In the Matter of LARRY E. HAMILTON

June 19, 2007

CBCA 468-TRAV

In the Matter of LARRY E. HAMILTON

Larry E. Hamilton, Jackson, WY, Claimant.

Candace Thatcher, Chief, Accounting Operations Division, Bureau of Land

Management, National Business Center, Department of the Interior, Denver, CO, appearing

for Department of the Interior.

GOODMAN, Board Judge.

Claimant, Larry E. Hamilton, is a retired federal employee. This case arises from an

audit of his travel expenses incurred during official temporary duty (TDY) travel and his

government-issued credit card statements while serving as the Director of Fire and Aviation,

Bureau of Land Management (BLM), for the Department of the Interior (the agency).

Factual Background

The agency’s Office of the Inspector General (IG) reviewed claimant’s official travel

which occurred between September 13, 2000, and May 30, 2003. In November 2004 the

IG prepared a Report of Investigation (the IG report). The IG report was reviewed by the

BLM National Business Center (NBC), which relied in part upon the IG staff’s conclusions

and issued a bill of collection to claimant in the amount of $7505.91. The NBC seeks to

collect funds for expenses incurred during or for official travel that the IG alleges were

wrongfully reimbursed to claimant or otherwise paid by the agency, as detailed below. The

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claimant asked one of our predecessor boards to review the agency’s determination that he

owes the amount sought.1

The agency relies upon the IG report to support its bill of collection. In most

instances, the agency agrees with the IG as to claimant’s liability, but in some instances the

agency believes that claimant is liable in a lesser amount or not liable at all. Claimant has

admitted liability as to some amounts. We determine liability as to only those costs which

the agency seeks to collect from the claimant.

Methodology of the IG Report

In September 2003, the IG’s staff interviewed claimant, three individuals who served

as his administrative assistants, and three senior agency officials who served during

claimant’s employment -- the Deputy Director of the BLM, the Deputy Assistant Secretary

for Budget and Finance of the BLM, and the Director of the BLM. Claimant was again

interviewed in February 2004. Claimant stated during the first interview that as a condition

of accepting his position in 1999, with his permanent duty station (PDS) in Boise, Idaho, he

had a verbal agreement with the BLM Director, the BLM Deputy Director, and the Secretary

of the Interior that he could maintain a second office at his residence in Jackson, Wyoming,

which he characterized as a “satellite office.” However, claimant acknowledged that he

understood that he was responsible for any additional costs as the result of originating his

TDY travel from and returning to his residence rather than from and to his PDS.

During the interviews, claimant and the three administrative assistants who were

responsible for making his travel arrangements described the procedures they used to plan

his travel itineraries. They stated that they made cost comparisons to determine if TDY

1

The agency’s bill of collection states that claimant may appeal to the General

Services Board of Contract Appeals (GSBCA). This case was docketed at the GSBCA on

August 9, 2006, as GSBCA 16940-TRAV. That board had jurisdiction over similar cases

when agencies sought to recoup allegedly wrongful reimbursement of travel expenses. See,

e.g., Janice M. Gentile, GSBCA 14457-RELO, 99-1 BCA ¶ 30,238. On January 6, 2007,

pursuant to section 847 of the National Defense Authorization Act for Fiscal Year 2006,

Pub. L. No. 109-163, the GSBCA was terminated and its cases, personnel, and other

resources were transferred to the newly-established Civilian Board of Contract Appeals

(CBCA). This case was docketed by the CBCA as CBCA 468-TRAV. The holdings of the

GSBCA and other predecessor boards of the CBCA are binding on this Board. Business

Management Research Associates, Inc. v. General Services Administration, CBCA 464,

07-1 BCA ¶ 33,486.

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travel originating from and/or returning to his residence resulted in additional costs when

compared to the same itinerary originating from and/or returning to his PDS.

According to claimant, he and his assistants determined by information requested and

received from Omega Travel (Omega), the Government’s travel agency during the relevant

time periods, whether his travel resulted in savings or additional costs to the Government.

