B-176586, SEP 11, 1972

B-176586, SEP 11, 1972

CIVILIAN EMPLOYEE - SALE OF RESIDENCE - TIME LIMIT DECISION THAT A VOUCHER IN FAVOR OF EDWIN A. HEIKKENEN FOR REIMBURSEMENT OF $2,568 FOR EXPENSES INCURRED IN THE SALE OF REAL ESTATE AT A FORMER DUTY STATION MAY NOT BE CERTIFIED FOR PAYMENT. OMB CIRCULAR NO. A-56, SECTION 4.1E, SPECIFIES THAT A CONTRACT OF SALE MUST BE ENTERED INTO WITHIN ONE-YEAR, AND GAO HAS RULED, B-168392, DECEMBER 16, 1969, THAT AN EXTENSION MAY BE GRANTED ONLY ON AN EXISTING CONTRACT. THE PROVISIONS IN FOREST SERVICE MANUAL 6543.54A-2 CANNOT BE CONSTRUED AS MODIFYING THE REQUIREMENTS OF THE OMB CIRCULAR OR THE GAO DECISIONS. THEREFORE, SINCE THE RECORD DOES NOT SHOW THAT MR. HEIKKENEN ENTERED INTO A SALES CONTRACT WITHIN THE ONE-YEAR PERIOD, NO EXTENSION MAY BE GRANTED TO PERMIT REIMBURSEMENT OF THE EXPENSES.

TO MR. C. E. TIPTON:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 18, 1972, WITH ENCLOSURES, REFERENCE 6540, WHICH REQUESTS AN ADVANCE DECISION WHETHER A VOUCHER IN FAVOR OF MR. EDWIN A. HEIKKENEN FOR REIMBURSEMENT OF $2,568 FOR EXPENSES INCURRED IN THE SALE OF REAL ESTATE AT HIS FORMER DUTY STATION MAY BE CERTIFIED FOR PAYMENT IN VIEW OF THE PROVISIONS OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56, DATED AUGUST 17, 1971, SECTION 4.1E, AND FOREST SERVICE MANUAL (FSM) 6543.54A - 2, RELATING TO EXTENDING THE TIME LIMITATION WITHIN WHICH SETTLEMENT ON THE SALE MUST BE MADE.

THE RECORD INDICATES THAT MR. HEIKKENEN WAS ORDERED TO REPORT TO HIS NEW DUTY STATION AT BOISE, IDAHO, ON MARCH 22, 1971. ON FEBRUARY 13, 1971, HE HAD LISTED HIS HOME IN MCCALL, IDAHO, WITH A FULL-TIME REALTOR. MR. HEIKKENEN APPARENTLY EXPERIENCED DIFFICULTY IN SELLING THE HOUSE DUE TO ITS RELATIVELY HIGH VALUE AND THE UNFAVORABLE MARKET CONDITIONS IN THE AREA. SUBSEQUENTLY HE WITHDREW IT FROM THE MARKET ON DECEMBER 1, 1971, AND RENTED IT FOR A TIME. THE HOUSE WAS PUT BACK ON THE MARKET ON MARCH 18, 1972, AND SETTLEMENT ON THE SALE WAS MADE MAY 1, 1972.

YOU STATE THAT YOUR DOUBT IN THIS MATTER STEMS FROM THE FACT THAT THE SALE WAS NOT MADE WITHIN ONE YEAR AFTER THE EMPLOYEE REPORTED AT HIS NEW OFFICIAL DUTY STATION, AND THAT YOU ARE UNCERTAIN WHETHER YOUR AGENCY HAS AUTHORITY TO APPROVE AN EXTENSION BEYOND THE ONE-YEAR PERIOD. IN THIS CONNECTION YOU HAVE REFERRED TO THE DATE OF SALE AS THE DATE OF SETTLEMENT, AND WHILE YOU HAVE NOT GIVEN US THE DATE THE CONTRACT OF SALE WAS ENTERED INTO, IT IS ASSUMED THAT SUCH DID NOT OCCUR WITHIN THE ONE- YEAR PERIOD. YOU NOTE THAT OMB CIRCULAR NO. A-56 SPECIFIES THAT A CONTRACT MUST BE ENTERED INTO WITHIN THE INITIAL ONE YEAR PERIOD AND CERTAIN COMPTROLLER GENERAL DECISIONS - B-168392, DECEMBER 16, 1969; B- 174176, OCTOBER 26, 1971; AND B-174315, NOVEMBER 15, 1971 - STATE THAT AN EXTENSION MAY BE GRANTED ONLY ON AN EXISTING CONTRACT, AND ASK WHETHER THE FOLLOWING PROVISION OF FSM 6543.54A - 2 IMPLIEDLY AUTHORIZES GRANTING OF EXTENSIONS ON A BROADER BASIS THAN IS ALLOWED BY CIRCULAR NO. A-56 AND THESE DECISIONS:

