[Request for Reconsideration]

The General Services Administration (GSA) requested reconsideration of a decision in which GAO held that a GSA employee was not entitled to grade retention. The employee in question had been promoted under the agency's merit promotion program to a newly created position of division director. However, he never reported to the new position and a subsequent Office of Personnel Management (OPM) investigation revealed that the personnel action was improper because the position had been improperly classified, the employee was improperly promoted in violation of the merit promotion process, and the employee never reported to the new position. OPM also noted that, in fact, the division of which the employee was to be the director never materialized. OPM ordered corrective action, directing that the employee's promotion be canceled and that the improperly classified position be abolished, and OPM asserted that the employee had been overpaid from the time of his improper selection. GAO held that the payments received by the employee were not demonstrated to be erroneous overpayments and, since there was no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee, the overpayments were not subject to any claim by the Government and therefore were waived. In its request for reconsideration, GSA contended that the employee was entitled to grade retention on the basis that the position was classified at the higher grade for more than 1 year before being corrected, which met the time requirement for grade retention. GAO stated that to grant grade retention in the face of the OPM finding that the promotion was not bona fide would perpetuate the improper action, rather than correct it. GAO further stated that, absent an authorization by the Director of OPM to approve the employee's application for grade and pay retention benefits, it was unaware of any legal basis upon which the employee would be entitled to grade retention. Accordingly, the prior decision was sustained.