B-153618, APR. 9, 1964

B-153618, APR. 9, 1964

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1964, REQUESTING ADVICE AS TO WHETHER A REQUIREMENT THAT CLAIMS FOR DAMAGES UNDER THE ACT OF JANUARY 31, 1931, BE ACCOMPANIED BY CERTIFICATIONS THAT THE DAMAGES WERE NOT CAUSED BY THE NEGLIGENCE OF GOVERNMENT EMPLOYEES MAY BE REMOVED FROM FOREST SERVICE REGULATIONS, AND AS TO WHETHER SUCH CLAIMS MAY BE SETTLED SOLELY UNDER THE CONTRACTS OF HIRE.

THE ACT OF JANUARY 31, 1931, AS AMENDED, 16 U.S.C. 502, AUTHORIZES YOU, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED, TO HIRE ANIMALS AND EQUIPMENT, TO MAKE ARRANGEMENTS FOR THEIR CARE AND, IN SUBSECTION (D),

"/D) TO REIMBURSE OWNERS FOR LOSS, DAMAGE, OR DESTRUCTION OF HORSES, VEHICLES, AND OTHER EQUIPMENT OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE FROM EMPLOYEES OR OTHER PRIVATE OWNERS: PROVIDED, THAT PAYMENTS OR REIMBURSEMENTS HEREIN AUTHORIZED MAY BE MADE FROM THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE: AND PROVIDED FURTHER, THAT EXCEPT FOR FIRE FIGHTING EMERGENCIES NO REIMBURSEMENT HEREIN AUTHORIZED SHALL BE MADE IN AN AMOUNT IN EXCESS OF $50 TO PERSONS WHO WERE EMPLOYEES OF THE FOREST SERVICE PRIOR TO THE TIME THE EQUIPMENT WAS OBTAINED OR $2,500 IN ANY OTHER CASE, UNLESS THE EQUIPMENT WAS MADE AVAILABLE UNDER A WRITTEN AGREEMENT, CONTRACT, OR LEASE.'

YOU ADVISE THAT---

"THE REGULATIONS OF THE FOREST SERVICE ISSUED PURSUANT TO THE 1931 ACT PROVIDE THAT "CLAIMS MUST BE ACCOMPANIED BY A STATEMENT FROM A RESPONSIBLE ADMINISTRATIVE OFFICER DESCRIBING THE LOSS, DAMAGE OR DESTRUCTION AND THE CIRCUMSTANCES UNDER WHICH IT OCCURRED, CERTIFYING THAT SAID LOSS, DAMAGE OR DESTRUCTION WAS NOT CAUSED BY THE NEGLIGENCE OF ANY GOVERNMENT EMPLOYEE * * *.' THIS PROVISION WAS BASED ON THE BELIEF THAT IN ENACTING THE FEDERAL TORT CLAIMS ACT (60 STAT. 856, 28 U.S.C. 2671-2680), CONGRESS PROVIDED THAT ALL PROVISIONS OF LAW AUTHORIZING A FEDERAL AGENCY TO CONSIDER, ADJUST OR DETERMINE PROPERTY DAMAGE OR PERSONAL INJURY CLAIMS DUE "TO NEGLIGENT OR WRONGFUL ACTOR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT," WERE REPEALED WITH RESPECT TO SUCH CLAIMS, BEING COGNIZABLE UNDER THE NEW LAW. * * *"

IT APPEARS THAT THE QUESTIONS POSED IN YOUR SUBMISSION ARE PREDICATED UPON A PENDING CLAIM, IN THE AMOUNT OF $2,769.96, FOR DAMAGES TO A WILLYS JEEP PICKUP HIRED BY THE FOREST SERVICE "UNDER A WRITTEN CONTRACT UNDER THE PROVISIONS OF THE ACT OF JANUARY 31, 1931," WHICH, IT ALSO IS ATED,"WAS DAMAGED THROUGH NEGLIGENCE OF A FOREST SERVICE EMPLOYEE WHO WAS OPERATING IT.' UNCERTAINTY EXISTS CONCERNING SETTLEMENT OF THE CLAIM BECAUSE---

