Board of Contract Appeals General Services Administration Washington, D.C. 20405 __________________ March 27, 1998 __________________ GSBCA 14365-TRAV In the Matter of ANDREW A. RAHAMAN Andrew A. Rahaman, FPO AE, Claimant. M.A. Andrews, Disbursing Officer, United States Navy Personnel Support Activity Detachment, London, UK, appearing for Department of the Navy. NEILL, Board Judge. Claimant, Mr. Andrew A. Rahaman, a civilian employee of the Department of the Navy stationed in the United Kingdom, asks that we review a determination of his agency denying him reimbursement of air fare for renewal agreement travel. The agency has denied reimbursement because Mr. Rahaman did not purchase his tickets from a commercial travel agency under contract with the Government. For the reasons set out below, we conclude that claimant should be reimbursed the costs in question. Background In April 1996, Mr. Rahaman renewed his overseas travel agreement until July 1998. Shortly thereafter, he submitted to the Navy's Office of Civilian Personnel Management a request for orders authorizing renewal agreement travel for himself and his immediate family to their home of record in the United States. On May 2, 1996, travel orders were issued authorizing round trip renewal agreement travel to Denver, Colorado, for Mr. Rahaman, his wife and their son. The orders stated that Mr. Rahaman's dependents would depart in mid-May and return in mid- June but that he would travel at a later date. In the "remarks" section of the orders the following statement appeared: Employee elected to travel commercial air at own expense. The amount of reimbursement, upon completion of travel will not exceed the cost to the government for travel by the most direct route and authorized modes. In accordance with his orders, Mr. Rahaman purchased commercial tickets for his wife and son for May 1996 at a cost lower than the official rate. Following their return, Mr. Rahaman submitted a travel voucher and was reimbursed the cost of the tickets. Due to the press of work and the birth of a second child, Mr. Rahaman was not able to take his own renewal agreement travel until a year later, in May 1997. On May 16, 1997, after seeking and receiving confirmation that his travel orders were still valid, he purchased commercial tickets from a local travel agent -- again at a cost lower than the official rate. Upon return, he submitted a voucher for the cost of the tickets. The claim was denied on the ground that regulations do not authorize reimbursement for commercial carrier tickets purchased by civilian employees from travel agents not under contract with the Government. Discussion Claimant writes that the agency's denial of reimbursement reflects a change in policy which took place after his orders were issued. The record does in fact contain a memorandum dated May 1, 1997, from the "Director Military Pay, Personnel Support Activity, Europe" to "Disbursing Officers, U.S. Navy Personnel Support Activity Detachment, Europe." The purpose of the memorandum is said to be: To provide clarification in the proper procedures of processing travel and transportation of military personnel and Navy-sponsored DoD [Department of Defense] civilians by the Personnel Support Activity Europe network. The memorandum directs that "military personnel and Navy- sponsored DOD civilian travelers shall arrange all governmental funded travel orders through a commercial travel office that is under contract to the government." It likewise provides: Any military personnel and civilian employees, under orders to travel, who purchases [sic] commercial transportation from an agency that is not under contract to the government although one is reasonably available, is [sic] not entitled to any reimbursement. One enclosure provided with the May 1, 1997, memorandum cites, as an authority in support of the guidance, an already existing provision in DOD s Joint Travel Regulations (JTR). It is noted that the prohibition against use of travel agents not under contract with the Government is in accordance with C2207 of the JTR. This is indeed correct. It is likewise true that the JTR are applicable to civilian employees of the DOD such as Mr. Rahaman. Section C2207 of the JTR reads in pertinent part as follows: A. Use of Travel Offices. In arranging official travel, employees are authorized to use the following in accordance with Service Regulations: 1. Commercial travel offices (CTO) under contract to their respective organization; 2. In-house travel offices; 3. General Services Administration (GSA) Travel Management Centers (TMC). Except as indicated in subparagraph B below,[[foot #] 1] when an employee purchases transportation from a CTO not under contract to the Government, reimbursement is not authorized unless it ----------- FOOTNOTE BEGINS --------- [foot #] 1 Based upon the record before us, the exceptions provided in subparagraph B are not applicable to claimant in this case. ----------- FOOTNOTE ENDS ----------- can be demonstrated that the employee had no alternative. In the past, we have addressed the application of Section C2207 of the JTR to infrequent travelers who are unaware of the general prohibition against the use of travel agents not under contract with the Government. There is in the Federal Travel Regulation (FTR) a regulatory exception permitting these individuals to be reimbursed on a one-time basis provided the costs incurred do not exceed the cost which would have been properly chargeable to the Government if the transportation service had been purchased directly from the carrier. Such claimants are to be advised, however, that recurrent use of travel agents not under contract with the Government will result in denial of reimbursement unless it can be demonstrated that the traveler had no alternative. See 41 CFR 301-3.4(b)(2)(ii) (1996). While this exception does not appear in the JTR, this Board has held that it is available as a one-time exception to JTR C2207 because the FTR, as a "legislative rule" issued pursuant to delegation from Congress, takes precedence over the JTR and is to be given special weight. See Larry Ponce, GSBCA 13681-TRAV, 97-2 BCA 29,048; Freddy L. Scarber, GSBCA 14049- TRAV, 97-1 BCA 28,932; Ray Taylor, GSBCA 13688-TRAV, 97-1 28,783; Kathleen M. Watkins, GSBCA 13983-TRAV, 97-1 BCA 28,782. Given the facts in this case, we find Mr. Rahaman qualifies for the relief provided by this exception in the FTR. Nothing in the record indicates that at the time he purchased his tickets in mid-May 1997 he was a frequent traveler well aware of the general prohibition against the use of travel agents not under contract with the Government. On the contrary, his apparent lack of experience in procuring transportation at the Government's expense, the language in his travel orders, and the lack of guidance on this matter in his theater of operation only support Mr. Rahaman's contention that, at the time that he purchased his tickets, he was unaware of this general prohibition. In addition, nothing in the record suggests that, prior to his purchase, he was advised either formally or informally of the guidance contained in the clarifying memorandum sent to disbursing officers earlier that same month. The claim, therefore, should be paid based upon the exception set out in FTR 301-3.4(b)(2)(ii). The same provision may be relied upon by the Navy s disbursing officer as the authority for payment. In reimbursing the claimant, however, the Navy should expressly advise him that this is a one-time exception which will not be available again. _____________________ EDWIN B. NEILL Board Judge