Suppose an agency decides that the most advantageous way for you to travel from Albuquerque, New Mexico, to Billings, Montana for three days of official duty there is by air with a rental car while there. However, rather than go by air, you choose to drive your POV, which required you to leave Sunday for a Monday 1 PM appointment and also stay another night on the road when travelling home after your last appointment in Billings.  Most everyone knows that you will be reimbursed for the lesser of the cost of travel by air versus the cost of travel by POV.  But just how are the two figures calculated? A recent CBCA decision shows that the Department of Interior’s own travel regulations had it wrong, which leads us to believe other agencies do as well.   (See Cherry, CBCA 3878-TRAV) Here is a more formal interpretation of the rule:

The regulation requires an agency, when an employee chooses to travel in his or her own vehicle rather than by the means of transportation most advantageous to the Government, to calculate the employee’s travel costs in two separate ways. First the agency should determine, through the standard application of statute and regulation, the allowability of the various components of an employee’s travel claim. . . .Second, the agency should determine the total constructive cost of the employee’s travel had he or she traveled by the method of transportation deemed to be in the Government’s best interest. . . . . [Constructive costs are by their very nature not costs which are actually incurred. Although these costs, too, should be determined through application of statute and regulation, the calculation necessarily will involve assumptions. As with the employee’s travel costs determined in standard fashion to be allowable, the agency should likewise calculate a total constructive cost.

After computing the two totals, the agency should compare them. If the total of costs determined in standard fashion to be allowable is greater than the total of the constructive costs, the agency should limit reimbursement to the latter figure.

When the employee in this case submitted his voucher he did three things to boost the ultimate amount he was to be reimbursed. First, he claimed mileage at the POV rate rather than the GOV rate.  Second, he charged the agency for the hotel costs for the two nights he spent traveling.  Third, he said that the agency had to include the cost of the rental car it approved even though he never used it.  The agency disapproved each, paying him only $1995.91.

Because the employee is not covered by a collective bargaining agreement, he appealed to the Civilian Board of Contract Appeals (CBCA), an entity within GSA that decides travel disputes outside of collective bargaining units. The dispute was over the three following issues:

  • Department of Interior travel regs limited the employee’s mileage reimbursement rate to the GOV rate rather than POV because he had decided to not use the approved mode of travel most advantageous to the government.
  • The regs also barred him from including the hotel and per diem costs incurred on the days he spent traveling to and from Billings. One of those days was on a weekend and the employee took annual leave for the other.
  • The agency refused, based again on its regulations, to include the projected costs of a rental car in calculating its approved mode of travel because the employee never incurred that cost.

CBCA overturned each one of the agency decisions and informed the agency that it did not have the authority to impose regulations in conflict with the FTR.

It could not exclude rental car costs just because the employee never used a rental car. The FTR requires that it include the projected rental car costs as a “constructive cost.” Perhaps the most important sentence in this case is, “[C]onstructive costs are by their very nature not costs which are actually incurred.”

The amount of the hotel and per diem the employee incurred for the travel days that would not have been needed had he traveled by air were to be included in the “actual cost” calculation. The Board said it was irrelevant that the employee traveled on a weekend or annual leave day.

Finally, CBCA wrote that an agency could only limit mileage to the GOV rate if it had made a government car available to the employee. Agency regulations said the GOV rate was to be used “regardless of whether a GOV is available.” Because the agency failed to prove it made one available to the employee the employee could use the higher rate to boost the calculation of his mode of travel.

CBCA ordered the agency to reimburse the employee another $635.01.

Aside from those three specific rulings, this case can be used to convince an arbitrator that he/she has the power to overrule and void agency travel regs that conflict with the FTR. We suspect most arbitrators are going to need a lot of convincing when the union asks them to override an agency or departmental rule, especially if the collective bargaining agreement requires the parties to follow a regulations not in conflict with the agreement.  Most contracts do include language like that.

But perhaps the most valuable and immediate use of this decision is to examine whether your own agency or department travel regs, like Interior, conflict with the FTR. If they do, you can ask they agency to change them.  If they do not, you can declare their conflicting reg unenforceable inside the unit.  Then file a grievance on behalf of the unit to not only void them, but also ask for retroactive reimbursement wherever the agency used the illegitimate regulations.  Check with your union attorney about how far back you can make the claim under your contract and the legal concept of laches.  You can also demand to immediately open bargaining to make the change.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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