BNUMBER:  B-265989
DATE:  March 15, 1996
TITLE:  [Letter]

**********************************************************************

B-265989

March 15, 1996

Mr. Frederick N. Whiteside
Manager, Accounting Operations Division
U.S. Department of Transportation
Federal Aviation Administration
800 Independence Ave., S.W.
Washington, DC  20591

Dear Mr. Whiteside:

This is in response to your request for our opinion on whether or not 
agencies may certify claims for payment involving brokers' commissions 
in excess of the customary rate if it can be proven that payment of 
the higher rate clearly resulted in a savings to the government.

In the present case, Mr. James D. Erickson, an employee of the Federal 
Aviation Administration (FAA) executed a permanent change-of-station 
(PCS) move from Fort Worth, Texas, to Washington, D.C. under orders 
with a reporting date of March 28, 1995.  Upon notification of his 
impending PCS, Mr. Erickson entered into an agreement with a real 
estate broker for sale of his residence.  The terms of the listing 
agreement included a sales commission of 6 percent plus a 1 percent 
offering as a bonus to the selling broker.  Mr. Erickson submitted a 
claim to FAA for $7,175 in sales commissions along with other expenses 
associated with the sale of his home.  Of this amount, $1,025 was 
rejected because it exceeded 6 percent, the customary rate for Fort 
Worth.  The customary rate was verified with the Comptroller for the 
Housing and Urban Development Office in Fort Worth.  

According to Mr. Erickson, his claim for the additional fee is 
justified on the basis of the savings that accrued to the government 
by avoiding the use of the relocation contract.  Your letter states 
that a computation of savings would involve a comparison of the amount 
that would have incurred by using a relocation services contract to 
the amount of expense paid to Mr. Erickson, including the applicable 
Relocation Income Tax Allowance.

Under title 5, the agency pays expenses for relocation either to the 
company it contracts with under 5724c or to the employee under 5724a.  
When an agency enters into a relocation services contract under the 
provisions of 5 U.S.C.  sec.  5724c (1995), an employee of the agency may 
elect to use the contract services.  If this election is made, the 
employee is not reimbursed relocation expenses otherwise authorized 
"that are analogous or similar to expenses or the cost for services 
that the agency will pay for under the relocation service contract."  
See, Kelly K. Ward, B-252531, Aug. 13, 1993.  If this election is not 
made, the employee is reimbursed relocation expenses under 5 U.S.C.  sec.  
5724a. 

In the present case, Mr. Erickson did not elect to use the FAA's 
relocation services contract.  As a result, he was entitled under 5 
U.S.C.  sec.  5724a(4)(A) only to the 6 percent broker's fee customary in 
the locality.  The HUD statement of the customary fee is a rebuttable 
presumption.  See, George C. Symons, B-188527, Jan. 26, 1978.  We find 
no basis in the statute or regulations for reimbursement above the 
customary fee.  Mr. Erickson's argument that there was savings to the 
government because he did not elect to use the relocation services 
contract is not sufficient to rebut the presumption.  If a relocation 
services contract is not used by the employee, we find no basis to 
reimburse the employee based on a comparison of the government's cost 
under 5724c and 5724a.

Sincerely yours,

Lowell Dodge
Associate General Counsel
B-265989
March 15, 1996
DIGEST 
Employee of FAA did not elect to use the FAA's relocation services 
contract.  As a result, he was entitled under 5 U.S.C.  sec.  5724(a)(4)(A) 
only to the 6 percent broker's fee customary in the locality.  If a 
relocation services contract is not used by the employee, we find no 
basis to reimburse the employee based on a comparison of the 
government's cost under 5724c and 5724a.