Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________ February 8, 2000 ____________________ GSBCA 15122-RELO In the Matter of SHARON C. BROWN Sharon C. Brown, Vancouver, WA, Claimant. M. Lou Nicholson, Team Leader, Travel Policy and Operations, Federal Highway Administration, Washington, DC, appearing for Department of Transportation. HYATT, Board Judge. Claimant, Sharon C. Brown, a Federal Highway Administration (FHWA) employee, seeks reimbursement of costs incurred in purchasing a house at her new duty station. Ms. Brown did not complete this transaction within two years of her transfer nor did she seek the one-year extension of time permitted by regulation. Ms. Brown states that she was not informed of her right to request an extension until after two years had expired and extenuating circumstances prevented her from completing the purchase of a home within two years. Background Ms. Brown transferred from Frankfort, Kentucky to Vancouver, Washington in November 1996. In conjunction with her transfer, the agency authorized reimbursement of various expenses associated with relocating, including real estate expenses incurred in purchasing a residence at the new duty station. At the time of her transfer, a member of the Travel Policy and Operations staff was assigned to provide claimant with counseling and advice concerning the relocation process, including providing information on entitlements and limitations on reimbursements. At that time, claimant was provided with an electronic mail file denoted "PCS Entitlements - Rates and Allowances," which was developed to provide transferring employees with a convenient reference tool. This file included information on the two-year time limitation for completing real estate transactions and the availability of a one-year extension in extenuating circumstances. Ms. Brown recalls receiving the e-mail, but states that she relied on a phone conversation with the counselor assigned to her in which she was told that she had only two years in which to complete real estate transactions in order to be reimbursed. Ms. Brown moved to Washington in November 1996. Beginning in July 1997, she rented a house from owners stationed at the time in Saudi Arabia. Some months later, more than a year after her original reporting date, Ms. Brown decided that she would like to buy the house. Because the owners were overseas, she recognized that it would not be possible to complete the purchase as quickly as would ordinarily be the case. She did not confer with agency travel personnel about her eligibility for reimbursement of real estate transaction costs because she believed, based on her early discussions with the travel office, that she could not be reimbursed unless the purchase was completed within two years of her reporting date. Although claimant admits that the materials provided to her at the time of her move advised that an extension of time in which to complete real estate transactions could be requested, she did not make note of this and relied on her conversations with agency personnel and coworkers instead. Since Ms. Brown did not realize she could request a one-year extension, she did not meet the requirement of the Federal Travel Regulation (FTR) that a request for a one-year extension be made no later than thirty days after the expiration of the two-year limitation. She learned of the possibility of receiving an additional year to complete the purchase of a home approximately two years and seven months after her move, and about one week prior to the scheduled closing on her new home. In a letter dated June 7, 1999, Ms. Brown requested a one-year extension of time to complete the purchase of a house. This letter was forwarded to FHWA in Washington once it was determined who had authority to respond to her request. FHWA denied the extension based on the FTR's requirement that requests for extensions of time must be made within thirty days after the expiration of the initial two-year period, unless the agency grants an extension of time to make the request. The agency stated: [N]either the Department of Transportation or FHWA have either expressly or specifically authorized extension of this thirty day grace period, either by policy or a case-by-case basis. Therefore, in accordance with this section of the FTR, her claim was denied. Discussion Under the FTR, an employee who is transferred to a new official station in the interest of the Government may be reimbursed for expenses incurred in purchasing a new residence when settlement on the new home occurs within two years of the employee's official reporting date at the new duty station. A one-year extension of time is permitted under certain circumstances: (i) Upon an employee's written request, the 2 year time limitation for completion of the sale and purchase or lease termination transactions may be extended by the head of the agency or his/her designees for an additional period of time not to exceed 1 year. (ii) The employee's written request should be submitted to the appropriate agency official(s) as soon as the employee becomes aware of the need for an extension but before expiration of the 2-year limitation; however, in no case shall the request be submitted later than 30 calendar days after the expiration date unless this 30-day period is specifically extended by the agency. (iii) Approval of this additional period of time shall be based on a determination that extenuating circumstances, acceptable to the agency concerned, have prevented the employee from completing the sale and purchase or lease termination transaction in the initial timeframe and that the residence transactions are reasonably related to the transfer of official station. 41 CFR 302-6.1(e)(2) (1996). The agency states that Ms. Brown's request for an extension could not be granted because she did not request the extension within thirty days after the expiration of the initial period, and no extension of this time frame was granted. The record does not reflect, however, whether FHWA was asked to grant, or considered granting, claimant additional time, beyond the thirty- day grace period provided in the FTR, to make the request for a one-year extension. Although the Board may not grant the extension requested by Ms. Brown, as we explain below, FHWA may do so, if it deems such an extension to be appropriate under the circumstances. The Board may not overturn FHWA's decision in this regard unless it is arbitrary or lacks a rational basis. See Clifford L. Leeson, GSBCA 14354-RELO, 98-1 BCA 29,701. In Vincent J. Markalonis, B-226022 (May 4, 1987), the General Accounting Office (GAO), the Board's predecessor in resolving claims by federal employees for relocation expenses, addressed a similar claim involving a request for an extension made after the expiration of the thirty-day grace period. Mr. Markalonis, like Ms. Brown, was unaware of the option to request a one-year extension and did not submit his request for an extension until some eight months after the expiration of the initial two-year period. In addressing this situation GAO concluded that an extension of the two-year period may be requested and approved after expiration of the grace period if the agency "finds that such approval is appropriate." Further, "if the agency finds that extenuating circumstances, acceptable to the agency, have prevented the employee from completing the residence transaction in the initial time frame and that the residence transaction is reasonably related to the transfer of station, the agency may approve such an extension and allow reimbursement." See also Leeson (construing a similar provision of the Joint Travel Regulations, which are applicable to civilian employees of the Department of Defense). Here, FHWA appears to have concluded that the failure to make the request within the thirty-day grace period ended Ms. Brown's entitlement to seek reimbursement. This is not the case, however. FHWA has the authority and discretion to extend that period if it decides that it would be appropriate to do so. Under Markalonis, the agency should consider whether the circumstances giving rise to the delay in completing the purchase as described by Ms. Brown are acceptable to it and warrant an extension of time, and whether it would be appropriate to grant an extension of time beyond the thirty-day period allowed in the FTR, to make the request. If so, the agency may reimburse the costs as appropriate. ____________________________ CATHERINE B. HYATT Board Judge