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


                __________________________________

                    GRANTED: November 30, 1998
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                         GSBCA 14545-TRAV
                                
                                

       IN THE MATTER OF JAMES A. WOLFE & DAVID A. NIEMANN
                                

James A. Wolfe, Juneau, AK, Claimant.

David A. Niemann, Claimant [Foot # 1 ] 

David L. Burich, Authorized Certifying Officer, Forest Service, Department of Agriculture,
Washington, DC, appearing for Department of Agriculture.

HYATT, Board Judge.

    On behalf of two employees, the Forest Service, Department of agriculture, has asked the
Board to provide guidance about the agency's policies in administering overseas tour renewal
agreement travel [Foot # 2 ]  Under tour renewal agreement travel, employees who have been transferred
overseas, or, in certain circumstances, to Alaska or Hawaii, are entitled, between tours of duty, to
the cost of transportation and per diem for a trip to the place of actual residence, or to another
destination in the continental United States, with the limitation that reimbursable travel costs will
not exceed the cost of return to the actual residence.  Here, the Forest Service has requested our
advice concerning the intent of applicable provisions of the Federal Travel Regulation (FTR), 41
CFR 302-1.13 (1992), and the proper interpretation of the Comptroller General's "tour concept"
with respect to employees on tour renewal agreement travel who make stopovers for longer than
reasonably necessary to catch a connecting flight en route to their final destinations.  Specifically,
the Forest Service asks whether its policy of treating the first stop en route to a final destination as
the alternate destination, and thus limiting reimbursement to the cost of travel to that first stop,
properly construes the intent of the FTR and the "tour concept."  For the reasons explained herein,
we conclude that the agency's application of the tour concept is more restrictive than required by
the FTR and the Comptroller General's decisions.

****************** Footnote Begin **********
[Foot # 1 ]        Claimant David A. Niemann has apparently retired from federal service
and the Board has not been provided with his current address.

****************** Footnote End ************

****************** Footnote Begin **********
[Foot # 2 ]      The two employees whose travel has given rise to this request for review traveled in 1992 and 1993.  The Forest Service states in its request for our review that the matter was initially referred to the Comptroller General on April 15, 1994, but that there is no record of the Comptroller General ever having received it.  Therefore, the agency has resubmitted the matter to the Board for its review
****************** Footnote End ************

     
                           Background

James A. Wolfe

    Mr. Wolfe transferred to Juneau, Alaska, from Washington, D.C., in 1981, thereby establishing
Washington, DC as his place of residency for tour renewal agreement travel purposes.  For the
trip in question, Mr. Wolfe selected Magdalena, New Mexico as an alternate destination.  Since
the cost of round trip travel from Juneau to Magdalena, New Mexico exceeded the cost of round
trip travel to Washington, D.C., reimbursement was limited to the cost of travel from Juneau to
Washington, D.C. and return.

    Mr. Wolfe initially planned to start his travel on August 26 and return on September 5, 1992,
but because of work assignments had to reschedule the trip for October 24 to November 2, 1992. .
He left Juneau on October 24 at 8:00 a.m. and arrived in Seattle, Washington at 11:05 a.m.
Although, according to the agency, Mr. Wolfe could have taken a flight to Albuquerque that same
day, he remained in Seattle until the early morning of October 26, when he continued on to New
Mexico.  In processing his travel voucher, the Forest Service's travel payment section noted that
claimant had stayed in Seattle longer than necessary to catch the next reasonably available flight
and limited his tour renewal travel reimbursement to the round trip travel between Juneau and
Seattle.  Had Mr. Wolfe traveled directly to New Mexico, his total reimbursement would have
been $701, consisting of $632 for airfare, $52 for mileage, and $17 per diem.  Under the tour
concept policy as understood by the Forest Service, his reimbursement would be limited to $393,
consisting of $376 in airfare to and from Seattle and $17 per diem.

