Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
_____________________
October 11, 2000
_____________________
GSBCA 15338-TRAV
In the Matter of JAVIER R. HERNANDEZ
Javier R. Hernandez, Laredo, TX, Claimant.
Joseph D. O'Leska, Jr., Assistant Commissioner, Office of Financial Management,
Immigration and Naturalization Service, Department of Justice, Washington, DC, appearing
for Department of Justice.
BORWICK, Board Judge.
Claimant, Javier R. Hernandez, an employee of the United States Department of
Justice, seeks reimbursement for the alleged long-term lodging costs during his extended
temporary duty in Charleston, South Carolina. Claimant stayed with his brother, who
incurred certain expenses of maintaining the residence during claimant's 136-day stay with
him. The agency denied the claim because claimant had not demonstrated that those costs
represented additional costs of maintaining the residence as a consequence of claimant's stay.
We sustain the decision of the agency, which correctly applied the Federal Travel Regulation
(FTR).
The facts are as follows. On March 11, 1998, the agency sent claimant on an extended
detail for 143 days--between March 18 and August 7, 1998--from claimant's official station
in Laredo, Texas to Charleston, South Carolina. The travel authorization provided fixed
maximum sums for lodging and per diem allowance. Claimant's detail actually lasted from
March 18 to August 12, a period of 148 days. He spent three days traveling to Charleston
and then took up lodgings at his brother and sister-in-law's residence. He rented the second
floor of the property and used the bathroom, laundry, kitchen and garage of the home.
Claimant also used the back yard of the home to accommodate his pets, which he brought
with him on his trip. Claimant stayed at his relatives' residence for 136 days, until August
3.
Claimant states that he entered into "a contractual verbal lodging agreement" with his
relatives and therefore felt entitled to claim the maximum allowable lodging rate for the area,
which was $100 per day, for a total of $13,600 for lodging. At the end of each month during
his stay with his relatives, claimant submitted a voucher for per diem plus $100 per day for
lodging.
On December 3, 1999, the agency advised claimant that "[s]ince you stayed with your
brother in his house, you can only claim the additional expense your brother incurred to
accommodate you, not the $100 a day that you claimed." The agency urged claimant to
correct the vouchers and to submit whatever evidence he had showing the additional
expenses incurred to accommodate claimant's lodging. The agency gave a specific example--
it suggested that a comparison of light and water bills for the lodging period and light and
water bills for the same time period for the previous year might substantiate the increased
costs claimant's brother incurred because of claimant's lodging.
On or about December 20, claimant submitted an amended voucher, this time claiming
$43.53 per day for each day's lodging. Claimant explained that the amount was "an average
of the total cost incurred by host ($5922) divided [by] 136 total days on detail." As proof of
the incurrence of the $5922, claimant submitted copies of his brother's Internal Revenue
Service Tax Return Schedule E.
On January 10, 2000 an agency official disputed the sufficiency of the substantiation
claimant had presented and requested a resubmittal. Claimant resubmitted the vouchers, this
time claiming a total of $5900 and attaching receipts for expenses for goods and services
incurred by his brother and his family.
The receipts included the following, as summarized by claimant:
Electricity
763.12
Water and sewer
286.03
Cell Phone
373.39
Trash Pickup
75.00
6 months Cable TV@
31.50/month
186.90
Carpet Cleaning,
Bedroom, Living Room,
Hall
50.00
Mattress
265.00
Shaker chest and night
stand
608.44
Montgomery ward,
unidentified item and
service contract
334.98
Household sundries, i.e.
shower curtain, light
bulbs, bath towels
77.61
Toilet seat
31.76
Household sundries
68.77
"Bed in a Bag"
105.99
Appliance parts
42.35
Plumbing supplies,
Home Depot
61.10
Circuit city
entertainment center
1155.38
K-Mart sundries
including bath towels,
grill cover, light bulbs.
260.90
Sheets, bath set, shower
liner, can
opener--Wal-Mart
175.67
Circuit City, TV
accessories
60.39
Brother Tax Preparation
Fee
130.00
Bedroom furniture
107.00
Unexplained recreational
items expense
360.00
Pillows, tension rod
45.58
Washclothes, hand
towels
16.96
Key quicksets
6.17
Telephone
service--March-August
249.50
Total
5897.99
The utilities and other services (electricity, cable television, and telephone) used by
claimant were not segregated from the general household's use of such services.
Although the claimant's brother and his sister-in-law rent other properties, they had
not rented the second floor of their residence before.
The agency denied the request in the amended voucher because it "believe[d] the
back-up documentation did not substantiate additional out-of-pocket expenses" incurred by
claimant's relatives. The agency states that "the invoices did not state that there was a
separate apartment as the property management invoice noted, nor did they substantiate
additional out-of-pocket costs."
The FTR provides that when a federal traveler on official business stays with a friend
or relative:
You may be reimbursed for additional costs your host incurs in
accommodating you only if you are able to substantiate the costs and your
agency determines them to be reasonable. You will not be reimbursed the cost
of conventional lodging in the area or a flat "token" amount.
41 CFR 301-11.12(c) (1998). This version of the regulation was effective July 1, 1998,
during the later part of claimant's travel. The version of the regulation in effect before July
1, 1998 is in substance the same. 41 CFR 301-7.9(c)(3) (1997). The FTR is clear that such
a traveler is entitled only to the additional cost the host incurred in accommodating the
traveler. See Donald Mixon, GSBCA 14957-RELO, 99-1 BCA 30,606. Here, claimant
seeks the maintenance costs for his brother's household, not the additional costs claimant's
brother incurred in accommodating claimant. For example, claimant seeks reimbursement
for the full cost of an entertainment system, furniture, and lawn care equipment, items which
obviously have a useful life far beyond claimant's 136-day stay at his brother's residence.
The same can be said for the bath towels, mattress, toilet seat, "bed in a bag," appliance parts,
plumbing supplies, light bulbs, grill cover, sheets, can opener, and key quicksets.
The consumables and utility and utility-type services, such as electricity, cell phone
and cable television, were used by the whole household. Claimant has not demonstrated
what extra costs for those services were attributable to his 136-day stay. It is not possible,
for example, to determine from the receipts claimant has presented how much more
electricity the household used due to claimant's 136-day stay than it would have used had
claimant not resided at the residence for that period. Nor, consequently, it is possible to
determine the extra cost of that additional electricity.
Claimant relies on a provision of the FTR which allows a traveler on official business
to be paid the following expenses when renting a room, apartment or other lodging on a long-
term basis: (a) rental cost of a furnished dwelling; if unfurnished the rental cost of the
dwelling and the cost of appropriate and necessary furniture and appliances; (b) cost of
connecting and disconnecting utilities; (c) cost of reasonable maid fees; (d) monthly
telephone use fees; (e) if ordinarily included in the price of a hotel/motel room in the area
concerned, the cost of special user fees. 41 CFR 301-11.15 (1998). In his submission,
claimant emphasizes with a highlighter the cost related to unfurnished premises.
Claimant's reliance on that provision is misplaced. First, the provisions of 41 CFR
301-11.12(c) (1998), and 41 CFR 301-7.14 (a) (1997), are limitations on lodging entitlements
when a traveler stays with a friend or relative. The limitations do not apply when the friend
or relative is in the business of renting the living space for which the employee incurs
occupancy costs and has entered into an arm's-length business relationship with the traveler.
Michael S. Knezevich, GSBCA 14398-TRAV, 98-1 BCA 29,607. Here, claimant's brother
did not rent out the second floor of his house on a regular basis and claimant has not
demonstrated that he entered into an arms-length transaction with his brother for rental of the
premises.
Second, the provisions at 41 CFR 301-11.15 (1998) and 41 CFR 301-7.14 (a)(1997)
deal with either the landlord's charges to the traveler or costs incurred directly by the traveler
resulting from the long term stay. They do not provide reimbursement for costs incurred by
a relative in running his household.
The agency acted correctly in denying the claim.
__________________________
ANTHONY S. BORWICK
Board Judge