___________________ January 22, 1998 ___________________ GSBCA 14195-TRAV, 14196-TRAV, 14197-TRAV In the Matters of BRIAN P. BYRNES, BRYAN Y. LEE, and EDDIE F. GRAHAM Brian P. Byrnes, Los Angeles, CA, Claimant in GSBCA 14195- TRAV. Bryan Y. Lee, San Gabriel, CA, Claimant in GSBCA 14196-TRAV. Eddie F. Graham, Los Angeles, CA, Claimant in GSBCA 14197- TRAV. Jeanne Khan, Regional Resources Manager, Western Region, Defense Contract Audit Agency, La Mirada, CA, appearing for Defense Contract Audit Agency. NEILL, Board Judge. The Defense Contract Audit Agency (DCAA) asks that we reconsider three decisions rendered by the Claims Group of the General Accounting Office (GAO) regarding the reduction of per diem for some of its employees. Brian P. Byrnes, Z-2869183 (June 26, 1996); Bryan Y. Lee, Z-2869184 (June 26, 1996); Eddie F.Graham, Z-2869185 (June 26, 1996). DCAA contends that GAO, in deciding these cases, drew an erroneous conclusion regarding the intent of the agency at the time the travel orders for these employees were issued. We grant the request for reconsideration and conclude, on the basis of the record provided to us by GAO, that it was not the intent of the agency to limit the per diem for these employees and that the amendment of their travel orders to correct this error may, therefore, be given retroactive effect. Background In late October 1993, Messrs. Byrnes, Lee, and Graham, all auditors assigned to DCAA offices in California, were issued temporary duty (TDY) orders authorizing them to travel to Seattle, Washington, to assist in audit matters at the agency's Rainier branch office. Each of the orders stated that the TDY 2 was for approximately 181 days with departure on or about November 1, 1993. The orders likewise stated that the per diem authorized was in accordance with the Joint Travel Regulations (JTR) and was estimated to be $20,340 for each. In processing the travel vouchers submitted by these employees after their departure to Seattle, the Defense Finance and Accounting Service (DFAS) allowed a per diem which was limited to fifty-five percent of $113, the maximum allowable rate then in effect for the Seattle area. This reduction was based on a provision in JTR C4561-D.1 which states that for TDY in excess of 180 calendar days (long term TDY), the employee will receive fifty-five percent of the applicable maximum as prescribed in regulation, rounded to the next higher dollar. On January 3, 1994, the travel orders for Messrs. Byrnes, Lee, and Graham were amended. The amendments changed the duration of each employee's TDY from 181 days to 174 days. These amendments also reduced the estimated total per diem. On February 14, 1994, following the amendment of their travel orders, each of the DCAA employees submitted supplemental vouchers to recover the forty-five percent of the applicable per diem for the Seattle area which had been disallowed prior to the amendment of their travel orders on January 3, 1994. The claimants pointed out that the 181-day period originally listed in their travel orders was an administrative error subsequently corrected by amendment on January 3, 1994. The chief of the DFAS Travel Payments Branch denied the requests on the ground that section C3053-B of the JTR prohibits retroactive amendments that change per diem on travel performed under the authority prescribed in a travel order. By memorandum dated March 11, 1994, for the attention of the chief of the DFAS Travel Payments Branch, the DCAA Regional Resources Manager for DCAA's western region asked that DFAS reconsider its denial. She confirmed that the 181-day period listed in the travel orders for the three auditors in question had been nothing more than an administrative error. She explained that it was contrary to DCAA policy to issue TDY orders for more than 180 days. She provided an internal DCAA policy memorandum in support of this fact. She also explained that, upon discovering the error, the agency had corrected it by amendment. The DCAA memorandum also pointed out to DFAS that the orders in question were inconsistent on their face in that they stated the TDY was to be for 181 days but showed an estimated total per diem computed on the maximum allowable amount for other than long term TDY. In her memorandum to DFAS, the DCAA Regional Resources Manager asked that the amendment of the three travel orders be given retroactive effect for reimbursements applying to the 3 period prior to January 3, 1994. In making this request, she recognized the prohibition in the JTR regarding retroactive amendments of travel orders but noted that one well established exception to this rule exists where errors are apparent on the face of the travel authorization and retroactive amendment is permitted in order to give effect to the original intent of the authorizing official. Upon advice of counsel, DFAS concluded that it would be best to refer this entire matter to GAO for resolution. In doing so, DFAS readily acknowledged that DCAA's policy was to avoid ordering TDY travel in excess of 180 days and that, in this case, DCAA did not intend to limit reimbursement of the three auditors to fifty-five percent. By decisions dated June 28, 1996, a senior adjudicator of GAO's Claims Group concluded that the amendment of the travel orders for each of the three DCAA auditors could not be given retroactive effect. Key to the analysis of the GAO adjudicator is the following statement which appears in each decision: In this case at the time the [initial] orders were issued they reflected the intent of the agency to set the per diem rate at 55%. DCAA finds this statement in clear conflict with the facts which are common to all three cases and, for that reason, has asked that we reconsider each of the three decisions.