Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________ January 28, 2000 _____________________ GSBCA 15109-TRAV In the Matter of RUSSELL E. YATES Russell E. Yates, Houston, TX, Claimant. Robert A. Tepfer, Lyndon B. Johnson Space Center, Houston, TX, appearing for National Aeronautics and Space Administration. NEILL, Board Judge. The National Aeronautics and Space Administration (NASA) asks that we reconsider our decision of November 30, 1999, granting a claim by Russel E. Yates, a NASA engineer. The agency appears to believe that we have authorized reimbursement of lodging costs above what claimant actually incurred. In fact we have not. The case concerns the manner in which the constructive cost of the employee's authorized travel should be calculated and applied. We deny the request for reconsideration. Claimant was issued orders to perform software testing and to attend a design review for NASA in Tampa, Florida, from March 15 to 19, 1999. Although the agency determined that travel by air would have been in the Government's best interest, Mr. Yates elected to travel to his temporary duty site in his personally owned vehicle (POV), a motorhome. While in the Tampa area, he resided in this vehicle in lieu of a hotel. He also made use of a rental car as authorized in his travel orders. Claimant tells us that this round trip to Tampa actually cost him close to $1300. He calculates the cost of traveling in the POV at $643.50 (1980 miles @ 32.5 cents per mile), $303 in meals and incidental expenses (M&IE), and $176 in actual lodging expenses incurred at a motorhome campground. These costs plus $177.24 for the cost of an authorized rental car brought his expenses to a total of $1299.74. In the travel claim actually submitted on return from his trip, Mr. Yates sought reimbursement for the rental car, M&IE, actual lodging expenses, and transportation costs based upon actual milage. In processing Mr. Yates' claim for reimbursement of travel expenses, NASA refused to allow more than $763.14. In limiting the claimant's reimbursement, the agency relied upon section 301-70.105 of the Federal Travel Regulation (FTR) (41 CFR 301-70.105 (1999)). This provision states that when an employee elects to travel by POV the agency must: Limit reimbursement to the constructive cost of the authorized method of transportation, which is the sum of per diem and transportation expenses the employee would reasonably have incurred when traveling by the authorized method of transportation . . . . This regulation requires an agency, when an employee chooses to travel in his or her own vehicle rather than by the means of transportation most advantageous to the Government, to calculate the employee's travel costs in two separate ways. First the agency should determine, through the standard application of statute and regulation, the allowability of the various components of an employee's travel claim. For example, with regard to costs associated with the use of a privately owned vehicle, the agency should apply the mileage reimbursement and associated provisions contained in subpart D of part 301-10 of the FTR. With regard to per diem expenses, including lodging costs, the agency should apply the provisions of part 301-11 of the FTR. The agency should then total the allowable costs. Second, the agency should determine the total constructive cost of the employee's travel had he or she traveled by the method of transportation deemed to be in the Government's best interest. As we noted in our earlier decision in this case, constructive costs are by their very nature not costs which are actually incurred. Although these costs, too, should be determined through application of statute and regulation, the calculation necessarily will involve assumptions. As with the employee's travel costs determined in standard fashion to be allowable, the agency should likewise calculate a total constructive cost. After computing the two totals, the agency should compare them. If the total of costs determined in standard fashion to be allowable is greater than the total of the constructive costs, the agency should limit reimbursement to the latter figure. Under FTR 301-70.105, this overall total of constructive costs serves as a limitation on the amount of allowable travel costs an employee may recover when choosing to travel by POV rather than in the manner deemed to be in the Government's best interest. In applying this rule to Mr. Yates' claim, NASA made a fundamental error. It compared the employee's total actual claim to an inappropriate total of constructive costs. The error in the computation of the overall constructive cost lay in the calculation of the lodging portion of the per diem to which the claimant would have been entitled had he chosen to travel to Tampa by air. For this cost, NASA used the figure of $130, which represents the actual lodging cost of $26 per night incurred by Mr. Yates in the motorhome campground.[foot #] 1 If this employee had flown to the temporary duty site, however, he could not have stayed in his motorhome; he would have lodged instead at a hotel. The total of "would-have-been" or constructive costs, therefore, should have reflected a reasonable estimate of the expected cost of lodging as well as the costs of such items as the meals, incidentals, airfare, and transportation to and from the airports in question. In his claim, Mr. Yates, in effect, asked that the limit of $763.14 established by NASA on reimbursement of travel expenses be recalculated to reflect a lodging cost of $103 per night for five nights. This was the rate in effect in mid-March of this year at a hotel in the Tampa area where the claimant had lodged during an earlier visit. Since this rate was below the authorized lodging limit of $104, we deemed it reasonable and granted the request. In our original decision, we left the recalculation of the constructive cost limit based upon this rate to the agency. For the sake of clarity and to avoid any further misunderstanding, we make the calculation here. Changing the original lodging cost of $130 used by NASA to $515, the overall constructive cost limitation should be increased by $385 from $763.14 to $1148.14. Mr. Yates is entitled to payment of any claimed and otherwise allowable travel costs up to but not beyond that figure. In requesting that we withdraw our decision in this case, NASA writes: The decision directs NASA to recompute the constructive cost of Mr. Yates' trip using estimated costs, so that he is paid for hotel expenses he did not incur, rather than the actual costs of renting a location at the mobile home campground. The impact of this case reaches far beyond the few hundred dollars at bar and resonates across tens of thousands of Federal travel claims nationwide, basic agency accounting systems, and Federal Income Tax provisions. The total impact to the United States should be projected in the millions of dollars. NASA goes on, in an eighteen-page filing, to argue that the payment of hotel expenses not actually incurred is contrary to public law and longstanding travel regulations. Our decision, according to the agency, essentially reinstates a compensation method eliminated almost twenty years ago -- the "flat rate lodging" method which reimbursed a daily allowance without any ----------- FOOTNOTE BEGINS --------- [foot #] 1 This is apparent from an examination of the constructive costs shown on Mr. Yates' revised travel voucher (standard form 1012 back). The figure $339 represents a total constructive per diem of $209 for M&IE and $130 for lodging (5 nights @ $26 per night). ----------- FOOTNOTE ENDS ----------- requirement to account for the use of these funds. According to NASA, our decision will actually encourage employees to "make money" by staying in campers, tents, or trailers while on official Government business. As the above explanation should make clear, the agency's concerns are misplaced. The Board has not directed NASA to pay the claimant for hotel expenses he did not incur. Rather, we have simply directed NASA to calculate the constructive cost limitation applicable to payment of Mr. Yates' allowable travel expenses in a way which is consistent with the FTR and common sense. Our decision does nothing more than clarify the manner in which the limitation is to be calculated and applied. Mr. Yates is not automatically entitled to the constructive cost of his travel. His claim, like those of all other federal employees, must be prepared and processed in accordance with all appropriate regulations and must contain requisite support for whatever reimbursement is sought. His allowable reimbursement is not based upon the constructive cost of his travel; it is simply not permitted to exceed that figure. Our decision, therefore, should not have any of the far-reaching and negative implications alleged by the agency. Accordingly, the request for reconsideration is denied. _____________________ EDWIN B. NEILL Board Judge