David A. Niemann

    Mr. Niemann transferred to Juneau, Alaska from St. Louis, Missouri in 1979.  He selected
Kona, Hawaii as his alternate destination.  The round trip cost of travel to Hawaii exceeded the
cost of a round trip to St. Louis, so that Mr. Niemann's recovery was limited to the cost of a trip to
St. Louis and return to Juneau.

    Claimant and his family departed Juneau, Alaska at about 6:30 p.m. on February 12, 1993, and
arrived in Seattle at about 11:00 p.m. They had originally planned to depart Juneau on the
morning of February 13, but had altered their travel plans and left the previous night instead. 
When they planned to depart Juneau on February 13, they had scheduled a connecting flight to
Hawaii on February 14.  After changing their plans, they left the connecting flight unchanged and
departed Seattle on February 14, although a flight to Kona, Hawaii was scheduled on February 13. 
Mr. Niemann explains that he changed the original flight to Seattle from Saturday to Friday
evening because of concerns about inclement weather in Juneau.  At the time the original flight
reservations were made, the Niemanns were told that the Saturday flights to Kona from Seattle
were fully booked, which is why they had booked the flight for Sunday, February 14.

    Had Mr. Niemann and his family traveled "directly" to Kona, claimant would have been
authorized a total cost of $1774.25.  Under the Forest Service interpretation of the tour concept,
reimbursement is limited to $829.

Overview

    Because both of these travelers were deemed to have made stopovers in Seattle for longer
periods than were strictly necessary for proceeding to their ultimate destinations, the Forest
Service limited reimbursement to the costs associated with the flights to Seattle.  This decision
was predicated upon the agency's understanding of the "tour concept" set forth in 37 Comp. Gen.
113 (1957), which addresses tour renewal agreement travel in which an employee has multiple
alternate destinations.  The Forest Service has interpreted this concept to limit reimbursable
expenses of renewal agreement travel to the cost of travel to the first stopover point when the
stopover exceeds the time necessary to take the next reasonably available flight to the ultimate
destination.  This policy is set forth in Forest Service policies supplementing the FTR and in a
booklet describing renewal agreement travel for employees in the Alaska region.  The tour
renewal agreement used by the Forest Service states that renewal travel will be from the official
station "directly" to the approved travel destination.

    The Forest Service explains that its policy is intended to ensure consistency for travelers and
that it has worked well generally except in the case of short stopovers en route to a final
destination.  According to the Forest Service, there are relatively few nonstop flights from Alaska
to the destinations selected by employees.  Rather, most employees must travel through Seattle
and catch connecting flights to the selected destination.

    In light of the claims of Messrs. Wolfe and Niemann, the Forest Service seeks our guidance,
not simply to resolve the claims of these particular employees, but also to ensure appropriate
treatment of future claims of a similar nature.  The Forest Service thus asks us whether the
stopover en route policy set forth in its internal policies conforms to the intent of the FTR and the
Comptroller General's "tour concept," and if not, whether we could provide guidelines to modify
the agency policy to reflect the appropriate intent.
     
                           Discussion

    Under 5 U.S.C.   5728(c)(2) (1988), employees such as Messrs. Wolfe and Niemann, who have
been recruited for posts of duty in Alaska or Hawaii, are authorized overseas tour renewal
agreement travel [Foot # 3 ] This provision is implemented by the FTR, which authorizes an agency to pay
the round-trip transportation expenses for an employee and his or her immediate family from the
employee's post of duty in Alaska or Hawaii to his or her place of residence in the United States
and designated territories for the purpose of returning home to take leave between tours of duty. 
The FTR further provides that an employee stationed in Alaska or Hawaii may, under tour
renewal agreement travel, select a destination in the United States other than the place of actual
residence, with the limitation that "[t]he amount allowed for travel and transportation expenses
when travel is to an alternate location shall not exceed the amount which would have been
allowed for travel over a usually traveled route from the post of duty to the place of actual
residence and for return to the same or different post of duty outside the continental United
States." 41 CFR 302-1.13(b)(3).

****************** Footnote Begin **********
[Foot # 3 ]     Under current law, employees stationed in Alaska and Hawaii are limited to two trips in five years. 
5 U.S.C.  § 5728(c)(3) (1994); 41 CFR 302-1.13.  Neither claimant is limited by this rule because both were stationed 
in Alaska prior to September 1982.
****************** Footnote End ************



    Under internal Forest Service travel regulations, the agency, in providing for designation by an.
eligible employee of an alternate destination, states that "[t]he first place visited with a stop over
longer than needed for transportation connections will be considered the alternate location."  The
Forest Service has also published a pamphlet for the Alaska Region providing information on
renewal tour travel agreement.  The Forest Service included the pamphlet in the record provided
to us, but does not state whether this information was provided to the employees making the
claims presented for our review.  The following paragraph in the pamphlet addresses stopovers en
route to the destination:
  
    The employee renewal agreement specifies travel directly to the actual residence,
designated location, or alternate location.  Consequently, travel to the authorized destination must
be direct.  It is important to note that the total reimbursable travel cost of [the] trip will. be limited
to the lower of direct travel from the official station to the actual residence and direct return or
direct travel from the official station to the alternate location and return.  If travel is not direct, or
a stopover is made while en route to the authorized destination, the reimbursement will be limited
[by] treating the en route stopover as the authorized destination.  Stopovers are allowed for
normal plane schedules.  An example: Arrive in Seattle at 8:00 p.m. with no plane connection
until the next day at 7:00 a.m. This is allowable and still considered direct travel.

    The Forest Service explains that this paragraph is intended to implement the "tour concept"
developed by the General Accounting Office in reviewing the allowability of expenses for travel
under tour renewal agreements.

    The "tour concept" was initially expounded in 37 Comp. Gen. 113 (1957).  In responding to an
inquiry as to whether an employee might travel by air to a particular destination and then "make a
tour (by any means of travel including automobile)" ending at "the initial destination and be
reimbursed for travel costs up to the amount it would cost to travel to and from his place of actual
residence," the Comptroller General stated that:
  
    In our decision of October 28, 1953, 35 Comp. Gen. 244, 246, we said that "the only
determination necessary regarding the return destination of employees on 'home leave' travel is
that the cost thereof chargeable to the Government should not exceed the cost of round trip travel
to the 'places of actual residence' at time of appointment or transfer to overseas post of duty.". 
That statement was not intended to be construed as recognizing a "travel tour" concept.  The
statute authorizes travel for leave purposes to "places of actual residence."  As recognized in 35
Comp. Gen. 246, that phrase is not viewed as requiring travel to the actual residence before the
travel expenses are allowable.  By [their] terms, however, the statutory regulations... authorize
travel only to "another location."  The regulations do not provide for travel to various locations for
personal convenience.  Thus, the regulations permit election of an alternate destination, which
ordinarily should be specified in advance of travel.  The cost payable by the Government for
travel to the alternate location is restricted to the cost actually incurred and may not exceed
constructive cost to actual place of residence.

Id. at 115.

    In a subsequent decision, the Comptroller General explained that under the "tour concept" the
"election of an alternate location ordinarily should be specified in advance of the travel and the
cost payable by the Government for travel to the alternate location is restricted to the cost actually
incurred and may not exceed the constructive cost to the place of actual residence." 46 Comp.
Gen. 675, 677; see also Robert W. Tompkins, B-158247 (Jan. 19, 1966).  Where an alternate
destination is selected by the employee, maximum allowable payment may not be computed "on
the basis of a circuitous or tour route used by the employee for personal reasons."  In Tompkins,
the employee's place of actual residence was Philadelphia, Pennsylvania.  After completing a
temporary duty assignment in Missouri, the employee commenced renewal travel.  He visited
family in Boise, Idaho, and then embarked on an automobile tour, traveling to Portland, Oregon;
San Francisco, California; Las Vegas, Nevada; Salt Lake City, Utah; Glacier National Park,
Montana; and various points in Canada, finally returning to his official duty station in Anchorage,
Alaska.  The Comptroller General advised the employee that he could not be reimbursed based on
the constructive cost of round trip travel to Philadelphia, but was limited to a maximum of the
constructive cost of direct travel to one of his many destinations.  The Comptroller General
allowed him to select Las Vegas, which was the farthest point from Anchorage, as the alternate
destination.

