Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 10, 2000 GSBCA 15220-TRAV In the Matter of RENEA A. WEBB Renea A. Webb, Willingboro, NJ, Claimant. Paula F. Hayes, Assistant Inspector General for Policy Development and Resources Management, Office of Inspector General, Department of Agriculture, Washington, DC, appearing for Department of Agriculture. DANIELS, Board Judge (Chairman). Renea A. Webb was one of many employees of the Department of Agriculture's Office of Inspector General (OIG) who were assigned to a training session in Maryland during September 1997. The agency requested that Ms. Webb and other employees who lived in New Jersey drive to this assignment in privately-owned vehicles by carpooling. Ms. Webb, however, chose to drive by herself in her own car. She claimed reimbursement for expenses of transportation at the rate of thirty-one cents per mile. The agency paid for these expenses at the lower rate of 23.5 cents per mile. The employee correctly maintains that she should have been paid at the higher rate. The agency had asked employees to "ride together or receive a reduced mileage rate." The agency maintains that this request was authorized by a provision in an OIG manual which states: Travel by more than one employee to the same approximate destination. All travelers traveling by automobile to the same approximate destination are encouraged to travel in the same vehicle to the maximum extent practicable. . . . Reimbursement is made at the authorized [privately owned vehicle] mileage rate for all official mileage, including picking up other travelers at their residences or offices. See FTR 301- 4.4 [the Federal Travel Regulation, 41 CFR 301-4.4] when a Government vehicle is available. When an employee chooses not to travel in the authorized vehicle which has been determined as most advantageous to the Government (whether it is a privately-owned vehicle, Government-owned or -leased vehicle) to the same approximate destination as other OIG authorized travelers, the employee's reimbursement will be subject to a mileage reduction to the least amount allowed as provided in FTR 301-4. OIG Manual 4700, 301-2(d)(2)[5] (Feb. 1997). The Federal Travel Regulation is issued by the Administrator of General Services to implement chapter 57 of title 5, United States Code, regarding travel, transportation, and subsistence expenses of federal civilian employees. 5 U.S.C. 5707(a) (1994). Because the FTR is promulgated under delegation from the Congress, it is a "legislative rule" which is entitled to special weight. The provisions of the FTR are binding on all agencies. Lorrie L. Wood, GSBCA 13705-TRAV, 97-1 BCA 28,707 (1996); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984); United States v. Grumman Aerospace Corp., 927 F.2d 575, 578 (Fed. Cir. 1991). The FTR establishes a general rule that "[t]ravel on official business shall be by the method of transportation which will result in the greatest advantage to the Government, cost and other factors considered." 41 CFR 301-2.2(b) (1997).[foot #] 1 Travel by common carrier is preferred, but when it would be more expensive than another means of transportation, that other means may be used. Id. 301-2.2(d)(1)(i). Here, the employee and the agency agree that travel by automobile was considerably less costly than travel by common carrier, so the use of a car was appropriate. When a car is required for temporary duty travel, "[a] Government-contract rental automobile is the first resource . . . . An employee may also use a Government-furnished automobile if a Government-contract rental automobile is unavailable or if use of a Government-furnished automobile is practicable." 41 CFR 301-2.2(d)(2)(i). When an agency determines that "transportation by common carrier, a Government-contract rental automobile, or Government-furnished transportation is not available or would not be advantageous to the Government," the use of a privately-owned vehicle may be authorized as advantageous to the Government. Id. 301-2.2(d)(3). An employee may also be allowed to use a privately-owned vehicle as a matter of personal preference, even ----------- FOOTNOTE BEGINS --------- [foot #] 1 We cite to the version of the FTR which was in effect at the time of Ms. Webb's travel. The regulation has been thoroughly rewritten since then, but the rules and their application, as explained in this decision, remain essentially as they were before. For example, the provision cited is now set out, slightly reworded, at 41 CFR 301-10.4 (1999). ----------- FOOTNOTE ENDS ----------- where such use is not advantageous to the Government. Id. 301- 2.2(e). Generally, whenever an agency authorizes an employee to use a privately-owned vehicle in the conduct of official business, payment shall be made on a mileage basis. 41 CFR 301-4.1(a). The FTR establishes three different mileage rates to be used in calculating amounts for which an employee should be reimbursed for the use of his car. Michael S. Knezevich, GSBCA 14398-TRAV, 98-1 BCA 29,607. When the use is authorized as advantageous to the Government, the highest rate applies. That rate was thirty- one cents per mile in September 1997. 