November 8, 1996 GSBCA 13639-RELO In the Matter of KEVIN S. FOSTER Kevin S. Foster, North Pole, AK, Claimant. John D. Graham, Director of Financial Services, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. DANIELS, Board Judge (Chairman). The General Accounting Office (GAO) denied a claim by Kevin S. Foster, a civilian employee of the Defense Commissary Agency, relating to the cost of meals consumed by Mr. Foster and his family while he was stationed in temporary quarters. GAO's decision was issued on March 21, 1995. Kevin S. Foster, Z-2869574 (Mar. 21, 1995). Ten days later, Mr. Foster asked GAO to reconsider its denial of his claim. GAO received the request, but took no action on it. On July 17, 1996, this matter, and all others involving claims for relocation expenses incurred by federal civilian employees incident to transfers, were reassigned from GAO to the General Services Board of Contract Appeals. The reassignment was made pursuant to section 211 of the Legislative Branch Appropriations Act, 1996, Pub. L. No. 104-53, 109 Stat. 535 (1995); a determination by the Acting Director of the Office of Management and Budget dated June 28, 1996; and a delegation of authority from the Acting Administrator of General Services dated July 17, 1996. We have reviewed the claim, the Department of Defense's comments on it, GAO's decision, and the pertinent regulation. In our judgment, GAO's determination is incorrect. Mr. Foster's claim should have been, and now is, granted in part. Background The Defense Commissary Agency directed Mr. Foster to make a permanent change of station from Forsyth Air Force Base, Montana, to Fort Wainwright, Alaska. The Agency authorized Mr. Foster, his wife, and his three dependent children (each of whom was under four years of age) to travel from the former location to the latter. It also authorized the family to receive temporary quarters subsistence expenses (TQSE) for 73 days. According to Mr. Foster, before he moved, an employee in the Customer Service section of the Defense Finance and Accounting Service (DFAS) in Columbus, Ohio, told him that he was eligible to receive as much as $191.75 per day for the family's meals, without any documentation that he had spent this money; reimbursement of amounts greater than $191.75 per day could be made if substantiated by receipts. The Agency does not deny that this conversation occurred. The worksheet the agency later provided for use in claiming TQSE stated, however, "Receipts are required for Lodging expense, Laundry and Dry Cleaning (except coin operated) and any single expense exceeding $25.00 to include any meal expense for one or more individuals." Meal costs were to be shown on the worksheet separately for each breakfast, lunch, and dinner on each date. In addition, the claimant was to "[i]ndicate in box, type of meal. 'C' for commercial 'H' for home prepared." Mr. Foster completed, and provided to DFAS, two worksheets for the period of time for which TQSE was authorized. The first worksheet covered 33 days -- July 21-23, 1994, in Forsyth, Montana, and July 31 through August 29 in Fort Wainwright, Alaska. It claims $6,096 as the cost of meals consumed by him and his family. Each meal is shown separately, and each is stated to have been purchased commercially. Breakfasts are shown as having cost between $28 and $41 (with the exception of one meal at $24), lunches as between $61 and $81, and dinners as between $72 and $88. The total daily meal cost was stated to have been between $172 and $191. Mr. Foster says that he was forced to buy the meals commercially because the quarters his family was assigned had no cooking facilities. DFAS denied payment because it thought the amounts were averaged, rather than actual expenses. DFAS was also concerned that "Mr. Foster failed to submit an actual expense form for . . . meals" and said that it "told him we would not be able to pay his claim unless he filled out the actual expense form in accordance with Joint Travel Regulations Vol II paragraph 5(C)." Using a second worksheet, Mr. Foster then claimed $3,075 in meal costs for the period from August 29 to October 8, a total of 41 days. This worksheet shows that each breakfast, lunch, and dinner on each of these days was purchased commercially, at a cost of $25. DFAS disallowed this claim, as well, "[i]n the absence of proper itemization." Mr. Foster admits that he did not keep receipts regarding the cost of meals consumed by him and his family. He believed, as a consequence of the advice he says he received before embarking for Fort Wainwright, that these receipts were unnecessary to his being reimbursed. The Board inquired of Mr. Foster as to the significance of the amounts shown on his TQSE worksheets. The claimant stated that all meals for which he claims reimbursement were taken by the entire family at restaurants, or as carry-outs from restaurants, in the vicinity of their temporary quarters. He stated further that the amounts on the first worksheet represent, to the best of his and his wife's recollection, estimates of the actual amounts spent on the meals for which reimbursement is claimed on that worksheet. The claimant additionally informed us that during the period of time covered by the second worksheet, each meal consumed by the family cost roughly the amount indicated for similar meals on the first worksheet; he limited the amount to $25 because by the time he filed the second worksheet, he was under the impression that since he did not have any receipts, reimbursement could be no more than that amount. Discussion When an agency transfers an employee from one permanent duty station to another, it shall, within specified parameters and in accordance with regulation, pay the subsistence expenses the employee and his or her immediate family incur while occupying temporary quarters. 