Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________________ June 29, 1998 __________________________________ GSBCA 14221-RELO In the Matter of GLENN BAKER Glenn Baker, San Francisco, CA, Claimant. C. Bruce Sheaffer, National Park Service, Washington, DC, appearing for Department of the Interior. HYATT, Board Judge. Claimant, Glenn Baker, moved from Seattle, Washington, to San Francisco, California, pursuant to a permanent change of station (PCS) authorized by the National Park Service. In connection with the PCS, the National Park Service authorized payment of temporary quarters subsistence expenses (TQSE). Claimant seeks reimbursement of an additional $682 in TQSE for temporary lodging that was paid in advance for thirty days, but vacated by claimant and his spouse before the thirty-day period expired. For the reasons set forth below, we conclude that the applicable regulation does not permit reimbursement of expenses of temporary quarters once the employee has occupied permanent quarters, but agree with the result of the agency's modified position that the daily temporary lodging rate may be recalculated to reflect the actual twenty-day occupancy. The expenses proposed to be reimbursed were incurred and do not exceed the maximum daily rates over a twenty-day period. Background Claimant and his spouse moved from Seattle to San Francisco in early November 1996. They began occupying temporary quarters on November 7. They were authorized reimbursement of up to 30 days temporary quarters subsistence expenses (TQSE) at the maximum rate of $110 per day, for lodging, meals, and other subsistence expenses. Neither Mr. Baker nor Mrs. Baker was familiar with San Francisco. Mr. Baker states that he was referred to an employee in the San Francisco office of the National Park Service to assist with the transfer, but no offer of assistance in locating or obtaining appropriate temporary lodgings was made and no information concerning appropriate lodgings was provided. Additionally, the relocation service company retained by the National Park Service declined to offer any assistance other than to suggest that claimant obtain a free brochure on rental properties when he arrived in San Francisco. As a result, claimant selected Fillmore Center, which was the only place he could find by telephone from Seattle that offered a corporate rate within the per diem rate then in effect and had space available. In order to obtain the favorable rate, however, claimant was required to enter into a thirty-day rental agreement, under which the full rent was paid in advance.[foot #] 1 After moving into the Fillmore Center, claimant and his spouse discovered that it was located in a high crime area. While residing at Fillmore Center, the Bakers heard frequent gunfire and learned of several murders taking place within a few blocks. Fearing for their personal safety, the Bakers were motivated to find and move to a permanent residence as soon as possible. They succeeded in this endeavor and left Fillmore Center ten days prior to the expiration of the thirty-day rental agreement. Mr. Baker itemized his TQSE expenses using a daily rate of $68.27 for lodging, and was reimbursed $2,099.61. He subsequently submitted a claim for $682.71, representing the additional lodging costs which he prepaid and could not recoup from Fillmore Center. The San Francisco office of the National Park Service concluded that it was not authorized to approve or pay this amount because TQSE is not payable after an employee has vacated temporary lodging and moved to permanent quarters. In responding to Mr. Baker's claim as presented to the Board, the Park Service modified its position to recognize that it would be permissible to recalculate the daily lodging rate to reflect a daily cost based on the total amount paid to the Fillmore Center amortized over the twenty-day period the Bakers actually occupied these quarters. This would yield a daily rate of $103.40 for lodging., entitling Mr. Baker to collect the maximum amount allowed under the Federal Travel Regulation (FTR) for twenty days of TQSE -- $2,200. Since Mr. Baker has already been reimbursed $2,099.61, this would entitle him to another $100.39. Discussion Employees who are "transferred in the interest of the Government from one official station or agency to another for permanent duty" may be reimbursed for certain expenses incident to the transfer. These expenses include "[s]ubsistence expenses ----------- FOOTNOTE BEGINS --------- [foot #] 1 The apartment at Fillmore Center was rented for thirty days for $2,048 (a daily rate of $68.27), plus a $500 refundable deposit. The deposit was refunded after the Bakers vacated the unit. ----------- FOOTNOTE ENDS ----------- of the employee and his immediate family for a period of sixty days while occupying temporary quarters when the new official station is located within the United States." 5 U.S.C. 5724a(a)(3) (1994). The payment of expenses of relocation is also subject to the provisions of the Federal Travel Regulation (FTR), which implements the statute. The pertinent provision of the FTR states that "the period of eligibility [for reimbursement of TQSE] shall terminate when the employee . . . occupies permanent residence quarters or when the authorized period of time expires, whichever comes first." 41 CFR 302-5.2(f) (1996). Based on this regulation, the agency concluded that it was not authorized to reimburse Mr. Baker for the last ten days of lodging expenses paid to the Fillmore Center. Mr. Baker's principal contention is that denial of reimbursement of this prepaid expense is unfair under the circumstances. He is highly critical of the agency's failure to provide him meaningful assistance in locating suitable temporary quarters in connection with this move and argues that since this lack of assistance resulted in placing claimant and his spouse in temporary housing in a location where their personal safety was seriously jeopardized, the agency and the Board should carve an exception to the rule and authorize reimbursement. Although we sympathize with the dilemma in which the Bakers found themselves, there is no basis under statute or regulation permitting the Board or the agency to authorize repayment of the full amount sought. There is no obligation under the statute or in the FTR that the agency locate or arrange for suitable temporary quarters for transferred employees. Although the basis for vacating the Fillmore Center quarters early is wholly understandable, the fact remains that once the Bakers moved into permanent quarters, the eligibility for TQSE expired. See, e.g., Nancy J. Scheid, GSBCA 14392-RELO (Mar. 31, 1998); Lawrence J. Blue, B-192011 (Dec. 12, 1978). We find that the agency's suggestion that the daily lodging rate at the Fillmore may be recalculated to reflect the twenty- day occupancy leads to a result consistent with the applicable regulation.[foot #] 2 Although this does not suffice ----------- FOOTNOTE BEGINS --------- [foot #] 2 The applicable provision of the FTR provides that: The daily actual subsistence expenses required to be itemized under . . . this section will be totaled for each 30-day period to permit a comparison with the maximum allowable amount for the particular period. If less than a 30-day period is authorized, or used, the maximum allowable amount will be based on the number of days (continued...) ----------- FOOTNOTE ENDS ----------- to permit reimbursement of the entire amount claimed, because TQSE payments may not exceed the maximum daily amounts authorized by regulation, it does at least permit payment of an additional $100.29. See Tita D. Corpuz, B-256576 (Jan. 17, 1996). _______________________________ CATHERINE B. HYATT Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) authorized, or used multiplied by the applicable daily rate. 41 CFR 302-5.4(c) (1996).