Board of Contract Appeals General Services Administration Washington, D.C. 20405 November 10, 1999 GSBCA 15080-RELO In the Matter of DONALD L. BOYLE Donald L. Boyle, Pell City, AL, Claimant. Jeannette Bushner, Chief, Travel Section, Financial Services Center, Austin, TX, appearing for Department of Veterans Affairs. DANIELS, Board Judge (Chairman). Donald L. Boyle, a Department of Veterans Affairs (VA) computer specialist, was transferred in January 1998 from Cleveland, Ohio, to Birmingham, Alabama. He then sold his home at his old duty station. At the time, Mr. Boyle was under the impression -- indeed, he had been told by an employee of the agency's travel policy office -- that the VA had in place a home marketing incentive payment program. He filed a claim for payment under this program. The claim was denied on the ground that the agency had not established such a program at the time of Mr. Boyle's transfer. We conclude that this reason was sound basis for denying the claim. The home marketing incentive payment program was established in the Federal Employee Travel Reform Act of 1996 as an adjunct to the relocation services program. Pub. L. No. 104-201, 1717, 110 Stat. 2422, 2757 (1996) (adding 5756 to title 5, United States Code). Under the relocation services program, an agency may enter into contracts with private companies to provide, to transferring employees, services which will assist in relocating to a new duty station. These services may include arranging for the purchase of the employees' old residences. 5 U.S.C. 5724c (Supp. III 1997); 41 CFR pt. 302-12 (1997). Whether an agency enters into these contracts or not is at the discretion of the agency. 41 CFR 302-12.2, -12.4, -12.7, -12.101; Armindo A. Da Silva, GSBCA 14495-RELO, 98-2 BCA 29,970; Charles T. Loverdi, GSBCA 14232-RELO, 98-2 BCA 29,795. Under the home marketing incentive payment program -- an agency may pay to an employee who transfers in the interest of the Government an amount to encourage the employee to aggressively market the employee's residence at the official station from which transferred when -- (1) the residence is entered into a relocation services program . . . to arrange for the purchase of the residence; (2) the employee finds a buyer who completes the purchase of the residence through the program; and (3) the sale of the residence results in a reduced cost to the Government. 5 U.S.C. 5756(a). The parameters of this program are established through regulations issued by the Administrator of General Services. 5 U.S.C. 5756(a). These rules, which are contained in the Federal Travel Regulation, are divided into two subparts, A ("Payment of Incentive to the Employee") and B ("Agency Responsibilities"). 41 CFR pt. 302-14. In the subpart for agencies, the regulations say clearly that an agency has discretion to establish, or not to establish, a home marketing incentive payment program. Id. 302-14.101, -14.102. In the subpart for employees, however, the rules do not make this point clear. They say that an employee is eligible to receive a home marketing incentive payment if he is "an employee who is authorized to transfer and [he] otherwise meet[s] requirements for sale of [his] residence at Government expense." Id. 302-14.3. The subpart for employees also says that the employee "will receive a home marketing incentive payment when" six conditions are met, and none of those conditions is that the employee's agency has established a home marketing incentive payment program. Id. 302-14.5 (emphasis added). Although one provision in the employee subpart states that the agency must pay an employee a home marketing incentive only when the agency determines that such payment is in the Government's interest, id. 302-14.4, even this provision does not tell employees that a precondition of an agency determination is that the agency have in place a program under which payment could be made. The way in which the regulations are organized leaves the clear impression that employees, to learn their rights, need look only in subpart A, and agencies, to learn their responsibilities, need examine only subpart B. We can well appreciate that because of this format, an employee who examines the regulation would not appreciate that an agency has complete discretion in deciding whether to have a home marketing incentive payment program. Nevertheless, this discretion exists. Because the VA did not establish such a program prior to the time when Mr. Boyle reported to his new duty station, it may not pay a home marketing incentive to this employee. Randolph S. Reynolds, GSBCA 14728-RELO, 99-1 BCA 30,366. The fact that an agency official informed Mr. Boyle to the contrary, while regrettable, is of no legal significance. No matter what promises an agency may make, it may not spend money in ways not countenanced by statute and regulation. The promises cannot provide an independent authority for payment. Masood Badizadegan, GSBCA 14393-RELO, 98-2 BCA 29,789; Kevin S. Foster, GSBCA 13639-RELO, 97-1 BCA 28,688 (1996). Nor may the Board accept Mr. Boyle's invitation to direct the VA to pay this claim on the basis that the employee should be rewarded for having saved the Government money. Our authority is circumscribed by statute and regulation, too; we have no power to settle claims solely with regard to our concepts of fairness. _________________________ STEPHEN M. DANIELS Board Judge