B-239870, Sep 30, 1991, 70 Comp.Gen. 733

B-239870: Sep 30, 1991

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He is entitled to full relocation expense reimbursement under 5 U.S.C. A losing agency pays vested return right expenses only when the return travel is performed before an inter-agency transfer occurs. Declination of first job offer after accepting second job offer does not defeat his right to residence sale expense reimbursement so long as the conditions of entitlement under paragraph 2- 6.1 of the Federal Travel Regulations (FTR) are met. While the FTRs are silent on the point. Is to be borne by the gaining agency. Agency Liability for Expenses of Transfer from an Overseas Location: This decision is in response to a request from an Authorized Certifying Officer. Department of Energy. /1/ At issue is the entitlement of a BPA employee to be reimbursed for certain relocation expenses and for the shipment of his privately owned vehicle (POV).

B-239870, Sep 30, 1991, 70 Comp.Gen. 733

CIVILIAN PERSONNEL - Relocation - Overseas personnel - Return travel 1. An employee, who had vested return travel rights under U.S.C. Sec. 5722 from Hawaii, received an inter-agency transfer to the continental United States. He is entitled to full relocation expense reimbursement under 5 U.S.C. Sec. 5724 and Sec. 5724a from the gaining agency. A losing agency pays vested return right expenses only when the return travel is performed before an inter-agency transfer occurs. Thomas D. Mulder, 65 Comp.Gen. 900 (1986). CIVILIAN PERSONNEL Relocation - Residence transaction expenses - Reimbursement - Eligibility 2. An employee executed an agreement to sell his old residence after he received and accepted an intra-agency job offer involving transfer to a new duty station. He later accepted a job offer from another agency, also involving transfer to a new duty station, declined the first job offer and settled on the residence sale after receiving his travel authorization from the second agency. Declination of first job offer after accepting second job offer does not defeat his right to residence sale expense reimbursement so long as the conditions of entitlement under paragraph 2- 6.1 of the Federal Travel Regulations (FTR) are met. Paul W. Adamske, 70 Comp.Gen. 205. CIVILIAN PERSONNEL Relocation - Overseas personnel - Household goods - Shipment - Privately-owned vehicles 3. An employee shipped a privately owned vehicle (POV) to Hawaii at government expense. Due to an accident and damage to the POV, he purchased a foreign manufactured vehicle as a replacement from a commercial automobile dealer in Hawaii. On subsequent transfer to another agency, he seeks reimbursement for shipment of that POV to the continental United States. While the FTRs are silent on the point, the gaining agency has discretionary authority to allow shipment at government expense of that foreign-made POV to the continental United States upon his return. Following the rule in Thomas D. Mulder, 65 Comp.Gen. 900 (1986), and under authority of paragraph 2-1.6 of the FTR, the cost of that shipment, if determined to be appropriate, is to be borne by the gaining agency.

Ronald G. West-- Inter-agency Transfer-- Agency Liability for Expenses of Transfer from an Overseas Location:

This decision is in response to a request from an Authorized Certifying Officer, Bonneville Power Administration (BPA), Department of Energy. /1/ At issue is the entitlement of a BPA employee to be reimbursed for certain relocation expenses and for the shipment of his privately owned vehicle (POV), incident to an inter-agency transfer from an overseas location in September 1988. For the following reasons we conclude that the employee is entitled to residence sale expenses. BPA has discretionary authority to allow return shipment expenses for Mr. West's vehicle. The gaining agency, the BPA, is responsible for paying these expenses.

BACKGROUND

Mr. Ronald G. West, an employee of the Department of the Navy, was transferred to Kekaha, Hawaii, in May 1985, subject to a 36-month overseas service agreement. According to Mr. West, in June 1988, following satisfactory completion of his tour of duty, he received an oral offer from the Navy to make a lateral transfer to its facility at Point Mugu, California. He orally accepted the offer on July 1 and placed his residence in Hawaii on the market. On July 9, 1988, he executed a contract to sell that residence with a settlement date scheduled to occur in September 1988.

