Board of Contract Appeals
                  General Services Administration
                      Washington, D.C. 20405


                       _____________________
                                 
                          October 1, 1998
                       _____________________
                                 

                         GSBCA 14663-RELO
                                 

                In the Matter of MICHAEL D. HARAGAN

                              
     Michael D. Haragan, Madison, AL, Claimant.

     Robert H. Garfield, Chief, General Law Division, United
States Army Aviation & Missile Command, Redstone Arsenal, AL,
appearing for Department of the Army.
     
GOODMAN, Board Judge.

     Claimant, Michael D. Haragan, a civilian employee of the
Department of the Army (Army), seeks review of the agency's
denial of his request for an extension of his temporary quarters
subsistence expense (TQSE) period in connection with his
permanent change of station (PCS) relocation to Huntsville,
Alabama.  Claimant requested an extension of the TQSE period due
to delay in the occupancy of his new house allegedly resulting
from weather conditions, an unprecedented demand for local
construction, and a labor shortage which occurred before the
commencement of his initial TQSE period.  The agency denied the
request because  claimant had entered into a contract for new
construction with an anticipated completion date after the
expiration of the initial period of TQSE.  Claimant then filed a
claim at this Board.  We conclude the agency permissibly denied
claimant's request. 

     Claimant, an employee of the Army's Aviation and Troop
Command (ATCOM), was relocated to Huntsville, Alabama, in a
consolidation of that command into the Army's Aviation and
Missile Command.  This occurred as a result of the Base
Realignment and Closure (BRAC) initiative.  Claimant"s travel
orders for a PCS move from St. Louis, Missouri to Huntsville,
Alabama were dated March 21, 1997.  Claimant received them on
March 25, 1997.  The agency authorized a ten-day househunting
trip (which was accomplished April 19-26, 1997)  and TQSE for an
additional period of fifty days.  His duty reporting date,
according to the travel authorization, was July 15, 1997.  On May
7, 1997, claimant signed a contract to have a house built, with a
scheduled closing and possession date on or before September 15,
1997.  

     Before his move, claimant states that personnel at his old
station advised him and other employees at various briefings that
extensions of the TQSE period would routinely be granted if an
employee chose to build a house.  The agency had issued a
memorandum to all employees which advised that:

     The initial period of TQSE allowance . . . is
     authorized for a period not to exceed 60 consecutive
     days. . . .  Authorizations to extend the TQSE period
     and the number of days authorized will be kept to a
     minimum. . . . Extensions of temporary quarters
     [subsistence expenses]  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 TQSE and which are determined to be
     beyond the employee's control.  

The memorandum went on to quote the various circumstances which
might result in an extension of TQSE.

     Claimant moved to Huntsville on July 12, 1997, to
accommodate his reporting date of July 15, 1997.   His TQSE
period commenced on July 12, 1997 and expired on September 1,
1997.  He was informed by his builder on August 11 that delivery
of his home would be delayed approximately thirty days, until an
expected completion date of October 20, 1997.  Claimant has
supplied a letter from his builder dated September 9, 1997
stating that the delay was the result of adverse weather
conditions in May and June, 1997, an unprecedented demand for
housing in the area, and a local labor force unable to support
the demand which resulted in a sixty day delay.  According to the
builder, but for these problems, the house would have been
completed in mid to late August, 1997.  

     After receiving notice from the builder of delay in
completion of the home, claimant submitted a first request for
TQSE extension to the ATCOM Civilian Personnel Office (CPO) on
August 13, and his request was denied on September 2, 1997.  A
second request for extension was subsequently denied by the
agency, as was a request for reconsideration.
     
     The basis of the agency denials was that the Joint Travel
Regulations (JTR) allowed for an extension of the TQSE period
only in limited circumstances.  Because claimant entered into a
sales contract knowing his home was not scheduled to be completed
within the initial TQSE period, the agency denied his request for
an extension.  

