Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________ February 3, 2000 ______________________ GSBCA 15131-RELO In the Matter of THOMAS P. SIMON Thomas P. Simon, Bloomington, IN, Claimant. David J. Holland, Deputy Assistant Director for Administration, Fish and Wildlife Service, Department of the Interior, Arlington, VA, appearing for Department of the Interior. DeGRAFF, Board Judge. Even though an employee occupies rented residence quarters for more than one year, the employee can be reimbursed for temporary quarters subsistence expenses if he initially intended to occupy the quarters temporarily. An employee s initial intent is determined by considering factors such as the duration of the lease, movement of household goods into the quarters, the type of quarters, the employee s expressions of intent, attempts to secure permanent quarters, and the length of time the employee occupies the quarters. Background In 1998, when Thomas P. Simon was employed by the United States Environmental Protection Agency in Illinois, he accepted a permanent position with the United States Department of the Interior (DOI) in Bloomington, Indiana. In connection with the transfer, DOI authorized Dr. Simon to incur reimbursable temporary quarters subsistence expenses (TQSE) for thirty days. On October 19, 1998, Dr. Simon signed a lease for a house on Rolling Oak Drive in Bloomington. This house was listed for sale and was leased to Dr. Simon by a real estate agent who was working with Dr. Simon and his family during their relocation to Bloomington. The lease was for a term of six months beginning on October 30, and provided that at the end of the six-month term, the Simons would become month-to-month tenants. Dr. Simon explains that when he relocated to Bloomington, he intended to buy a lot and build a house, and he never intended to stay at the Rolling Oak Drive house for more than the time necessary to construct a house. Dr. Simon says that a builder told him it would take approximately six months to complete construction of a house, and this is why he signed a six-month lease. He also says that the Rolling Oak Drive house was smaller than his old house and was not suitable for a family of five. Dr. Simon's real estate agent says that she anticipated that the Simons would occupy her house temporarily while they built a house. She intended to sell the Rolling Oak Drive house, and she continued to show the house to prospective purchasers after the Simons began living there. The real estate agent also says that within a few weeks of his arrival in Bloomington, Dr. Simon and a builder began discussing plans for a new house. Dr. Simon had 42,280 pounds of household goods moved to Bloomington. DOI agreed to classify 24,280 pounds as professional books, papers, and equipment, and the remaining 18,000 pounds as personal household items. The movers delivered 23,600 pounds of household goods to the Rolling Oak Drive house. According to DOI's calculations, 8180 pounds of these goods were Dr. Simon's personal household goods and 15,420 pounds consisted of professional books, papers, and equipment. Dr. Simon placed the remaining personal household goods and professional books, papers, and equipment in storage. Dr. Simon says that the professional books, papers, and equipment that he had delivered to the Rolling Oak Drive house were those that he needed in order to perform his duties during the winter, and that those he put in storage would not be needed until later.[foot #] 1 According to his real estate agent, Dr. Simon looked at approximately 200 building lots and existing homes in November and early December 1998. Dr. Simon says that, based upon a statement made in a Government brochure, he expected that DOI's relocation services company would pay for his old house in early to mid-November. Dr. Simon's old house was purchased by DOI s relocation services company in December 1998, and the sale closed in early January 1999. Dr. Simon s bank received payment for the purchase in mid-January 1999. The amount that Dr. Simon received for his old house was considerably less than he expected to receive. Dr. Simon says that the length of time it took to receive the payment for his old house is attributable to the inefficiencies of the relocation services company and that this, coupled with the lower than expected price he received for his old house, caused him to revise his house plans, look at different lots, and delay construction of a new house. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Dr. Simon calculates that the personal household items accounted for less than 7000 pounds of the total goods delivered to the Rolling Oak Drive house. The difference between DOI's calculations and Dr. Simon's calculations is immaterial to the resolution of this matter. ----------- FOOTNOTE ENDS ----------- Dr. Simon's real estate agent says that between mid-January and mid-February 1999, Dr. Simon looked at approximately one hundred lots. In early February 1999, Dr. Simon asked DOI to extend his TQSE period by ninety days, and DOI did so. Dr. Simon made an offer to purchase a building lot on February 22, 1999, and completed the purchase on March 23. In mid-March, Dr. Simon extended the lease on the Rolling Oak Drive house through February 1, 2000, because according to his real estate agent, it was clear that construction of a new house would not be completed when the original six-month lease term expired on May 1, 1999. Dr. Simon's builder completed his final house plans in April 1999, and Dr. Simon signed a contract with the builder in June 1999. A bank approved Dr. Simon's construction loan in August 1999. As of January 2000, Dr. Simon was still living in the Rolling Oak Drive house. DOI decided to deny Dr. Simon's claim for reimbursement of TQSE for 120 days because DOI concluded that he intended to occupy the Rolling Oak Drive house for something other than a temporary term. DOI reached this conclusion because Dr. Simon signed a six-month lease for the house, extended the term of the lease by nine months, and had his household goods delivered there. Dr. Simon contends that his occupancy of the Rolling Oak Drive house was always intended to be temporary, and asks us to review DOI's decision.[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 2 Although Dr. Simon s initial submission to us referred to three vouchers, he said that he wanted us to review DOI s denial of his request for temporary quarters reimbursement. DOI s response to Dr. Simon s submission addressed only his claim for TQSE reimbursement. In his reply to DOI s response, Dr. Simon said that he also disagrees with DOI's computation of his en route mileage. If Dr. Simon wants us to review DOI s decision regarding en route mileage, he should file a request for review that clearly puts the subject of en route mileage at issue. ----------- FOOTNOTE ENDS ----------- Discussion The Federal Travel Regulation provides that TQSE are subsistence expenses incurred by an employee and/or his/her immediate family while occupying temporary quarters. 41 CFR 302-5.2 (1998). Temporary quarters refers to lodging obtained for the purpose of temporary occupancy from a private or commercial source. 41 CFR 302-5.1. In determining whether quarters are temporary, the agency is to consider factors such as the duration of the lease, movement of household effects into the quarters, the type of quarters, the employee's expressions of intent, attempts to secure a permanent dwelling, and the length of time the employee occupies the quarters. 41 CFR 302-5.305. If an employee's temporary quarters become his permanent residence quarters, the employee may receive a TQSE allowance if he shows in a manner satisfactory to the agency that he initially intended to occupy the quarters temporarily. 41 CFR 302-5.14. The fact that Dr. Simon has occupied the Rolling Oak Drive house for more than one year suggests that he did not initially intend to occupy the house temporarily, and his explanation of why he remained in the house for such a long time he received less than he expected from the sale of his old house and he did not receive the settlement check as soon as he thought he would is not enough by itself to convince us that he intended for his occupancy to be temporary. This Board and the Comptroller General, who considered relocation claims until mid-1996, have rejected claims by employees who occupied quarters for similar lengths of time and who asserted that they were unable to move sooner because they could not afford to do so. William T. Gex, 13978-RELO, 97-2 BCA 29,155; Janet L. Hughes, 13731-RELO, 97-1 BCA 28,691 (1996); Johnny M. Jones, 63 Comp. Gen. 531 (1984); Richard W. Coon, B-194880 (Jan. 9, 1980); Charles H. Copeland, B- 173326 (Oct. 27, 1971). In reaching our conclusions, however, we and the Comptroller General considered all of the factors set out in the regulation, and did not look solely at the length of time that the employees occupied the quarters in question. We and the Comptroller General have granted claims by employees who occupied quarters for lengthy periods of time, when other factors established that they initially intended to occupy the quarters temporarily. Brenda Byles, GSBCA 14592-RELO, 99-1 BCA 30,156 (1998); Carl A. Zulick, 67 Comp. Gen. 585 (1988); Harrison J. Lane, B-183829 (Jan. 2, 1976). Looking at all of the facts and considering all of the factors enumerated in the regulation, it appears to us that Dr. Simon initially intended to occupy the Rolling Oak Drive house temporarily. The lease he initially signed was for a six-month term. Although Dr. Simon extended the term of the lease in mid- March 1999, his actions at that time do not establish conclusively what his intent was at the time that he initially moved into the house in late October 1998. The initial term of the lease was consistent with the length of time that Dr. Simon expected he would need to build a house, which indicates an intent to occupy the house temporarily. The manner in which Dr. Simon handled his household goods is also indicative of an intent to stay in the Rolling Oak Drive house temporarily. Dr. Simon did not move all of his household goods into the house. Instead, he moved approximately half of his goods into the house and two- thirds of those were the professional books, papers, and equipment that he needed in order to perform his job. He placed the remainder of his household goods in storage. As for the type of quarters the Simons occupied, the owner of the house did not intend to rent the house to the Simons as their permanent quarters. She had listed the house for sale and was showing it to prospective purchasers. In addition, Dr. Simon says that the house was too small for his family. Dr. Simon expressed to his real estate agent an intent to occupy the Rolling Oak Drive house temporarily while he constructed a house. He began working with a builder soon after he arrived in Bloomington, which indicates an intent to stay in the Rolling Oak Drive house temporarily. Dr. Simon s real estate agent explains that Dr. Simon made a substantial effort to secure a permanent dwelling, looking at approximately 200 building lots and existing homes in November and early December 1998, and an additional one hundred lots between mid-January and mid-February 1999. In late February, Dr. Simon purchased a lot on which to build a house. Dr. Simon s efforts to locate a lot where he could build a house are consistent with an intent to occupy the Rolling Oak Drive house temporarily. Taking into account the duration of the lease, the movement of household goods into the quarters, the type of quarters, Dr. Simon s expressions of intent, and his attempts to secure permanent quarters, we conclude that Dr. Simon initially intended to occupy the Rolling Oak Drive house temporarily, even though he has occupied the house for more than one year. We grant the claim. Because Dr. Simon initially intended to occupy the Rolling Oak Drive house temporarily, he may be reimbursed for his temporary quarters subsistence expenses in whatever amount is allowed by regulation. ___________________________________ MARTHA H. DeGRAFF Board Judge