Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________ March 15, 2000 ________________________________ GSBCA 15127-RELO In the Matter of REGINA M. ROCHEFORT Regina M. Rochefort, Mount Vernon, WA, Claimant. C. Bruce Sheaffer and Vincent Mullally, National Park Service, Washington, DC, appearing for Department of the Interior. WILLIAMS, Board Judge. Claimant seeks payment of a home marketing incentive fee in conjunction with her permanent change of station. The Department of the Interior, National Park Service (NPS), denied reimbursement because claimant never transferred title to her residence to the relocation services company, a condition which must be met before an employee can receive the incentive payment under Federal Travel Regulation (FTR) 302-14. Claimant contends that because the agency never advised her that she was eligible for the relocation marketing incentive program prior to her move and later misinformed her as to how to enroll in the program, she should be reimbursed the difference between the marketing incentive fee and the benefits which she already received, a total of $9175. There is no legal basis for reimbursing claimant since she already sold her home without enrolling in the program and was reimbursed relocation expenses outside the relocation program. Background In the fall of 1998, claimant, Regina M. Rochefort, a scientist, was approved for a permanent change of station from Mt. Rainier to the North Cascades National Park (NOCA). The effective date of claimant's transfer was October 25, 1998. After she received her permanent change of station information packet, she contacted an agency official about how long she needed to advertise her house with a realtor before participating in the relocation services program. Claimant was advised to elect the services of a relocation company if, after listing the house with her own realtor for thirty days, the home had not sold. Specifically, the official advised claimant to write on the relocation form, "I would accept a guaranteed home sale program but activate at a later date." Claimant followed this advice. She submitted the paperwork in the manner prescribed, contracted with a realtor on October 15, 1998, and received an offer on her house just four days later. Claimant agreed to sell the home through this realtor on October 26, 1998. On November 2, 1998, claimant arrived at NOCA and enquired with the agency there regarding the status of the sale of her home. She was advised that the home marketing incentive program had been approved by NPS since February 1998. After discussing this with several other agency officials who had no knowledge of the program, claimant was ultimately directed to Mr. Foon Lee, who confirmed that the program was in place. On November 24, 1998, claimant wrote an e-mail message to Mr. Lee explaining that she had contracted to sell her house and later learned that there was an incentive program, but that she feared that she was not qualified for the program because of erroneous advice. She stated: "A purchase order was never 'cut' for me due to the 'not activate' clause that [an agency official] recommended. . . . Our house is scheduled to close this week so I am very concerned as to where I stand on this." Mr. Lee promptly responded, advising claimant via e-mail that in order to qualify for the incentive she had to be under contract with the relocation services contractor. He stated: The savings between the contractor buying the house versus the buyer you have provided to reduce the percentage of what the relocation services would have charged, is where the incentive is calculated. . . . [O]ther regions who are giving incentives without the use of the contractor relocation services . . . do no[t] qualify under the Federal Travel Regulations. They are using the employees' awards program to cover them. Our region [does] not have funding in the employee awards program for this, nor had we ever implement[ed] this for travel related issues. . . . In order to get an incentive award, you must be under the Contract Relocation Services per Federal Travel Regulations, 41 CFR 302-14. Claimant wrote back that same day asking "[W]here do I go from here?" She further noted that in her information packet concerning the move she had received absolutely no information about this new process. In several other e-mails claimant was advised that she did have to have a purchase order cut, that the agency might be able to do it now if she preferred not to wait the thirty days, but that her broker would still be involved. Apparently accepting this advice, the agency officials "cut" a purchase order with contractor HFS Mobility Services, Inc., Cendant (Cendant), in the amount of $24,900. The order stated: "The contractor shall provide relocation services for Regina Rochefort . . . contractor to provide home marketing assistance and guaranteed home sale incentive program for home . . . ." The day after this purchase order was faxed, claimant called Cendant. No one there had seen the purchase order, and Cendant advised claimant that if she already had a buyer the company could not help her. On December 8 the sale of the house was finalized. On December 9, 1998, claimant again contacted Cendant, which advised her that the NPS had given Cendant no directions on how to implement the incentive program. On December 22, claimant received a call from a Cendant representative offering to help her find a local realtor. On December 23, Cendant informed NPS that claimant's contract had not been activated because the sales agreement on her house had been initiated by the time the company had received the contract. On February 3, 1999, claimant wrote to the superintendent of the North Cascades National Park to find out if there was any alternative way to activate the home marketing incentive program award because she realized that she had not met the requirement of transferring ownership of her home to the relocation company. On March 19, 1999, claimant was reimbursed in the amount of $11,640 for expenses incurred in connection with the sale of her residence outside of the relocation services program and without a home marketing incentive award. Discussion As this Board recognized in Donald L. Boyle, GSBCA 15080-RELO, 00-1 BCA 30,653, the home marketing incentive payment program was established in the Federal Employee Travel Reform Act of 1996 as an adjunct to the relocation services program. Pub. L. No. 104-201, 1717, 110 Stat. 2422, 2757 (1996) (adding Section 5756 to Title V, United States Code). Under the home marketing incentive program, an agency may pay an employee who transfers in the interest of the Government an amount to encourage the employee to aggressively market his or her residence at the official station from which transferred when: (1) the residence is entered into a relocation services program to arrange for the purchase of the residence; (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. 5 U.S.C. 5756(a) (Supp. IV 1998). In the FTR, which implements this statute, it is clear that an agency has the discretion to establish or not to establish a home marketing incentive program. 41 CFR 302-14.101, 14.102; see also Boyle; Randolph S. Reynolds, GSBCA 14728-RELO, 99-1 BCA 30,366. On February 3, 1998, the NPS issued regulations establishing such a program. Amendment 61 - Home Marketing Incentive Payments, provides: This amendment provides authority for agencies to pay a home marketing incentive to an employee who successfully sells his/her home while participating in the guaranteed home sales program. For an employee to be eligible to receive this incentive payment, the following conditions must be met: a) The employee must elect to accept use of the guaranteed home sales program offered under the GSA [General Services Administration] negotiated relocation services contract; b) The employee independently and aggressively markets his/her residence; c) The employee must find a bonafide buyer as a result of his/her marketing effort; d) The employee must transfer the residence to the relocation services company; e) Your efforts result in the relocation services company being reimbursed at the amended value sale rate rather than the appraised value sale rate. The amount of the incentive payment will be the lesser of: (1) 5% of the price the contractor paid the employee for the residence or (2) the Government's savings resulting from the amended value sale. The attachment contains examples of home sales transactions in the applicable employee home marketing incentive entitlement. As this regulation makes clear, because claimant sold her home without transferring it to the relocation services company, she is ineligible for the incentive payment. It is now impossible to recreate history to enable claimant to properly invoke the home sale incentive program. So too, the amount of the incentive payment due to claimant could not be properly calculated as it must be the lesser of 5% of the price the contractor paid the employee for the residence or the Government's savings resulting from the amended value sale. Neither "the price the contractor paid" nor the Government's savings exist.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 Thus, claimant's conclusion that she would be entitled to an additional $9175 is speculative. ----------- FOOTNOTE ENDS ----------- Decision The claim is denied. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge