Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ March 24, 1999 ___________________ GSBCA 14666-RELO In the Matter of VICTORIA E. CALDWELL Victoria E. Caldwell, Denver, CO, Claimant. Peggy A. Grant, Acting Assistant Chief Financial Officer for Accounting, Office of the Chief Financial Officer, Department of Housing and Urban Development, Washington, DC, appearing for Department of Housing and Urban Development. HYATT, Board Judge. Claimant, Victoria Caldwell, an employee of the Department of Housing and Urban Development (HUD), accepted a permanent change of station (PCS), relocating from Jackson, Mississippi to Denver, Colorado. In connection with the transfer, sixty days of temporary quarters subsistence expenses (TQSE) were authorized. Shortly after her arrival in Denver, Ms. Caldwell entered into an agreement for the purchase of a house which was to be constructed in the near future. Thereafter, Ms. Caldwell requested an extension of TQSE for another sixty days, stating that construction of her residence had been delayed by the unusual level of precipitation in April. The agency denied her request; she seeks the Board's review. For the reasons stated, we find no basis to conclude that the agency's exercise of its discretion was improper. Background Following a house hunting trip earlier in the month, claimant reported for duty in Denver on April 26, 1998. TQSE was approved for sixty days, from April 23 through June 23, 1998. Ms. Caldwell signed a purchase and sales agreement for the construction of her new residence on April 28, 1998. At the time the contract was signed, the contractor orally represented to Ms. Caldwell that the new residence would be delivered in July 1998, but later informed her that the house would not be ready until some time in August. On May 15, 1998, Ms. Caldwell requested that her TQSE be extended for another sixty days, on the ground that the construction of her new home had been delayed by forty- five to sixty days due to unusual snowfall and rain in April. The agency denied Ms. Caldwell's request. In subsequent correspondence seeking agency reconsideration of its position, Ms. Caldwell states that she had suffered a variety of health problems just prior to the move but had made vigorous efforts to locate suitable housing. In conducting her housing search, she looked at many homes in the Denver area and concluded that suitable existing houses in her price range and in acceptable neighborhoods were not available. She asserts that the unit she ultimately contracted to have built was the first she found that would meet her family's needs at a price she could afford. At the time of purchase, the unit was scheduled for delivery in July, although the completion date was later moved to August. Ms. Caldwell points out that the unusual level of snow and rain in Denver during the spring months was beyond her control and is a factor that permits authorization of an extension where construction has been temporarily delayed. She further states, in correspondence with the agency, that the two-bedroom townhouse she selected would not, as a result of her plans to marry, suffice to house the added family members and that the basement was being finished to accommodate them. She also submits a letter from a local broker who states that, "[r]egarding Ms. Caldwell's housing situation, the availability of affordable housing in Denver is very limited," and while she and the claimant looked at many new and existing homes, "because of the size and ages and sex of her children, present and future, there were none suitable for her family except the one she has purchased." After considering the additional information provided, HUD informed Ms. Caldwell that it did not provide the needed support to approve an extension of TQSE because her initial TQSE was, from the outset, scheduled to end prior to the original scheduled date for occupancy of permanent quarters. In response to Ms. Caldwell's claim, HUD refers to various Board and Comptroller General precedents that hold that an extension need not be granted when the initial TQSE period expires prior to the scheduled construction completion date. Discussion Under the Federal Travel Regulation (FTR), an agency may initially authorize a transferred employee to claim actual TQSE in thirty-day increments, not to exceed sixty consecutive days. If, however, the agency determines that there is a compelling reason for the employee to continue to occupy temporary quarters, after sixty consecutive days, it may authorize an extension of up to another sixty consecutive days. 41 CFR 302-5.104 (1998).[foot #] 1 A "compelling reason" is defined as an event beyond the control of the employee and acceptable to the agency. 41 CFR 302-5.105. Several examples of circumstances that would constitute compelling reasons warranting the extension of TQSE are provided: (a) Delivery of . . . household goods to [the] new residence is delayed due to strikes, customs clearance, hazardous weather, fires, floods or other acts of God, or similar events. (b) [Inability to] occupy . . . new residence because of unanticipated problems (e.g., delay in settlement on the new residence, or short-term delay in construction of the residence). (c) [Inability] to locate a permanent residence which is adequate for [the] family's needs because of housing conditions at [the] new official station. (d) Sudden illness, injury, or death of employee or immediate family member. 41 CFR 302-5.105. Ms. Caldwell principally argues that her extension request should have been granted because of unanticipated short-term delay in the completion of construction of the residence and inability to locate a permanent residence satisfactory for her family's needs because of housing conditions in Denver. She states that she made an effort to find suitable residences and that, for various reasons, existing housing did not meet her needs. She decided to purchase a townhouse that would be built by July, which was the earliest delivery date she could find. HUD's primary reason for denying claimant's request for an extension of TQSE is that from the outset the permanent residence was not scheduled to be ready for occupancy prior to the expiration of the initial sixty days of TQSE. Thus, the agency does not regard the need for additional time as being directly caused by an unanticipated delay in construction of the new residence. In support of its position, HUD refers us to our ----------- FOOTNOTE BEGINS --------- [foot #] 1 At one time, the FTR further conditioned the agency's discretion to extend the TQSE period to those situations in which the compelling need for continued occupancy of temporary quarters was due to circumstances which arose in the initial sixty-day period of temporary quarters. This requirement was deleted effective March 22, 1997, when the TQSE provisions of the FTR, among others, were rewritten. ----------- FOOTNOTE ENDS ----------- decisions in Robert L. Burns, GSBCA 13848-RELO, 97-1 BCA 28,875 and Jimmy L. Betts, GSBCA 13840-RELO, 97-1 BCA 28,798. In these cases the Board, addressing situations where the employees entered into contracts to purchase newly constructed homes which would not be available until after the expiration of the initially authorized TQSE period, reasoned that the agencies had permissibly declined to extend the TQSE period. The Board has consistently recognized that agencies have considerable discretion in deciding whether to grant a transferring employee's request for an extension of TQSE. Marjorie A. Ahlquist, GSBCA 14587-RELO, 98-2 BCA 29,920; Rifat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA 29,788; Baron L. Hudson, GSBCA 14284-RELO, 98-1 BCA 29,527. With respect to Ms. Caldwell's assertions that construction was delayed by inclement weather, the Board, under the earlier version of the FTR, which required that the event giving rise to the need for the extension actually occur during the initially authorized TQSE period, has expressly acknowledged that it is well within the agency's discretion to deny a request to extend TQSE when the initial TQSE period expires before the scheduled construction completion date, whether the delay occurs during the TQSE period or not. Luis Flores, GSBCA 13977-RELO, 97-1 BCA 28,928. With respect to claimant's second argument, concerning the availability of suitable housing, Ms. Caldwell was authorized and took a house hunting trip. In general, an agency may reasonably expect that a house hunting trip will reduce the amount of TQSE needed by a transferring employee. Although claimant urges that she experienced difficulty in locating existing housing suitable in price, location, and size for her expanding family, both she and the realtor state that many houses were visited prior to claimant's decision to buy a newly constructed residence. It is thus not clear whether there was a general lack of available housing in the Denver area or whether the available housing was simply not personally acceptable to claimant. Since claimant has not shown that there actually was such a shortage, we cannot say that the agency's decision constituted an abuse of discretion. _________________________________ CATHERINE B. HYATT Board Judge