Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ June 11, 1998 _______________________________________________ GSBCA 14439-RELO In the Matter of KENNETH W. MUZZO Kenneth W. Muzzo, Madison, AL, claimant. Robert H. Garfield, Chief, General Law Division, United States Army Aviation and Missile Command, Redstone Arsenal, AL, appearing for Department of the Army. BORWICK, Board Judge. Claimant, Kenneth W. Muzzo, a civilian employee with the Department of the Army (agency), seeks to overturn the agency's decision to deny him a sixty-day extension of his period for reimbursement of temporary quarters subsistence expenses (TQSE). We sustain the decision of the agency. As a result of the Base Relocation and Closure Act of 1995, the agency's Aviation and Troop Command (ATCOM) moved from St. Louis, Missouri, to Huntsville, Alabama, and merged with the agency's Missile Command, forming the Aviation and Missile Command. Pursuant to that consolidation the agency transferred many ATCOM employees, including claimant, from St. Louis to Huntsville. On March 27, 1997, the agency issued claimant a permanent duty travel authorization, which provided for transportation for claimant and his family, a ten-day house hunting trip, and fifty days of TQSE. Claimant relied on a relocation company to sell his house in St. Louis, and expected to receive an offer on his house no later than May 30. Acting upon that expectation, claimant went on a house hunting trip to Huntsville, and, on May 1, 1997, signed a purchase contract for a house in the Huntsville area. The closing date was July 31, but the contract was contingent upon the sale and closing of claimant's house in St. Louis. An addendum to the purchase contract, known as a right of first refusal, gave the seller the right to continue showing the house and to accept other offers subject to the claimant's right to remove the contingency and proceed with the purchase. Claimant's right, however, expired at midnight on June 7. Trouble arose with the relocation service.[foot #] 1 Instead of a purchase offer for claimant's St. Louis house on May 30, as claimant had expected, the relocation service could not provide the offer until July 8. By that time claimant's right to buy the Huntsville house had expired and that house was sold to someone else. The record contains no evidence that claimant tried to extend the contingency period for the purchase of the house in Huntsville. Claimant began his TQSE period on July 28, at which time claimant's house hunting began again. Claimant states that: Being unable to find a suitable existing house, after viewing about 200 houses, we signed a contract on a new house that was already under construction on 22 August 1997. Closing on this house is scheduled for on or before 15 Nov. 1997. Per the builder, this date cannot be improved upon. Claimant's fifty-day TQSE period ended on September 15, 1997. Claimant and his family stayed in temporary quarters from September 16 through November 14 and claimed reimbursement of $10,366.31, which included lodging at a motel in Huntsville and meals and tips. The agency denied the claim, noting that claimant had not demonstrated that circumstances occurring during the original period of temporary quarters occupancy was beyond claimant's control. During the relevant time period, the Joint Travel Regulations (JTR) provided in pertinent part: Subsistence expenses as provided in subpar. 1 may be allowed for an additional period of time not to exceed ----------- FOOTNOTE BEGINS --------- [foot #] 1 On May 9 two appraisers appraised claimant's St. Louis house, and on May 14 a general home inspection occurred, with a termite inspection on May 17. On May 30 the relocation service advised claimant of the necessity of a third appraisal before it could provide an offer. Claimant found a third appraiser to appraise the house on June 2, but that appraiser was not acceptable to the relocation service. An emergency appraisal was scheduled for June 7, but the appraiser did not appear until June 10. Then, as a result of the May 14 house inspection, the relocation company demanded an additional inspection to determine whether there was a problem in the basement. On June 20, the third appraiser submitted his report, but discrepancies among the three appraisals caused the relocation company to request that all the appraisers re-measure the house. Only one appraiser did. ----------- FOOTNOTE ENDS ----------- 60 consecutive days provided the head of the DOD component concerned or his/her designee determines there are compelling reasons for the continued occupancy of temporary quarters. . . . Extensions of the temporary quarters may be authorized only in situations where there is a demonstrated need for additional time in temporary quarters due to circumstances which have occurred during the initial 60-day period of temporary quarters occupancy and which are determined to be beyond the employee's control and acceptable to DOD components concerned. Examples of compelling reasons which could be considered as beyond the employee's control for purposes of granting this extension may include, but are not limited to, the following situations. . . . . b. new permanent residence cannot be occupied because of unanticipated problems (i.e. delays in settlement on new residence, short term delay in construction of a new residence, etc.); c. inability to locate permanent residence which is adequate for family needs because of housing conditions at the new official station. JTR C13004-2. [foot #] 2 Consistent with the General Accounting Office, we have held that, in view of the statute and regulations referenced above, decisions concerning extensions of TQSE are left to the agency's discretion and will not be overturned unless they are shown to be arbitrary, capricious or contrary to law. Luis Flores, GSBCA 13977-RELO, 97-1 BCA 28,928; Blanch Brown, B-260580 (Nov. 13, 1995). The agency did not abuse its discretion in refusing an extension of claimant's TQSE period. The relocation agency's delay, which claimant argues was the cause of his forfeiture of the first purchase, occurred before the start of claimant's TQSE period and cannot serve as grounds for extension of the period. Further, claimant has not established that extension of the June 7 date for expiration of the right of first refusal was ----------- FOOTNOTE BEGINS --------- [foot #] 2 Recently Change 389 to the JTR removed the requirement that the circumstance leading to the need for an extension occur during the initial sixty-day period of TQSE. This change, however, has no application to claimant since it did not become effective until March 1, 1998, considerably after claimant's TQSE period ended. See Charles D. Parton, GSBCA ___ ___________________ 14463-RELO (Apr. 15, 1998). ----------- FOOTNOTE ENDS ----------- impossible and that the circumstance was therefore beyond his control. Since claimant was able to view over two hundred homes, there appears to have been plentiful housing in Huntsville and the agency did not arbitrarily determine that adequate housing existed there. Flores. That none of the two hundred houses claimant viewed was pleasing to claimant or his family does not demonstrate that the agency's conclusion was an abuse of discretion. Id. Finally, claimant's contract for purchase of a newly constructed house with a closing date approximately two months after the end of the TQSE period is not the unanticipated problem contemplated by the JTR, since claimant knew when he signed the contract that the house would not be ready for occupancy during the initial period for TQSE reimbursement. Robert R. Burns, GSBCA 13848-RELO, 97-1 BCA 28,875. The agency's denial of claimant's request for an extension of his TQSE period is sustained. __________________________ ANTHONY S. BORWICK Board Judge