5 U.S.C.  5724a(a)(3) (1994). This statute authorizes the President to issue implementing regulations; in Executive Order 11609 (July 22, 1971), the President delegated his authority to the Administrator of General Services. The Administrator has issued the Federal Travel Regulation (FTR), 41 CFR chs. 301-304, which applies to civilian employees of Government agencies. Chapter 302 of the FTR deals with relocation allowances. Volume 2 of the Department of Defense's (DoD's) Joint Travel Regulations (JTR) contains supplementary rules which apply to DoD civilian personnel. Dominic D. D'Abate, 63 Comp. Gen. 2 (1983). Part 302-5 of the FTR and chapter 13 of the JTR govern subsistence expenses for these employees while they are in temporary quarters. Paragraphs 302-5.4 of the FTR and C13007 of the JTR set limitations on reimbursement. In virtually identical language, they establish the policy that "[r]eimbursement shall be made only for actual subsistence expenses incurred provided these are incident to occupancy of temporary quarters and are reasonable in amount." To permit this policy to be effectuated, the paragraphs require that "[t]he actual expenses shall be itemized in a manner . . . that will permit at least a review of amounts spent daily for (1) lodging, (2) meals, and (3) other allowable items of subsistence expenses." Paragraph 302-5.4 of the FTR authorizes the head of the agency to prescribe the manner in which actual expenses shall be itemized. This design must include a requirement that receipts be presented for lodging and laundry and cleaning expenses (except when coin- operated facilities are used). Thus, the head of the agency may require receipts for other types of expenses, including meals. DoD has imposed such a requirement: Paragraph C13008 of the JTR, as in effect at the time of Mr. Foster's move from Montana to Alaska, demanded that anyone seeking TQSE must provide receipts showing costs paid for "any single expense of $25[] or more (includes any meal expense for one or more individuals)." This paragraph also demanded the provision of a statement "showing the cost of each meal for each day, by date. The location where and by whom meals were taken will also be shown." Paragraph C13007 of the JTR additionally sets out maximum reimbursable amounts for TQSE. At the time relevant to Mr. Foster's claim, for the first thirty days of TQSE, the rate for an employee was $66 per day in Forsyth, Montana (and all other locations within the continental United States). The rate was $165 per day at Fort Wainwright, Alaska, for the period from May 15 to September 15, and $123 per day for the period from September 16 to May 14. The rate for Fort Wainwright was divided into two components -- during the summer, $106 for lodging and $59 for meals and incidental expenses; and during the rest of the year, $68 for lodging and $55 for meals and incidental expenses. The $59 rate was further subdivided into the separate subcomponents of $9 for breakfast, $15 for lunch, $24 for dinner, and $11 for incidental expenses. The $55 rate was similarly subdivided into $8 for breakfast, $14 for lunch, $22 for dinner, and $11 for incidentals. The maximum rate for a spouse accompanying the employee, such as Mrs. Foster, was two-thirds of the employee rate; and the maximum rate for a dependent under twelve years of age, such as each of the three Foster children, was one-half of the employee rate. The daily rates for the time after the first thirty-day period were three-fourths of the above rates. Thus, for the Foster family as a whole, the maximum daily reimbursable amounts for TQSE were as follows: First 30 days Additional days At Forsyth, Montana $209.00 $156.75 At Fort Wainwright, Alaska May 15 to September 15: Lodging 335.67 251.75 Meals & incidental expenses, total 186.83 140.13 Breakfast 28.50 21.38 Lunch 47.50 35.63 Dinner 76.00 57.00 September 16 to May 14: Lodging 215.33 161.50 Meals & incidental expenses, total 174.17 130.63 Breakfast 25.33 19.00 Lunch 44.33 33.25 Dinner 69.67 52.25 As the regulation makes clear, Mr. Foster is not entitled to receive these amounts merely because his agency authorized TQSE for him and his family. Reimbursement is limited in three ways: first, costs claimed must have been actually incurred; second, those costs must also have been reasonably incurred; and third, even if the cost of any single meal may actually and reasonably have been greater than $25, if receipts were not provided, reimbursement may be no more than that amount for the meal. The Supreme Court has decided that any contrary advice Mr. Foster may have been given by another Government employee is not binding. The Government may not spend money in violation of statute or regulation; if the rule were otherwise, executive branch employees could usurp the control over public funds that is lawfully that of the Congress and, pursuant to statutory authorization, the officials who promulgate rules. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). This constraint is so firm that it does not permit consideration of the inequities which may result from reliance on improper guidance by an unsuspecting recipient. Turner Construction Co. v. General Services Administration, GSBCA 11361, 92-3 BCA  25,115. Of course, as Mr. Foster no doubt realizes by now, he would have had no difficulty in securing reimbursement for the cost of meals consumed by himself and his family if he had kept receipts from the restaurants where they ate -- and even if he had not kept receipts, he would have had little difficulty in securing reimbursement up to a maximum of $25 per meal if he had kept contemporaneous accounts of the expenses. Because he did neither, DFAS and GAO believe that he is entitled to no reimbursement at all. In our view, this approach is at odds with two significant factors. First, the purpose of the statute is to make Government employees whole for reasonable subsistence expenses they incur while occupying temporary quarters, and the Fosters undeniably spent money to buy meals for the 73 days in question. Second, the regulation clearly authorizes reimbursement, up to $25 even in the absence of receipts, for each meal cost that was actually and reasonably incurred. In considering claims for TQSE for meals, GAO has properly insisted that a claim must include a daily itemization of meals eaten at restaurants, so that the agency may determine whether the claimed costs are reasonable. Timothy J. Oliver, 71 Comp. Gen. 58 (1991); Eric E. Shanholtz, 66 Comp. Gen. 515 (1987); David C. Rittenhouse, B-170583 (Oct. 29, 1970). Mr. Foster has complied with this requirement: he has indicated that on each day for which TQSE was authorized, he and his family ate three meals which were purchased at restaurants in the neighborhood of their temporary quarters, and he has provided a dollar figure for the cost of each of those meals. Each amount in the first group of dollar figures represents the claimant's best estimate of actual expenses incurred; each amount in the second group, $25, is less than his best estimate of actual expenses. DFAS and GAO are concerned that the figures are averages, rather than actual amounts. On several previous occasions, however, GAO has concluded that while averaging meal costs is not generally acceptable, it is sufficient to meet the requirement for showing actual expenses incurred where the averaged amounts were based on actual expenditures and were far in excess of the amounts recoverable. Dolores T. Hodges, B-171098 (Jan. 28, 1971); Vladimir Oleynik, B-169923 (Aug. 14, 1970); John L. Smith, B-166238 (Mar. 27, 1969); R. P. Hogan, B-165020 (Sept. 9, 1968). This determination makes sense; because, for example, both $70 and $80 are much more than $25, if the claimant can receive only $25, there is no point fussing over which of the higher numbers is correct. The amounts shown by Mr. Foster on his first TQSE worksheet are much higher than the $25 per meal to which the JTR limited reimbursement. The figure of $25 per meal claimed on the second worksheet was entered in recognition of this limitation. DFAS has not questioned the truthfulness of the statements Mr. Foster has made in his claim, and the claimant has supplemented those statements in making representations to the Board. We accept that the Fosters actually incurred costs for each meal in about the amounts alleged on the first worksheet. To be reimbursable, the costs must have been reasonably as well as actually incurred. The maximum limitations on TQSE set by regulation are the highest amounts which may be reimbursed as reasonable costs for the items specified. Although the JTR permits an approving official or a claim settlement official to question any claimed amount under these limits which "clearly appear[s] to be unreasonable," DFAS has not done so here. As to meals, the most costly are generally those purchased in restaurants. The Fosters ate in restaurants because their temporary quarters contained no kitchen facilities. We therefore use the JTR's maximum limitations on reimbursement for meal expenses in determining the reasonableness of the meal costs incurred by the Fosters. For the three days in Montana, the maximum possible reimbursement for this particular family was $627. Mr. Foster spent $154.44 on lodging, leaving $472.56 possible reimbursement remaining. Although the claimant asserts that he spent more than $500 on meals, his reimbursement is limited to $225 because he did not provide receipts. DFAS has not contended that $225 was an unreasonable amount. Mr. Foster should be paid this sum. For the next 27 days for which reimbursement is sought, the family was at Fort Wainwright and summer rates were in effect there. By regulation, the maximum allowable amounts for reimbursement of meal costs were $28.50 for breakfast, $47.50 for lunch, and $76 for dinner. Although Mr. Foster states that he spent more than $25 for each of these meals (except one -- a breakfast at $24), reimbursement is limited to that amount because of the lack of receipts. Twenty-five dollars is within the range deemed to be reasonable by regulation, and was therefore a reasonable amount. Mr. Foster should be reimbursed $2,024 for the cost of these meals -- eighty meals at $25 each, plus $24 for the less expensive breakfast. For the remaining 43 days for which TQSE was authorized, the Fosters remained at Fort Wainwright. The JTR limits the maximum allowable amounts for reimbursement of meal costs during each of the twenty days from August 27 to September 15 to $21.38 for breakfast, $35.63 for lunch, and $57 for dinner. The regulation limits the maximum allowable reimbursements during each of the 23 days from September 16 to October 8 to $19 for breakfast, $33.25 for lunch, and $52.25 for dinner. Reimbursement for each of the lunches and dinners is limited to $25 because of the absence of receipts. Reimbursement for each of the breakfasts is further limited to $21.38 and $19 (depending on the day on which the meal was consumed) because a higher figure would be unreasonable. The total amount of reimbursement for these meals is $3,014.60. Decision Mr. Foster has claimed that he is owed $9,171 in TQSE for meals consumed by him and his family. We grant his claim in part. He should be paid $5,488.60. _________________________ STEPHEN M. DANIELS Board Judge