Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________ September 29, 1998 ________________________ GSBCA 14425-RELO In the Matter of GORDON D. GIFFIN Gordon D. Giffin, Ottawa, Canada, Claimant. Donald S. Hays, Executive Director, Bureau of European and Canadian Affairs, Department of State, Washington, DC, appearing for Department of State. HYATT, Board Judge. Claimant, Gordon D. Giffin, is the United States Ambassador to Canada. In 1997, Ambassador Giffin and his family moved from Atlanta, Georgia to Ottawa, Canada. In connection with this move, the Department of State authorized reimbursement of various costs of relocation, including a predeparture subsistence allowance under the Foreign Transfer Allowance Provision of the Department of State Standardized Regulations (STR).[foot #] 1 The Department of State, on behalf of Ambassador Giffin, has asked the Board to review the Department's disallowance of the cost of meals claimed under this predeparture allowance. For the reasons stated, we conclude that the State Department may reimburse the meal expenses. Background ----------- FOOTNOTE BEGINS --------- [foot #] 1 This allowance is authorized under 5 U.S.C. 5924 (1994). Although entitlement to most of the allowances authorized under chapter 59 of 5 U.S.C. is reviewed by the Office of Personnel Management (OPM), rather than by the Board, OPM has expressed the view that allowances that compensate for expenses of relocation are more comparable to the types of cases reviewed by the Board under chapter 57 of 5 U.S.C., and has declined to decide these types of cases. The Chairman of this Board has agreed that this Board will resolve claims such as Ambassador Giffin's. Michael J. Krell, GSBCA 13710-RELO(REIN) (Sept. 23, _________________ 1998); Susan Drach, GSBCA 13863-RELO, 98-1 BCA 29,442. ___________ ----------- FOOTNOTE ENDS ----------- Ambassador Giffin was authorized a predeparture allowance to cover a ten-day "pack-out" period in advance of the move from Atlanta. He was advised that this allowance would cover the cost of a hotel room, if needed, as well as actual subsistence, not to exceed approximately $330 per day. During the ten-day period preceding the Giffin family's departure from Atlanta, their home, including all dishes and food preparation utensils was completely packed up. The beds remained in the house until immediately prior to departure. To minimize costs to the State Department, the Giffins slept at the house, although it was necessary to eat all meals at restaurants. Ambassador Giffin was not advised at any time prior to or during the pack-out period that reimbursement of the predeparture costs was conditional upon leaving the house altogether and moving to a hotel. Ambassador Giffin estimates that the lodgings cost savings was approximately $1500-$2000. Upon arriving in Ottawa, Ambassador Giffin submitted a travel voucher claiming reimbursement for the cost of the meals ($882) consumed by the Giffins during this ten-day period. Ambassador Giffin was then informed that these meal costs could not be reimbursed because he did not move out of his house and incur the cost of hotel accommodations. The State Department does not otherwise question the reasonableness of or eligibility for recovery of these meal expenses. Discussion The predeparture allowance authorized for Ambassador Giffin and his family is provided for under 5 U.S.C. 5924(2)(A) (1994), which states that a transfer allowance may be granted to an employee for extraordinary, necessary, and reasonable subsistence and other relocation expenses, not otherwise compensated for, incurred incident to the process of becoming established at a post of assignment in a foreign country. The allowance includes costs incurred in the United States prior to departure for a foreign post. This statutory provision is implemented in the STR. Under STR 241.2c, one of the elements of the foreign transfer allowance is predeparture subsistence expenses for lodging, meals (including tips), laundry, cleaning and pressing expenses in temporary quarters for employee and each member of family for up to 10 days before final departure from a post in the United States to a post in a foreign area, beginning not more than 30 days after they have vacated residence quarters. The State Department personnel responsible for reviewing Ambassador Giffin's claim interpret this provision to mean that the employee must have physically vacated permanent residence quarters in order to qualify for reimbursement of meals. In forwarding Ambassador Giffin's claim, the Executive Director for the Bureau of Foreign and Canadian Affairs inquires whether the Board might grant an exception to the rule. In his response, Ambassador Giffin argues that no exception is necessary. In his view, the Department's interpretation of the regulation is unduly restrictive and encourages the unnecessary expenditure of taxpayer funds in circumstances