Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ February 10, 1999 _______________________________________________ GSBCA 14726-RELO In the Matter of ANTHONY B. QUEERN Anthony B. Queern, Ashburn, VA, Claimant. Susan B. Sheely, Chief Travel Management Branch, Office of Financial Management, United States Geological Survey, Department of the Interior, Reston, VA, appearing for Department of the Interior. BORWICK, Board Judge. Claimant, Andrew B. Queern, appeals the United States Geological Survey's (agency's) disallowance of $6497.26 claimant sought as temporary quarters subsistence expenses (TQSE) incurred pursuant to his change of duty station from Jeddah, Kingdom of Saudi Arabia to Reston, Virginia. Claimant maintains that he mistakenly, but reasonably, relied on the advice of a travel clerk as to what his daily rate would be for the TQSE period. Claimant maintains that he is entitled to reimbursement at a rate greater than the rate specified in the Federal Travel Regulation (FTR) during the relevant time period because the specified rate was unrealistically low for the Washington, D.C. area. Claimant maintains he is entitled to meals and incidental expenses (M&IE) for twelve days beyond his TQSE period. We sustain the decision of the agency; it correctly applied the FTR in disallowing the claimed expenses. The equitable considerations raised by claimant do not provide a basis for granting the claim. The facts as contained in the record are as follows. In the fall of 1994, claimant applied for an overseas assignment in Jeddah, Kingdom of Saudi Arabia; claimant received the assignment with a reporting date of June 6, 1995. Claimant then leased his residence in Ashburn, Virginia from July 1, 1995 through, according to claimant, December 31, 1996. [foot #] 1 The lease contained a transfer clause by which claimant, upon his transfer back to the Washington, D.C. metropolitan area, could terminate the lease upon sixty-days written notice to the tenants. Claimant expected to remain in Saudi Arabia until June 5, 1997, but was advised on October 11, 1996, that his tour of duty would end early. Claimant contacted his realtor with instructions to give the tenants notice to vacate the premises by December 31. On October 15, 1996, the agency issued claimant a travel authorization which established the commencement date for the travel and TQSE period as October 24, 1996, and which provided, among other entitlements, thirty days temporary lodging/subsistence expense at the new duty station. Upon learning of his relocation, claimant sought the mission travel clerk's advice as to the daily rate subsistence allowance claimant and his family would receive for his TQSE period. The travel clerk erroneously advised claimant that the maximum daily rate for himself and his family would be $182. The correct maximum daily rate within the continental United States (CONUS) was $110 for the first thirty days of TQSE and $82.50 for any TQSE period in excess of thirty days.[foot #] 2 Nevertheless, relying upon the advice of the clerk, claimant ----------- FOOTNOTE BEGINS --------- [foot #] 1 The termination date on the lease is July 31, 1996. The lease permits the tenants to hold-over on a month-to- month basis unless the landlord provides notice that the lease term will not be extended. The record is unclear if the December 31, 1996, date is the last date for the hold-over term or if the lease was extended by a supplemental agreement. In any event, the agency does not contest the validity of the December 31 date and we treat December 31 as the valid termination date. [foot #] 2 Under the version of the FTR in effect at the time of claimant's relocation, for the first thirty days of TQSE employees within the CONUS were entitled to reimbursement at the maximum standard daily rate of $66, which was composed of $40 maximum lodging amount and $26 M&IE, plus two-thirds of the daily rate for the accompanying spouse. 41 CFR 301 (Appendix A), 302- 5.4(c)(1)(i),(2)(i-ii) (1996). For any TQSE period allowed in excess of thirty days, employees were entitled to three-quarters of the daily rates prescribed under paragraph (c)(2) of section 302-5.4. 