    The explanation and application of the tour concept by the Comptroller General address factual
situations that differ from those presented by the Forest Service here.  In the cases discussed
above, the employees traveled to the alternate destination and then continued to travel, and sought
to recoup expenses capped by the constructive cost of travel to their place of residence, rather than
the cost of travel to the designated alternate destination.  The cases before us involve brief
stopovers occurring prior to taking connecting flights to the designated alternate destinations. 
Although the stopovers admittedly exceeded the minimum time required for making a connecting
flight, the travelers continued reasonably promptly to their designated destinations and the time
spent in Seattle was relatively insignificant compared to the time spent at the alternate
destinations  [Foot # 4 ]  Thus, even under the Forest Service's rule, if construed with flexibility to
recognize that extenuating circumstances might make it impracticable to catch the next available
connecting flight to the designated destination, it would seem appropriate to reimburse these
claimants.

****************** Footnote Begin **********
[Foot # 4 ]   In the case of the Niemanns, moreover, a persuasive explanation for the additional night in Seattle
has been provided.  This was not a case where the traveler had two distinct destinations; rather, the employee had 
been unable to get an earlier connecting flight to Hawaii, but prudently flew to Seattle earlier in order to avoid 
the need to cancel the trip altogether in the event of inclement weather.  Although Mr. Wolfe did not explain why he remained in Seattle for the night rather than continuing on to Albuquerque, it seems likely from the schedules that 
he may not have been able to complete travel to Magdalena from Albuquerque in a single day.  Thus, it would not have 
been unreasonable to choose to spend the night in Seattle rather than in Albuquerque and finish the travel to his 
ultimate destination the next day.  Alternatively, it is also possible that the connecting flight on the day he arrived 
in Seattle was fully booked. 
****************** Footnote End ************   

Additionally, the stopovers did not increase the cost to the Government in any way -- The
Government's maximum liability in both cases was the constructive cost of a trip to the actual
place of residence, since both employees selected alternate destinations for which the cost of
travel exceeded the cost of traveling to the actual place of residence.  We believe that the agency's
interpretation of the "tour concept" is more restrictive than necessary to implement the "tour
concept" as articulated by the Comptroller General.  Neither the FTR nor the Comptroller
General's exposition of the "tour concept" would preclude reimbursing these employees for the
appropriate costs of traveling to their designated alternate destinations.

    To summarize, we conclude that the claimants should be reimbursed the full amounts claimed,
and not limited to round trip costs to Seattle.  In addition, in our view the policy as applied by the
Forest Service is more restrictive than what is required under the FTR and what was envisioned
by the Comptroller General's tour concept.  When an employee has designated an alternate
location, he or she may be reimbursed the actual costs of travel to that, location, so long as it does
not exceed the constructive cost of travel to and from the actual place of residence, even if the
employee makes a stopover for personal convenience en route to the alternate destination or on
the return trip to Alaska.  In cases where the cost of travel to the alternate location is less than the
cost of travel to the actual place of residence, the "tour concept" simply provides that the
employee is limited to the cost of travel to that location and may not be permitted to recover
additional costs of travel to other locations up to the maximum constructive cost of travel to the
actual place of residence.


                                                                               CATHERINE B. HYATT
                                                                               Board Judge