_____________________ March 25, 1997 _____________________ GSBCA 13977-RELO In the Matter of LUIS FLORES Luis Flores, Miami, FL, Claimant. Sharon F. Oakley, Director, Department of Administration, Office of Cuba Broadcasting, Bureau of Broadcasting, United States Information Agency, Washington, DC, appearing for United States Information Agency. WILLIAMS, Board Judge. In this claim, Luis Flores, an international radio broadcaster employed by Radio Marti, a division of the Office of Cuba Broadcasting (OCB) of the United States Information Agency (USIA), seeks a thirty-day extension of his period of eligibility for temporary quarters subsistence expenses (TQSE) in connection with a relocation from Washington, DC, to Miami, Florida. Claimant cites the unanticipated delay in the construction of his new home as grounds for the extension. The OCB denied Mr. Flores claim based on market conditions at the new duty station, his decision to build a new home instead of buying an existing one, and the availability of the same model home for immediate occupancy in the development where claimant's home was under construction. We sustain the OCB's decision and deny the claim. Background Effective August 23, 1996, Mr. Flores and his family were relocated to Miami, Florida, from Washington, DC, as part of the general transfer of OCB operations to Miami. In accordance with Section 302-5.2(a)(1) of the Federal Travel Regulation (FTR), claimant was authorized to receive a maximum of sixty days of TQSE. Between August 23 and September 22, the five-member Flores family rented an apartment. On September 18, 1996, claimant entered into a contract for the purchase of a new home that was not yet constructed. The copy of the construction contract furnished by claimant does not include an actual or estimated completion date. The contract required claimant to apply for a mortgage through an approved lender within seven days of executing the contract. Claimant then applied for a mortgage which he was told would take thirty to forty-five days to process. From September 22 until October 24, claimant leased a three-bedroom furnished house while he and his family were awaiting their permanent quarters. The construction contractor informed Mr. Flores that the house would be ready at the end of October. However, by letter dated October 10, 1996, the director of sales for the construction company informed claimant that, due to excessive rain, completion of the home would be delayed. The letter further stated: "While we had [hoped] to complete your home by October 30th, it appears that a more realistic date of completion will be November 30th." Because construction of the new home was not completed on schedule, the Flores family remained in the rental house for an additional thirty days. On October 17, 1996, Mr. Flores applied for an additional thirty days of TQSE to cover the costs of his temporary quarters until his home was completed. OCB denied this request, and in a December 12, 1996, letter to the Board explained its rationale: 1. The housing market in Miami is very good, and there are many rental and purchase options available. 2. Mr. Flores previously lived in Miami and should have had knowledge of the area and the housing situation before his current relocation to Miami. 3. The housing development where Mr. Flores contracted to have a home built was contacted in an attempt to get more information; we were informed that there was a "Rembrandt Model" home (the model Mr. Flores had contracted to be built) available for immediate occupancy in the same development--Meadow Walk. The salesman we spoke with concerning the matter was Doug Wallace . . . . We did not ask about Mr. Flores' specific contract, but we did ask Mr. Wallace if we signed a contract to have a home built and another home became available sooner within the development, if the contract could be transferred to the first completed home; Mr. Wallace assured us that the contract could definitely be transferred. We then inquired if they could give us assurance of a completion date after we signed a contract to have a home built in this development; however, the salesman emphatically informed us that they could not give any assurance as to a completion date due to uncertainties with (1) the weather; (2) the provision of electrical service by Florida Power and Light; and (3) the Dade County building permit process which is very lengthy. We were unable to identify any promised delivery date on the "Agreement for Purchase and Sale" which was provided by Mr. Flores; however, it does appear that a section of the contract may be missing. Also, the letter of October 10, from the Director of Sales of Brighton Homes Development states only that they had "hoped" to complete the home by October 30. By letter dated January 13, 1997, claimant advised the Board that he had not "lived" in Miami but had been there some fourteen years ago on two separate occasions for six months in 1983 and again for six months in 1984. In addition, claimant stated that his decision to buy a newly constructed home was based on the needs of his family and resulted in a $10,000 savings. Finally, claimant stated that "the approximate date