Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________ May 15, 1998 ____________ GSBCA 14261-TRAV In the Matter of KEATING L. SMITH, DAVID PENG, RONALD L. LEAR, JESSE H. KIDD, and JAMES A. ADAMS Keating L. Smith, Charlestown, SC, Claimant. James A. Adams, St. Petersburg, FL, Claimant. Ronald L. Lear, Paso Robles, CA, Claimant. Jesse H. Kidd, Bedford, TX, Claimant. David Peng, APO AE, Claimant. Paul G. Kratt, Chief, Finance and Accounting Division, Transatlantic Programs Center, Winchester, VA, appearing for Department of Defense. VERGILIO, Board Judge. The claimants, civilian employees of the United States Army Corps of Engineers, each performed a temporary duty assignment in Eskan Village, Riyadh, Saudi Arabia. Each was provided lodging by the Corps of Engineers, not the United States Army Material Command s Office of the Program Manager-Saudi Arabian National Guard (OPM-SANG), at other than an OPM-SANG facility. Per diem rates for Riyadh, not OPM-SANG, established the basis for entitlement. That the Corps utilized the claimants as reimbursable support to OPM- SANG does not affect the entitlement, when the claimants were not provided accommodations at an OPM- SANG facility. Further, the comparatively lower per diem rates for lodging at an OPM-SANG facility do not apply because those rates were established based upon the employee receiving a level of accommodations not provided to these claimants. Keating L. Smith Keating L. Smith, a civilian employee of the Department of Defense, Army Corps of Engineers, is the initial claimant in this matter. Pursuant to travel orders, he reported to Eskan Village, Riyadh, Saudi Arabia, on November 19, 1996, for a sixty-day temporary duty (TDY) assignment. The travel orders authorized per diem "in accordance with the JTR" (the Department of Defense Civilian Personnel Joint Travel Regulations). The claimant had been informed that the per diem rate for meals and incidental expenses (M&IE) was $92. The claimant submitted a travel voucher after sixty days, and received payment at the $92 daily rate. After the claimant agreed to a sixty-day extension of the temporary duty assignment, he was told on March 4, 1997, that the appropriate daily rate was and would be $43, not $92, to cover meals and incidental expenses. The agency recalculated the reimbursable amount for the TDY period in Eskan Village utilizing the $43 daily rate. In reliance on a footnote in regulations, the agency reached this conclusion because the claimant had provided reimbursable support to OPM-SANG. The claimant objects to the recalculation; he seeks reimbursement at the $92 daily rate, plus interest on money due him. Appendix B of the JTR reveals the maximum per diem rates for locations outside the continental United States. The applicable versions of Appendix B, contained in JTR Changes 374 through 379, were in effect from October 1, 1996, through March 31, 1997. As effective October 1, 1996, the general introduction to the appendix specified, in part[foot #] 1: This appendix lists alphabetically all areas presently authorized travel per diem allowances. . . . When a political subdivision smaller than a country is named, such as . . . cities . . ., it will include the corporate limits of such political subdivisions or the limits of territory within the normal boundary thereof if it is not incorporated. Posts, camps, or stations named will include the area falling within the fixed boundaries. The entries for Saudi Arabia included a listing for Riyadh (with a reference to footnote one) and for OPM-SANG (with a reference to footnote three). For Riyadh, for the TDY period, the daily meal rate, when meals were not available, was $74, and the daily rate for incidentals was $18. These two figures sum to $92. Footnote one specified a daily rate for meals and incidental expenses payable when, daily, at least two meals were available in any combination of United States or other contractor facilities, a scenario not applicable to the claimant. The entry for OPM-SANG referenced footnote three, which stated: (Eff 5-1-95) A $28 M&IE is prescribed for travelers in conjunction with the Office of the Program Manager- Saudi Arabian National Guard (OPM-SANG). This rate is subject to the provisions of JTR, Par. C4553-D2E (civilian personnel) . . . . This rate is increased by $5 for each meal that isn't available to a traveler in a subsidized Government or contractor messing facility. A meal is available except when any of the following conditions exists: (A) no meal is available for a particular mealtime; (B) the use of an available meal would adversely affect the performance of the traveler's mission; (C) the use of a meal facility is impractical. A traveler must certify non-availability of meals for each mealtime when one or more of the conditions exists. In a letter to the Board dated September 18, 1997, the Department of the Army, Transatlantic Programs Center, states that it: ----------- FOOTNOTE BEGINS --------- [foot #] 1 A change in the language of the introductory paragraph of Appendix B, effective December 1, 1996, is not material to the analysis here. ----------- FOOTNOTE ENDS ----------- provides reimbursable support to the U.S. Army Material Command's Office of the Program Manager-Saudi Arabian National Guard (OPM-SANG), located in Riyadh, Saudi Arabia. . . . In support of OPM-SANG, the Agency provided [the claimant and others] during various time frames within the period September 5, 1996 through March 16, 1997, to provide additional support to the Agency's area office in support of OPM-SANG. This