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