Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________ January 13, 1999 ________________________________ GSBCA 14564-RELO In the Matter of SHERRI K. SCHWENKE Sherri K. Schwenke, Marlinton, WV, Claimant. Charles L. Myers, Forest Supervisor, Monongahela National Forest, Forest Service, Elkins, WV, appearing for Department of Agriculture. WILLIAMS, Board Judge. In this case the agency has requested our opinion on whether it may pay a relocation services contractor's fee incurred in connection with a transferred employee's residential sale. The employee initially declined the agency's offer to provide relocation services, but subsequently placed an asterisk on the form authorizing such services. The relocation contractor interpreted this to mean that she had elected such services with the agency's concurrence. As a result, the contractor entered into a contract with claimant, provided the relocation services, and purchased claimant's home. Under the totality of circumstances of this case, we conclude that claimant ultimately decided to use the services of a relocation contractor and that the agency authorized provision of these services and may pay the relocation contractor without seeking reimbursement from the employee.[foot #] 1 We note that claimant met all of ----------- FOOTNOTE BEGINS --------- [foot #] 1 We note that the Board has not been asked to review the legality of the payment to the relocation contractor or the propriety of the amount requested. Indeed, the Board would have no authority to address the contract between the Government and HFS Mobility Services, Inc. (HFS) -- which is not even part of the record here -- in the context of this case. Rather, our opinion deals with the narrow question of whether in a situation where an eligible claimant initially declined relocation services, but subsequently, with the agency's acquiescence, went on to accept them and the services were fully (continued...) ----------- FOOTNOTE ENDS ----------- the eligibility requirements for the agency's relocation services program, that the agency had initially offered this program to claimant, and that claimant did not seek reimbursement of any duplicative expenses. Findings of Fact Claimant, Sherri K. Schwenke, a landscape architect employed by the Forest Service, United States Department of Agriculture (USDA), was transferred from Ironwood, Michigan, to Bartow, West Virginia, in November 1997. In her request for authorization filed with the Forest Service, claimant asked for reimbursement of her residential sales expenses, but indicated on that form that she did not choose to use the services of the General Services Administration's (GSA's) relocation contractor to sell her residence. Instead, claimant elected services of that contractor for home finding and mortgage finding at her destination. Claimant's request was approved. Claimant then completed a requisition and authorization form for relocation services, and in the box entitled "Services Requested by Employee," claimant entered the following: a. Home Sale Service * b. Home Finding Assistance: Buyer's Assistance x Rental Assistance c. Mortgage Counseling x This form was signed by the regional relocation services coordinator of USDA and transmitted directly to the relocation contractor, HFS, and its subcontractor, Cendant Mobility. By inserting the asterisk in the block marked "Home Sale Service," claimant originally intended to reject that service, consistent with her travel authorization request, because she wanted her personal realtor to sell her home. However, the relocation contractor interpreted the asterisk differently, and believed that it was obligated to provide the home sale service for the claimant. The contractor did, in fact, provide that service. On December 12, 1997, claimant entered into a contract with HFS based upon the relocation service contractor's assurances that its services had, in fact, been authorized for her and approved by the Government. The relocation contractor executed that contract on January 26, 1998, and under its terms agreed to purchase claimant's home in Ironwood, Michigan, for the sum of $54,500 "based upon [her] employer's relocation policy and an ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) provided, the claimant herself is liable for any or all of these costs. ----------- FOOTNOTE ENDS ----------- average of independent appraisals of [her] home's current market value . . . ." The closing occurred on January 28, 1998. On that same day, the relocation contractor submitted a bill to the Forest Service in the amount of $16,339.10 for relocation services rendered in conjunction with the sale of claimant's home. On March 9, 1998, the Forest Service s relocation services coordinator, having received this bill, telephoned the contractor to question why it had provided home sale services to claimant when claimant had not selected this service. The relocation services contractor replied that claimant had, in fact, selected the home sale service, as indicated by the asterisk located next to the home sale service line on the form. The Forest Service would have authorized claimant to receive the home sale relocation services, had she checked the proper box in her original authorization form; claimant met all of the agency s requirements for utilizing this service. Although the relocation services were in fact rendered and claimant's home was purchased by the relocation contractor, USDA has not paid the contractor for its services because it is awaiting the Board's decision on whether the employee must bear all or part of this expense. The agency is concerned that Section 302-12.2 of the USDA Travel Regulation might prohibit it from paying the relocation contractor on claimant's behalf. That regulation provides as follows: Agencies must offer relocation services to all eligible transferring employees as defined in [Federal Travel Regulation] 302-12.4. Agencies must provide employees with written information . . . about the relocation services