Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ February 29, 2000 _____________________________________________ GSBCA 15180-RELO In the Matter of RAZIUDDIN KHAN Raziuddin Khan, Goose Creek, SC, Claimant. James H. Hoffman, Commanding Officer, Space and Naval Warfare Systems Center, Department of the Navy, North Charleston, SC, appearing for Department of the Navy. GOODMAN, Board Judge. Claimant, Raziuddin Khan, is a civilian employee of the Department of the Navy. The agency has denied his request for an extension of his Temporary Quarters Subsistence Expenses (TQSE) and he has requested that this Board review the agency s denial. Claimant s old duty station was Norfolk, Virginia. Claimant reported to his new duty station in Charleston, South Carolina in April 1997 due to a base realignment and closure of his prior duty station. Immediately upon his reporting, he was requested to perform extensive temporary duty (TDY) to support urgent program requirements in the United Arab Emirates and abroad. He delayed his initial TQSE period until such time as his dependents vacated the old residence and reported to the new duty station in May 1998. Claimant was unable to spend time looking for suitable housing before commencing his TQSE due to his TDY periods. His wife made a house-hunting trip in mid-May 1998 but was unable to find adequate housing. Claimant s request for an extension was primarily based upon the fact that he had been unable to locate a house that met his family s needs. Due to the size of his family (eight members - his aging parents, four children, his wife and himself), he needed a home with two master bedroom suites with at least one on the first floor to accommodate his mother s physical limitation, and three additional bedrooms - one for him and his wife and two for his children. He is the sole source of household income. He has submitted a letter from his broker indicating his inability to find a suitable house in his price range. In September 1998, claimant therefore entered into a contract to build a home. Closing was delayed until July 23, 1999 due to construction delays. His realtor has characterized this delay as "an extreme delay in the lot delivery from the . . . [developer] as well as inclement weather." The law in effect during the relevant time period provides that when an agency transfers an employee from one permanent duty station to another in the interest of the Government, the agency may reimburse the employee for subsistence expenses that the employee and his immediate family incur while occupying temporary quarters, for a period of up to sixty days. 5 U.S.C. 5724a(c)(1) (Supp. III 1997). The agency may extend the period of residence in temporary quarters up to an additional sixty days "if the head of the agency concerned or his designee determines that there are compelling reasons for the continued occupancy of temporary quarters." 5 U.S.C. 5724a(c)(2). The Joint Travel Regulations (JTR) in effect at the time of claimant's Permanent Chance of Station move also provide that extensions of the TQSE period may be authorized only when there are "compelling reasons" for continued occupancy of temporary quarters. Examples of circumstances in the JTR which may be applicable to claimant s claim are: b. delayed occupancy of new permanent quarters because of unanticipated problems. (E.g., unforeseen delays in settlement for new quarters, unforeseen short-term delay in construction of a new dwelling.) c. inability to locate permanent quarters adequate for family needs because of housing conditions at the new PDS. JTR C13120.[foot #] 1 Ultimately, statute and regulation furnish agencies broad discretion in determining whether to grant extensions of TQSE. Consistent with the Comptroller General, this Board has held that an agency determination denying an extension of TQSE will not be overturned unless it is arbitrary, capricious, or contrary to law. See Kenneth W. Muzzo, GSBCA 14439-RELO, 98-2 BCA 29,814; Rifat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA 29,788; Blanch Brown, B-260580 (Nov. 13, 1985). In this case, the determination by the agency to deny the claimant's request for additional TQSE was not arbitrary, capricious, or contrary to law. This Board and the Comptroller ----------- FOOTNOTE BEGINS --------- [foot #] 1 The relevant version of the implementing Federal Travel Regulation (FTR) is in substance the same. 41 CFR 302-5.105 (1998). ----------- FOOTNOTE ENDS ----------- General have consistently held that when an employee enters a contract to build a house with an anticipated completion date after the expiration of the initial TQSE period, the late completion is not an unanticipated event beyond the employee's control. Muzzo, 98-2 BCA at 147,637; Bruce Park, GSBCA 14529-RELO, 98-2 BCA 29,932; William T. Stowers, GSBCA 14099-RELO, 97-1 BCA 29,096; Paul E. Storer, 67 Comp. Gen. 567 (1988). In the instant case, the claimant entered a contract to purchase a home that would not be available until after the expiration of the initial sixty-day TQSE period. In fact, here, the claimant did not even execute the contract before the initial sixty-day period had expired. Hence, the claimant entered into this contract knowing full well that his home would not be completed, and therefore could not be occupied, until well after the initial TQSE period had expired. Consequently, the agency's determination is not arbitrary or capricious. Chaturbhuj N. Gidwani, GSBCA 14910-RELO, 99-2 BCA 30,504. The Board sustains the agency's denial. __________________________ ALLAN H. GOODMAN Board Judge