Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
            _______________________________________________
 
                           February 24, 2000
            _______________________________________________
 
 
                            GSBCA 15112-RELO
 
 
                 In the Matter of CLIFFORD E. PETERSON
 
 
        Clifford E. Peterson, Ashburn, VA, Claimant.
 
        David  J.  Holland,  Acting  Deputy Assistant  Director  for
   Administration, U.S. Fish and Wildlife Service, Department of the
   Interior,  Washington,  DC,  appearing  for  Department   of  the
   Interior.
 
   BORWICK, Board Judge.
 
        Clifford  E.  Peterson,   claimant,  an   employee  of   the
   Department of the  Interior, Fish and  Wildlife Service, filed  a
   claim with this Board challenging the agency's refusal  to extend
   claimant's  period  of  temporary quarters  subsistence  expenses
   (TQSE)  for  an  additional period  beyond  the  sixty-seven days
   granted  by the  agency.   The agency  denied claimant's  request
   because he  had entered into a contract for construction of a new
   house that  allowed for  completion well  beyond the  sixty-seven
   days  of TQSE.   The  agency also  denied claimant's  request for
   additional temporary  storage of  household goods  (HHG) for  the
   same reason.  The agency  acted within its discretion, as granted
   by the  Federal Travel Regulation  (FTR), in  refusing to  extend
   claimant's  TQSE period.   As  to that  portion of the  claim, we
   sustain  the decision  of the  agency.   We return  the issue  of
   storage of HHG to the  agency for consideration under the correct
   regulatory standard.  
 
        The facts as shown by  the record are as follows.   Claimant
   relocated from  Albuquerque, New Mexico  to Arlington,  Virginia.
   The agency allowed claimant a period of sixty-seven days of TQSE.
   The  agency granted claimant an additional  seven days beyond the
   initial sixty-day period so that claimant's son could relocate at
   a  later date  following the  conclusion of  the  child's college
   semester.  
 
        Claimant's TQSE period  began on October  28, 1998, and  the
   first sixty days ended on December 26, 1998.   Since claimant was
   allowed  sixty-seven days,  the period  of  his TQSE  entitlement
   ended on January 2, 1999.  
 
 
        While  claimant was in temporary quarters in the Washington,
   D.C. area, claimant's  spouse remained at  the old duty  station.
   Claimant's  spouse took a  house-hunting trip to  the Washington,
   D.C. area from December 2-6, 1998.  
 
        On  December 4, 1998,  claimant signed a  purchase agreement
   with Farmwell  Hunt L.P. for  the purchase of  a residence  to be
   constructed  in  Ashburn, Virginia.   The agreement provided  for
   its termination  if construction  was not  commenced within  five
   months or  substantially completed  within eleven  months of  the
   seller's acceptance  of the  agreement.   The purchase  agreement
   shows that  Farmwell Hunt accepted  the agreement on  January 27,
   1999.  
 
        While claimant lived in Albuquerque, claimant s son attended
   the University  of New Mexico.   Claimant s dependent  lived with
   claimant's  spouse until the  other members of  claimant's family
   moved  to the Washington, D.C. area  on December 29, 1998.  After
   the move,  claimant s son  boarded with a  family in  New Mexico,
   with claimant paying the monthly charge.  Following completion of
   the son s  spring semester  at the University  of New  Mexico, he
   moved into claimant s temporary quarters on May 28, 1999.  
 
        On or  about April 26,  1999, claimant submitted  an amended
   travel voucher seeking  an additional sixty days of  TQSE, and an
   additional  ninety  days  of  storage-in-transit,   to  allow for
   completion of a  new residence.  The request was  approved by the
   agency's  authorizing official, but denied by the final approving
   authority,  the  Assistant  Director  of  Administration.    This
   official  determined that  claimant s request  was not  allowable
   under the  FTR.   Erroneously  citing the  Department of  Defense
   Joint Travel  Regulations instead of the FTR,  he determined that
   claimant s  decision   to  contract  to  build  a  house  with  a
   completion  date  beyond  the initial  sixty-day  period  was not
   acceptable justification  for extending  TQSE because   any event
   occurring during the initial period  may not be considered as the
   cause  for an employee  to remain in  [temporary quarters] beyond
   the  60-day period.     Rejecting  claimant s  argument  that  he
   entered a contract for new  construction because of the high cost
   of  housing in the  Washington, D.C.  area, the  official stated:
    The  simple  reason  of the  area  being a  costly  area  is not
   substantial  [n]or sufficient  to  warrant extending  [claimant s
   TQSE] or storage of household  goods."  The official also stated:
    When  [claimant] accepted the assignment in the Washington area,
   he should  have  been  made  aware that  the  [Washington,  D.C.]
   metropolitan area was a high  rate geographical area.  High costs
   are   not  an  event  occurring  within  the  initial  [temporary
   quarters] period."  
 
        The FTR provides in pertinent part:
 
        Your agency may  authorize you to claim  actual TQSE in
        30-day  increments, not to  exceed 60 consecutive days.
        However,  if your  agency determines  that  there is  a
        compelling  reason for  you  to continue  to  occupying
        temporary quarters  after 60  consecutive days,  it may
        authorize   an  extension   of  up  to   60  additional
        consecutive  days.  Under  no circumstances may  you be
        authorized to  claim actual TQSE reimbursement for more
        than a total of 120 consecutive days.  
 