When the information from Omega indicated that additional costs would result, he

reimbursed the Government for the additional costs incurred if he chose to travel by that

itinerary. It was claimant’s understanding that the NBC audited his travel vouchers that

were submitted after he completed his travel and no irregularities were brought to his

attention before he retired.

During October through December 2003 the IG staff reviewed a total of sixty-two

travel vouchers submitted for claimant’s official travel expenses incurred between

September 13, 2000, and March 26, 2003. Several additional vouchers were obtained

directly from claimant. The IG report states that these travel vouchers and monthly

statements from claimant’s government-issued credit card were reviewed by comparing each

travel voucher with the corresponding credit card statement against the General Services

Administration contract airfare schedule in an effort to validate claimant’s costs savings

comparisons and identify any loss to the Government.

Conclusions of the IG Report

The IG staff reviewed claimant’s travel originating from, returning to, or passing

through Jackson, Wyoming. The Government’s contract airfares from Boise, Idaho, were

reconstructed using the GSA schedule for contract airfares. The Government contract

airfare was then compared against the non-contract airfare claimant incurred for flights

involving Jackson. The IG report concluded that fourteen travel vouchers detailed travel

arrangements that resulted in additional costs to the Government. Eleven of these vouchers

claimed cost savings to the Government for claimant’s travel involving Jackson, Wyoming,

but the IG’s review failed to verify such a savings and calculated additional costs associated

with these vouchers. Three vouchers showed only partial reimbursements by claimant for

unused portions of his travel, or penalties incurred as the result of changes to non-contract

airfares. According to the IG report, total additional costs associated with the fourteen

vouchers were $5131.35. Of this amount, the agency seeks to collect $3367.84 from

claimant.

In addition to travel vouchers, claimant’s statements for his government-issued credit

card were obtained from Bank of America for May 2000 through March 2003 and several

additional monthly statements were obtained directly from claimant. The IG staff reviewed

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these statements in an effort to validate all transactions and identify any charges that did not

correlate to official travel expenses detailed on approved travel vouchers. Eight credit card

transactions totaling $3338.60 were identified relating to unused airline tickets in claimant’s

name. Three additional transactions totaling $275 were identified relating to penalties

imposed for changes to non-contract airfare flight itineraries. According to the IG report,

these centrally billed credit card charges2 were not recorded on any travel voucher nor was

there a corresponding credit posted to claimant’s government-issued credit card account.

The agency alleges that these additional costs to the Government totaling $3613.60 are due

from claimant and seeks these costs from claimant in their entirety.

According to the IG report, claimant was interviewed on February 4, 2004,

concerning these credit card transactions. Regarding the eight transactions related to unused

airfare, claimant checked his daily planner and confirmed that the transactions were indeed

for airfare not used. He was unable to explain why no credit had been issued to his

government-issued credit card account for six of these transactions. During this interview,

claimant advised that two of the transactions totaling $952 had been credited to his credit

card account. However, according to the IG report, the credit card statements obtained and

reviewed during the investigation do not show any credits, and claimant did not produce any

documents to validate his claim that a credit of $952 had been received.

The IG report states that with regard to the three transactions totaling $275 related to

penalties imposed for the changes to non-contract airfare itineraries, claimant was uncertain

about which particular itineraries had been changed which resulted in the imposition of these

penalties. Claimant requested that he be allowed to conduct his own review of these

transactions to determine whether his earlier cost savings calculations should be revised in

an attempt to validate the cost savings calculations recorded on his travel vouchers.

Additional costs totaling $524.27 were questioned by the IG staff and the agency

seeks these costs from claimant. Claimant has admitted liability for a portion of these

costs.3

2

Centrally billed charges for airfare appear as charges on agency employees’

government-issued credit card statements. However, employees are not reimbursed

government funds to pay these charges. Instead, these charges are paid directly by the

Government to the credit card company.

