Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405







                                        

                       ____________________



                         October 13, 2004

                      _____________________





                         GSBCA 16430-RELO





                 In the Matter of SARAH J. ALLEN





     Sarah J. Allen, Concord, CA, Claimant.



     Mary C. Lanham, Chief, Travel Payment Center, Division of Accounting Operations,

Program Support Center, Department of Health and Human Services, Rockville, MD,

appearing for Department of Health and Human Services.



HYATT, Board Judge.



     When a transferred employee, while occupying temporary quarters at the new

permanent duty station, is required to perform several days temporary duty away from that

duty station, he or she is not necessarily precluded from reimbursement of the lodging portion

of temporary quarters subsistence expenses in addition to per diem received for his or her

temporary duty.  The claim for temporary quarters lodging expenses may be allowed if the

agency determines that the employee acted reasonably in retaining those quarters during the

period of the temporary duty assignment.  



                            Background



     In November 2003, claimant, Sarah J. Allen, relocated from Miami, Florida, to San

Francisco, California, to accept a promotion within the Department of Health and Human

Services (HHS).  She was initially authorized sixty days of temporary quarters subsistence

expenses (TQSE) and thereafter received two thirty-day extensions of TQSE until she was

able to purchase a residence in the San Francisco area.  She occupied temporary quarters

from November 2, 2003, through March 1, 2004.  While on TQSE, Ms. Allen occupied a

monthly rental.  She had a portion of her household goods delivered to her temporary

quarters and parked her personal vehicle there as well.



     During the period when temporary quarters were occupied, Ms. Allen also traveled

on temporary duty for the agency.  She was away from San Francisco on official business

from December 1 to December 5, 2003, again from December 8 through December 12, 2003,

and also from January 14 to January 16, 2004.  She included lodging costs for these days in

her temporary quarters expenses vouchers but did not seek the costs of meals and incidental

expenses (M&IE).  She was also reimbursed for lodging and received an M&IE per diem

amount for her temporary duty assignments.    



     The agency deducted twelve days of lodging expenses from her TQSE reimbursement,

reasoning that she could not receive reimbursement for temporary lodging at her permanent

duty station since she was not physically occupying the quarters on days when she was on

official travel.  The agency's position is that the regulations prohibit dual reimbursement of 

lodging.  Ms. Allen has asked us to review this decision, noting that it would not have been

feasible to vacate her apartment for these temporary duty assignments -- when she arrived

in San Francisco her options for affordable temporary lodging were extremely limited.  Thus,

she did not have available to her any reasonable means of making alternative arrangements

for her vehicle and belongings while on official government travel. 



                            Discussion



     The agency's position is grounded in the Federal Travel Regulation (FTR) provision

that states that an employee may not receive a TQSE allowance if he or she is receiving

another subsistence expenses allowance.  41 CFR 303-6.16 (2003).   Essentially, this is a

prohibition against collecting dual benefits.  Ordinarily, the employee who travels on

temporary official duty while eligible for TQSE is not paid TQSE benefits during that period,

but is entitled instead to extend the TQSE period for the amount of time that he or she was

on official travel.



     The agency also relies on a General Accounting Office (GAO)  [Foot # 1 ] decision

for its position. It cites us to Thomas H. Dega, B-247,061 (May 6, 1992), in which the

employee took personal leave during the TQSE period.  The issue in that case was how to

calculate the daily cost of monthly lodging -- whether to divide the monthly rental by the

thirty-day lease period or by the lesser number of days for which the employee was entitled

to be paid TQSE.  This is not dispositive of the issue in the instant matter - which is whether

Ms. Allen may be reimbursed for temporary quarters lodging for days she was away on

official travel.



****************** Footnote Begin **********

[Foot # 1 ]         Prior to mid-1996, travel and relocation benefit claims of federal civilian

employees were resolved by GAO.  

****************** Footnote End ************





     There is, in fact, an exception to the rule that "dual" benefits may not be paid.  In Paul

G. Thibault, 69 Comp. Gen. 72 (1989), GAO examined this rule in a context similar to Ms.

Allen's.  There, a transferred employee, while occupying temporary quarters at his new

permanent duty station, was required to perform several days temporary duty away from that

duty station.  He retained his temporary quarters during that absence and sought

reimbursement as part of his temporary quarters subsistence expenses in addition to per diem

received for his temporary duty.  The employee contended that he retained his temporary

lodging at his new duty station during his period of temporary duty because he had to have

a place to store the bulk of the belongings he carried with him when he relocated and the 

lodging manager indicated that, if he gave up his room during his period of temporary duty,

he might not be able to reacquire it or another room upon his return.  GAO held that his claim

for temporary quarters lodging expenses may be allowed if the agency determined that the

employee acted reasonably in retaining those quarters.  The purpose of the FTR rule is to

avoid paying employees twice for a single expense.  Where the employee cannot readily

move out of temporary lodging and must thereby absorb both the expense of temporary

quarters lodging and TDY lodging, the employee in fact must defray both expenses.  Thus,

in instances where it would not be feasible to vacate temporary quarters to undertake travel

away from the permanent duty station, the agency may permit the employee to claim both

TQSE lodging expenses and TDY per diem allowances.  Accord Carol A. Cassel, B- 254,216

(Jan. 11, 1994).



     The Board adopted a similar analysis in Christine Griffin, GSBCA 15818-RELO, 02-2

BCA   31,925.  There, the claimant was away from the office on temporary duty for six

nights for which she also claimed temporary lodging expenses for the hotel where she stayed 

at the new permanent duty station.  In that case the Board followed Thibault and Cassell,

observing that "[i]f the agency reasonably believes that the employee did not act reasonably

in retaining the hotel room in New Jersey while she was on temporary duty elsewhere, it may

deduct [the cost of the room] from her recovery for each of those nights."  02-2 BCA at

157,733.    



     The agency has not suggested that it believes that the employee's actions in renting on

a monthly basis and in retaining her temporary quarters while on official travel were

unreasonable.  Rather, it falls back on its interpretation of the FTR to preclude the remedy

that Ms. Allen seeks.  As we explain above, in the circumstances described, the regulations

do not bar paying the full amount of TQSE for which Ms. Allen is eligible to the extent her

actions in retaining her temporary lodgings were reasonable. If the agency has no further

basis for disallowing Ms. Allen's claim, it should reimburse her.  









                                   _________________________________

                                   CATHERINE B. HYATT

                                   Board Judge