Principi's
memorandum can be read as a limitation on the agency's ability to use Ms. Lamboi's actual
expenses as a cap on her recovery of TQSE, however.  The secretary's memorandum must
have been issued no later than January 2005, for he resigned his post in that month.  The
memorandum was applicable to normal situations and specifically referenced section
302-6.102 of the FTR as authority.  GSA Bulletin FTR 05-06, which addresses the
extraordinary situation of Hurricane Katrina and was promulgated after Secretary Principi
left office, waives the very provision on which his memorandum relied.

                             Decision

     Because the VA's action in applying the GSA bulletin was based on an unsound basis,
it cannot stand.  The bulletin requires each agency to decide, for transferred employees in
the area and time affected by Hurricane Katrina, whether the maximum daily amount of
TQSE they may receive is the locality per diem rate or the actual expenses incurred (subject
to regulatory limitations).  Ms. Lamboi was a transferred employee in the area and time
affected by the hurricane.  The VA must therefore reconsider whether to set, as the maximum
daily amount of TQSE she and similarly-situated employees may receive, the locality per
diem rate or the actual expenses incurred.  Notwithstanding Secretary Principi's inapplicable
memorandum, the agency may choose the latter option.  If it does so, it shall recalculate Ms.
Lamboi's TQSE reimbursement accordingly.





                                   _________________________ 
                                   STEPHEN M. DANIELS
                                   Board Judge