                            Discussion

     The JTR in effect at the time of claimant's PCS move
provided that subsistence expenses beyond the initial TQSE period
"may be allowed for an additional period of time not to exceed 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."  JTR C13004-A.2
(Aug. 1, 1995); see Thomas Potts, GSBCA 13700-RELO, 97-1 BCA 
20,938.  The JTR required that the employee justification and
subsequent administrative approval be in writing.  When an
additional period of TQSE allowance is allowed, written
justification and documentation must be provided.  JTR C13004-
A.2.  The employee must provide the approving official a written
justification which describes circumstances demonstrating a need
for additional time in temporary quarters that occurred during
the initial sixty-day period of temporary quarters occupancy and
that are clearly shown to be beyond the employee's control.  JTR
C13004-A.3.  The justification, accompanied by "documentation
from the approving official indicating his/her reasons for
approving or denying the requested extension[,] will be retained
in a management file and available for review."  JTR C13004-A.3. 

 

     The General Accounting Office held that when an employee
contracts to build a house with an anticipated completion date
after the expiration of the initial TQSE period, any event
occurring during the initial period may not be considered as
having caused the employee to remain in temporary quarters beyond
the initial sixty-day period.  Daniel G. Colley, B-254120 (Dec.
14, 1993); Arthur P. Meister, B-224884 (Sept. 23, 1987).  This
Board has ruled consistent with this precedent in  Bruce Park,
GSBCA 14529-RELO (Aug. 4, 1998). 

     
     

     Here, claimant signed a contract for construction of a new
house with an anticipated completion date beyond the initial
period of TQSE.  When claimant executed the contract he was aware
that the contractual completion date was after the expiration of
his initial TQSE period.  He states that this date was
"arbitrary" and  a "best guess under normal conditions and could
have been accelerated just as easily as it was delayed." 
Nevertheless, the contract clearly specified that the builder had
until a date after the expiration of the initial TQSE period to
finish the house. According to claimant, one of the conditions
which resulted in the delay of the completion--depletion of
construction resources--occurred during the initial TQSE period.
Claimant also states that one of the conditions which resulted in
the request for a TQSE extension--the inclement weather leading
to construction delay of claimant's new house--occurred before
the initial period of TQSE.   See Thomas M. Hood, GSBCA 13845-
RELO, 97-1 BCA  28,954.    We have consistently sustained
agency
denials of an extension of the TQSE period under this version of
the JTR where the events allegedly causing the delay in occupancy
of permanent quarters occurred outside the initial period of
TQSE.  Charles D. Parton, GSBCA 14462-RELO, 98-1 BCA  29,736;
Michael E. Perez, GSBCA 14412-RELO, 98-1 BCA  29,608.  

     Claimant argues that because this principle concerning
contractual closing dates is "not contained in whole, in part, or
inferred in" the JTR, it is therefore an "unwritten rule."  He
further argues that by "implementing this "rule" into agency
decision criteria, disapproval of my TQSE extension is in fact
contrary to written law."  The agency's application of precedent
established by the General Accounting Office and this Board is
neither arbitrary nor capricious.

      Our recent decision in Bruce Park denied a claim under very
similar circumstances.  The claimant was an ATCOM employee whose
request for an extension of the TQSE period was denied.  He had
purchased a home in the Huntsville area, and the construction was
delayed by the same incidence of rainfall referred to by claimant
in this case.  Mr. Park alleged, as does claimant in the instant
case, that he relied on the oral advice given at PCS briefings
that extensions of the TQSE period for employees building new
housing at the new duty station would be routine.  We held in
that case that such oral advice was unfortunate, because it was
wrong.  Nevertheless, despite the oral advice, the agency did
hand out a written memorandum to claimant in the instant case
which accurately summarized the JTR.  As we have explained in an
earlier matter arising from an ATCOM consolidation and relocation
under the BRAC initiative, erroneous advice cannot bind the
Government to spend money in violation of statute and regulation.

Michael Perez.  

                             Decision

     The claim is denied.


__________________________
ALLAN H. GOODMAN
Board Judge