3

Claimant has stated in a submission to this Board that he admits liability to

reimburse the agency for two charges which were billed twice on his credit card for which

he was erroneously reimbursed - $423.63 (hotel charge) and $25.50 (parking fee).

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Discussion

Claimant alleges that he had an agreement with his superiors that he could work from

his residence in Jackson, Wyoming, when it was convenient for him to do so and that they

agreed that if necessary he would depart from and return to his residence for official

business. The existence of this agreement is not determinative of the issues in this case for

several reasons. Even if this agreement existed, claimant’s superiors did not have the

discretion to bind the Government to pay the added costs incurred as the result of departing

and returning from claimant’s residence. Robert O. Jacob, CBCA 471-TRAV (Mar. 20,

2007). While claimant asserts he was given permission to depart from and return to his

residence for official travel, he does not allege that his superiors authorized reimbursement

of additional costs incurred as a result. Also, it is clear from claimant’s travel orders that his

official duty station was Boise, Idaho. Claimant has acknowledged that during his

employment he understood that he was responsible for any additional costs as the result of

originating his TDY travel from and returning to his residence rather than from his PDS.

There are instances when he reimbursed the agency for additional costs resulting from travel

originating from and returning to his residence. Accordingly, he acknowledged that such

travel was for his personal convenience and additional costs arising therefrom were his

responsibility.

Claimant’s understanding of his liability is correct. The applicable Federal Travel

Regulation (FTR)4 reads in relevant part:

How should I route my travel?

You must travel to your destination by the usually traveled route unless

your agency authorizes or approves a different route as officially necessary.

41 CFR 301-10.7 (2000).

What is my liability if, for personal convenience, I travel by an indirect

route or interrupt travel by a direct route.

4

The FTR provisions from the Code of Federal Regulations revised as of July1,

2000, are cited herein. Any changes in these provisions through the relevant dates of

claimant’s travel in 2003 are noted.

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Your reimbursement will be limited to the cost of travel by the direct

route or on an uninterrupted basis. You will be responsible for any additional

costs.

41 CFR 301-10.8.

Accordingly, any additional costs incurred by the employee for personal convenience

are the responsibility of the employee.

Alleged Additional Costs for Failure to Use City-Pair Airfare

With regard to the alleged additional costs resulting from the use of non-contract

airfare from claimant’s residence rather than the use of government contract city-pair rates

from his PDS, the following provisions of the FTR apply:

What are the basic requirements for using airlines?

The requirements for using airlines fall into three categories:

(a) using contract carriers, when available;

(b) using coach class service, unless premium class or first-class service

is authorized; . . . .

41 CFR 301-10.106.

When must I use a contract city-pair fare?

You must always use a contract city-pair fare . . . if you are a civilian

employee of an agency . . . unless one or more of the following conditions

exist(s):

(a) space or a scheduled contract flight is not available in time to accomplish

the purpose of your travel, or use of contract service would require you to

incur unnecessary overnight lodging costs which would increase the total cost

of the trip; or

(b) the contractor’s flight schedule is inconsistent with explicit policies of

your Federal department or agency with regard to scheduling travel during

normal working hours; or

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(c) a non-contract carrier offers a lower fare available to the general public,

the use of which will result in a lower trip cost to the Government, to include

the combined costs of transportation, lodging, meals, and related expenses.

NOTE TO PARAGRAPH (c): This exception does not apply if the contract

carrier offers a comparable fare and has seats available at that fare, or if the

lower fare offered by a noncontract carrier is restricted to Government and

military travelers on official business and may only be purchased with a GTR

[government transportation request], contractor-issued charge card, or

centrally billed account . . . .

41 CFR 301-10.107.

Are there other situations when I may use a non-contract fare?

You may also use a non-contract fare . . . in the following

circumstances:

(a) Your agency determines prior to your travel that this type of service

is practical and economical to the Government; and

(b) In the case of a fare that is restricted or has specific eligibility

requirements, you know or reasonably can anticipate, based on the travel as

planned, that you will use the ticket.

41 CFR 301-10.108.5

5

This provision was amended on September 13, 2002, to read in a substantially

similar manner:

What requirements must be met to use a non-contract fare?

Before purchasing a non-contract fare-­

(a) You must-­

(1) Meet one of the requirements for exceptions listed in § 301-10.107;

and

(2) If the non-contract fare is non-refundable, restricted or has specific

eligibility requirements, you must know or reasonably anticipate, based on

your planned trip, that you will use the ticket.

(b) Your agency must determine that the proposed non-contract

transportation is practical and cost effective for the Government.

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What is my liability for unauthorized use of a non-contract carrier when

contract service is available and I do not meet one of the exceptions for

required use?

Any additional costs or penalties incurred by you resulting from

unauthorized use of non-contract service are borne by you.

41 CFR 301-10.109.

The IG report references these regulations and states with regard to the travel

vouchers that allegedly contained additional costs:

On . . . the travel vouchers identified, Hamilton’s use of . . . non-contract

airfare resulted in higher trip costs because the . . . airfare was more

expensive than the government contract airfare. Pursuant to 41 CFR

301-10.109, any additional costs resulting from the use of non-contract air

service for the employee’s own personal preference or convenience is the

traveler’s responsibility.

As detailed above, the FTR requires an employee to use a contract city-pair fare

unless certain exceptions exist. Claimant understood it was his obligation to pay additional

costs above those he would have incurred had the travel originated and/or concluded at his

PDS in Boise, Idaho. He alleges that all travel procedures were followed, that he made

adequate cost comparisons, that he determined when excess costs were incurred, and that

he was entitled to all costs that were reimbursed to him. While claimant asserts that he and

his administrative assistants relied on Omega for information sufficient to make a

determination as to cost comparisons and cost savings under the exceptions above, neither

he nor his assistants took sufficient action to comply with the regulatory requirements to

justify the alleged cost savings and exceptions. If Omega did in fact have access to

information which would justify the use of fares other than the contract city-pair fare (e.g.,

lack of space on contract carrier flights, or the fact that the contractor’s flight schedule was

inconsistent with explicit policies of the agency with regard to scheduling travel during

normal working hours or inconsistent with claimant’s work schedule), this information

should have also been documented and attached to the travel voucher.

41 CFR 301-10.108 (2003).

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There is no evidence on most of the travel vouchers in question that cost comparisons

were made and cost savings were actually achieved based upon facts justifying the

regulatory exceptions. There is also no indication on these travel vouchers that prior to

travel the agency determined that the use of the non-contract airfare was practical and

economical to the Government. Accordingly, claimant is therefore responsible for the

additional costs which the agency seeks to collect on the following travel vouchers:6

Travel Voucher #2

Travel Voucher #10

Travel Voucher #11

Travel Voucher #12

Travel Voucher #20

Travel Voucher #23

Travel Voucher #24

Travel Voucher #25

Travel Voucher #36

$262.50

606.607

439.50

612.30

272.34

116.608

90.20

90.20

160.70

6

With regard to travel voucher # 7, the agency disagrees with the IG calculation of

additional costs in the amount of $1114.20, stating that it was reasonable that claimant

should originate his TDY from his residence under the circumstances described in the IG

report and that this itinerary resulted in cost savings. However, the agency seeks additional

costs of $531.20, without indicating how these additional costs were calculated, and

contradicting its own conclusion that the itinerary resulted in cost savings. We do not find

claimant liable for additional costs with regard to this voucher.

With regard to travel voucher #30, the description in the IG report does not appear

to allege additional costs due from claimant. The agency’s bill of collection details $190.70

due with an explanation that does not appear to describe any circumstances detailed in the

travel voucher. We find the bill of collection does not support the costs sought by the

agency.

7

These additional costs were the result of centrally billed airfare for the itinerary that

were not included on the travel voucher.

8

While claimant alleges he made a cost comparison of rates from his PDS to

Washington, D.C., he based his savings on rates to Washington National while he actually

traveled to Washington Dulles. The additional costs were calculated using the fare to his

actual destination.

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Alleged Inconsistencies in Claimant’s Government-Issued Credit Card Transactions

The IG report identified and the agency bill of collection seeks to recover from

claimant what was characterized as $3338.60 of unused credits for airfare billed to

claimant’s government-issued credit card. Applicable provisions of the FTR require that an

employee submit any unused Government Transportation Requests (GTRs), ticket coupons,

e-tickets, or refund applications to the agency in accordance with agency procedures. 41

CFR 301-10.114.9 An employee is not authorized to receive a refund, credit, or any other

negotiable document from a carrier for unfurnished services or any portion of an unused

ticket issued in exchange for a GTR or billed to an agency’s centrally billed account.

However, any charge billed directly to the employee’s government-issued credit card should

be credited to that account. 41 CFR 301-10.115.

While the IG report states that claimant asserted that charges on his governmentissued credit card bill were reconciled monthly with his travel vouchers, none of these

charges for airfare are claimed on travel vouchers. The itineraries for the following charges

are similar to itineraries that appear on travel vouchers for which other airfare was incurred,

but claimant offers no explanation as to why these second sets of similar tickets were billed

to his government-issued credit card. The credit card statements indicate that claimant was

the holder of these tickets. Claimant confirmed that he did not use these tickets. There is

no evidence that the costs of any of these unused tickets were credited to claimant’s

government-issued credit card. We conclude that claimant made these reservations for his

personal convenience and therefore owes the agency the costs incurred.

Alaska Air

Alaska Air

Delta Air

Southwest

$290.45

127.02

477.50

211.50

With regard to the following charges, claimant states that he made arrangements for

the itineraries but was unable to attend the meetings that he planned to attend because of

scheduling conflicts. There is no evidence that the costs of any of these unused tickets were

credited to claimant’s government-issued credit card or that claimant made any attempt to

have such tickets credited. Claimant therefore owes the agency the costs incurred.

American

$96.25

Northwest 1183.88

9

This provision was amended on September 12, 2002, to include “unused e-tickets.”

41 CFR 301-10.114 (2003).

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According to the IG staff’s interview with claimant on February 11, 2004, claimant

asserted at that time that his government-issued credit card had “recently” received credits

for the following amounts:

United

Big Sky

$718.50

233.50

If claimant can prove that these credits have been received, he does not owe the

agency these amounts. Otherwise, he is obligated to reimburse the agency for these

amounts.

Three penalty charges totaling $275 for canceling non-contract airfare were noted

with no corresponding travel voucher. The IG report states that with regard to these

transactions, claimant was uncertain about which particular tickets had been changed which

resulted in the imposition of these penalties. Claimant requested that he be allowed to

conduct his own review of these transactions to determine whether his earlier cost savings

calculations should be recalculated in an attempt to validate the cost savings calculations

recorded on his travel vouchers. Claimant has offered no additional information concerning

these penalties. As he made the reservations using non-contract airfare for his personal

convenience, he is obligated to reimburse the agency for these costs.

Erroneous Reimbursement for Occupancy Tax

The IG staff identified five instances where claimant erroneously sought

reimbursement of occupancy tax for tax-exempt lodgings during official travel - four

instances for $10.08 each totaling $40.32 and another instance for $35.02. According to the

IG report, claimant admitted liability for these amounts. While claimant did not admit

liability in his submission to this Board, he is obligated to reimburse these amounts to the

agency as his lodging charges were tax exempt.

Decision

Claimant is obligated to reimburse the agency for the amounts included in the

agency’s bill of collection that we have determined he is obligated to pay and for those

amounts for which he has admitted liability. With regard to the amounts for which claimant

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asserts he has received credit on his government-issued credit card, claimant must prove to

the agency that such credits have been received in order to relieve himself of liability for

those costs.

_______________________________________

ALLAN H. GOODMAN

Board Judge