   41 CFR 302-5.104 (1998).  The FTR also provides:
 
        A  compelling reason   is an event that is  beyond your
        control  and  acceptable  to  the   agency.    Examples
        include, but are not limited to:
 
             (a) Delivery of your  household goods to your
             new residence  is  delayed  due  to  strikes,
             customs clearance, hazardous  weather, fires,
             floods  or  other  acts  of  God  or  similar
             events.  
 
             (b)  You  cannot  occupy  your new  permanent
             residence because  of unanticipated  problems
             (e.g.   delay  in   settlement  on   the  new
             residence,   or    short   term    delay   in
             construction of the residence).  
             (c)  You  are unable  to  locate  a permanent
             residence which is adequate for your family s
             needs because  of housing conditions  at your
             new official station.
 
   41 CFR 302-5.105.
 
        Decisions  as to extensions  of the TQSE  entitlement period
   are  left  to the  discretion  of  the  agency  and will  not  be
   overturned unless they  are shown to be  arbitrary, capricious or
   contrary to law.  Kenneth W. Muzzo, GSBCA 14439-RELO, 98-2  BCA  
   29,814; Rifat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA   29,788.  
 
        In this case, claimant relies on FTR 302-5.105(c) and argues
   that the  high housing cost  in the Washington, D.C.  area caused
   him to  seek new construction  with a settlement date  beyond the
   TQSE  period.    Claimant  states:  "We  finally  located  a  new
   townhouse in the suburbs but had to remain in temporary quarters,
   with  our   possessions  in  storage,   while  construction   was
   completed."  
 
        In  Victoria E.  Caldwell,  GSBCA  14666-RELO,  99-1  BCA   
   30,364, we sustained the agency's determination not to extend the
   employee's  eligibility period for TQSE although the agency cited
   the high cost of housing at the new duty station.  We agreed with
   the agency that  claimant had not  demonstrated that the  request
   for an extension was due to an actual lack  of housing at the new
   duty station,  rather than that  the existing housing  was simply
   not  personally  acceptable  to  the  employee.     In  Bruce  L.
   Kilhefner, GSBCA 14858-RELO, 99-1 BCA   30,361, we  sustained the
   agency decision  to deny an  extension of the TQSE  period, where
   the claimant contracted  to purchase a house two  days before the
   end of the  TQSE period with settlement occurring  well after the
   end of  the period.   We  agreed that  there was  nothing in  the
   record to indicate that  the delay in finding a house  was due to
   anything other than claimant's personal preference.  
 
 
        In  this   instance,  claimant  contracted   for  new  house
   construction one  month before the  end of  his TQSE  eligibility
   period,  with a  latest  completion  date  allowable  under  that
   contract to be  in December 1999.  Claimant  has not demonstrated
   that  there  was  a  lack of    existing,  similarly  affordable,
   suitable housing between October 28,  1998 and January 5, 1999 in
   the Washington, D.C. area,  or that the delay in  finding a house
   was due  to the  shortage of such  housing.  Although  the agency
   used  an obsolete  standard  in  assuming  that  the  "compelling
   reason" must occur  during the claimant's initial  sixty-day TQSE
   eligibility period--the FTR no longer so provides--the agency did
   not abuse  its discretion  in determining that  claimant had  not
   justified an extension of  his TQSE eligibility period based upon
   the high cost of housing in the area.  
 
        Claimant maintains, "Since  my son stayed in  Albuquerque in
   temporary quarters  during this time frame to complete the Spring
   semester at  the University of  New Mexico, this is  another fact
   which allows approval  of temporary  quarters."   Under FTR  302-
   5.10, family  members may need  to occupy  temporary quarters  at
   different locations,  particularly if, after the  employee moves,
   the family  stays  behind  until  the end  of  a  school  year.  
   Construing the  earlier regulation,  which was  substantively the
   same,  the General Accounting  Office held  that an  employee was
   entitled  to  reimbursement of  temporary  quarters  for expenses
   incurred  by the employee's  dependent in a  university dormitory
   when the  employee established that  the dependent's stay  in the
   dormitory was directly related to the employee's transfer and was
   not  "solely for  educational  purposes."   Richard T.  Bible, B-
   208302 (Sept. 27, 1982).  Here, however, claimant did not ask the
   agency to extend his TQSE on that basis.
 
        Claimant also complains about the denial of  his request for
   an  additional ninety  days of  temporary  storage of  claimant's
   household goods pending  construction of the house.    The agency
   denied claimant  an extension of  temporary storage for  the same
   reason it  denied the extension  of claimant's TQSE period.   The
   applicable regulation, however, provides that upon the employee's
   written  request, the ninety-day  period may be  extended another
   ninety days under  certain conditions if  approved by the  agency
   and its  designee.   Justification may  include "completion  of a
   residence  under  construction."     41  CFR  302-8.2(d).     The
   standards for extending the TQSE period and extending the  period
   of temporary storage  of HHG are not the same.  The agency should
   reconsider  its denial of  claimant's temporary storage  costs in
   light  of the express regulatory provision that justification for
   those   costs   include   "completion  of   a   residence   under
   construction."   Daniel A.  Rishe, GSBCA 14444-RELO,  98-1 BCA   
   29,667. 
 
 
 
                                 __________________________
                                 ANTHONY S. BORWICK
                                 Board Judge