Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________ November 4, 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. Col. Roger W. Foxhall, Assistant Chief of Staff for Resource Management, Headquarters, United States Army Medical Command, Fort Sam Houston, TX, appearing for Department of the Army. PARKER, Board Judge. The Department of the Army has requested that the Board reconsider its decision in E. Patricia Liegey, GSBCA 14964, et al. (July 19, 1999). In the decision, we held that the Army abused its discretion when it refused to reimburse the claimants under the actual expense method in connection with their trip to St. Petersburg, Florida for training. As discussed below, we decline to reconsider our decision. The basic facts are as follows. In January 1999, Ms. Liegey and Ms. Webb were sent for training to St. Petersburg, Florida. The claimants 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. Both claimants rented hotel rooms in St. Petersburg within the allowed amount for lodging. Midway through the training week, the claimants found out that the General Services Administration (GSA) had lowered the lodging component of the per diem rate to $59 per night as of January 1. When they returned home, Ms. Liegey and Ms. Webb requested that they be reimbursed the actual cost of their hotel rooms. The requests were denied. The Army reimbursed each employee only $59 per night for lodging. During the Board s review of the Army s actions, the claimants pointed out two additional factors which we found significant. First, upon their return home, the claimants called several hotels in the St. Petersburg area in an attempt to find out whether any rooms were available at the $59 rate. They were unable to find one. Second, Ms. Liegey and Ms. Webb pointed out that GSA raised the lodging component of the per diem rate for St. Petersburg to $105, effective May 27, 1999. Thus, the high- season rate had gone from $103 per night to $59 per night on January 1, and then to $105 per night on May 27. We granted the claim because the Army failed to consider properly the unusual confluence of factors which had affected the travelers: (1) the Army had authorized reimbursement at the rate of $103 per night, (2) the claimants had relied on that authorization, (3) the Army provided no evidence to rebut the claimants evidence that no rooms were available at the $59 rate, and (4) GSA had radically lowered the high-season per diem rate for St. Petersburg and then abruptly raised it again, leaving some doubt about whether the $59 per night rate was reasonable. We held that, although the lodging component of the applicable per diem rate actually was $59 at the time the claimants traveled, given the unusual circumstances, the Army should have exercised its authority to reimburse the claimants for their actual hotel expenses. The Army s request for reconsideration is troubling, both because it indicates a misunderstanding of the decision and because it makes arguments that are incorrect in a very basic way. We address here the most significant arguments. First, the Army alleges that the Board s decision shifted the burden of proof away from the claimants, and toward the agency, because the Board accepted the claimants statements that they were unable to find a hotel room in St. Petersburg at the applicable per diem rate. We agree with the Army that the evidence (numerous telephone calls) was not the most compelling we have ever seen, but because it was the only evidence on the issue, we accepted it. The Army s statement to the effect that there must have been something cheaper was not evidence; it was merely an unsubstantiated opinion. The burden did not shift; the Army simply failed to come up with any evidence to rebut the claimants evidence.[foot #] 1 Next, the Army devotes several paragraphs of its motion to the fact that the claimants training was self-selected and implies that this is somehow significant. It isn t. The Army sent two of its employees for job-related training, which included temporary duty travel. The claimants did not send ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Army also pointed to the fact that Ms. Liegey was authorized a rental car as evidence that she could have found a cheaper hotel farther away from the temporary duty location. We do not know why Ms. Liegey was authorized a rental car since she was attending training at the hotel where she lodged. We do know that the car was not authorized for the purpose of finding a cheaper hotel room; Ms. Liegey stayed at the location of the training at a cost which both she and the Army believed at the time to be within the authorized per diem. The Army s accusation that Ms. Liegey failed to act prudently in selecting her place of lodging is not supported by the record. ----------- FOOTNOTE ENDS ----------- themselves for training; they requested certain training and the Army, not the claimants, authorized it. The fact that the claimants drafted the authorization forms did not relieve the Army of its responsibility to review the requests and to make the proper authorizations. If the Army believed that training in St. Petersburg, Florida in January was an inappropriate use of funds, it should not have authorized the training. Having made the authorization, however, the agency may not treat the claimants differently than other employees on official temporary duty travel. In its request for reconsideration, the Army also maintains that large per diem rate fluctuations are common and should not provide a basis for paying actual expenses. In support of this proposition, the Army provided a chart which purports to show that large changes in the lodging component of the per diem rate for St. Petersburg were not unusual. As we stated in the original decision, we agree that the per diem rates established by GSA generally are deemed to be adequate and that a change in the per diem rate does not prove that the old rate was inadequate. The rate fluctuation here, however, was very unusual. The Army s chart is misleading because it includes both high-season and out-of-season rates. The rates discussed in the Board s decision were the high-season rates applicable to someone traveling in January, as the claimants did. Contrary to the Army s assertion, the drop from a high-season rate of $103 to $59, and subsequent rise to $105 five months later, was not routine and was an important factor in our decision. Finally, the Army s request for reconsideration is troubling because it steadfastly maintains that everything that went wrong was the claimants fault and fails to acknowledge both the unusual circumstances surrounding the claimants travel and the agency s own contribution to the situation. The evidence shows that this view of the record is incorrect. Although there may have been some fault on the part of the claimants in failing to find the most current rate information, there is no evidence that they attempted to abuse the system. Given the unusual per diem situation, the Army s compounding of the error by authorizing that rate, and the claimants unrebutted evidence that no cheaper rooms were available, we see no reason to reconsider our original decision: the Army should have rectified the situation by exercising its authority to reimburse the claimants for the actual costs of their hotel rooms, and its failure to do so was an abuse of discretion. Decision The Army s motion for reconsideration is denied. ___________________ ROBERT W. PARKER Board Judge