In August 1988, while still employed by the Navy in Kekaha, Hawaii, Mr. West was notified that he was selected by the BPA under its merit promotion program for a position in Portland, Oregon. He accepted that position and declined the Point Mugu position offered by the Navy. August 26, 1988, the BPA issued him a travel authorization for his transfer to Portland, Oregon, with a departure date of September 7, 1988, and a reporting date of September 12, 1988. He settled on his Hawaiian residence on September 2, 1988.

Mr. West filed a travel voucher with the BPA claiming the amount of $1,061.51 for the expenses of residence sale. The BPA disallowed reimbursement, asserting that he had become legally bound to sell the residence before BPA's job offer was made, citing to George S. McGowan, B-206246, Aug. 29, 1984, as controlling. Mr. West has appealed that disallowance.

In conjunction with Mr. West's appeal, the BPA has raised several additional questions. The first question is whether the Navy, as the losing agency, is responsible to pay the cost of shipping Mr. West's household goods and POV back to the continental United States, since he had fulfilled all conditions of service with the Navy and became entitled to return travel under the provisions of 5 U.S.C. Sec. 5722(a)(2) (1988). The second and third questions are whether either agency is responsible for the cost of shipping Mr. West's POV from Hawaii to Portland, Oregon, since that POV was a replacement vehicle of foreign manufacture, and, if so, which agency must bear that expense.

OPINION

Relocation Expenses

The provisions of law governing reimbursement for relocation expenses incident to a transfer from one duty station to another are contained in 5 U.S.C. Sec. 5724 and 5724a (1988). The only statutory limitation on those rights are that the transfer must be (1) in the interest of the government and (2) without a break in service. Additionally, where the transfer is between agencies, 5 U.S.C. Sec. 5724(e) mandates that "... the agency to which ... an employee transfers pays the expenses authorized by this section." In contrast, 5 U.S.C. Sec. 5724(d) provides that an employee transferred to a post of duty outside the continental United States is entitled to the expenses of travel to and from that location by his employing agency as limited under 5 U.S.C. Sec. 5722. /2/

Our decision, Thomas D. Mulder, 65 Comp.Gen. 900 (1986), involved an inter-agency transfer similar to the present case. We ruled therein that where an employee performs an inter-agency transfer from an overseas location in the interest of the government and without a break in service he is entitled to the full range of relocation benefits under 5 U.S.C. Secs. 5724 and 5724a, even though he has vested overseas return travel rights under 5 U.S.C. Sec. 5722(a)(2). Also in Mulder, citing to our decision, Milton G. Parsons, 58 Comp.Gen. 783 (1979), we concluded that, if an employee is returned to the continental United States prior to an inter-agency transfer, the losing agency is responsible for the employee's return travel expenses authorized by 5 U.S.C. Sec. 5722. However, if the inter-agency transfer is effected before the employee returns to the continental United States, the gaining agency is responsible for all relocation expenses authorized by 5 U.S.C. Sec. 5724 and 5724a. Mulder, supra, at page 904.

In the present case, since the BPA transferred Mr. West from Hawaii to Oregon, the BPA, as the gaining agency, is responsible for his relocation expenses under 5 U.S.C. Secs. 5724 and 5724a.

Having concluded that the BPA is responsible to pay relocation expenses in Mr. West's case, we now turn to the question of his specific entitlements.

Residence Sale Expenses

We do not agree with the BPA's position that Mr. West is not entitled to residence sale expenses simply because he executed an agreement to sell his residence on a date prior to his selection for the BPA position. also do not consider George S. McGowan, B-206246, supra, as controlling Mr. West's real estate expense entitlement. In McGowan the employee completed settlement on the sale of his residence prior to the issuance of the vacancy announcement that led to his selection for the position. Since there was nothing in the record of that decision to show a prior administrative intent to transfer him before the expenses were incurred at settlement, we concluded therein that the employee may not be reimbursed residence sale expenses. See also Benjamin M. Johnson, B-229390, Sept. 14, 1988.

Our decision Paul W. Adamske, B-239590, Jan. 29, 1991, 70 Comp.Gen. 205, also involved a situation substantially similar in part to that involved in Mr. West's case. contracts to sell his residence following acceptance of a job offer, the fact that he later accepts a different job offer and declines the prior offer would not defeat his right to residence sale expense reimbursement, so long as the conditions of entitlement under FTR, para. 2-6.1 (currently 41 C.F.R. Sec. 302-6.1 (1990)) are met. In the present case, since those conditions were met, Mr. West is to be reimbursed residence sale expenses by the BPA.

Foreign POV Shipment

Mr. West had shipped a domestic vehicle to Hawaii at government expense when he was transferred there in 1985 by the Navy. However, when that vehicle was damaged in an accident, he purchased a foreign manufactured vehicle as a replacement from a commercial dealer in Hawaii. connection with his transfer to BPA, he informed BPA that he owned a foreign POV and BPA authorized and paid for its shipment from Hawaii to Oregon. BPA now questions the legality of that payment.

Under authority of 5 U.S.C. Sec. 5727 (1988) and FTR, para. 2-10.2c, an employee's POV may be transported to a post of duty outside the continental United States when the agency determines that use of the vehicle there is in the interest of the government and satisfies all the conditions listed in clauses (1) through (6) of that FTR paragraph. Clause (6) requires that the POV which is to be shipped to the overseas location is to be of United States manufacture, unless it is further determined that shipment of a foreign manufactured POV is allowed for the reasons stated therein. While FTR, para. 2-10.3e authorizes shipment of a replacement vehicle to that overseas location at government expense, the replacement vehicle is subject to the same determinations and conditions applicable to the overseas shipment of the original vehicle. Wilfred O. Tungol, B-208695, Nov. 30, 1982. Upon satisfactory completion of an overseas assignment, an employee's POV which was authorized to be shipped to the overseas location is authorized to be shipped back to the continental United States at government expense. FTR, para. 2-10.3b.

The FTR does not specifically address the return shipment of replacement vehicles (either domestic or foreign manufactured) if purchased overseas. However, some agencies have adopted policies authorizing such return shipment. See, for example, 2 JTR para. C11003 2c, which authorizes return shipment of replacement vehicles purchased overseas by civilian employees of defense agencies, including foreign manufactured vehicles if the requisite determinations are made. We believe that this practice is appropriate.

Therefore, in our view, BPA has discretionary authority to allow return shipment expenses for Mr. West's vehicle if it determines that this would be appropriate. If BPA has no existing policy regarding return shipment of foreign manufactured vehicles, it might consider applying the standards now contained in the JTR provision or the FTR standards governing the shipment of a foreign-manufactured vehicle to an overseas location.

The remaining question is which agency is responsible to pay the expense of transporting Mr. West's foreign POV to the continental United States, if BPA determines that shipment at government expense was appropriate in this case.

Unlike 5 U.S.C. Sec. 5724(e), which provides that the gaining agency shall be responsible for payment of relocation expenses, 5 U.S.C. Sec. 5727 is silent on the matter. However, since shipment of an employee's POV is a normal incident to an overseas transfer, we believe that the rule in Mulder, supra, should apply and the losing agency would be responsible for the shipping costs only if the employee returns to the United States prior to transfer. In addition, FTR, para. 2-1.6 provides, in part:

"b. Funding of transfers between agencies. In the case of transfer from one agency to another, allowable expenses under chapter 2 of the FTR shall be paid from the funds of the agency to which the employee is transferred. ..."

Therefore, it is our view that the expenses of transporting Mr. West's POV from Hawaii to the continental United States, if determined to be allowable, were properly borne by BPA.

/1/ Ms. Joanne C. Henry, Reference DSDT.

/2/ An employee's return travel expense reimbursements under 5 U.S.C. Sec. 5722 are significantly more limited than those under 5 U.S.C. Secs. 5724 and 5724a.