BNUMBER:  B-261483; B-265864.2
DATE:  August 29, 1996
TITLE:  Drs. Michael H. Mattei and Loren T. Wilkenfeld Waiver
Requests

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Matter of:Drs. Michael H. Mattei and Loren T. Wilkenfeld Waiver 
          Requests

File:     B-261483; B-265864.2

Date:August 29, 1996

DIGEST

Two new employees moving from their homes in California to their first 
duty station in North Carolina were advised by an agency official 
responsible for arranging their household goods shipments that they 
could have their automobiles shipped via government bill of lading 
with their household goods to their duty station, but they would be 
required to reimburse the agency for the costs of shipping the 
automobiles.  The official incorrectly advised them, however, that 
their costs would be a $113.50 bulky article charge, when in fact in 
addition to such charge, the carriers also charged rates applied to 
the weight of the automobiles, resulting in much greater total 
charges.  The employees' requests for waiver of their resulting debts 
to the agency may be granted to the extent that in reliance on the 
erroneous advice, they incurred expenses for transporting the 
automobiles greater than they otherwise would have incurred.  Dr. 
Loren T. Wilkenfeld, B-265864, Dec. 7, 1995, overruled in part.

DECISION

Dr. Michael H. Mattei requests reconsideration of our Claims Group's 
settlement Z-2942034-025, March 23, 1995, denying his request for 
waiver of his debt of $2,969.26 to the Department of Veterans Affairs 
(VA) for excess costs incurred by the VA for the shipment of his two 
automobiles to his first duty station.  Dr. Loren T. Wilkenfeld 
requests reconsideration of our decision B-265864, December 7, 1995, 
in which we affirmed the Claims Group's denial of her request for 
waiver of her debt of $1,794.99 to the VA which arose under the same 
circumstances as Dr. Mattei's.  Upon further consideration, we now 
believe partial waiver of these debts is appropriate.

Background

In the summer of 1993, Dr. Mattei and Dr. Wilkenfeld, newly appointed 
VA employees, were issued travel orders authorizing them and their 
families to travel to their initial duty station, the VA Medical 
Center in Salisbury, North Carolina.  Their travel orders also 
authorized the shipment of their household goods on government bills 
of lading (GBLs) from their homes in California to Salisbury.  Both 
employees elected to travel by commercial airline to North Carolina.  
Each owned two automobiles which they requested be shipped with their 
household goods.  VA authorized shipment of the automobiles with the 
household goods, subject to the employees reimbursing VA for the cost 
of shipping the automobiles since employees' automobiles are 
specifically excluded by the Federal Travel Regulations (FTR) from 
items which may be shipped as household goods at government expense.  
FTR  sec.  302-1.4(j)(1)(i).[1]  Upon completion of the shipments, the VA 
paid the carriers for the total costs of the shipments and sought to 
recover from Dr. Mattei and Dr. Wilkenfeld the excess costs paid for 
the shipment of their vehicles.

Both employees contended that the costs assessed them were much 
greater than the agency had led them to believe when they requested 
shipment of their vehicles, and they requested waiver of their 
resulting debts.  The employees stated that the VA purchasing official 
who made the arrangements with the carriers and issued the GBLs told 
them at the time they requested shipment of the vehicles that they 
would be required to reimburse VA for a $113.50 bulky article charge 
applicable to each vehicle and no mention was made of any additional 
charges.  They also point out that they were new employees not 
familiar with government procedures and they were not given complete 
counseling on their shipping entitlements prior to their moves.  Thus, 
they believe they rightfully relied on the advice of the purchasing 
official, who was in charge of arranging the shipments, as to the 
costs of shipping their vehicles.  Both employees indicate that they 
had other options available to move their vehicles to North Carolina 
which they would have pursued, such as by driving one and personally 
arranging for shipment of the other, had they known the true costs of 
shipping them by moving van.  In this regard, Dr. Mattei states that 
he could have had one of his automobiles shipped by rail to North 
Carolina for about $600.

The agency report on the waiver requests includes a VA accounting 
supervisor's statement that she advised both employees well in advance 
of shipment that the government would not pay the cost of shipping 
their automobiles.  The VA purchasing official who made the 
arrangements for the employees' household goods shipments and issued 
the GBLs also states that he told the employees that they would be 
responsible for reimbursing VA for the cost of shipping the 
automobiles, and he entered a statement to that effect on the GBLs.  
However, he also acknowledges that he advised the employees only of 
the bulky article charge and not of any other charges because the 
bulky article charge was the only charge he was aware of that would 
apply to the automobiles.

In considering the employees' waiver requests, the agency initially 
denied the requests, but upon reconsideration after review by an 
agency traffic management official, the agency recommended that the 
debts be waived, stating that the Salisbury office had acknowledged 
that they failed to provide guidance and counseling regarding the 
moves.  Since the amounts of the debts exceed the $1,500 limit on the 
VA's waiver authority,[2] the requests for waiver were forwarded to 
our Claims Group for consideration.  

The Claims Group denied the waivers on the basis that our waiver 
authority applies only to debts which arise out of erroneous payments 
by the government, and the record showed no erroneous travel orders or 
other erroneous authorization to ship the vehicles at government 
expense.  The Claims Group noted also that the record indicated that 
both employees had been advised prior to shipment that they would be 
responsible for the costs of shipping their automobiles.  Dr. 
Wilkenfeld appealed the Claims Group's denial, and we affirmed the 
Claims Group's action by our decision of December 7, 1995, supra, for 
essentially the same reasons asserted by the Claims Group.

Analysis and Conclusions

Pursuant to 5 U.S.C.  sec.  5584, we may waive, in whole or in part, a 
claim against an employee "arising out of an erroneous payment" of 
transportation or relocation expenses, the collection of which would 
be against equity and good conscience and not in the best interests of 
the United States, provided there is no indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
employee.  Generally, an employee's debt for the excess costs an 
agency has incurred in connection with shipment of the employee's 
household goods is not subject to this waiver authority because the 
agency has made no erroneous payment; it has merely made a payment in 
the normal course of business to satisfy its obligation to the 
carrier, and then is simply recouping from the employee amounts 
related to excess weight or items for which the government is not 
authorized to bear the cost of shipment.  See 67 Comp. Gen. 484, 
486-487 (1988); and B-252103, June 17, 1993.  

We have recognized, however, that in some limited circumstances where 
the excess charges resulted from an erroneous authorization by the 
agency, the resulting claim may be considered to have arisen out of an 
erroneous payment and thus to fall within our waiver authority.  See 
67 Comp. Gen. 486-487, supra.  See also, Gunnery Sergeant Robert S. 
Jackowski, B-229335, Oct. 21, 1988.[3]  While ordinarily we would 
expect such an erroneous authorization to be in the travel orders or 
similar written form, we have recognized that oral advice may rise to 
the level of an erroneous authorization in some cases.  For it to do 
so however, it must be shown clearly that such oral advice was given 
by an agency official with the responsibility for providing such 
advice and that the advice purported to provide the authorization on 
which the employee relied.  B-252103, June 17, 1993, supra. 

In another case also involving a newly appointed employee moving from 
his home to his first duty station, we found that oral advice provided 
to the employee that he could ship his automobile at government 
expense with his household goods as long as the total weight of the 
shipment did not exceed his weight allowance, amounted to an erroneous 
authorization and provided a basis to consider the employee's debt for 
waiver.  Kenneth T. Sands, B-229102, Dec. 5, 1988.  In that case, the 
employee was moving under the commuted rate system whereby he was 
required to make the shipping arrangements himself with subsequent 
reimbursement to him by the agency.  There we took note of the fact 
that the FTR places special responsibility on agencies to provide full 
information to newly hired employees regarding their transportation 
benefits.[4]  When this employee had to seek clarifying information as 
to his entitlements, it necessarily was to the agency personnel 
specialist handling his hiring that he turned, and when the personnel 
specialist provided erroneous advice on which the employee relied, we 
considered his resulting debt to fall within our waiver authority.  
See also, John W. Meeker, B-239663.3, Oct. 11, 1991, involving a 
similar situation, and Paul Rodriguez, 67 Comp. Gen. 589 (1988), where 
the employee was given erroneous information concerning the extra cost 
of additional insurance on his household goods shipment.  In these 
three cases we granted waiver of the debts to the extent that the 
employees incurred excess expenses in reliance on the erroneous 
information.

The situations of Dr. Mattei and Dr. Wilkenfeld are somewhat similar 
to the three preceding cases, particularly the Sands case.  Both of 
these employees were new appointees to whom the agency had a special 
responsibility to provide full information regarding their travel and 
transportation benefits in reporting to their new duty station. 
Although they appear to have been correctly advised that they would be 
required to reimburse the agency for the extra cost of shipping their 
automobiles with their household goods, they were given incorrect or 
incomplete advice as to the cost that would be involved, a critical 
factor in making their decisions to have the vehicles shipped with 
their household goods.  In these circumstances, we now think that 
their debts fall within the purview of the waiver statute on the same 
basis as the debts in the Sands, Meeker, and Rodriguez cases discussed 
above.  We find that the employees reasonably relied on the VA 
purchasing official's erroneous advice to their detriment, and there 
is no indication of fraud, misrepresentation, fault, or lack of good 
faith on their parts.  Accordingly, Dr. Mattei's and Dr. Wilkenfeld's 
debts qualify for waiver, to the exent that they incurred extra 
expenses based on their detrimental reliance on the erroneous advice.

In determining the amounts of the debts to be waived, we think it 
appropriate to take into consideration the fact that they received the 
benefit of having their automobiles transported to the new duty 
station.  As they noted, they could have accomplished this by driving 
one vehicle across country, for which presumably the agency would have 
provided them a mileage allowance in lieu of paying their air fares, 
and shipping the other vehicle by some less expensive method at their 
own expense.  Therefore, we think it appropriate for the VA to 
determine what the reasonable cost would have been to have one of each 
employee's vehicles transported by an alternative method to the new 
station, and those amounts should be collected from them.[5]  The 
balances of their debts (the extra costs they incurred as a result of 
their reliance on the erroneous advice) may then be waived.[6]

Our decision B-265864, December 7, 1995, in Dr. Wilkenfeld's case and 
the Claims Group's denials of waiver in both cases are modified 
accordingly.  The VA should take action in accordance with the above.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. See also 5 U.S.C.  sec.  5727(a), which provides that except as 
specifically authorized by statute, an authorization in a statute or 
regulation to transport the effects of an employee or other individual 
at government expense is not an authorization to transport an 
automobile.  

2. 5 U.S.C.  sec.  5584(a)(2).

3. Applying the similar waiver authority under 10 U.S.C.  sec.  2774, 
applicable to members of the uniformed services.

4. The current pertinent FTR provision is  sec.  302-1.10(b), which 
provides that because new employees usually lack experience in 
government procedures, "each agency shall adopt special measures to 
provide full information to new appointees concerning the benefits 
which may be available to them for travel and transportation involved 
in reporting to their new duty stations.  Special care shall be taken 
to inform appointees of the limitations on available benefits." 

5. For example, Dr. Mattei states that he could have had one 
automobile shipped by rail at a cost of $600.  If the agency 
determines that to be a reasonable charge for this service, which he 
would have incurred but for the erroneous advice, the $600 should be 
collected from him and the remaining $2,369.26 of his debt would be 
appropriate for waiver.  The agency may wish to consult the General 
Services Administration if it needs assistance in determining the 
reasonable cost of such a shipment.  See 41 C.F.R. Subpart 101-40.1.

6. A debt thus determined that is $1,500 or less may by waived by the 
VA.  If a debt exceeds that amount, it should be returned here for 
waiver.  5 U.S.C.  sec.  5584(a), and 4 C.F.R.  sec.  92.2(c).