Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________ November 30, 1999 _____________________ GSBCA 15109-TRAV In the Matter of RUSSELL E. YATES Russell E. Yates, Houston, TX, Claimant. Robert A. Tepfer, Lyndon B. Johnson Space Center, Houston, TX, appearing for National Aeronautics and Space Administration. NEILL, Board Judge. Russell E. Yates, a computer engineer employed by the National Aeronautics and Space Administration (NASA), asks that we review for correctness his agency's determination of the constructive cost of travel he was to undertake in conjunction with a temporary duty (TDY) assignment. Earlier this year, claimant was sent on official travel. Travel by air would have been in the Government's best interest. Mr. Yates, however, chose to make the trip in his personally owned motorhome rather than fly. The agency has properly determined that reimbursement to Mr. Yates for his transportation must be limited to the constructive cost of the travel (both transportation and per diem) had he gone by air. In constructing the amount of Mr. Yates' per diem, however, the agency has insisted on using the actual cost of his lodging at the mobile home campground rather than the estimated cost of a hotel room. Mr. Yates contends that he is entitled to the latter. For the reasons set out below, we agree with the claimant. Background Mr. Yates received travel orders to perform software testing and to attend a critical design review for NASA in Tampa, Florida, from March 15 through March 19, 1999. Although the form of transportation most advantageous to the Government was for him to make the trip by air, Mr. Yates elected to make the trip to Tampa from his permanent duty station in Houston, Texas, in his personally owned motorhome. Mr. Yates left Houston on March 13 and arrived in Tampa on March 14. He performed his TDY assignment at Tampa from March 15 to March 19. On March 20, he left Tampa and arrived back in Houston on March 20. In determining the limits of reimbursement for Mr. Yates, NASA computed a constructive cost based on his having traveled from Houston to Tampa by air. The computation is based upon a departure from Houston on March 14 and a return on March 19. The claimant has no objection to the timeframe used by the agency to figure the constructive cost of his trip. Rather, he challenges the manner in which NASA calculated the per diem to which he was entitled during this period. Specifically, he does not disagree with the agency's calculation of the meals and incidental expense (M&IE) portion of the per diem, but rather with the calculation of the lodging portion of this allowance. NASA contends that, even in calculating a constructive per diem for Mr. Yates, it has no choice but to use his actual lodging expenses for the days in question when determining the lodging portion of that per diem. Discussion The agency's position in this matter is readily understandable. As we ourselves have previous noted, over the years, the manner in which a Government employee's per diem allowance has been determined under applicable regulations has been the subject of considerable controversy. For obvious practical reasons, as the number of Government employees on travel has increased, there has been a gradual shift from the reimbursement of travelers for actual expenses to reimbursement on a fixed or flat-rate basis. This, however, has, at times, generated criticism on the ground that the Government, in providing a flat-rate per diem, often has reimbursed travelers more for their lodging than they actually paid. To rectify this problem, the "lodgings-plus" system of per diem was eventually introduced. Under this method, the traveler is given a flat rate for M&IE but is reimbursed for lodging strictly on an actual expense basis. See Dimitri & Eugenia Arensburger, GSBCA 14514-TRAV, 98-2 BCA 30,055. This method of per diem reimbursement is now firmly established in the Federal Travel Regulation (FTR). The FTR now only recognizes three methods for reimbursing per diem, namely: (1) lodgings-plus per diem; (2) reduced per diem; and (3) actual expense per diem. 41 CFR 301- 11.5 (1998) (FTR 301-11.5). NASA cogently argues that Mr. Yates was not authorized either a reduced per diem or an actual expense per diem. This, therefore, leaves only the lodgings-plus method for reimbursement of per diem. Under this method, an employee is to be paid only his or her actual lodging cost not to exceed the maximum lodging rate for the temporary duty location or stopover point. FTR 301- 11.100. Hence the agency insists on using Mr. Yates' actual campground charges as the basis for the lodging component of his constructive per diem. The FTR provides that an agency may not prohibit an employee from using a personally owned vehicle (POV) on official travel but, in the event the employee elects to use a POV, the agency must: Limit reimbursement to the constructive cost of the authorized method of transportation, which is the sum of per diem and transportation expenses the employee would reasonably have incurred when traveling by the authorized method of transportation . . . . FTR 301-70.105. As the claimant himself points out, key to this portion of the regulation is the verb "would reasonably have incurred." The mood of this verb is not indicative but rather conditional. Indeed, this is a classic "contrary to fact" condition. The constructive costs discussed in this provision of the regulation have not in actuality been incurred. Rather, if the employee had, in fact, gone by the authorized method of transportation, these costs would have been incurred. In fact, however, the employee went by POV and the costs were not incurred. From a close reading of this provision in the FTR regarding constructive cost, we perceive a flaw in the methodology NASA has adopted to compute the constructive cost of Mr. Yates' trip to Tampa. The actual costs of Mr Yates' stay at the mobile home campground should not be used. Under this provision of the FTR, actual costs should not enter into the calculation of constructive costs. Given the wording of the provision, we find that the regulation does permit the agency, in cases such as this, to use an estimated lodging cost in computing the claimant's constructive per diem -- notwithstanding the unmistakably strong emphasis in the FTR on the use of actual lodging costs when normally reimbursing per diem. It is, of course, important that the lodging estimate used by the agency be a realistic one. Fortunately for the claimant, one is readily available in this case. In a previous visit to the same site, Mr. Yates explains that he did stay at a local hotel. He reports that the room rate at that hotel for March 1999 was $103 per night and that this is under the maximum allowable lodging rate of $104. The agency should, therefore, recompute the constructive cost of Mr. Yates' trip to Tampa (i.e. the sum of per diem and transportation expenses) using this estimated hotel cost rather than Mr. Yates' actual cost of renting a location at the mobile home campground. The resulting figure should then serve as the limit on the claimant's reimbursable expenses for his TDY assignment to Tampa. _____________________ EDWIN B. NEILL Board Judge