41 CFR 302-5.4(c)(3). According to clamant, the travel clerk calculated the claimant's daily rate to be $104. He took the $66, which covered both lodging and M&IE expenses, and then ____ added an additional $38, which was the M&IE rate appearing in the rate tables for temporary duty (TDY) in Washington D.C. The travel clerk compounded his mistake by calculating the spousal reimbursement at three-quarters of the employee's daily rate for the first thirty days, rather than two-thirds of the daily rate as allowed by the FTR. ----------- FOOTNOTE ENDS ----------- secured temporary quarters in Virginia at an establishment that cost claimant $129.93 per day, including tax. Claimant and his spouse returned to the Washington, D.C. area on October 25, and expected the tenants of his residence to vacate his house by December 21. On November 22, appellant requested a thirty-day extension of the TQSE period to allow the tenants to vacate the premises. The agency granted the request. On December 16, claimant advised the agency that the tenants would not vacate until December 31, the last possible day under the lease, and requested another TQSE period extension of nine days. Again, the agency granted the requested extension through January 1. On March 7, claimant submitted a travel voucher for $13,893.96, including $12,757.96 for all three periods of TQSE ($5249.51 for the first, $5193.83 for the second, and $2314.62 for the third). In the third period of TQSE, claimant requested $429.50 reimbursement for the alleged cost of meals consumed between January 2 and January 13. The agency disallowed $6323.96 of TQSE and $173.30 of en- route travel expenses, for a total disallowance of $6497.26. For TQSE the agency granted claimant entitlement to the lesser of actual expenses or the standard CONUS rate, or $3216.50 for the first TQSE period, $2475 for the second TQSE period, and $742.50 for the third TQSE period. The agency disallowed the remainder, including meal charges for the period January 2 through January 13, 1997. Discussion Claimant does not dispute the adjustment for en-route travel. He contests the agency's disallowance of TQSE, arguing: Considering that I had no control over the termination of my appointment, that I relied in good faith on the word of the travel clerk whose business it is to give travel advice in such matters, that I chose the least costly alternatives [for lodging] known to me at the time, that the number of days I would require temporary quarters was not quantifiable at the outset, that the lodging allowance of $66 was hopelessly outdated and did not factor in high cost of living areas, I would request that a waiver, exception, or extraordinary relief be granted in the amount of $6400 for the disallowed cost of my lodging expenses. I will not gain if the requested relief is granted, this amount will merely reimburse me for out of pocket expenses and make me whole. Claimant presents four issues: (1) whether claimant reasonably relied on the advice of the travel clerk; (2) whether a waiver of the temporary quarters allowance is warranted because the rate was miserly and did not consider the extra expense associated with high cost areas such as the Washington, D.C. metropolitan area; (3) whether the agency properly disallowed the twelve days of M&IE expenses; and (4) whether the totality of the circumstances warrants extraordinary relief. It is settled that, regardless of any equitable considerations, the Government may not pay entitlements which violate statute or regulation because its agents gave erroneous advice. Rhonda L. Dox, GSBCA 14040-RELO, et al., 97-2 BCA 29,216; Keven S. Foster, GSBCA 13639-RELO, 97-1 BCA 28,688. Here, as noted in footnote 2, at the time of claimant's relocation, the FTR limited TQSE reimbursement to $66 per day for lodging and M&IE for the employee and fractional amounts of $66 for the employee's spouse. Claimant is not entitled to more. As for the M&IE claimed from January 2-13, the FTR provided that "the period of eligibility shall terminate when the employee or a member of the immediate family occupies permanent residence quarters or when the authorized period of time expires, whichever occurs first." 41 CFR 302-502(f) (1996). Since claimant's period of TQSE terminated on January 1, the agency correctly denied reimbursement for M&IE beyond that date. Claimant urges that equity entitles him to greater reimbursement, but we are not authorized to grant relief in contravention of statute or regulation. Thomas D. Thomson, GSBCA 14496-RELO, 98-2 BCA 29,799; Kelly A. Wells, GSBCA 14205-TRAV, 98-1 BCA 29,603. We sustain the agency's action in this matter. __________________________ ANTHONY S. BORWICK Board Judge