Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ July 27, 1999 _______________________________________________ GSBCA 14910-RELO In the Matter of CHATURBHUJ N. GIDWANI Chaturbhuj N. Gidwani, Alexandria, VA, Claimant. R. Michael Imphong, Chief, Allowances Unit, Personnel Resources Compensation and Entitlements, Department of the Air Force, appearing for Department of the Air Force. BORWICK, Board Judge. Claimant, Chaturbhuj N. Gidwani, a civilian employee with the Department of Defense, contests the Department of the Air Force's (agency's) denial of claimant's request for an extension of the sixty-day time period for incurrence of temporary quarters subsistence expense (TQSE). The agency denied claimant's request because it determined that claimant had not presented a compelling reason to grant the request. We sustain the decision of the agency. The facts are as follows. On August 26, 1997, the United States Army issued a permanent change of station (PCS) authorization for claimant's transfer from the United States Corps of Engineers, Frankfort, Germany to Bolling Air Force Base (AFB), Washington, D.C. The orders did not include entitlement to reimbursement of TQSE. On September 27, 1997, claimant began incurring TQSE and he reported for duty at Bolling AFB on September 29, 1997. Earlier, claimant had taken an unauthorized two-day house hunting trip ( HHT ), and inspected a number of homes in the area. However, claimant did not rent or purchase any of these homes. On November 17, 1997, the agency amended claimant's original travel orders to retroactively include sixty days of TQSE and miscellaneous expense entitlements for the transfer. Claimant s first TQSE period thus expired on November 26, 1997. On December 3, 1997, claimant requested a sixty-day extension of his TQSE entitlement claiming a lack of suitable housing near Bolling AFB. Claimant anticipated January 27, 1998, as the occupancy date of his permanent quarters; however he had not yet entered a contract to purchase a home. On February 21, 1998, claimant entered into a contract for the construction of a new home; the expected move-in date was at the end of June 1998. On March 5, 1998, the agency denied claimant s request for an extension of his TQSE, citing its policy letter of August 30, 1991. The agency reasoned that claimant had not demonstrated the required need for additional time based upon circumstances that were beyond the employee s control. Claimant appealed this decision to the agency's reviewing authority on March 23, 1998, and on February 8, 1999, a decision was issued by that authority again denying the claim. Claimant appealed to this Board Statute in effect during the relevant time period provides that when an agency transfers an employee from one permanent duty station to another in the interest of the Government, the agency may reimburse the employee for subsistence expenses that the employee and his immediate family incur while occupying temporary quarters, for a period of up to sixty days. 5 U.S.C. 5724a(c)(1) (Supp III 1997). The agency may extend the period of residence in temporary quarters up to an additional sixty days if the head of the agency concerned or his designee determines that there are compelling reasons for the continued occupancy of temporary quarters. 5 U.S.C. 5724a(c)(2). The Joint Travel Regulations (JTR) in effect at the time of claimant's PCS move also provide that extensions of the TQSE period may be authorized only when the head of the agency or his/her designee determines that there are "compelling reasons" for continued occupancy of temporary quarters and where there is a "demonstrated need for additional time in temporary quarters due to circumstances which have occurred during the initial [sixty]-day period of temporary quarters occupancy and which are determined to be beyond the employee's control and acceptable to DOD components concerned." JTR C13004-A2.[foot #] 1 The JTR gives as an example of an acceptable compelling reason a situation where a new permanent residence cannot be occupied because of unanticipated problems such as delays in settlement on the new residence or short term delays in construction. Id.[foot #] 2 The agency's policy letter provides for an extension of the TQSE ----------- FOOTNOTE BEGINS --------- [foot #] 1 Change 389 to the JTR removed the requirement that the circumstances leading to the need for an extension occur during the initial sixty-day period of TQSE. This change has no application to claimant since it did not become effective until March 1, 1998, considerably after the end of claimant's TQSE period. [foot #] 2 The relevant version of the implementing Federal Travel Regulation (FTR) is in substance the same. 41 CFR 302- 5.105 (1997). ----------- FOOTNOTE ENDS ----------- period when an employee had contracted for the construction of a new home; the contract established a completion date within the original TQSE period; and the completion date slipped due to weather, strikes, or other unforeseen circumstances beyond the employee's control. Ultimately, statute and regulation furnish agencies broad discretion in determining whether to grant extensions of TQSE. Consistent with the Comptroller General, this Board has held that an agency determination denying an extension of TQSE will not be overturned unless it is arbitrary, capricious, or contrary to law. See Kenneth W. Muzzo, GSBCA 14439-RELO, 98-2 BCA 29,814; Rifat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA 29,788; Blanch Brown, B-260580 (Nov. 13, 1985).[foot #] 3 In this case, the determination by the Air Force to deny the claimant's request for additional TQSE was not arbitrary, capricious, or contrary to law. The agency denied the extension because the claimant had not demonstrated a need for additional time arising from circumstances beyond the employee's control that occurred during the initial sixty-day TQSE period. This Board and the Comptroller General have consistently held that when an employee enters a contract to build a house with an anticipated completion date after the expiration of the initial TQSE period, the late completion is not an unanticipated event beyond the employee's control. Muzzo, 98-2 BCA at 147,637; Bruce Park, GSBCA 14529-RELO, 98-2 BCA 29,932; William T. Stowers, GSBCA 14099-RELO, 97-1 BCA 29,096; Paul E. Storer, 67 Comp. Gen. 567 (1988). Here, the claimant entered a contract to purchase a home that would not be available until after the expiration of the initial sixty-day TQSE period. In fact, here, the claimant did not even execute the contract before the initial sixty-day period had expired. Hence, the claimant entered into this contract knowing full well that his home would not be completed, and therefore could not be occupied, until well after ----------- FOOTNOTE BEGINS --------- [foot #] 3 In Holly Rowe, GSBCA 14037-RELO, 97-1 BCA __________ 28,934, this Board overturned the agency's denial of additional TQSE because it was based upon arbitrary and erroneous factual assumptions and conclusions which were contrary to law. The agency based its decision on an erroneous legal conclusion that the claimant's one-year, oral lease for an apartment was not binding due to the statute of frauds. However, New York's statute of frauds only required leases that were longer than one year to be in writing, so the claimant had a valid lease. In that case, the agency's decision could be reversed because it was based upon an incorrect legal conclusion. ----------- FOOTNOTE ENDS ----------- the initial TQSE period had expired. Consequently, the agency's determination is not arbitrary or capricious. The Board sustains the agency's denial. ___________________________ ANTHONY S. BORWICK Board Judge