such as those presented in this claim. His house had been sold and fully packed-out in anticipation of the move to Ottawa. Other than the beds, furniture and personal property were not available for the Giffins' convenience. In Mr. Giffin's view, once the packing was completed, the house was no longer effectively occupied as a permanent residence. To conclude otherwise gives the transferring employee a "perverse incentive" to incur substantial and unnecessary lodging expenses in order to be reimbursed for meals subsistence expenses. The Department of State Standardized Regulations are promulgated by the Secretary of State and have the force and effect of law. As such, the Board does not have the authority to waive or carve an exception to the application of these regulations. Robert D. Chelburg, B-158033 (Nov. 8, 1994). Nonetheless, we see no reason why the agency would necessarily be barred from paying these expenses under the existing language of the regulation. The interpretation advanced by State Department personnel in reviewing Mr. Giffin's voucher is similar to the approach adopted by the Comptroller General in construing the requirements of the Federal Travel Regulation's (FTR's) provisions on eligibility for temporary quarters subsistence expenses (TQSE), which, until amended in 1997, defined temporary quarters as lodging intended for temporary occupancy obtained "after vacating the residence occupied when the transfer was authorized." 41 CFR 302-5.2(c) (1996).[foot #] 2 Although this language is not identical to the STR provision, it does incorporate the similar notion of "vacating" the permanent residence.[foot #] 3 The Comptroller General also recognized, in strictly limited circumstances, the notion of ----------- FOOTNOTE BEGINS --------- [foot #] 2 In 1997, the FTR was revised to define "temporary quarters" as "lodging obtained for the purpose of temporary occupancy from a commercial or private source." The language limiting such quarters to those occupied "after vacating the residence occupied" at the time of authorization of the transfer has been eliminated. See Patricia A. Tobin, GSBCA 14483-RELO, ___ _________________ 98-1 BCA 29,663. [foot #] 3 It has been recognized that TQSE, as provided under regulations promulgated by the General Services Administration, and the predeparture allowance of STR 241 are similar in purpose but not necessarily identical with respect to the determination of eligibility for reimbursement of expenses. Alan Hurdus, B-256937 (Apr. 27, 1995). ___________ ----------- FOOTNOTE ENDS ----------- "constructive vacation" of permanent quarters. The principal issue is whether the circumstances of the claimant's continued occupancy of the permanent residence may be regarded as temporary occupancy. Under the precedent developed by the Comptroller General in the context of the FTR, permanent quarters could be regarded as constructively vacated, even though the claimant had not actually moved out of them, where the facts of that situation showed that the employee intended to vacate the permanent residence and was not able to use these quarters in the usual and customary fashion. For example, the Comptroller applied the concept of constructive vacation where a household had been packed up and the moving van was scheduled to arrive but was delayed because of a mechanical breakdown. Beverly L. Driver, B-181032 (Aug. 19, 1974). In another case, the employee and his family had packed ninety percent of the household goods before traveling to the new duty station, and like the Giffins, slept on the mattresses and ate meals out on weekends when they returned to the former permanent residence to prepare it for sale. The employee explained that until the household goods were moved it was necessary to return home on the weekends to perform maintenance and retain insurance coverage. There, the Comptroller General stated that a residence may be considered to have been vacated when the family has ceased to occupy it for the purposes intended and agreed in this particular case that the employee had, "for all intents and purposes vacated his residence at the old duty station since it was no longer suited for permanent residence." John L. Reid, B-227193 (Oct. 16, 1987). Although the facts of Reid are not completely on all fours with those in this case, the parallel is strong. The Giffins did not have the use of their furniture and household possessions, which had been packed, and, as such, their house was no longer suited for permanent residence . Given the prudence of the Giffins in minimizing their expenses, see Alan Hurdus, B-256937 (Apr. 27, 1995), and the concept of constructive vacation of the permanent residence, it is our view that the State Department may, under its regulation, determine that Ambassador Giffin is eligible to be reimbursed the costs of the meals claimed. _________________________________ CATHERINE B. HYATT Board Judge