program before the AD-202 is approved since the decision not to use the relocation services program is non-revocable when stated on the AD-202R. The employee's decisions affect entitlement. An employee may relocate using these services or may choose to relocate under Section 302-6 of this regulation. Employees who decide not to use relocation services may not later be provided these services for the same move. Agriculture Travel Regulation DM2300-1 (Oct. 1, 1994) (emphasis added). Based upon this regulation, the Forest Service believed that it could not approve the services of the relocation company even though they were fully performed, because, in claimant's original travel authorization request, she had checked the box stating that she chose not to use the relocation services of the contractor. The agency now seeks the Board s decision on whether it should pay the relocation services contractor the full amount and recommends that the Board allow it to do so, stating: The agency is recommending that the decision allow the USDA Forest Service to pay HFS Mobility Services, Inc. for the entire amount of the Home Sale Service bill. The administrative error on the Requisition and Authorization for Relocation Services involving the interpretation of the asterisk mark, as well as the employee s understanding of the travel regulations, led, inadvertently[,] to the use of the Home Sale Service. With the agency paying the amount in full, the employee would not be eligible for any cost for requesting the Selling of a residen[ce] using the Reimbursement Procedure. Had claimant sold her residence using her own realtor instead of the relocation contractor, she would have, in the agency's view, been entitled to $5,048 as reimbursement of her residential sales expenses. This estimate is based upon the agency's research of the average residential sales expenses for a home in Ironwood, Michigan. Discussion Statute requires the Government to reimburse an employee who is transferred in the interest of the Government for certain expenses incurred in connection with the sale of the employee s residence at the old duty station and the purchase of a residence at the new duty station. 5 U.S.C.A. 5724a(d) (West Supp. 1998). With regard to the provision of relocation services, the law provides: Under regulations prescribed under section 5738 of this title, each agency may enter into contracts to provide relocation services to agencies and employees for the purpose of carrying out this subchapter. An agency may pay a fee for such services. Such services include arranging for the purchase of a transferred employee s residence. 5 U.S.C.A. 5724c. Regulations implementing this provision have been issued by the Administrator of General Services in the Federal Travel Regulation (FTR). 41 CFR 302-12 (1997). Section 302-12.3 provides that an agency "may pay for homesale services as a substitute for residence sales expenses." 41 CFR 302-12.3. Further, under FTR 302-12.101, the decision on whether to authorize a relocation services company in a particular case is within the discretion of the agency. 41 CFR 302-12.101. Thus, under statute and regulation, it is clearly within the discretion of each agency to determine whether it will provide relocation services to its employees. Here, the agency determined both that these services should be made available and that claimant was in all respects eligible to receive the services of a relocation contractor. The legal impediment the agency believes might preclude it from paying for the relocation services is the fact that claimant initially did not request these services and the Agriculture Travel Regulation provides that "[e]mployees who decide not to use relocation services may not later be provided these services for the same move." This regulation does not prohibit payment for the relocation services in the circumstances of this case. Even though claimant in her initial request for authorization did not elect relocation services, she subsequently "decided" that she did want them, as is evidenced by her signing a contract with the relocation contractor and ultimately selling her home to that contractor, believing that the agency had authorized her to do so. Thus, the totality of claimant's actions regarding whether she was electing the relocation services, while somewhat equivocal, support a conclusion that she elected the relocation services. In particular, her noting the asterisk on the form next to "home sale services" was reasonably interpreted by the relocation contractor to mean that home sale services were being requested, with the approval of the agency's relocation coordinator. This is not a situation where the payment for relocation services on claimant's behalf would be illegal under statute or regulation. Cf. Deborah L. Childress, B-253202, 96-1 CPD 226 (May 15, 1996) (Although the Government is generally legally responsible for the mistaken contract actions of its contracting officials when they are acting within the scope of their authority, the Government is not liable for such actions which exceed the bounds of the agency's contractual authority.). Claimant has not sought reimbursement of any duplicative residential sales expenses. Thus, under the circumstances of this case the agency may pay the relocation services contractor in accordance with the terms of its contract with HFS, without seeking reimbursement from the employee, since the transfer was in the interest of the Government and claimant met the other regulatory requirements. David D. Pidduck, 69 Comp. Gen. 137 (1989). Decision The agency need not seek reimbursement from claimant for the amount it pays to the relocation services contractor for services rendered in connection with the sale of her Ironwood, Michigan, home. If the agency pays the relocation services contractor, claimant may not be paid any additional amounts of real estate transaction expenses associated with the sale of this home. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge