Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________ June 14, 1999 _________________ GSBCA 15036-RELO In the Matter of MARLENE L. BARGER Marlene L. Barger, Miramar, FL, Claimant. Robert J. Liberatore, Comptroller, National Security Agency, Fort George G. Meade, MD, appearing for Department of Defense. NEILL, Board Judge. The comptroller for the National Security Agency has submitted to us for review an issue concerning reimbursement for the costs of real estate transactions involving an employee of the agency who received a permanent change of station (PCS) assignment nearly three years ago. We deal with this matter as a request for a decision pursuant to 31 U.S.C. 3529 (Supp. III 1997). The question posed is whether the employee is entitled to any allowance for expenses incurred in connection with the sale of her residence at the old duty station where the sale was effected through a lease/purchase contract with final settlement not occurring within three years from the date that the employee reported for duty at the new duty station. For the reasons set out below, we conclude that the employee is not entitled to the allowance. Background In March of 1996, Ms. Marlene L. Barger was selected for her new assignment. She and her husband promptly listed for sale their residence near her old duty station. A contract for sale was finalized on April 19 with settlement to be on May 31, 1996. Shortly before settlement, the adjacent landowner learned of the sale and began a series of actions which so alarmed the prospective buyers that they refused to go to settlement. The neighbor continued to thwart the efforts of the Bargers to sell their property. He also initiated litigation against them. The Bargers in turn charged their neighbor with contractual interference. On April 28, 1999, they obtained a favorable judgment against the neighbor. Nevertheless, he is attempting to appeal the decision. In July 1998, after full disclosure of all litigation relating to their residence, the Bargers signed a lease/purchase contract for the sale of their home. Although the purchasers in their sole discretion have the right to close on the property prior to final adjudication of pending litigation if they wish, closing will not otherwise occur under the contract until after final adjudication. Given the neighbor's current effort to appeal the recent decision in favor of the Bargers, settlement will most probably not occur for some time. Discussion Under the Federal Travel Regulation (FTR), a transferred employee is entitled to an allowance for expenses incurred in connection with the sale of his or her residence at the old official duty station. There is, however, a time limitation on this entitlement. The settlement date for the sale of the residence for which reimbursement is requested must be no later than two years after the date the employee reported for duty at the new official station. For extenuating circumstances acceptable to the agency concerned, that two-year period may be extended for a period not to exceed one year. 41 CFR 302-6.1(e) (1996) (FTR 302-6.1(e))[foot #] 1. The question presented to us by the agency in this case is whether the transferred employee is entitled to the benefit in question when settlement occurs after the expiration of the three-year period of limitation but pursuant to a contract signed before that date. In addressing this question we make two assumptions. The first is that Ms. Barger's transfer is in fact one which is covered by the applicable regulation. The agency tells us only that the employee has been transferred "to a field site outside the continental United States." Normally the transfers to which this entitlement applies involve a PCS within the fifty states. There are, however, exceptions. FTR 302-6.1(a). Since the question presented assumes that the employee would otherwise be entitled to this allowance, we assume one of those exceptions applies. A second assumption which we make here is that the employee has already sought and the agency has already agreed to extend the initial two-year limitation to three. Otherwise, the question regarding the "three-year limitation" would make little sense. As already noted, the applicable regulation expressly provides that settlement must occur within the specified time limitation. In a lease/purchase contract, settlement does not ----------- FOOTNOTE BEGINS --------- [foot #] 1 A similar provision appears in the Joint Travel Regulations at C14000-B. ----------- FOOTNOTE ENDS ----------- occur at the time the contract is signed but rather after the designated lease period. If that is not within the time limitation of two years or three years (if extended by the agency), then the employee is simply not entitled to the reimbursement of the real estate expenses. In the past we have stated: "As the regulation states, the date of settlement, and not the date the contract was signed, determines eligibility." Mark W. Muirheid, GSBCA 14198-RELO, 98-1 BCA 29,594. The agency asks, on Ms. Barger's behalf, that the Board consider extending the applicable time limitation if it concludes that entry of a lease/purchase contract is not enough to justify payment of the employee's real estate expenses. Unfortunately, this cannot be done. On several occasions we have been asked about the application of the time limitation to situations where, for one extraordinary reason or another, a transferred employee was not able to complete settlement on real estate transactions within the established time limit. The conclusion inevitably reached is that there is no authority under existing regulations for the reimbursement of expenses incurred in connection with the sale or purchase of an employee's home, regardless of the extenuating circumstances involved, if the employee has failed to meet the applicable time limitation set out in the regulation. E.g., Lazaro R. Torres, GSBCA 13967-RELO, 98-1 BCA 29,594; Dr. Nathaniel Clark, GSBCA 14194-RELO, 97-2 BCA 29,055; Linda L. Jeffrey, GSBCA 13963-RELO, 97-1 BCA 28,868; John J. Cody, GSBCA 13701-RELO, 97-1 BCA 28,694 (1996). Furthermore, we have likewise concluded that the three year period in which settlement must occur cannot be extended by the agency or this Board. Randy Eaton, GSBCA 14260-RELO, 98-1 BCA 29,524. _____________________ EDWIN B. NEILL Board Judge