41 CFR 301-4.2(a)(1). When the use is allowed "even though use of a Government- furnished automobile would be more advantageous to the Government, reimbursement to the employee shall be limited to the cost which would be incurred for the use of a Government- furnished automobile." Id. 301-4.4(a). This cost was 23.5 cents per mile in September 1997. Id. 301-4.4(b). Finally: When an employee who is committed to using a Government-furnished automobile, or who because of the availability of Government-furnished automobiles, would not ordinarily be authorized to use a privately owned conveyance instead of a Government-furnished automobile, nevertheless requests use of a privately owned conveyance, reimbursement may be authorized or approved. The rate of reimbursement shall be 10.5 cents per mile, which is the approximate cost of operating a Government-furnished automobile, fixed costs excluded. Id. 301-4.4(c). Under the FTR, then, when an employee travels on official business in his own car, reimbursement may be made at less than the highest rate only in two specific circumstances, both of which involve the use of a Government-furnished automobile. The first is where the use of such a car would be "more advantageous to the Government" than having the employee drive his own car. The second is where the employee is "committed to using" such a vehicle or otherwise would not ordinarily be authorized to use his own car. The FTR does not allow an agency to make reimbursement at a lower mileage rate where having the employee travel in a co-worker's car would be more advantageous to the Government than having the employee travel in his own car. The FTR does permit two or more employees to travel "together on the same trip and in the same conveyance." 41 CFR 301-4.5. (If employees travel in this way, of course, reimbursement for expenses at the appropriate mileage rate is payable to only one of the employees. Id.) The regulation does not permit an agency to require employees to travel together, however. The FTR is now explicit in saying that "[u]sing a [privately owned vehicle] to transport other employees is strictly voluntary." 41 CFR 301-10.307 (1999). At the time of Ms. Webb's travel to Maryland, this statement was contained within a provision which was confined to the use of privately- owned conveyances to transport employees between residences and offices and common carrier terminals. 41 CFR 301-4.2(c)(3) (1997). In light of the FTR's lack of authorization to agencies to pay a lower mileage rate when an employee uses his own car though he could have traveled with a co-worker, however, we consider that the regulation's statement as to the voluntariness of employees traveling together applies to long-distance as well as short-distance travel. We note that the Comptroller General, our predecessor in resolving claims by federal employees which involve expenses of official travel and transportation, came to the same conclusion. Wayne G. Kirkegaard, B-223537 (May 21, 1987) (citing 53 Comp. Gen. 67 (1973) (as to travel for change of permanent duty station)). The OIG manual, which allows a reduction in the mileage rate when an employee uses his own car though his traveling with a co- worker would be more advantageous to the Government, is plainly at odds with the FTR. Because the FTR is a "legislative rule," binding on all agencies, the inconsistent OIG manual provision must give way to it.[foot #] 2 In this case, neither of the situations in which the FTR allows reimbursement at less than the standard mileage rate is present: the Government did not make a rental car or a Government-owned vehicle available for Ms. Webb's travel to Maryland. Cf. Scott Faulks, B-252901 (Sept. 9, 1993) (lower rate appropriate where employee used own car, rather ----------- FOOTNOTE BEGINS --------- [foot #] 2 In making this statement, we are not invalidating all of the cited provision in the OIG manual. The manual's encouragement, to employees traveling from and to similar locations, to travel in the same vehicle to the maximum extent practicable is both sensible and consistent with the FTR. The manual's statement that an employee will receive a reduced mileage rate, if he chooses to travel alone when a Government- owned or -leased vehicle is available, is also acceptable -- although it should be revised to reflect the FTR's bifurcated rate structure for this circumstance, now contained in 41 CFR 301-10.310 (1999). We also note here that another Board decision has also discussed an agency regulation which limits reimbursement for transportation expenses when employees could travel together in a privately-owned vehicle but choose to travel separately. In Gerry M. Hopkins, GSBCA 14850-TRAV, 99-2 BCA 30,435, the only _________________ issue raised was whether the regulation had been applied consistently; the claimant did not challenge the validity of the regulation itself. The instant case is the first one in which the Board has reviewed whether such a regulation may stand. ----------- FOOTNOTE ENDS ----------- than available Government-owned vehicle, for personal reasons); Kirkegaard (same). Ms. Webb is entitled to be reimbursed for the expenses she incurred in driving her own car at the standard rate of thirty-one cents per mile. _________________________ STEPHEN M. DANIELS Board Judge