Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________ February 20, 1998 _________________ GSBCA 14298-RELO In the Matter of KEVIN GJERTSEN Kevin Gjertsen, St. Paul, MN, Claimant. Gerald L. Matney, Chief, Travel and Transportation, Department of Defense Inspector General, St. Paul, MN, appearing for Department of Defense. NEILL, Board Judge. Claimant, Kevin C. Gjertsen, an employee of the Defense Criminal Investigative Service (DCIS), asks that we review a decision of the Defense Finance and Accounting Service and concurred in by his own agency which denies his request for reimbursement of $695 as part of temporary quarters subsistence expenses (TQSE). The amount in question was paid by Mr. Gjertsen to his landlord in exchange for a "build/buy" provision in his lease permitting him to terminate the lease prior to its expiration date in the event he built or bought a residence. We conclude that the agency should pay the claim. Background In June 1994, Mr. Gjertsen was transferred to the DCIS Resident Agency in Minneapolis. On arrival, he and his family took up lodging in a hotel. Concerned with the high cost of lodging and meals in the hotel, he sought to lease, on a short term basis, quarters with full kitchen facilities. He was unsuccessful in this regard. In August, however, prior to the start of the school year, Mr. Gjertsen and his family moved to an apartment in the district where he arranged for the construction of a new home. The lease he signed for this apartment was for one year. For a non-refundable one-time payment of $695, the landlord agreed to the inclusion of a "build/buy" clause in the lease which would permit Mr. Gjertsen to terminate the lease in the event of building or buying a residence. The claimant contends that before agreeing to the "build/buy" provision he discussed it with personnel in the agency travel office. He states that he was advised that the cost associated with inclusion of the provision in the lease could be considered reimbursable. The move from a hotel to an apartment not only improved the quality of life for Mr. Gjertsen and his family but also proved to be of economic benefit for the Government. For the first two thirty-day periods of temporary quarters, the Gjertsen family resided in a hotel. For the last two, they resided in their newly leased apartment. The TQSE paid for these periods compares as follows: TQSE Paid 1st 30-day period $3754.07 2nd 30-day period 3825.77 3rd 30-day period 2230.97 4th 30-day period 2331.22 As part of the TQSE for his final thirty day period in temporary quarters, Mr. Gjertsen attempted to recover the cost of the "build/buy' provision of his lease. This portion of his TQSE claim was rejected. Citing decisions of the Comptroller General, the agency characterized the "build/buy" provision of the lease as a lease settlement provision and held that it was not an approved reimbursable item for employees moving from a temporary residence to a permanent residence at the new duty station. See Alex Kale, 55 Comp. Gen. 779 (1976). Mr. Gjertsen has appealed the determination. Discussion The Joint Travel Regulations (JTR) to which claimant, as a civilian employee of the Department of Defense, is subject, provide that reimbursement of TQSE is limited to "actual subsistence expenses incurred provided these are incident to occupancy of temporary quarters and are reasonable as to amount." JTR C13007. A similar provision appears in Section 302-5 of the Federal Travel Regulation (FTR), the Government's basic travel regulation which the JTR follows and, to a limited extent, supplements. The decisions of the General Accounting Office (GAO) relied upon by the agency in denying Mr. Gjertsen's claim take a relatively narrow view of what is a subsistence expense incurred "incident to occupancy of temporary quarters." At the time the agency disallowed Mr. Gjertsen's claim for the cost of the "build/buy" provision, the Kale decision cited above was still followed by the GAO. This and similar decisions, however, were subsequently overruled. Tita D. Corpuz, B-256576 (Jan. 17, 1996). The interpretation of expense "incident to occupancy of temporary quarters" in the Corpuz decision is considerably broader. The decision takes a common sense approach to the reimbursement of costs which may not qualify as costs incident to occupancy of temporary quarters, as defined through earlier decisions, but nonetheless were reasonable, prudent, and resulted in a cost advantage for the Government. The decision concludes that a lease termination fee can, under these circumstances, be deemed to be an actual lodging expense whether paid through forfeiture of a deposit or otherwise. In resolving this case, we find merit in GAO's recent, broader reading of the regulation regarding actual subsistence expenses incident to occupancy of temporary quarters and follow it with regard to Mr. Gjertsen's claim. The inclusion of the "build/buy" clause in the lease of his temporary quarters was a prudent and reasonable move. It permitted him to occupy temporary quarters which were not available on a short term basis and at a price more favorable than that previously paid for other quarters. Approaching the claim realistically, we view the cost of the "build/buy" provision of the lease, like the rent itself, as simply part of the overall cost incident to occupancy of Mr. Gjertsen's quarters. Claimant, therefore, is certainly entitled to recover this additional cost. Whether Mr. Gjertsen is entitled to recover the entire $695, however, depends on whether he and his family left their leased apartment before the expiration of the fourth thirty-day period of authorized TQSE. As a cost incident to occupancy of the quarters, the $695 should be equitably spread over the entire actual duration of the lease. If Mr. Gjertsen remained in the leased apartment for a brief period after the expiration of his authorized TQSE, then the portion of the $695 allocated to a period of the lease term extending beyond that period would not be reimbursable. If, however, the lease was terminated within the period of authorized TQSE then Mr. Gjertsen is entitled to reimbursement of the entire amount. The record does not provide sufficient detail for us to make this determination. We therefore leave this matter for the agency to resolve. Mr. Gjertsen's claim is, therefore, granted in accordance with the guidance provided in this decision. _____________________ EDWIN B. NEILL Board Judge