[Protests of HUD Contract Award for Property Management]

B-243858, Sep 30, 1991

DIGEST

Virgil E. Vail

At issue is whether Mr. Vail may be reimbursed the expenses normally associated with the purchase of a new residence at a transferring employee's new duty station. Although his new duty station is located in Fargo, Mr. Vail chose to purchase a residence in Sioux Fall, South Dakota, which is approximately 250 miles south of Fargo. The law and regulations authorizing relocation benefits provide reimbursement for the expense of purchasing a home at the employee's new official station. /1/ Since the home Mr. Vail purchased was not at his new official station, HHS and our Claims Group denied his claim. However, regulation, or, in the alternative, that his situation is distinguishable from those apparently contemplated by the Federal Travel Regulation. The latter argument is based both on his expectation that a new hearing office would be established in Sioux Falls to which he would be assigned and the unique travel requirements of his position.

The regulatory exception upon which Mr. Vail relies permits reimbursement for the purchase of a new residence outside of the employee's duty station if the new post is in a remote area where adequate family housing is not available within a normal commuting distance. FTR para. 2-1.4i. Under such circumstances, reimbursement may be made if the family lives in the residence and the location reasonably relates to the official station as determine by an appropriate administrative official. In this case, Mr Vail's Sioux Falls home fails to satisfy the main requirement of the exception since Fargo is not a remote area without adequate family housing.

To support his argument that he reasonably believed his permanent duty station would be moved to Sioux Falls, Mr. Vail notes that the Regional Chief Judge's office had submitted to the central office a request to establish a permanent hearing office in Sioux Falls. In fact, he state, the General Services Administration had given the OHA first option on office space in Sioux Falls. The record includes a memorandum from Mr. Vail's immediate supervisor stating the supervisor's belief that Mr. Vail acted reasonable in moving to Sioux Falls in anticipation of the opening of a new office there.

We have allowed reimbursement for costs incurred by employees in reliance on a transfer notice that was changed or cancelled. In such cases, we look to the agency's clear intention to effect the transfer, the communication of that intention to the employee and the employee's good faith actions taken in reliance on the communicated agency intention. Orville G. Myers, el al., 57 Comp.Gen. 447, 448 (1978). See also Benjamin M. Johnson, B-229390, Sept. 14, 1988; John Debo, B-219854, Mar. 12, 1986.

Unlike the cases noted above, this case involves no change in orders. The official duty station for the position to which Mr. Vail transferred has been Fargo at all times relevant to this case. Although a recommendation had been made to establish an office in Sioux Falls, Mr. Vail understood that the proposal was still under consideration at the time of his relocation. Further, there is no document indicating that Mr. Vail would in fact be transferred to a Sioux Falls office if established. Therefore, there was no clear intent to transfer Mr. Vail to Sioux Falls and nothing upon which he could be said to have reasonable relied in deciding to move there.

Mr. Vail also argues that, because his job requires extensive travel, it is more practical for him to reside at Sioux Falls, which, he states, is more convenient to the area he serves. The record shows that, although HHS expects Mr. Vail to head the Fargo office, he has spent 75 percent of his time in travel status hearing cases throughout a region that includes all of North Dakota, the eastern two thirds of South Dakota and the northern half of Minnesota.

WE have allowed real estate expenses incident to the sale of a residence outside an employee's duty station where the employee was in travel status over 90 per cent of the time and where the employee's duty station was designated as a matter of administrative convenience and the employee spent virtually no time there, Billy L. Kenney, B-188706, Dec. 14, 1978. We have also considered allowing reimbursement of the expenses related to the purchase of a residence outside the commuting distance surrounding a new duty station if the employee can demonstrate that the duty station was designated primarily for per diem purposes and the employee does not regularly report for duty there. Irving R. Warnasch, B-193885, June 8, 1979. Although Mr. Vail does travel over half the time,he is expected to perform a substantial part of his duties at Fargo. Indeed, Mr. Vail is in charge of the Fargo office. Given these circumstances, we cannot conclude that the Fargo office was chosen merely for administrative convenience. Therefore, Mr. Vail's situation does not fall within the limited exception described above.

In view of the above we may not authorize payment of Mr. Vail's claim, and accordingly, the Claims Group's settlement is sustained.

/1/ 5 U.S.C. Sec. 5724a (1988); Federal Travel Regulations (FTR) para. 2- 1.4i (Supp. 4, August 23, 1982), now found at 41 C.F.R. Sec. 302-1.4(j) (1990).