B-167371, AUG. 13, 1969

B-167371: Aug 13, 1969

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A COURT ACTION BY A BUILDER TO OBTAIN TITLE ON A LOT UPON WHICH A HOUSE FOR AN NSA EMPLOYEE WAS TO BE BUILT MAY BE REGARDED AS "LITIGATION" UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56 WHICH PERMITS REIMBURSEMENT OF SETTLEMENT COSTS BEYOND THE 1-YEAR LIMITATION WHEN THE DELAY IS DUE TO LITIGATION. THE SETTLEMENT DATE FOR HIS NEW RESIDENCE WAS DECEMBER 13. WHICH EXCEEDS THE YEAR WITHIN WHICH SETTLEMENT IS TO OCCUR TO COMPLY WITH THE PROVISIONS OF SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. RIDDLE NOW REQUESTS RECONSIDERATION ON THE BASIS THAT THE SETTLEMENT WAS DELAYED BECAUSE OF LITIGATION SO AS TO COME WITHIN THE EXCEPTION TO THE 1-YEAR SETTLEMENT DATE AS SPECIFIED IN SECTION 4.1D OF CIRCULAR NO.

B-167371, AUG. 13, 1969

CIVIL PAY - RELOCATION EXPENSES - REAL ESTATE - SETTLEMENT DATE DECISION TO FINANCE AND ACCOUNTING OFFICER, NATIONAL SECURITY AGENCY CONCERNING REIMBURSEMENT INCIDENT TO CHANGE OF STATION. A COURT ACTION BY A BUILDER TO OBTAIN TITLE ON A LOT UPON WHICH A HOUSE FOR AN NSA EMPLOYEE WAS TO BE BUILT MAY BE REGARDED AS "LITIGATION" UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56 WHICH PERMITS REIMBURSEMENT OF SETTLEMENT COSTS BEYOND THE 1-YEAR LIMITATION WHEN THE DELAY IS DUE TO LITIGATION.

TO MAJOR J. E. INGLES, FC:

YOUR MEMORANDUM OF APRIL 28, 1969, SERIAL D5/0730F, FORWARDED TO US ON JUNE 26, 1969, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE OFFICE OF THE SECRETARY OF THE ARMY REQUESTS A DECISION AS TO REIMBURSEMENT OF EXPENSES OF PURCHASE OF REAL ESTATE TO MR. DAVID W. RIDDLE IN CONNECTION WITH A CHANGE OF HIS DUTY STATION.

ACCORDING TO THE RECORD BEFORE US, MR. RIDDLE RELOCATED HIS RESIDENCE FROM BELTSVILLE TO LAUREL, MARYLAND, INCIDENT TO HIS CHANGE IN DUTY STATION FROM FORT GEORGE G. MEADE TO FRIENDSHIP INTERNATIONAL AIRPORT. MR. RIDDLE REPORTED TO HIS NEW DUTY STATION ON OCTOBER 28, 1967. THE SETTLEMENT DATE FOR HIS NEW RESIDENCE WAS DECEMBER 13, 1968, WHICH EXCEEDS THE YEAR WITHIN WHICH SETTLEMENT IS TO OCCUR TO COMPLY WITH THE PROVISIONS OF SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 (OCTOBER 12, 1966, REVISION). IN VIEW THEREOF, YOU DENIED PAYMENT OF MR. RIDDLE'S CLAIM FOR THE RELATED REAL ESTATE EXPENSES.

MR. RIDDLE NOW REQUESTS RECONSIDERATION ON THE BASIS THAT THE SETTLEMENT WAS DELAYED BECAUSE OF LITIGATION SO AS TO COME WITHIN THE EXCEPTION TO THE 1-YEAR SETTLEMENT DATE AS SPECIFIED IN SECTION 4.1D OF CIRCULAR NO. A- 56. HE STATES THAT APPROXIMATELY 4-1/2 MONTHS OF THE DELAY (FROM DECEMBER 18, 1967, THE DATE OF CONTRACT FOR CONSTRUCTION OF THE HOUSE, TO MAY 1, 1968) WAS CAUSED BY LITIGATION OF HIS BUILDER, MR. BROSIUS, IN OBTAINING CLEAR TITLE ON THE LOT UPON WHICH THE HOUSE WAS BUILT.

YOU POINT OUT THAT MR. RIDDLE WAS NOT A LITIGANT AND FURTHER THAT THE BUILDER, MR. BROSIUS, IN A MEMORANDUM OF APRIL 2, 1969, DISCUSSING THE TIME ELEMENT ON CONTRACT PERFORMANCE, DID NOT STRESS THE LITIGATION ASPECTS AS BEING THE SOLE OR PRIMARY CAUSE FOR THE CONSTRUCTION DELAY. MR. BROSIUS, IN FACT, SET FORTH THE PROBLEM OF GETTING CUSTOM-MADE ITEMS AS A CAUSE IN THE DELAY IN COMPLETING THIS RESIDENCE WHICH WAS IN CONSTRUCTION FROM MAY 1, 1968, TO THE MIDDLE OF DECEMBER 1968. ADDITIONALLY, YOU NOTE THAT THE CONTRACT DID NOT PROVIDE FOR A COMPLETION DATE AND YOU BELIEVE THAT IF SUCH A DATE HAD BEEN INCLUDED, IT COULD AND POSSIBLY WOULD HAVE BEEN MET BY THE BUILDER.

WE DO NOT FEEL THAT THE CLAIMANT MUST BE A LITIGANT IN ORDER TO COME WITHIN THE LITIGATION EXCEPTION TO THE 1-YEAR SETTLEMENT DATE AS SPECIFIED IN THE REGULATIONS. HERE, THE COURT ACTION BY THE BUILDER MAY BE REGARDED AS EMBRACED BY THE TERM "LITIGATION" AS USED IN SECTION 4.1 OF CIRCULAR NO. A-56 (OCTOBER 12, 1966, REVISION).

WE POINT OUT THAT THE REGULATIONS AS THEN WORDED PERMITTED THE HEAD OF A DEPARTMENT OR HIS DESIGNEE TO AUTHORIZE AN APPROPRIATE EXTENSION OF TIME WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION. IF A DETERMINATION BE MADE IN THIS CASE THAT AN EXTENSION WOULD HAVE BEEN GRANTED TO INCLUDE THE SETTLEMENT DATE OF DECEMBER 13, 1968, WE WOULD HAVE NO OBJECTION THERETO. IN THAT CONNECTION WE BELIEVE THE TEST SHOULD BE AS TO WHETHER IT REASONABLY MAY BE ASSUMED THAT SETTLEMENT WOULD HAVE OCCURRED WITHIN THE 1-YEAR PERIOD HAD IT NOT BEEN FOR THE LITIGATION HERE INVOLVED.

THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE FOREGOING.