B-235787, Nov 20, 1989, 69 Comp.Gen. 95

B-235787: Nov 20, 1989

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CIVILIAN PERSONNEL - Relocation - Relocation service contracts - Eligibility CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Eligibility - Extension An agency policy limiting temporary quarters to 30 days for all transferred employees who elect relocation services is contrary to the Federal Travel Regulations and should not be enforced. Is remanded to the agency for reconsideration in light of the employee's particular circumstances. Smith - Relocation Services - Temporary Quarters - Subsistence Expenses: This is in response to a request from the Forest Service. The claim was denied by the agency based on a USDA policy which limits TQSE to 30 days when the relocation service is used.

B-235787, Nov 20, 1989, 69 Comp.Gen. 95

CIVILIAN PERSONNEL - Relocation - Relocation service contracts - Eligibility CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Eligibility - Extension An agency policy limiting temporary quarters to 30 days for all transferred employees who elect relocation services is contrary to the Federal Travel Regulations and should not be enforced. An employee's claim for an additional period of temporary quarters, denied on the basis of the agency policy, is remanded to the agency for reconsideration in light of the employee's particular circumstances.

Rosemary A. Smith - Relocation Services - Temporary Quarters - Subsistence Expenses:

This is in response to a request from the Forest Service, United States Department of Agriculture (USDA), for a review of a claim submitted by Ms. Rosemary A. Smith for an additional 30 days of temporary quarters subsistence expenses (TQSE). The claim was denied by the agency based on a USDA policy which limits TQSE to 30 days when the relocation service is used. For the reasons stated below, we find that the USDA policy is contrary to the Federal Travel Regulations, and we remand the case to the agency for reconsideration of Ms. Smith's claim based on her particular circumstances.

BACKGROUND

Ms. Smith transferred to Ketchum, Idaho, from Boise, Idaho, in June 1988, and was entitled to reimbursement for relocation expenses. However, Ms. Smith elected to use the relocation services, including home sale services, offered by her agency. Her request for authorization acknowledged her understanding of an agency policy that when an employee elected relocation services TQSE would be limited to 30 days. On the basis of that policy, intended to hold down relocation costs, the agency approved Ms. Smith's request and limited her to 30 days TQSE.

Ms. Smith later requested an extension of temporary quarters. Her justification was that there was a delay of approximately 30 days in the agency award of a new relocation services contract, and consequently she did not receive an offer on her residence from the new contractor until after her approved TQSE period ended. Her request for additional days of TQSE was denied by the agency based upon the same policy reasons that limited her initial period to 30 days, i.e., to hold down relocation costs.

Ms. Smith questions the validity of the initial 30-day limitation and the agency's denial of her request for an extension. On the premise that the temporary quarters allowance is not an entitlement, the agency contends that it properly exercised its discretion in limiting the allowance to 30 days when an employee elects to use relocation services.

OPINION

It is within an agency's discretion to determine whether to authorize temporary quarters and for what length of time. See 5 U.S.C. Sec. 5724a(a)(3) (Supp. IV 1986); Federal Travel Regulations (FTR), chapter 2, part 5 (Supp. 10, March 13, 1983), incorp. by ref., 41 C.F.R. Sec. 101- 7.003 (1988); Meryl Bullard, B-221978, Apr. 2, 1986. This Office will not challenge an agency's exercise of this discretion unless its determination is arbitrary, capricious, or contrary to law. Alexander Bell, B-201382, Aug. 26, 1981. The issue here is whether the agency's actions were consistent with law and the implementing regulations.

The law provides that when a transfer occurs the government may pay "subsistence expenses of the employee and his immediate family for a period of 60 days while occupying temporary quarters when the new official station is located within the United States ...." 5 U.S.C. Sec. 5724a(a)(3). The same law provides that the period may be extended for an additional 60 days upon the determination by the agency that there are compelling reasons for the continued occupancy of temporary quarters.

Paragraph 2-5.2 of the FTR, implementing 5 U.S.C. Sec. 5724a(a)(3), provides for an initial period of temporary quarters of "not more than 60 consecutive days" when such occupancy is determined to be necessary, and an additional period "not to exceed 60 consecutive days" may be allowed upon a determination of compelling reasons. Thus, agencies may allow varying periods of TQSE. However, FTR, para. 2-5.1 provides that procedures prescribed by agencies for administering the provisions relating to TQSE must assure that "the administrative determination as to whether the occupancy of temporary quarters is necessary and the length of time for occupancy shall be made on an individual-case basis."

The USDA policy restricting TQSE for employees using relocation services is defined in the Forest Service Handbook Interim Directive No. 42, 2- 12.2b(1)(c)(ii) (June 15, 1988) in pertinent part as follows:

"(ii) Temporary Quarters. Employees requesting relocation services are limited to reimbursement of a maximum of 30 days temporary quarters. This limitation does not mean that the employees would only be in temporary quarters 30 days. If the employee is in temporary quarters longer than 30 days, the expenses are personal to the employee."

We know of no provision in FTR, chapter 2, part 12 (Supp. 11, July 25, 1984), regarding the use of relocation service companies, which would authorize such a restrictive TQSE policy for employees using relocation services. To the contrary, we believe such a policy is in conflict with the FTR requirement that determinations of TQSE necessity and duration be made on an individual-case basis. See William Beavers, B-233653, decided today. See also William D. Dudley, 67 Comp.Gen. 310 (1988).

It is our view that while the use of relocation services may be a factor to be taken into consideration in determining an employee's need for and duration of TQSE, since use of the service may generally be easier and faster than private residence sale, an individual employee's situation may involve other factors demonstrating a need for an extended use of temporary quarters. Ms. Smith's claim presents just such a situation-- a 30-day delay in the award of a new relocation services contract by her agency.

Accordingly, we remand Ms. Smith's claim to the agency for reconsideration under FTR, para. 2-5.2a(2) on the basis of her case in accordance with the requirements of the FTR.