Board of Contract Appeals General Services Administration Washington, D.C. 20405 November 17, 1998 GSBCA 14738-RELO In the Matter of JOE D. SELLERS Joe D. Sellers, Muskogee, OK, Claimant. Steve Robar, Chief, Financial Management Division, Mountain Administrative Support Center, National Oceanic and Atmospheric Administration, Boulder, CO, appearing for Department of Commerce. DANIELS, Board Judge (Chairman). The National Oceanic and Atmospheric Administration transferred employee Joe D. Sellers from Hilo, Hawaii, to Tulsa, Oklahoma, in May 1998. The agency authorized him to rent a vehicle in Oklahoma for his personal use until his own automobile arrived from Hawaii. The authorizing official believed that payment could be made because the employee was being transferred from outside the continental United States, necessitating shipment of his car. Mr. Sellers rented a van for part of May and part of June, 1998, and later asked to be reimbursed for the cost he incurred in doing so. His request was denied. An agency official higher ranking than the one who denied the claim now asks whether the denial was correct. We conclude that it was. The agency's action was based on its understanding of two pronouncements -- a decision of the Comptroller General, the Board's predecessor in settling claims by federal civilian employees for relocation expenses incurred incident to transfers of official duty station, John G. Shirley, B-234861 (July 11, 1989); and a provision of the Federal Travel Regulation (FTR), 41 CFR 302-5.18 (1997). In Shirley, the Comptroller General denied a claim virtually identical to this one. The employee was being transferred from outside the continental United States to a location inside it, was authorized use of a rental car until his own vehicle arrived, did rent a car, and was not reimbursed for the rental costs. The denial was based on an FTR provision no longer in existence, FPMR 101-7, 2-5.4a, which stated, "Expenses of local transportation incurred for any purpose during occupancy of temporary quarters shall not be allowed." This provision clearly does not admit to any exceptions, and the Board has applied it in cases like Shirley. Andrew Parr, GSBCA 14058-RELO, 98-1 BCA 29,426 (1997) (same provision, but designated 41 CFR 302-5.4(a) (1990)); Brian P. Garriffa, GSBCA 13798-RELO, 97-2 BCA 29,033 (same provision (1995)); Thomas S. Ward, GSBCA 13825-RELO, 97-1 BCA 28,955 (same provision (1996)). Although we recognized that it was inequitable for the Government to agree in advance to pay for the employees' car rental, and then not to reimburse them for money they spent, we had no alternative to ruling as we did. The rule is well-settled that a Government official may not spend taxpayers' funds in violation of statute or regulation, no matter how unfair the consequence may seem. Kevin S. Foster, GSBCA 13639-RELO, 97-1 BCA 28,688 (1996) (citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)). The version of the FTR provision which was in effect at the time of Mr. Sellers' transfer, 41 CFR 302-5.18 (1997), is somewhat different from the one involved in the previous cases cited. It reads as follows: May [an employee] be reimbursed for local transportation expenses incurred while [he is] occupying temporary quarters? Generally not. Local transportation expenses are not TQSE [temporary quarters subsistence expenses], and there is no authority to pay them as such. [The employee] may, however, be reimbursed under part 301-2 of this subtitle for necessary transportation expenses if [he] perform[s] local official business travel while [he is] occupying temporary quarters. Under this standard, the invariable rule that "[e]xpenses of local transportation incurred for any purpose during occupancy of temporary quarters shall not be allowed" has been loosened. The issue presented in this case is whether they have been loosened enough to allow Mr. Sellers reimbursement for the car rental expenses he incurred. The 1997 version of the relevant FTR provision says that the expenses may not be reimbursed as TQSE. This statement is clear. The 1997 version also says that the expenses may be reimbursed under 41 CFR part 301-2 if the employee was performing local official business travel. The meaning of this statement, with regard to Mr. Sellers' situation, is less obvious. The authors of the 1997 version have provided no explanation of why they changed the FTR provision, other than saying that the revision of which it is a small portion "make[s] the FTR easier to understand and to use." 62 Fed. Reg. 13,756 (1997). At the time of this employee's relocation to Oklahoma, part 301-2 of 41 CFR was captioned "Transportation Allowable," and it was a portion of chapter 301-2, which was entitled "Travel Allowances." 41 CFR ch. 301, pt. 301-2 (1997). Part 301-2 encompassed local transportation both at an "official station" and at a temporary duty station. Id. 302-2.3. From context, and because the authors of the 1997 revisions to the regulation give no indication that they intended to make substantive changes in the law, we conclude that the last sentence of 41 CFR 302-5.18, as applicable in May and June of 1998, says only this: Notwithstanding the general prohibition against the Government's paying local transportation expenses of a newly-relocated employee, if such an employee performs the sort of local business travel which would be reimbursable to any employee on permanent duty at that station, he may be reimbursed for the costs of that travel. Mr. Sellers does not contend that he used the rental car for the sort of local business travel which would be reimbursable to any employee permanently stationed at the agency office in Tulsa. Thus, the change in the regulatory provision does not affect his ability to recover the cost of his rental car. The harsh, but legally correct rule enunciated in the Shirley, Parr, Garriffa, and Ward cases applies here: although the transferred employee was authorized to rent a vehicle for use until his own automobile was shipped from outside the continental United States, he may not be reimbursed for the expenses he incurred because the authorization was contrary to law. _________________________ STEPHEN M. DANIELS Board Judge