Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________ March 16, 2000 _____________________ GSBCA 15049-RELO In the Matter of MICHAEL G. RUPERT Michael G. Rupert, Pueblo, CO, Claimant. Susan R. Sheely, Chief, Travel Management Branch, United States Geological Survey, Reston, VA, appearing for Department of the Interior. HYATT, Board Judge. Claimant, Michael G. Rupert, an employee of the United States Geological Survey (USGS), transferred from Boise, Idaho to Pueblo, Colorado in January 1999. His claim concerns entitlement to a home marketing incentive payment in connection with the sale of his home in Boise. For the reasons stated, we find that the agency has properly denied the claim. Background Mr. Rupert received notice of his transfer in the fall of 1998. On November 10, 1998, he submitted a written request for contractor provided relocation services, including the home sale program, under which the relocation company would appraise his home and make an offer to purchase it from him. Meanwhile, he put his house in Boise on the market. On November 17, claimant contacted the USGS Denver office and asked to be signed up with Cendant Mobility as his relocation services provider. He was told that Cendant Mobility would contact him in a few days. Claimant called the Denver office again on November 20. He was told that his travel authorization had not yet been signed so the request for relocation services could not go out. On November 24, claimant was told the relocation materials had been sent by Federal Express to the USGS office in Reston, Virginia on November 20. On November 25, realizing that he was likely to get an offer on his house in the near future, claimant made several calls to USGS in Reston in an effort to determine the status of his paperwork. He learned that the paperwork had been forwarded to the Small Purchases Branch, but was not able to contact anyone in that office to verify his status with the relocation services program. That same day he received a full-price offer for his house. Claimant's choice was to accept the offer or wait for the relocation services provider to contact him, and thus risk losing the offer. He decided to accept the offer. Mr. Rupert called the Denver office on November 27 to inform them that he had accepted an offer on his house. He was told that he should still be eligible for an incentive payment because his relocation paperwork had been signed on November 18 and received by the Small Purchases Branch in Reston on November 24. This was verified by someone in the Reston office as well. The Reston staff member told him, also on November 27, that the relocation company would contact him any day and he could just bring them the qualified buyer and the relocation services company would take over. On November 30, claimant contacted Cendant Mobility. It took several calls for him to track down the individual assigned to work with him. On December 1, Mr. Rupert called his contact at Cendant Mobility. This individual informed him that Cendant Mobility would not work with him because he had signed a contract to sell the house before he was officially in their program. He called the Denver office and was told that resolution of the matter was uncertain. When he called the Reston office on December 2, Mr. Rupert was told that he was disqualified from the home marketing incentive program because he had acted independently of the relocation services contractor in selling his house. This was confirmed by a manager at Cendant Mobility, who told him the company would not act on his behalf under the circumstances. The Travel Management Branch in Reston forwarded this claim to the Board on behalf of Mr. Rupert. According to USGS's records, a purchase order for services to be provided to Mr. Rupert was sent by telefacsimile to Cendant Mobility on November 24. Cendant Mobility stated that the telefacsimile was received on November 25, but explained that the Thanksgiving holiday caused a delay in contacting the claimant to enroll his house in the home sales program. USGS takes the position that while it is unfortunate that Mr. Rupert may have been misled by agency personnel to believe that he could still qualify for the incentive, the home marketing incentive program is nonetheless unavailable to claimant under the circumstances. Discussion Under 5 U.S.C. 5724c (Supp. IV 1998), federal agencies are permitted to enter into relocation service contracts with private firms to provide a variety of relocation services to employees who are transferred. These services include arranging for the purchase by the relocation services contractor of a transferred employee's residence at the old duty station under a home sales program. See Charles T. Loverdi, GSBCA 14232-RELO, 98-2 BCA 29,795; Dan R. Mayer, GSBCA 14347-RELO, 98-1 BCA 29,506 (1997); Paul E. Marshall, GSBCA 13811-RELO, 97-2 BCA 29,036. The relocation services program was subsequently modified by the Federal Employee Travel Reform Act of 1996 to add a home marketing incentive program. 5 U.S.C. 5756. Under this program an agency may pay an employee who is transferred in the interest of the Government an amount to encourage the employee to aggressively market his or her residence at the former official station when (1) the residence is entered into a relocation services program under which the private contractor will purchase the house; (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. Id.; Donald L. Boyle, GSBCA 15080-RELO, 00-1 BCA 30,653. The home marketing incentive program is implemented in the Federal Travel Regulation (FTR) under part 302-14. Subpart A establishes the circumstances under which an employee may qualify for an incentive payment; Subpart B describes the agency's responsibilities should it decide to offer an incentive. The FTR makes clear that it is within the discretion of each agency whether to choose to establish a home marketing incentive program. 41 CFR 302-14.4 (1999); see Boyle; Randolph S. Reynolds, GSBCA 14728-RELO, 99-1 BCA 30,366. The agency is not required to offer an incentive. If it does, however, the payment made may not exceed the savings realized in payments to the relocation services company. 48 CFR 302-14.100. The FTR further delineates the circumstances under which a transferred employee may qualify for an incentive payment. The employee may receive a payment when (a) the residence is entered in the home sale program; (b) the employee has independently and aggressively marketed the property; (c) the employee has found a bona fide buyer as a result of independent marketing efforts; (d) the employee has transferred the residence to the relocation services provider; (e) the agency realizes reduced fee expenses as a result of the employee's independent marketing efforts; and (f) any other conditions established by the agency have been met. 41 CFR 302-14.5. The USGS has furnished a memorandum, dated March 31, 1997, circulated by the Office of Financial Management within the Department of the Interior, stating that the home marketing incentive program is now available, summarizing the terms under which it will be applicable, and noting that a new benefits class code is being established to permit the recording and reporting of the payments. The memorandum states that the program is available to all Department employees who transfer in the interest of the Government and meet the criteria set forth in the FTR. The incentive payment will be the lesser of 1) five percent of the price the third party relocation service contractor paid the employee for the residence, or 2) the Government savings resulting form the amended value sale. USGS has also incorporated similar statements into chapter IX of its handbook for relocating employees. Despite the fact that claimant made diligent efforts to qualify for the home marketing incentive program, and did not receive accurate guidance on how to preserve his entitlement to an incentive payment, on these facts we cannot find entitlement to a payment. It is unfortunate that the process of enrolling in the home sales program could not have been effected more quickly. Nonetheless, to qualify for a payment, the residence must have been enrolled in the home sales program and the residence must also have been transferred to the relocation services company. That did not occur here. Moreover, since claimant's house sold so quickly, and he did not actually participate in the relocation services contractor's home sales program, there is no way to determine what savings occurred. As we stated in Regina M. Rochefort, GSBCA 15127-RELO (Mar. 15, 2000), "[i]t is now impossible to recreate history to enable claimant to properly invoke the home sale incentive program." This claim cannot be sustained. _________________________________ CATHERINE B. HYATT Board Judge