Board of Contract Appeals General Services Administration Washington, D.C. 20405 August 24, 1999 GSBCA 15040-RELO In the Matter of DR. ROBERT VICKERY Dr. Robert Vickery, Ewa Beach, HI, Claimant. Rhonda M. Johnson, Office of the Chief Financial Officer, National Finance Center, United States Department of Agriculture, New Orleans, LA, appearing for Department of Agriculture. BORWICK, Board Judge. The Department of Agriculture, National Finance Center (NFC), requests a decision pursuant to 31 U.S.C. 3529 (Supp. III 1997) (section 3529 decision) concerning a claim made by Dr. Robert Vickery. Claimant sought payment of $3697.05[foot #] 1 as temporary quarters subsistence expense (TQSE) for the cost of his lodgings ($3347.05) and miscellaneous expense allowance ($350) at the commencement of his permanent duty in Ewa Beach, Hawaii. The agency appointed claimant to his permanent duty station at Ewa Beach while he was on detail there. After the agency permanently assigned claimant to Ewa Beach, claimant continued to reside at the lodgings in which he had stayed during his detail. The NFC denied claimant TQSE because at the time of his transfer, he had not vacated his prior residence. The agency's Budget Division, Office of Management, disagreed with that conclusion, whereupon the NFC forwarded the matter to the Board. The specific questions asked by the agency are detailed below, but revolve around the issue of whether claimant may be reimbursed for his lodging cost, incurred after his permanent change of station as TQSE, even though he may not have vacated his permanent residence. Under the applicable version of the Federal Travel Regulation (FTR) then--and now--in effect, the ----------- FOOTNOTE BEGINS --------- [foot #] 1 In its referral letter to this Board, the agency says the NFC disallowed $3347.05. The disallowance form shows the agency disallowed $3697.05. ----------- FOOTNOTE ENDS ----------- precondition in previous versions of the FTR that an employee vacate a residence before he or she enters temporary quarters has been eliminated. If the agency, applying factors stated in 41 CFR 302-5.305 (1998) or similar factors, is convinced that claimant intended to and did use the lodgings only for temporary occupancy, claimant would be eligible for payment of allowable TQSE for the period to be established by the agency. The facts as indicated by the record are as follows. The agency sent claimant on a detail to Ewa Beach, Hawaii as relief veterinary medical officer for the period January 3 through May 1, 1999. The agency authorized per diem allowance, and claimant secured lodging at the Marc Suites Waikiki Royal. During his detail, claimant responded to a vacancy announcement and sought the position at Ewa Beach on a permanent basis. On March 12, claimant was notified of his selection for the permanent position and he immediately assumed his duties. The agency advised claimant that it would discontinue his per diem and authorized him to enter temporary quarters. The Marc Suites Waikiki Royal was the only lodging offering Government rates; claimant remained at the Marc Suites. On May 1, claimant returned to his old duty station in Kennewick, Washington, to close his permanent residence and make arrangements for the shipment of his household goods and automobile to Hawaii. Claimant returned to Hawaii on May 8 and resumed lodging at the Marc Suites. His household goods were expected in Hawaii the second week of June. Claimant submitted a travel voucher for the cost--$3347.05-- of twenty days of lodging and meals from March 12 through March 31, 1999, and miscellaneous expense allowance of $350. The agency's NFC denied the voucher request, stating: "Temporary quarters not allowed. Please refer to CG B223314,[foot #] 2 TQ expenses are payable only if an employee has vacated the residence he was occupying at the time of his transfer." The agency's Budget Division, Office of Management, disagreed with that determination. The NFC then forwarded the matter to this Board for a section 3529 decision. The agency asks three questions: (1) if "the NFC may reimburse [claimant] even though his actual permanent residence was not vacated until May 1, 1999;" (2) if the claimant is not entitled to reimbursement of TQSE for the period March 12 through May 1, 1999, whether he would be entitled to reimbursement for the period May 8 through June 4, 1999; (3) if claimant would be entitled to payment on a per diem basis as if he were on his original detail from March 12 through May 1, 1999. Discussion ----------- FOOTNOTE BEGINS --------- [foot #] 2 That decision is found as William E. Gray, 66 ________________ Comp. Gen. 532 (1987). ----------- FOOTNOTE ENDS ----------- The case relied upon by the NFC to deny claimant reimbursement of TQSE construed an old version of the FTR, which defined temporary quarters to mean"lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied when the transfer was occupied. " 41 CFR 302-5.2c (1987) quoted in William E. Gray, 66 Comp Gen. 532 (1987) (emphasis supplied). For employees such as claimant, whose effective date of transfer is after March 22, 1997, the portion of the FTR dealing with relocation expenses has been rewritten to eliminate the underlined phrase quoted above. Thomas R. Montgomery, GSBCA 14888-RELO (May 10, 1999); George S. Chacones, GSBCA 14278-RELO, 98-1 BCA 29,728. The phrase "temporary quarters" is now defined as "lodging obtained for the purpose of temporary occupancy from a private or commercial source." 41 CFR 302-5.1 (1998). Thus the agency, applying the factors set forth in 41 CFR 302-5.305 or similar factors, may determine claimant's lodging at Marc Suites Waikiki Royal to be temporary; vacating permanent quarters is not a regulatory precondition as it had been in the past. In the second question, the agency implicitly asks whether the correct start date of claimant's reimbursement is March 12 or May 8. An employee is entitled to TQSE if the agency authorizes it before the employee occupies temporary quarters and if the employee has signed the service agreement, and has met any other conditions the agency has established. 41 CFR 302-5.7; 41 CFR 302-5.13. If the agency authorized claimant to receive TQSE and claimant signed a service agreement before March 12, then the agency could properly determine that the period for those expenses commenced on March 12. The agency could determine that claimant did not occupy the Marc Suites as temporary quarters pursuant to his permanent change of station (as opposed to temporary quarters for his detail) until March 12, or until the date that regulatory requirements (agency authorization and signing of the service agreement) were satisfied . The periods for which agencies may authorize incurrence of TQSE are specified at 41 CFR 302-5.104. __________________________ ANTHONY S. BORWICK Board Judge