Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________ September 17, 1998 _____________________ GSBCA 14595-RELO In the Matter of JOHN A. MONSEN John A. Monsen, Lake City, FL, Claimant. Gregory P. Retrossa, Chief, Fiscal Service, Medical Center, Department of Veterans Affairs, Lake City, FL, appearing for Department of Veterans Affairs. NEILL, Board Judge. Mr. John A. Monsen, claimant in this case, is an employee of the Department of Veterans Affairs. He asks that we consider a claim for temporary quarters subsistence expenses (TQSE) which have been denied by his agency. For the reasons set out below, we grant the claim. Background In 1997, the Department of Veterans Affairs medical center in Lake City, Florida issued a vacancy announcement for an engineering technician. The announcement made no mention of whether relocation expenses would be paid. We are told that this was left open to see if the medical center could hire someone without paying these expenses. Claimant submitted an application for the position. Selection would have represented a promotion from the position he held at the time at the Department's facility at Togus, Maine. On September 26, 1997, Mr. Monsen was offered the position. He accepted and on that same date signed an intra-agency transfer request (VA Form 5-3918) provided to him by the Office of Human Resources Management Service. In a block on that form for remarks, the following typewritten statement appears: I am fully aware and understand that my transfer is for my convenience and benefit and is at my own request. I further understand and agree that all my travel, transportation and other expenses incident to this move will be at my own personal expense and that I am not eligible for authorized absence in connection with my move. The statement is signed by Mr. Monsen and dated 9-26-97. The record contains a memorandum from the Chief of the Facilities Management Service (FMS) to the Director of the Lake City Medical Center. It is dated September 25, 1997, the day immediately prior to the date on which Mr. Monsen was offered and accepted his new position and submitted his transfer request. The memorandum asks the Director to approve relocation expenses for Mr. Monsen. It explains that relocation expenses had previously been approved for an out-of-town applicant who subsequently rejected the position, and that the FMS Chief wished to include the same benefit in any offer made to Mr. Monsen. This request was subsequently approved by the Medical Center Director on the recommendation of the Chief for Fiscal Service. The agency report on this claim states that, at the time Mr. Monsen accepted his position, he knew all pertinent information. The Medical Center s Chief of Financial Service writes that Mr. Monsen moved to Lake City fully expecting to be paid TQSE. From these statements we conclude that on September 26, when he accepted the offer from Lake City Medical Center, Mr. Monsen was at least aware that there was a request pending for approval of relocation expenses and he expected to receive TQSE for thirty days. The request for authorization of relocation expenses was eventually approved. The official travel orders authorized TQSE for thirty days and expressly stated that the transfer was for the convenience of the Government and not for the employee's convenience or at his request. These official orders, however, were not issued until October 30, four days after Mr. Monsen reported for duty. Notwithstanding Mr. Monsen s apparent expectation that his TQSE would be paid, he nevertheless signed the transfer agreement which expressly stated that his transfer was for his convenience and that he would be responsible for all costs incident to his move. In a memorandum supporting Mr. Monsen s claim, the Medical Center s Chief for Financial Service explains that Mr. Monsen did ask for help in his moving expenses but that the response of the personnel office was to add the specific statement to his transfer request upon sending it to him for signature. The statement was added because, at that time, the personnel office had no documentation indicating that relocation expenses had been approved. It is because of this signed statement in the transfer agreement, however, that the agency now believes Mr. Monsen s claim for TQSE cannot be paid. The agency contends that, under applicable regulations, relocation costs are not allowed when an employee s transfer is primarily for his or her benefit. Discussion Statute provides: An agency may pay to or on behalf of an employee who transfers in the interest of the Government . . . actual subsistence expenses of the employee and the employee's immediate family for a period of up to 60 days while the employee or family is occupying temporary quarters when the new official station is located within the United States[.] 5 U.S.C. 5724a(c)(1)(A) (Supp. II 1996). Key to this provision is that the benefit in question is limited to those whose transfer is deemed to be in the interest of the Government. The Federal Travel Regulation, which implements this and other statutory provisions concerning relocation benefits, confirms this when it states that relocation benefits shall be paid in the case of an employee transferring from one official duty station to another for permanent duty, provided the transfer is in the interest of the Government and is not primarily for the convenience or benefit of the employee or at his/her request . . . . 41 CFR 302-1.3(a)(1)(I) (1997) (FTR 302-1.3(a)(1)(I). The critical issue in this case, therefore, is whether the agency considered the transfer of Mr. Monsen to Lake City Medical Center to be in the Government s interest. Based on the record before us, we believe that such a determination was made and was a reasonable one. What makes this case somewhat unique, however, is that the determination was not initially explicit and was not communicated in a clear fashion to all interested parties. The authority to determine whether a transfer is in the interest of the Government rests primarily with the employing agency. We have previously stated that we will not overturn an agency's exercise of this discretion unless we are convinced that the determination was arbitrary, capricious, or clearly erroneous. Bart J. Dubinsky, GSBCA 14546-RELO (June 18, 1998); Gerard R. Sladek, GSBCA 14125-TRAV, 98-1 BCA 29,403. It is true that the written confirmation of the Medical Center's determination that the transfer of an out-of-town applicant would be in the Government's interest was not issued until four days after Mr. Monsen reported for duty. Nevertheless, we are satisfied that decision was in fact made well before the position was offered to him. Because statute and regulation limit relocation benefits to employees whose transfer is determined to be in the interest of the Government, it follows that such a determination must have been implicit in the memorandum from the FMS Chief to the Medical Center Director asking for reauthorization of relocation benefits for Mr. Monsen. It likewise must have been implicit in the Director's earlier authorization of the benefits for the applicant who declined to accept the position. In his statement supporting Mr. Monsen's claim, the Chief of the Office for Financial Service confirms that, by the time an offer was made to Mr. Monsen, management at the Medical Center considered his transfer to be very much in the Government s interest. He explains that it was imperative to find someone to fill the position and that, after an offer was declined by another applicant, Mr. Monsen was the only viable candidate left. Based upon this statement of the Chief of Financial Service, the Center Director s previous authorization of relocation benefits, the reauthorization of those benefits for Mr. Monsen and finally the eventual issuance of orders expressly stating that the transfer was for the convenience of the Government, we are satisfied that the agency considered Mr. Monsen s transfer to be in the Government s interest. Given the circumstances surrounding his selection and appointment, this conclusion on the part of the agency was certainly a reasonable one. We, therefore, will not disturb it. Nor is it proper that the agency should now repudiate the determination based on the notion that the benefit which flows from such a determination was knowingly and willingly waived by the claimant. An additional issue raised in this case is whether an agency's determination that a transfer is in the interest of the Government can be nullified or the benefits flowing from that fact waived by the employee for whom they are intended. The agency is apparently of the opinion that this is what occurred when Mr. Monsen signed the statement set out in the transfer request form. We think not. First, the agency incorrectly assumes that at the time Mr. Monsen accepted his position "he knew all the pertinent information." The record indicates otherwise. While he may have learned from the FMS Chief that a request for relocation benefits was pending and expected that it would be approved, nothing indicates that he was told the benefits had been approved or realized that this meant his transfer would be deemed to be in the Government's interest. Indeed, on the day he accepted the offer made by the FMS Chief, even the personnel office was operating on the mistaken assumption that no determination had been made that the transfer would be in the Government's interest. Mr. Monsen's signature on the statement set out in the transfer request, therefore, can hardly be looked upon as an informed agreement to bear the costs associated with the transfer personally. Secondly, and perhaps even more important, the determination of whether a transfer is in the interest of the Government is primarily a determination of the employing agency and not the employee. Consequently, a determination of the employee, least of all one based on insufficient information, should not be looked upon as sufficient to overturn or reverse the employing agency's determination once made. We have previously offered the following rule for determination of whether a transfer is in the interest of the Government: Generally, an agency should consider a transfer to be for the convenience of the employee if the employee has taken the initiative by requesting it; if, on the other hand, the agency recruits, requests, or orders the employee to move, the transfer should be deemed to be in the interest of the Government. Sladek, 98-1 BCA at 146,098-99. The facts of this case undoubtedly support the conclusion that the transfer of Mr. Monsen was in the Government s interest or for its convenience. In response to an agency recruiting notice, Mr. Monsen applied for a position superior to that which he held at the time. He was eventually selected for the position and accepted an offer to transfer. Regardless of representations set out in a form mistakenly provided to him for signature, it is clear that the agency intended his transfer to be in the Government s interest. His claim for TQSE may, therefore, be paid. ___________________________ EDWIN B. NEILL Board Judge