Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ February 11, 2000 ___________________ GSBCA 15188-RELO In the Matter of DAVID GANZEL David Ganzel, Roy, UT, Claimant. Jeanne DiGange, Authorized Certifying Officer, National Finance Center, Department of Agriculture, New Orleans, LA, appearing for Department of Agriculture. HYATT, Board Judge. A certifying officer of the United States Department of Agriculture (USDA) has requested the Board's opinion, pursuant to 31 U.S.C. 3529 (Supp. III 1997) ("section 3529 decision"), as to whether the agency has the authority to reimburse claimant, Dr. David Ganzel, for residence transaction expenses incurred more than two years, but less than three years, after he reported to his new duty station under a Government-directed move. The USDA is concerned because there is no written request currently in the possession of the agency to show that Dr. Ganzel sought a one-year extension of the initial two-year time frame to complete residence transactions incident to a permanent change of station (PCS). For the reasons explained in more detail below, we conclude that USDA has the discretion to extend the time limitation and reimburse Dr. Ganzel. Background In September 1993, Dr. Ganzel, a veterinarian employed by the Food Safety Inspection Service (FSIS), was transferred from Cedar City, Utah to Fillmore, Utah. He reported to his new duty station on September 23, 1993. In connection with this PCS, claimant was authorized reimbursement of residence transaction expenses. He submitted a claim for expenses incurred in the sale of his house in April 1996. His agency denied the claim because it had no record of a written request for an extension of time to complete real estate transactions. Initially, Dr. Ganzel was assigned to a mini-circuit, consisting of seven different plants located in southern Utah. At the time he was appointed, Dr. Ganzel learned there was a possibility that his mini-circuit might be disbanded pursuant to an agency reorganization. Claimant consulted his supervisor about his options given that his current position could be fairly temporary. The supervisor suggested that Dr. Ganzel would likely be returned to Cedar City since Smithfield Hams had announced plans to build a new plant there, and recommended that Dr. Ganzel hold off on selling his house in Cedar City. Dr. Ganzel followed this advice. Dr. Ganzel's circuit was disbanded in 1995, and he was thereafter assigned variously as a relief veterinarian in South Dakota, North Dakota, Arizona, and Utah. When it became clear that Smithfield had abandoned the notion of building a plant in Cedar City, Dr. Ganzel sold his house there. He closed on the sale in April 1996, more than two years, but less than three years, after his transfer took place. As Dr. Ganzel met with his supervisor only about four times a year, most of their communication was in writing. On numerous occasions, in informal memoranda, Dr. Ganzel requested that his supervisor authorize the sale of his home in Cedar City. Dr. Ganzel was consistently advised to delay taking action to sell his home until FSIS could determine where he would be permanently placed. Dr. Ganzel was told that he would not lose his entitlement to reimbursement of these expenses. Unfortunately, the relevant memoranda are no longer available to support this claim. The supervisor is now deceased and cannot confirm this correspondence. Dr. Ganzel has transferred to another position and no longer possesses copies of this correspondence. Another employee has corroborated that she saw several such requests, however. After selling his residence in Cedar City, Dr. Ganzel had difficulty determining how to proceed with his claim for reimbursement. When his voucher was eventually submitted to the National Finance Center (NFC) in 1998, it was questioned. NFC expressed concern that, in the absence of a written request for extension and a formal extension of the two-year limitation, the agency lacked authority to reimburse claimant. Discussion Although FSIS would like to reimburse Dr. Ganzel, NFC is concerned that this situation does not comport with the provisions of the Federal Travel Regulation (FTR) setting forth the two-year limitation for completing real estate transactions and defining the circumstances for extending the limitation by another year. NFC recognizes that Dr. Ganzel may have been erroneously advised to postpone selling his house, but points out that under applicable precedent the Government cannot be held responsible for misinforming employees. NFC requests a decision as to whether the inaccurate information and loss of documentation by the agency can be defined as extenuating circumstances such as to allow reimbursement of the claim. Under the FTR, an employee who is transferred to a new official station in the interest of the Government is eligible for reimbursement of 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 the following 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 FSIS suggests that the correspondence between Dr. Ganzel and his supervisor, although no longer in the possession of the agency or the claimant, should suffice to meet the requirements for a written request for an extension. In particular, the existence of the correspondence has been confirmed by another employee who was in a position to make note of these materials. NFC is concerned that the evidence is not sufficient to show that a proper request was made and granted. It is concerned that the criteria enunciated in the FTR have not been met. Under the circumstances described by FSIS and NFC, we believe that USDA has the authority to reimburse Dr. Ganzel's expenses if they are otherwise allowable under the FTR. The principal requirement of this regulation is that the transaction, i.e., the sale of the house, have been completed prior to the expiration of the three-year period, which is the maximum time frame permitted by regulation. The timing of the request is secondary. As we pointed out in Sharon C. Brown, GSBCA 15122- RELO (February 8, 2000), it is not critical that the request for a one-year extension of time to complete a residence transaction be made within the thirty-day grace period provided in the FTR. The agency, for good cause shown, may exercise its discretion to extend the thirty-day grace period in appropriate circumstances. The circumstances described here would suffice to justify granting additional time for Dr. Ganzel to make the request again in writing and to then grant the request. _________________________________ CATHERINE B. HYATT Board Judge