Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________ May 29, 1998 ________________ GSBCA 14428-RELO In the Matter of DONALD V. McNAMARA Donald V. McNamara, Syracuse, NY, Claimant. Gerald L. Matney, Chief, Travel and Transportation, Department of Defense Inspector General, Arlington, VA, appearing for Department of Defense. PARKER, Board Judge. In September 1997, Donald McNamara, an employee of the Department of Defense (DoD), was transferred from Arlington, Virginia to Syracuse, New York. When Mr. McNamara sold his house in Virginia, he paid $5,000 toward the buyer's closing costs. DoD denied Mr. McNamara's claim for reimbursement of this cost because "the expenses were paid because of market conditions," and not because such costs are customarily paid by sellers in the Northern Virginia locality. Mr. McNamara disagrees and has asked the Board to review DoD's decision. In support of his position that contribution of monies toward a buyer's settlement costs was customary, Mr. McNamara has provided two letters for the record. The first, from Mr. McNamara's real estate sales associate, states as follows: Please let it be known that in the current real estate market in Northern Virginia, it is reasonable and customary for sellers of residential homes to pay the closing costs for the new loan of the purchasers of their property. We as real estate professionals will figure these costs into sellers['] nets and these costs usually range between 2-5 percent of the sales price of the home. Mr. and Mrs. McNamara were fortunate in regard that they only contributed $5,000 towards the purchaser[']s closing costs. The title company which conducted the closing wrote the following: This letter is to confirm that in the local current market, when negotiating a sale of real estate, it is reasonable and customary for sellers to contribute to purchaser's closing costs. The contribution is often expressed as a percentage of the loan amount or sale price, and 2% as agreed in this transaction is not unusual. Discussion The Federal Travel Regulation (FTR) provides that if a federal civilian employee is transferred from one official station to another and various conditions are met, miscellaneous expenses involved in the employee's sale and/or purchase of a residence shall be reimbursed by the Government under certain circumstances. The circumstances are that the expenses "are customarily paid by the seller of a residence in the locality of the old official station or by the purchaser of a residence at the new official station, to the extent they do not exceed specifically stated limitations, or in the absence thereof, the amounts customarily paid in the locality of the residence." 41 CFR 302-6.2(d) (1997); Dawn S. Daugherty, GSBCA 14065-RELO, 97-2 BCA 29,050. An expense is customarily paid "if, by long and unvarying habitual actions, constantly repeated, such payment has acquired the force of a tacit and common consent within a community." Id.; Christopher L. Chretien, GSBCA 13704-RELO, 97-1 BCA 28,701 (1996). The burden is on the claimant to show that payment of the costs was customary in the community and at the time in question. Id. Mr. McNamara has not met his burden here. Although both letters submitted by Mr. McNamara use the magic word, "customary," in describing the payment, a closer reading of the letters demonstrates the inapplicability of that term to the transaction. First, neither letter mentions a particular cost to the buyer which is customarily paid by the seller. The letters talk in terms of "contributions" to total costs within certain percentage ranges. The letter from the title company says that these costs are "negotiated," and that a payment of two percent of the total loan amount is "not unusual." The letter from the real estate sales associate says that the costs are figured "into sellers['] nets." Finally, both letters describe only the "current" market. These words and phrases do not describe a payment which "by long and unvarying habitual actions, constantly repeated . . . has acquired the force of a tacit and common consent within a community." To the contrary, the letters describe accurately the give and take negotiations involved in arriving at a "net" selling price for the house. It is true, as Mr. McNamara points out, that the Board has on occasion found (notwithstanding agency arguments to the contrary) that certain settlement costs in certain areas were customarily paid by sellers on behalf of buyers. Most of these cases, however, involved payment of specifically identified costs customarily paid by sellers in connection with Department of Veterans Affairs (VA) financing. E.g., Floyd L. Craft, GSBCA 13698-RELO, 97-2 BCA 29,092; Brent T. Wahlquist, GSBCA 13721- RELO, 97-2 BCA 29,094; Dawn S. Daugherty, supra. Here, in order to sell his house, Mr. McNamara agreed to make a $5,000 lump sum contribution toward the buyer's settlement costs. Although we do not doubt that such contributions were common in the Northern Virginia area during the relevant time period, we agree with DoD that the expenditure was more a reflection of the market-driven "bottom line" price paid for the house than a cost "customarily" paid by the seller. Decision For the reasons discussed above, the claim is denied. ________________________ ROBERT W. PARKER Board Judge