"* * * THE CLAIM MAY NOT BE CONSIDERED BY THE DEPARTMENT UNDER THE FEDERAL TORT CLAIMS ACT UNDER THE NEGLIGENCE ASPECT SINCE THE AMOUNT EXCEEDS THE $2,500.00 STATUTORY LIMIT FOR ADMINISTRATIVE CONSIDERATION. THE CLAIM FURTHER, AT PRESENT, MAY NOT BE CONSIDERED UNDER THE 1931 ACT IN VIEW OF THE FOREST SERVICE REGULATIONS WHICH STATE THAT IF NEGLIGENCE EXISTS, THE CLAIM MAY NOT BE CONSIDERED UNDER THE ACT. CONSEQUENTLY, IT APPEARS THAT CLAIMANT-OWNER OF THE JEEP MAY NOT BE REIMBURSED FOR THE DAMAGE DONE BY THE FOREST SERVICE EMPLOYEE UNLESS HE INSTITUTES SUIT IN A FEDERAL COURT UNDER THE FEDERAL TORT CLAIMS ACT.'

THE ACT OF JANUARY 31, 1931, DOES NOT CONTAIN ANY AUTHORIZATION TO SETTLE CLAIMS ARISING FROM NEGLIGENT OR WRONGFUL ACTS OR OMISSIONS OF GOVERNMENT EMPLOYEES SUCH AS WERE REPEALED BY THE TORT CLAIMS LEGISLATION. SEE SECTION 424 OF THE ORIGINAL FEDERAL TORT CLAIMS ACT, 60 STAT. 846. THE AUTHORITY GIVEN IN THE ACT OF 1931 CONTEMPLATES CONTRACTUAL PROCUREMENT ARRANGEMENTS, AND ALL CLAIMS IN CONNECTION WITH SUCH PROCUREMENTS NORMALLY WOULD BE FOR SETTLEMENT IN ACCORDANCE WITH PERTINENT CONTRACTUAL PROVISIONS AND APPLICABLE RULES OF CONTRACT LAW. IT FOLLOWS THAT THE REGULATORY PROVISIONS CONCERNING NEGLIGENCE ARE NOT REQUIRED BY THE TORT CLAIMS LEGISLATION, IN VIEW OF WHICH THEY WOULD BE DISPENSED WITH, IF DESIRED, AND DAMAGE CLAIMS COULD BE SETTLED PURSUANT TO EXPRESS OR IMPLIED CONTRACT PROVISIONS.

IN THE PARTICULAR SITUATION DESCRIBED, THE REGULATORY PROVISION (REGULATION A-14, FOREST SERVICES MANUAL, SECTION 1023.21) SEEMS INTENDED TO PLACE CONTRACTORS ON NOTICE THAT ALL CLAIMS INVOLVING NEGLIGENCE OF ANY GOVERNMENT EMPLOYEE MUST BE PROCESSED UNDER PROVISIONS OF THE TORT CLAIMS LEGISLATION. HOWEVER, IF THE AGREEMENT OF HIRE CONTAINS PROVISIONS FOR RETURN OF THE EQUIPMENT IN GOOD CONDITION SUBJECT ONLY TO NORMAL WEAR AND TEAR, AS WAS THE CASE IN THE MATTER CONSIDERED UNDER B-66126, DATED MAY 28, 1947, THE GOVERNMENT'S LIABILITY ARISES EX CONTRACTO RATHER THAN EX DELICTI, EVEN THOUGH A CHOICE OF REMEDY USUALLY IS SAID TO ACCRUE. WHILE SITUATIONS MIGHT EXIST IN WHICH BUT SLIGHTLY DIFFERENT LANGUAGE WOULD HAVE THE EFFECT OF DENYING ALL RESPONSIBILITY ON THE GOVERNMENT'S PART FOR DAMAGES AND, CONSEQUENTLY, OF BINDING CONTRACTORS TO ASSUME AND BEAR SUCH RISKS THEMSELVES, THAT RESULT OBVIOUSLY WAS NOT REACHED, NOR INTENDED TO BE REACHED, BY THE LANGUAGE OF THE CONTRACT OF HIRE. INASMUCH AS THE NEGLIGENCE FACTOR DOES NOT ELIMINATE RESPONSIBILITY UNDER THE TERMS OF HIRE, WE WOULD NOT QUESTION SETTLEMENT OF THE PENDING CLAIM AS A CONTRACTUAL MATTER.