the house was to be ready (no construction company gives an exact date) . . . was at the end of October 1996 . . . ." Discussion When an employee is transferred in the interest of the Government from one official station to another for permanent duty, the agency may reimburse the employee for up to sixty days for "[s]ubsistence expenses . . . while occupying temporary quarters." The agency is authorized to reimburse the employee "[u]nder such regulations as the President may prescribe and to the extent considered necessary and appropriate, as provided therein . . . ." An agency may extend the period of residence in temporary quarters by up to an additional sixty days if the head of the agency determines that there are compelling reasons for continued occupancy of temporary quarters. 5 U.S.C.  5724a(a) (1994). The President delegated to the Administrator of the General Services Administration (GSA) the authority to prescribe regulations implementing this section and, consequently, GSA issued the FTR. The FTR provides that the initial sixty-day TQSE period may be extended by up to an additional sixty days only in situations where there is a demonstrated need for additional time due to circumstances which have occurred during the initial 60-day period of occupancy and which are determined to be beyond the employee's control and acceptable to the agency. 41 CFR 302-5.2(a)(2) (1996). The Comptroller General has consistently held that agency determinations of TQSE will not be disturbed unless they are shown to be arbitrary, capricious, or contrary to law. Blanch Brown, B-260580 (Nov. 13, 1995); Connie Tharp Holmquist, B-255603 (Feb. 10, 1994). Mr. Flores has numerous objections to the denial of his request for an additional thirty days of TQSE. He first objects to the agency s consideration of the housing market in Miami. Mr. Flores argues that availability should not be considered because other factors must enter into the decision to purchase a home, including location, schools, price, and whether the house is adequate for the family. As the Comptroller General has recognized, [a] relevant factor in the exercise of an agency s discretion . . . is the number of available houses. Stephen P. Szarka, B-247426 (June 4, 1992); see also Blanch Brown (market conditions in new duty station considered as a relevant factor for determining TQSE extensions). The OCB, therefore, properly considered the availability of other homes in Miami. Mr. Flores also objects to the agency's consideration of his personal decision to build a new home and argues that the home was supposed to be completed within the original sixty-day TQSE period. The record does not support this contention. The sales contract in the record does not contain a date of completion, but the October 10 letter from the construction company to Mr. Flores indicates that the original estimated completion date was October 30, 1996. This is consistent with claimant's statement in the December 1996 letter to the Board that while "no construction company gives an exact date" the approximate date the house was to be completed was "the end of October 1996." The FTR only allows for extensions that arise from occurrences during the initial sixty days of TQSE: Examples of compelling reasons which could be considered as beyond the employee s control may include, but are not limited to, the following situations: . . . . (ii) New permanent residence cannot be occupied because of unanticipated problems (delays in settlement on new residence, short term delay in construction of a new residence, etc.). 41 CFR 302-5.2(a)(2)(ii). This Board and the Comptroller General have held that an agency need not grant an extension when the initial TQSE period expires before the scheduled construction completion date. Robert L. Burns, GSBCA 13848-RELO (Feb. 28, 1997); Jimmy L. Betts, GSBCA 13840-RELO (Jan. 23, 1997); Paul E. Storer, 67 Comp. Gen. 567 (1988) (request for an extension denied because employee knew that construction would not be completed before end of initial TQSE grant). This rule applies even if a delay arises within the initial sixty-day TQSE period. Arthur P. Meister, B-224884 (Sept. 23, 1987) (although a concrete strike caused the delay, employee entered temporary quarters when he could anticipate that construction would not be completed by the end of the initial TQSE period). Mr. Flores initial sixty-day TQSE period began on August 23 and expired on October 21 -- before the construction company was supposed to deliver the home on approximately October 30. Thus, as in Burns, Storer, and Meister, because claimant could anticipate that construction would not be completed during the initial TQSE period, he is not entitled to an extension. Further, granting an extension of TQSE is committed to an agency's discretion, and claimant has not demonstrated that the agency's denial of an extension of TQSE here was arbitrary, capricious, or an abuse of discretion. Decision Claimant's request for $5,445, which he maintains is the amount to which he would be entitled if he were granted a thirty- day extension in temporary quarters subsistence expenses, is denied. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge