Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405                     
               
                   ___________________________

                        September 17, 1998
                   ____________________________


                         GSBCA 14513-TRAV


                 In the Matter of MURRAY LUMPKIN


     Murray Lumpkin, Leesburg, VA, Claimant.

     David R. Petak, Director, Division of Accounting, Food and Drug Administration,
Rockville, MD, appearing for the Department of Health and Human Services.

HYATT, Board Judge.

     The Food and Drug Administration (FDA) has requested the Board to review and
reconsider the FDA's disallowance of the claim of one of its employees, Dr. Murray
Lumpkin, for reimbursement of the cost of lodgings within the local area of his permanent
duty station.  For the reasons explained, we conclude that the FDA properly disallowed the
claim and there is no authority to deviate from the applicable regulation in these
circumstances.

                            Background

     Claimant, Dr. Murray Lumpkin, the Deputy Center Director for the Center for Drug
Evaluation and Research (CDER) in Rockville, Maryland, was scheduled to conduct a
training session in Rockville for eleven committee chairs of CDER advisory committees on
January 15, 1998.  The eleven participants traveled to Rockville from various other cities in
the United States on Wednesday, January 14, 1998.  On the afternoon of January 14, the
local Washington, DC area forecast for that evening through the morning of January 15
called for inclement weather.  Dr. Lumpkin, who resides in Leesburg, Virginia, was
concerned that road conditions might be too icy for him to drive from Leesburg to Rockville
on Thursday morning to conduct the training session.  Accordingly, he decided to stay in
Rockville overnight to save the FDA the cost and inconvenience of potentially having to
cancel and reschedule the training program.  Due to the need to make this decision
expeditiously, he did not have an opportunity to request prior approval to obtain lodgings
within his official duty station.  The cost of the hotel room for the night of January 14 was
$101.79.  

     When Dr. Lumpkin submitted a claim for reimbursement, his administrative staff
determined that the claim must be denied under applicable provisions of the Federal Travel
Regulation (FTR) and the Department of Health and Human Services (HHS) Travel Manual. 
In recognition of the fact that Dr. Lumpkin's decision was made in a prudent effort to ensure
the Government would not incur the much greater expense associated with rescheduling the
training session, the FDA has asked if there is any basis upon which this expense could be
reimbursed.
     
                            Discussion

     By statute, a per diem allowance is authorized for government employees "when
travelling on official business away from the employee's designated post of duty or away
from the employee's home."  5 U.S.C.  5702 (1994).  In pertinent part, the FTR, which
implements this statute, provides as follows:

                    A per diem allowance shall not be allowed within the limits of
          the official station . . . or at, or within the vicinity of, the place
          of abode (home) from which the employee commutes daily to
          the official station.  

41 CFR 301-7.5 (1997).   The HHS Travel Manual, 5-00-50, paragraph A, similarly states
that per diem will not be allowed at an employee's permanent duty station or within the
vicinity of the residence from which the employee normally commutes.  Paragraph C of
section 5-00-50 recognizes that there is no authority to authorize an exception to this rule,
even where expenses are incurred under extraordinary circumstances such as adverse weather
conditions.  The FTR has consistently been construed in this manner by both this Board and
the Comptroller General.  E.g., Nancy Blustein, 68 Comp. Gen. 46 (1988); see Louis M.
Berra, GSBCA 14134-TRAV, 98-1 BCA  29,401 (1997); Gerald A. Sherman, GSBCA
13791-TRAV, 97-2 BCA  29,299; Rodney C. Lowe, GSBCA 13850-RELO, 97-1 BCA 
 28,962.  The FTR has the force and effect of law, and neither the Board nor the agency
may waive or vary its terms.  See Thomas T. Matteson, GSBCA 14111-RELO, 98-1 BCA
 29,413 (1997).  Although Dr. Lumpkin acted prudently and with the best of intentions, the
agency's determination that it has no authority to reimburse this expense is correct.   




                                   _____________________________
                                   CATHERINE B. HYATT
                                   Board Judge