additional support was to provide support to the U.S. Army Force Protection projects that were required to protect American troops stationed in Saudi Arabia. . . . . It is the Agency's position that the [Board] should deny the claim for additional M&IE per diem at the $92.00 rate and that the Agency continue to comply with the language contained in the JTR when providing reimbursable support to the OPM-SANG. The agency also submitted for the record an information paper prepared by an individual at OPM-SANG. The paper states, in part: "The basis for the $28 was a study performed in the first quarter of 1995 and revalidated in May 1996 that took into consideration the fact that personnel on TDY with OPM-SANG were provided quarters with kitchens and appropriate cooking and eating utensils and had access to commissary facilities." The paper also specifies that the "TDY conditions for the [Corps of Engineers] personnel supervising the Eskan Village refurbishment from 12 Oct 96 to Mar 97 was that appropriate kitchen facilities and commissary facilities were not available." The claimant resided in Eskan Village, within the vicinity of Riyadh. He was employed by the Corps of Engineers, not OPM- SANG. The claimant received lodging free of charge. The Government does not dispute the contentions of the claimant that he resided in lodgings that were provided by the Corps of Engineers, not OPM-SANG, and that the accommodations were below the standard of quality described in the position paper as being associated with OPM-SANG facilities (lacking were appropriate kitchens and commissary facilities) . Additionally, no subsidized United States Government or contractor messing facilities were available to the claimant during the TDY period. The agency's analysis focuses upon the fact that it provided reimbursable support in Saudi Arabia, with OPM-SANG the reimbursing entity. However, the JTR does not make these allowances dependent upon which entity may pay for all or some of the expenses of an employee. Under the JTR, the determination of the applicable per diem is dependent upon the location of the TDY assignment and, through footnotes, the availability of meals. The claimant was authorized TDY in Riyadh. The record does not demonstrate that the claimant was provided accommodations through OPM-SANG. Rather, the claimant received quarters through the Corps of Engineers. Because the claimant was not provided accommodations by or at an OPM-SANG facility, under the JTR, the per diem allowance indicated for OPM-SANG in Appendix B of the JTR was not applicable. The applicable entries were those for Riyadh. The entries regarding Riyadh referenced footnote one, not three. The JTR suggests no basis to make the limitations of footnote three applicable to this claimant. In any event, footnote three dictated allowances for "travelers in conjunction with" OPM-SANG. The information paper indicates that the OPM- SANG rates were established in recognition of the accommodations available to the travelers. This implies that the rates were not intended to apply to a traveler who did not have available the benefits of those accommodations. With OPM-SANG facilities not available to the claimant, the OPM-SANG rates would not apply to the claimant. The rates prescribed for Riyadh control the payment at issue. The Government has noted for some claimants that the JTR also specified that when "Government quarters are available with or without a charge to the traveler on a post, camp, station, base, or depot owned or operated by the United States, the incidental portion of per diem for OCONUS areas is $3.50 instead of the amount prescribed in Appendix B for the locality concerned." JTR C4557; C4554-A.1.b(1) ("use $3.50 for the incidental rate, when quartered on a U.S. installation and a Government mess isn't used"). "Government quarters" were defined as "Sleeping accommodations in a facility (other than a mode of transportation) operated under U.S. Government control or supervision; or furnished by a foreign government under agreement or on a complimentary basis in behalf of the United States . . . ." JTR Appendix D (later Appendix A). Although the claimant resided in Government quarters, the record does not demonstrate that Eskan Village was a "post, camp, station, base, or depot" or a "U.S. installation." The lower incidental rate for staying on such Government quarters suggests that employees so located would incur lower incidental expenses during a TDY assignment. The record reveals no expectation that incidental expenses while residing at Eskan Village would be lower or different from residing in Riyadh. Accordingly, the $3.50 limitation would not apply to the claimant. The claimant is entitled to be reimbursed at the daily rate of $92, comprised of the daily meal rate of $74 (because meals were not available) and the incidentals rate of $18. The claimant has not demonstrated his entitlement to interest on the amount due him. Jerry Jolly, GSBCA 14158-RELO, 98-1 BCA 29,518; Michael A. Dilligan, GSBCA 13644-TRAV, 97-2 BCA 29,045. James A. Adams As a civilian employee of the Corps of Engineers, James A. Adams was on a temporary duty assignment in Saudi Arabia, at the Eskan Village for the period of October 16 through December 23, 1996. Like Mr. Smith, he resided in quarters provided by the Corps of Engineers, which were below the standard utilized in determining the rates for travelers in conjunction with OPM-SANG. However, some meals were available to him on the first three days. This claimant's travel voucher indicates that six Government meals were consumed (three on one day, two on the following day, and one on the day thereafter) before the military mess was restricted. The claimant was paid $77.50 ($74 for meals and $3.50 for incidentals) for each of the days in Eskan Village, with the exception of the three days on which he consumed a meal(s) at a Government mess (for each of those days a deduction was taken based upon the meal(s) consumed ($14 for breakfast, $23 for lunch, and $37 for dinner). The agency has recalculated the amount to which the claimant is entitled utilizing the OPM-SANG rates, generally--$43 per day, but $28 and $33, respectively, for the days three and two meals were consumed at a Government mess. The claimant objects to the recalculation; he claims entitlement at the $92 rate. The rationale applicable to the matter of Mr. Smith, discussed above, applies to this claimant. The daily rate of $92 is generally applicable. However, deductions must be taken for the three days on which meals were available. The regulations are conflicting on the matter of reimbursement. JTR C4554-B stated that the Government would pay a proportional per diem rate, here $40, "when one or two deductible meals are provided"-- this would cover meals and incidental expenses. The same regulation also said "if all three meals are provided/consumed at no cost to the employee only the incidental expenses for that day . . . is payable." Regarding incidental expenses, the Board has determined for Mr. Smith that the $18 rate applies, not the $3.50 rate. In contrast, JTR, Appendix B, Riyadh, footnote one stated, in part, that when lodgings are furnished by the United States or Saudi Arabian Government and at least two meals are available in any combination of United States or other contractor facilities, the daily rate for M&IE is $19, for Riyadh. The regulations are inconsistent, irreconcilable, and worthy of revision. For the three days meals were consumed at a Government mess, the claimant is entitled to the $18 incidental expenses rate plus the $74 meals rate less a deduction for the meals provided--$14 for breakfast, $23 for lunch, and $37 for dinner. This determination is fully in keeping with provisions of the Federal Travel Regulation (FTR), 41 CFR 301-7.12(a)(ii) (1996). Ronald L. Lear As a civilian employee of the Corps of Engineers, Ronald L. Lear was on a temporary duty assignment in Saudi Arabia, at the Eskan Village for the period of October 4 through December 23, 1996. Like Mr. Smith, he resided in quarters provided by the Corps of Engineers, which were below the standard utilized in determining the rates for travelers in conjunction with OPM-SANG. The agency has recalculated the claimant's entitlement at OPM- SANG rates. The claimant objects, claiming entitlement at the $92 rate. The rationale applicable to the matter of Mr. Adams, discussed above, applies to this claimant. The record does not establish on which, if any, days meals were available or consumed at Government or other facilities. The claimant is entitled to reimbursement at the $92 daily rate, with the appropriate deductions for meals. Jesse H. Kidd As a civilian employee of the Corps of Engineers, Jesse H. Kidd was on a temporary duty assignment in Saudi Arabia, at the Eskan Village for the period of September 9 through November 30, 1996. Like Mr. Smith, he resided in quarters provided by the Corps of Engineers, which were below the standard utilized in determining the rates for travelers in conjunction with OPM-SANG. However, he consumed three meals daily at a Government mess without charge for the period September 10 through and including October 19. The claimant was paid $3.50 per day ($0 for meals and $3.50 for incidentals) for the days he was provided meals, and $77.50 ($74 for meals and $3.50 for incidentals) for each of the other days in Eskan Village. The Government has recalculated his entitlement utilizing OPM-SANG rates. The claimant seeks reimbursement based on the $92 daily rate. The rationale applicable to the matter of Mr. Adams, discussed above, applies to this claimant. The analysis is not altered by, for here, a non-material variation in the entries of JTR, Appendix B under Change 373 (effective September 1, 1996), which preceded the language considered above. For the period in Eskan Village, the claimant is entitled to a daily rate of $18, for days meals were consumed, and of $92, for days meals were not consumed. David Peng As a civilian employee of the Corps of Engineers, David Peng was on a temporary duty assignment in Saudi Arabia, at the Eskan Village for the period of September 22 through November 23, 1996. Like Mr. Kidd, he resided in quarters provided by the Corps of Engineers, which were below the standard utilized in determining the rates for travelers in conjunction with OPM-SANG. He consumed three meals daily at a Government mess without charge for the period September 22 through and including October 12. The claimant was paid $3.50 per day (for incidental expenses) when Government meals were consumed and $77.50 ($74 for meals and $3.50 for incidentals) for each day Government meals were not available. The Government has recalculated his entitlement utilizing OPM-SANG rates. He seeks reimbursement based on the $92 daily rate. The rationale applicable to the matter of Mr. Kidd, discussed above, applies to this claimant. For the period in Eskan Village, the claimant is entitled to a daily rate of $18, for days meals were consumed, and of $92, for days meals were not consumed. ____________________________ JOSEPH A. VERGILIO Board Judge