"*** EXTENSION OF THE 1-YEAR LIMITATION BECAUSE OF DELAYS DUE TO LITIGATION OR ANY OTHER JUSTIFIABLE REASON MAY BE GRANTED BY THE OFFICER WHO ISSUED THE ORIGINAL CHANGE OF STATION AUTHORIZATION. ***"

SECTION 4.1E OF OMB CIRCULAR NO. A-56 STATES:

"E. TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION, OR (2) AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF ONE YEAR MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN HE DETERMINES THAT CIRCUMSTANCES JUSTIFYING THE EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL ONE YEAR PERIOD OF THE SALE/PURCHASE CONTRACTS OR LEASE TERMINATION ARRANGEMENT ENTERED INTO IN GOOD FAITH BY THE EMPLOYEE WITHIN THE INITIAL ONE-YEAR PERIOD. THE CIRCUMSTANCES WHICH ARE DETERMINED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE TO JUSTIFY THE EXCEPTION UNDER (2) ABOVE SHALL BE SET FORTH IN WRITING."

IT IS APPARENT THAT ONE OF THE REQUIREMENTS OF SECTION 4.1E ABOVE IS THAT A CONTRACT MUST BE ENTERED INTO WITHIN THE INITIAL ONE-YEAR PERIOD. SINCE THIS PROVISION OF OMB CIRCULAR NO. A-56 IS ISSUED PURSUANT TO AUTHORITY CONTAINED IN 5 U.S.C. 5724AA), IT HAS THE FORCE AND EFFECT OF LAW AND CANNOT BE WAIVED OR MODIFIED BY THIS OFFICE OR BY THE AGENCY CONCERNED. -167518, AUGUST 8, 1969; 49 COMP. GEN. 145 (1969). THE PARTICULAR SENTENCE OF THE FOREST SERVICE MANUAL WHICH YOU HAVE CALLED TO OUR ATTENTION CANNOT BE CONSTRUED AS AUTHORITY FOR WAIVING THE CONTRACT REQUIREMENT OR MODIFYING THE BASIS UPON WHICH AN EXTENSION MAY BE GRANTED. MOREOVER, WHEN FSM 6543.54A - 2, SUBSECTION 4 IS READ AS A WHOLE, IT IS CLEAR THAT THE MATERIAL THEREIN IS INTENDED AS A SUMMARY AND GUIDE FOR APPLYING THE PROVISIONS OF OMB CIRCULAR NO. A-56, AND DECISIONS OF OUR OFFICE APPLICABLE THERETO. FURTHERMORE, WITH RESPECT TO THE SALE/PURCHASE CONTRACT, WE NOTE THE FOLLOWING PARAGRAPH APPEARING PRIOR TO THE STATEMENT THAT EXTENSIONS MAY BE GRANTED FOR "ANY OTHER JUSTIFIABLE REASON":

"THE SALE/PURCHASE CONTRACT REFERRED TO IN SECTION 4.1E MEANS AN AGREEMENT CONTAINING THE SIGNATURES OF A BUYER AND A SELLER WHO HAVE AGREED TO BUY AND SELL AND HAVE SIGNED IN GOOD FAITH. THE MERE LISTING OF A HOUSE WITH A REALTOR DOES NOT MEET THE SALE/PURCHASE CONTRACT REQUIREMENT."

THUS THE "ANY OTHER JUSTIFIABLE REASON" LANGUAGE IS VIEWED AS REFERRING TO THE TYPE OF CIRCUMSTANCES IN WHICH EXTENSIONS MAY BE GRANTED ONCE THE CONTRACT REQUIREMENT IS MET. AS A MATTER OF INFORMATION, WE HAVE HELD THAT WHERE A CONTRACT HAS BEEN ENTERED INTO DURING THE INITIAL YEAR, BUT CANCELLED BEFORE THE EXPIRATION THEREOF, THE CONTRACT REQUIREMENTS OF SECTION 4.1E OF OMB CIRCULAR NO. A-56 HAVE BEEN MET. B-175781, JULY 24, 1972, 52 COMP. GEN. , COPY ENCLOSED.

IN MR. HEIKKENEN'S CASE THIS REQUIREMENT WAS NOT MET. THE RECORD DOES NOT SHOW THAT HE ENTERED INTO ANY SALES CONTRACT WITHIN THE ONE YEAR PERIOD AFTER HE REPORTED TO HIS NEW OFFICIAL DUTY STATION. THEREFORE, DESPITE THE EXTENUATING CIRCUMSTANCES WHICH HAVE BEEN PRESENTED, NO EXTENSION MAY BE GRANTED TO PERMIT HIM REIMBURSEMENT OF THE EXPENSES CLAIMED.

THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT ON THE BASIS OF THE PRESENT RECORD.