Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________ October 28, 1998 ______________ GSBCA 13905-TRAV In the Matter of JOHN W. SZABO John W. Szabo, Aiea, HI, Claimant. Mary Dakis, Office of the Assistant Secretary, Manpower and Reserve Affairs, Department of the Army, Alexandria, VA, appearing for Department of Defense. VERGILIO, Board Judge. The claimant, a civilian employee of the Department of Defense, seeks reimbursement for round trip air fare from Hawaii to Nevada. He purchased the ticket from a commercial travel agent not under contract with the Government, before he sought or received authorization for the temporary duty travel. Regulation prohibited reimbursement if the ticket was purchased from a commercial travel office not under contract to the Government, unless the employee had no alternative. The claimant has failed to demonstrate that he lacked an alternative to the purchase. However, pursuant to Board precedent, under an infrequent traveler exception, the agency is to reimburse the claimant as an infrequent traveler who was unaware of the restrictions when purchasing the ticket and at the time of travel. On August 29, 1995, as a civilian employee of the Department of Defense, the claimant, Mr. John W. Szabo, personally purchased from a travel agent not under contract with the Government a round trip ticket for travel between Hawaii and Nevada, with a departure date of December 2, 1995 (Saturday), and a return date of December 7, 1995. The cost of the ticket was $349. With a request date of November 8, 1995, the claimant sought authorization from the agency for a temporary duty (TDY) assignment to attend a conference in Nevada for the period of December 2-7, 1995. On Thursday, November 30, 1995, the agency issued an authorization and approval of the request, specifying in the "remarks" section: "Individual must purchase airline tickets from a commercial travel office under contract with the Government." The authorization estimates the cost of travel as $401. In support of his request for reimbursement, the claimant states: Attached orders state that I was to purchase airline tickets through government contractor, however there were mitigating circumstances which did not allow me to follow the instructions. Primarily, I did not receive my orders until after 30 November 199[5] and had to depart Honolulu International Airport 1 [actually, 2] December in order to make the 2 registration on Sunday 2 [actually, 3] December. Just prior the government shutdown canceled all TDYs. Even with orders on 30 November, there would have not been a ticket for me since the convention was a major pharmaceutical meeting with over 6,000 attendees. No one has ever informed me that I had to utilize a government agency to purchase my tickets and since I did not get orders prior to departure, there was no way to know. Additionally I have been informed that non compliance with TDY orders je[op]ardizes future requests. I therefore assumed it imperative that I go to Las Vegas to complete TDY and worry about reimbursement upon returning. The claimant has provided no support for his conclusion regarding ticket availability. An employee was not free to contract as he or she wished for an airline ticket for Government travel and receive reimbursement for the purchase. Under statute and through regulation, the Government had established procedures for obtaining airline tickets for Government travel. As a general rule, Government- contract carriers were to be used; travel agents without a Government contract were not to be used. The Department of Defense Civilian Personnel Joint Travel Regulations (JTR), applicable to this claimant, specified that, with exceptions not here relevant, "when an employee purchases transportation from a CTO [commercial travel office] not under contract to the Government, reimbursement is not authorized unless it can be demonstrated that the employee had no alternative." JTR C2207-A. Consistent with the regulation, the travel authorization under which the claimant traveled expressly directed the employee to purchase airline tickets from a commercial travel office under contract with the Government. The materials submitted to the Board fail to demonstrate the lack of an alternative to the purchase. Without support, the claimant asserts that tickets would not have been available. He purchased his tickets in advance of his request to the agency to attend the conference and in advance of his receiving authorization and approval from the agency. The Board cannot conclude, based on the claimant's simple allegation, that a travel office under Government contract would have been unable to procure the necessary tickets for a timely departure and return. The claimant purchased his tickets without regard to the language of the JTR, before he had formally sought or received authorization for the travel. He has failed to demonstrate that he would have been unable to obtain tickets in the manner prescribed in the regulations (and his travel orders). However, the inquiry cannot end there. This Board has looked beyond the JTR and required agencies to reimburse claimants under a provision of the Federal Travel Regulation (FTR), which permitted payment to an infrequent traveler who was unaware of the general prohibition against the use of travel agents and inadvertently purchased transportation with personal funds without the required advance administrative approval, 41 CFR 301-3.4(b)(2)(ii) (1996). Andrew A. Rahaman, GSBCA 14365-TRAV, 98-1 BCA 29,679 (and cases cited therein); Kathleen M. Watkins, GSBCA 13983-TRAV, 97-1 BCA 28,782. 3 In light of the precedent, which post-dated the determination by the agency to disallow the reimbursement, the Board requested the claimant and agency to address the present claim in the context of the regulation and the potential applicability of the exception.[foot #] 1 The claimant has stated in reply that he was unaware of the restriction at the time of his travel and that he was an infrequent traveler for whom the exception can be invoked. He responded: I believe that I didn't get the orders until after I returned from the TDY. . . . If I didn't go, it would have jeopardized any future TDY requests. Since I received my orders after the fact, I was not aware of the prohibition until after I got back from the trip. Also this was the only TDY that I have taken that year and was never informed that I had to utilize the government travel agent. The agency has placed no evidence in the record which suggests that the claimant is other than he claims--an infrequent traveler who was unaware of the conditions affecting reimbursement for air travel. The agency has asserted no reasonable basis to deny reimbursement to the claimant, who, based on the developed record, was unaware of the restrictions on ticket purchasing and was an infrequent traveler. Although the travel authorization, with the explicit statement regarding the purchasing of tickets, would serve to place an employee on notice of the restriction on ticket purchasing, the record does not demonstrate that the claimant received a copy of the authorization prior to his departure. Under such circumstances, Board precedent dictates that the agency is to reimburse the claimant in an amount not to exceed the cost which would have been properly chargeable to the Government if the tickets had been purchased directly from the carrier and that the agency must inform the claimant as required by the regulation. ____________________________ JOSEPH A. VERGILIO ----------- FOOTNOTE BEGINS --------- [foot #] 1 If writing on a clean slate, I would not mandate that the Department of Defense here implement the infrequent traveler exception (found under the caption "reduced group or charter fares offered by travel agents") of the FTR, which was permissive (not mandatory) in its application. The infrequent traveler language had been a part of the JTR but was removed from the JTR for the period in question, while the JTR contained an express limitation regarding reimbursement. (Incidentally, as evidenced by the current JTR, C2207-B, the regulation writers know how to draft language to make the exception applicable to the current situation; however, the effective date for this language post-dates the event here at issue). However, the precedent is supported by a majority of this Board. In resolving questions of reimbursability, an agency and any individual judge are bound by the decisions of this Board. ----------- FOOTNOTE ENDS ----------- 4 Board Judge