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 The request for reconsideration was addressed to this Board rather then to GAO as a result of legislative changes in 1995 which resulted in the transfer, to the General Services Administration, of the Comptroller General s settlement authority for relocation and travel claims by civilian employees of the United States Government. In 1995, Congress directed that the administrative responsibility for claims settlement functions as previously set forth in 31 U.S.C. 3702 be transferred from the General Accounting Office to the Director of the Office of Management and Budget (OMB). Legislative Branch Appropriations Act, Pub. L. No. 104-53, 211(a), 109 Stat. 514, 535 (1995). The Director of OMB subsequently delegated certain of these functions to the Administrator of the General Services Administration who, in turn, redelegated to this Board the settlement functions pertaining to travel and relocation expense claims by federal civilian employees. The authority to settle these claims has more recently been vested by statute in the Administrator. General Accounting Office Act of 1996, Pub. L. No. 104-316, 202(n), 110 Stat. 3826, 3843 (1996). ----------- FOOTNOTE ENDS ----------- 4 Discussion We find that the record, when read as a whole, does not support the conclusion of GAO's Claims Group that the travel orders initially issued in these three cases reflected an intent by DCAA to set the per diem rate at fifty-five percent. The JTR provision cited by DFAS which prohibits amendments of travel orders with retroactive effect changing the basis of reimbursement specifically refers to a decision of the Comptroller General in 28 Comp. Gen. 732 (1949). That decision recites the general rule regarding retroactive amendments of travel orders but makes no mention of any exceptions to this rule. Nevertheless, in numerous decisions both before and after that appearing in 28 Comp. Gen. 732, the Comptroller General recognized exceptions to this general rule. One set of exceptions is that travel orders may be amended with retroactive effect when the error is apparent on the face of the original orders or the facts and circumstances clearly demonstrate that some provision previously determined and definitely intended has been omitted through error or inadvertence in preparing the orders. Leroy A. Joseph, B-257489 (Jan. 13, 1995); Eugene P. Tuttle, B-223599 (Jan. 5, 1987); M. E. Smith, B-170072 (July 20, 1970); Barbara J. Williams, B-163954 (July 24 1968); 24 Comp. Gen. 439 (1944). Another exception permits the retroactive amendment of travel orders if the original orders do not conform to applicable statute and regulation. Betty D. Gardner, B-214482 (Sept. 7, 1984); John W. Snapp, 63 Comp. Gen. 4 (1983); Lynn C. Willis, 59 Comp. Gen. 619 (1980). We recognize the validity of the general rule regarding the retroactive amendment of travel orders and intend to enforce it as the Comptroller General has in the past. However, we likewise intend to recognize and apply, as appropriate, the well established exceptions to this general rule. In these three cases, DCAA urges that the facts justify an exception to the rule. We agree. We share the opinion of DCAA that the orders on their face reflect an inherent conflict. The orders purport to be for 181 days and claim to authorize a per diem in accordance with the JTR. The total estimated per diem on the orders, however, amounts to $20,340. If this per diem was, as the orders stated, in accordance with the JTR, then it was long term per diem and should have been understood as representing only fifty-five percent of the otherwise allowable maximum for the Seattle area. However, if the figure shown on the orders was calculated based on only fifty-five percent of the allowable maximum, then one could readily extrapolate an astonishingly high allowable maximum for the Seattle area -- something in excess of $200. Such a high level of reimbursement, even under currently applicable rates for areas within the continental United States, would be rare indeed 5 and generally would apply only to peak season at a very limited number of resort areas. In short, given the various entries on the travel orders in question, we agree with DCAA that it should have been apparent to a careful observer that the travel orders, on their face, were in apparent error -- either as to the stated duration of the TDY or as to the authorized per diem rate. Furthermore, the circumstances of this case, as documented in the record demonstrate what provision was intended for inclusion in the travel orders but was omitted through error or inadvertence in preparing the orders. DCAA explains that the total estimated per diem cost of $20,340 shown on each of the auditors' travel orders was calculated based on 180 days of the maximum applicable per diem in effect at that time for other than long term TDY in the Seattle area, namely, $113. This plus the representations made by DCAA, as supported by its own contemporaneous internal policy memorandum, convince us that the intent of the agency was to authorize a TDY of no more than 180 days and, therefore, not to limit the employees' per diem to fifty-five percent. We likewise are persuaded by information in the record that the travel orders originally issued to the three DCAA employees were not in compliance with applicable regulation and, therefore, for this reason as well, were susceptible to retroactive amendment. As already noted, there was a conflict between the stated duration of the TDY and the calculation of the estimated cost of per diem. The estimated per diem cost shown on the orders was based on 100% of the allowable maximum for the Seattle area at the time, namely, $113. Therefore, the stated duration of 181 days for the TDY was contrary to the JTR regulation which limits allowance of 100% of the applicable per diem to TDY of a duration of not more than 180 days. Accordingly, we reverse the earlier determination of GAO Claims Group and find that the correcting amendments of January 3, 1994, of the three travel orders in question may be given retroactive effect. ____________________ EDWIN B. NEILL Board Judge