Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________ July 19, 1999 ______________ GSBCA 14964-TRAV, 15013-TRAV In the Matters of E. PATRICIA LIEGEY and LINDA B. WEBB E. Patricia Liegey, Silver Spring, MD, Claimant in GSBCA 14964-TRAV. Linda B. Webb, Bethesda, MD, Claimant in GSBCA 15013-TRAV. Lt. Col. Leonard B. Horning, Acting Assistant Chief of Staff for Resource Management, Headquarters, United States Army Medical Command, Department of the Army, Fort Sam Houston, TX, appearing for Department of the Army. PARKER, Board Judge. In January 1999, E. Patricia Liegey and Linda B. Webb, two civilian employees of the Department of the Army at the Walter Reed Medical Center in Washington, D.C., were sent for training to St. Petersburg Beach, Florida. Their travel orders authorized per diem reimbursements based upon a rate of $141 per day, which included $103 per day for lodging and $38 per day for meals and incidental expenses. Ms. Liegey stayed at the Sandpiper Resort at a cost of $99 per day; Ms. Webb roomed at a Best Western Beachfront Resort, which offered a daily rate of $87.67. Midway through the week- long training, Ms. Liegey and Ms. Webb found out that the lodging component of the per diem rate for St. Petersburg had been lowered to $59 per day as of January 1. Upon their return to Walter Reed, Ms. Liegey and Ms. Webb requested that they be reimbursed the actual cost of their hotel rooms. The requests were denied. The claimants maintain (and have provided evidence) that lower rates were not available in the St. Petersburg Beach area while they were on their training assignment. They have also pointed out that until December 31, 1998, the lodging component of the per diem rate for St. Petersburg was $103, and that, effective May 1999, that component was raised from $59 to $105. Upon review, we find that the Army abused its discretion in refusing to grant the claimants request. Discussion A federal employee who travels on official business is entitled to be paid a per diem allowance, reimbursement of expenses actually and necessarily incurred, or a combination of the two. 5 U.S.C. 5702(a)(1) (1994). The rates and conditions regarding the allowance and reimbursement are established in the Federal Travel Regulation (FTR) by the Administrator of General Services. Id. 5702(a)(1), 5707(a)(1); 41 CFR ch. 301 (1998). The Joint Travel Regulations (JTR) explain and supplement the FTR for civilian employees of the Department of Defense (DoD) and related agencies. According to the JTR (and the FTR), employees on official travel generally are reimbursed under a system termed lodgings- plus. Under the lodgings-plus system, the per diem allowance for each travel day is the actual amount the traveler pays for lodgings plus an allowance for meals and incidental expenses. The total may not exceed the applicable maximum per diem rate for the location. JTR 4552-A. The regulations recognize, however, that sometimes the per diem rate may not be adequate to fairly compensate a traveler for the expenses which he was required to incur. In such cases, an employee may be authorized reimbursement for the actual costs incurred for lodging or meals, or both. This system for reimbursement has been termed the actual expense allowance (AEA) system. Paragraph C4600 of the JTR explains the conditions which warrant payment of an actual expense allowance: A. General. The applicable per diem rate . . . is generally adequate. However, the allowable per diem rate may be insufficient for a particular travel assignment because of special duties or because costs for items listed in par. C4601 [which includes lodging expenses] have increased. . . . AEA may be authorized/approved for travel that meets conditions in this Part if the actual and necessary expenses exceed the maximum per diem allowance. Notwithstanding the conditions cited in this Part, the actual expense authority may not be used as blanket authority to authorize/approve automatic AEA for all travel to an area where the reimbursement rate is inadequate. The actual expense authority may be used only on an individual trip basis, and only after appropriate consideration is given to the facts existing in each case at the time the travel is directed and performed. . . . Examples of travel assignments or situations that may warrant authorization/approval of AEA include but aren t limited to the following: 1. employee travels with a dignitary and is required to stay in the same hotel; 2. travel is to an area where the applicable maximum per diem rate is generally adequate, but costs escalate for short periods of time during special functions or events such as missile launching periods, international or national sports events, world's fairs, conventions, or natural disasters; 3. under circumstances described in item 2, affordable lodgings aren't available or can't be obtained within a reasonable commuting distance of the employee's TDY site, and transportation costs to commute to and from the less expensive lodging facility consume most or all of the savings achieved from occupying less expensive lodging; 4. an employee, because of special duties of the assignment, necessarily incurs unusually high expenses while conducting official business such as to procure superior or extraordinary accommodations including a suite or other quarters for which the charge is above the lodging ceiling; or 5. an employee necessarily incurs unusually high expenses incident to assignment to accompany another employee in a situation as described in item 4. JTR 4600-A.1-5. The FTR lists similar situations in which an actual expense allowance may be paid. It also says that an actual expense allowance is warranted because of [a]ny other reason approved within [the] agency. 41 CFR 301-11.300. Prior to January 1, 1999, the high-season per diem rate for St. Petersburg was a blended rate, which also included the city of Tampa. The lodging component of the blended per diem rate was $103. 41 CFR pt. 301, app. A. Effective January 1, the General Services Administration (GSA) separated the two cities for per diem purposes, setting rates which included a lodging component of $103 for Tampa and $59 for St. Petersburg. 64 Fed. Reg. 6,550 (1999). Effective May 27, and for reasons unexplained, GSA again blended the rates for the two cities. The lodging component of the blended rate was set at $105. 64 Fed. Reg. 28,878 (1999) (to be codified at 41 CFR pt. 301, app. A). Ms. Liegey and Ms. Webb maintain that they are entitled to be reimbursed the actual cost of their lodging because the applicable per diem rate was inadequate. As evidence, they point to the fact that they could find no hotel in the St. Petersburg area with a high-season rate of $59 or less, and that GSA corrected the per diem rate effective May 27, only five months after dramatically lowering the rate in January. The Army, without any evidence to rebut the claimant s evidence that no accommodations were available at the per diem rate, maintains that Ms. Liegey and Ms. Webb could have commuted to less costly lodging. In addition, the Army points out that the situation faced by the claimants does not fit within one of the examples listed in the JTR and that, in any event, the decision whether to pay such an allowance is within the Army s discretion. Several factors convince us that the Army abused its discretion in deciding not to pay Ms. Liegey and Ms. Webb an actual expense allowance. First, the Army had authority to grant their request. Although none of the JTR s five examples of situations that may warrant approval of an actual expense allowance applies to the predicament in which Ms. Liegey and Ms. Webb found themselves, the JTR does authorize approval of AEA in other situations. The FTR says that those other circumstances include [a]ny other reason approved within [the] agency. Second, the claimants travel orders authorized per diem at a rate of $141 per day (with a lodging component of $103), and both Ms. Liegey and Ms. Webb relied on this rate when they sought accommodations. Although an erroneous travel authorization does not, in and of itself, provide a right to payment where none exists, here, the Army had a lawful way (through payment of an AEA) of rectifying its error. Third, the fact that the lodging component of the per diem rate for St. Petersburg was abruptly lowered to $59 effective January 1999 (when the claimants traveled), and then raised to $105 in May, tends to support the claimants argument that the $59 rate was inadequate. These factors, combined with the un-rebutted evidence that Ms. Liegey and Ms. Webb were unable to locate any hotel rooms at the authorized rate, demonstrate that the Army s decision to deny the claimants request for an actual expense allowance on the basis that the per diem rate was adequate was arbitrary, capricious and clearly erroneous. In such circumstances, the Board is bound to reverse the decision. Benny G. Mitchell, GSBCA 13801-TRAV, et al., 97-1 BCA 28,940; see Larry E. Olinger, GSBCA 14566-RELO, 98-2 BCA 29,877; cf. John Patrick Pede, GSBCA 13862-RELO, 97-2 BCA 29,023. Decision For the reasons discussed above, the claims are granted. __________________________ ROBERT W. PARKER Board Judge