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B-166772, OCT 7, 1970, 50 COMP GEN 255

B-166772 Oct 07, 1970
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THE GENERAL WORDS "CALAMITOUS VISITATION" ARE RESTRICTED BY THE PARTICULAR TERMS "FLOOD OR FIRE. IN CASES WHERE IT DID NOT APPEAR TO US THAT SUCH AUTHORITY WAS PROPERLY APPLICABLE. IS CALAMITOUS INSOFAR AS THE TRANSPORTATION AND DELIVERY OF MAIL ARE CONCERNED. IT HAD BEEN ARRANGED THAT NO SUCH CONTRACTS WILL BE EXECUTED WITHOUT THE APPROVAL OF THE GENERAL COUNSEL'S OFFICE. AS TO THE FACTS WHICH ARE DEEMED BY THE CONTRACTING OFFICER TO CONSTITUTE AN EMERGENCY. WE ARE PLEASED TO NOTE THAT GREATER CARE WILL BE USED IN THE FUTURE IN ENTERING INTO SUCH "EMERGENCY" CONTRACTS. THE POSTMASTER GENERAL IS AUTHORIZED TO CONTRACT *** . " BUT A PARTICULAR TYPE OR KIND OF EMERGENCY - THAT IS. ARE GREAT CALAMITIES. *** A CALAMITY SELDOM ARISES FROM THE DIRECT AGENCY OF MAN.

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B-166772, OCT 7, 1970, 50 COMP GEN 255

POST OFFICE DEPARTMENT - MAILS - TRANSPORTATION - EMERGENCY CONTRACTS THE AUTHORITY IN 49 U.S.C. 1375(H) TO USE AIR TAXI MAIL SERVICE CONTRACTS IN THE EVENT OF AN EMERGENCY CAUSED BY FLOOD, FIRE, OR OTHER CALAMITOUS VISITATION MAY NOT BE EXERCISED UPON THE OCCURRENCE OF ANY UNFORESEEN EVENT WHICH RENDERS NORMAL MAIL TRANSPORTATION FACILITIES UNAVAILABLE, SUCH AS THE SUDDEN LOSS OF AN RPO TRAIN SCHEDULE, OR AN UNEXPECTED CLOSING OF AN AIRPORT RUNWAY CAUSING CERTIFIED AIR CARRIERS TO TEMPORARILY SUSPEND SERVICE AT THE AIRPORT; FOR UNDER THE "EJUSDEM GENERIS" RULE OF CONSTRUCTION, THE GENERAL WORDS "CALAMITOUS VISITATION" ARE RESTRICTED BY THE PARTICULAR TERMS "FLOOD OR FIRE," AND THE TERM "CALAMITY" SUPPOSES A CONTINUOUS STATE PRODUCED BY NATURAL CAUSES. NONCONFORMING EXISTING CONTRACTS SHOULD BE TERMINATED AS SOON AS PRACTICABLE, AND ANY TEMPORARY ARRANGEMENTS MADE UNDER THE POSTAL REORGANIZATION ACT SHOULD BE TERMINATED WHEN THE EMERGENCY CEASES.

TO THE POSTMASTER GENERAL, OCTOBER 7, 1970:

BY OUR LETTER OF MAY 13, 1970, B-166772, WE ADVISED YOU THAT IT HAD COME TO OUR ATTENTION THAT THE POST OFFICE DEPARTMENT HAD AWARDED MANY EMERGENCY CONTRACTS FOR AIR TAXI SERVICE FOR THE TRANSPORT OF MAIL, PURPORTEDLY UNDER THE AUTHORITY OF SECTION 405(H) OF THE FEDERAL AVIATION ACT OF 1958, APPROVED AUGUST 23, 1958, PUBLIC LAW 85-726, 72 STAT. 762, 49 U.S.C. 1375(H), IN CASES WHERE IT DID NOT APPEAR TO US THAT SUCH AUTHORITY WAS PROPERLY APPLICABLE; EXPRESSED OUR VIEW THAT SAID PROVISION OF LAW REQUIRED SOME SORT OF A MAJOR DISASTER WHICH WOULD DISRUPT REGULAR POSTAL TRANSPORTATION SERVICE BEFORE THE AUTHORITY GRANTED THEREBY COULD BE EXERCISED; AND REQUESTED YOUR VIEWS UPON SEVERAL QUESTIONS.

IN RESPONSE TO OUR INQUIRY, THE LETTER DATED JULY 30, 1970, SIGNED BY MR. LOUIS A. COX, YOUR DEPUTY GENERAL COUNSEL, ADVISED THAT YOU DO NOT INTERPRET THE CITED STATUTE SO NARROWLY AS TO EXCLUDE ALL BUT NATURAL DISASTERS, AND STATED AS FOLLOWS:

A NATIONWIDE RAIL STRIKE, OR A STRIKE AFFECTING A SUBSTANTIAL NUMBER OF DOMESTIC AIR CARRIERS, SUCH AS OCCURRED IN THE LATE SUMMER OF 1966, IS CALAMITOUS INSOFAR AS THE TRANSPORTATION AND DELIVERY OF MAIL ARE CONCERNED. WE BELIEVE THAT ANY UNFORESEEN EVENT, WHICH RENDERS NORMAL MAIL TRANSPORTATION FACILITIES UNAVAILABLE FOR THE DURATION OF THE EMERGENCY, WARRANTS USE OF THIS CONTRACTING AUTHORITY TO THE EXTENT THAT TRANSPORTATION MODES OTHER THAN AIRCRAFT CANNOT MAINTAIN THE NORMALLY ATTAINABLE LEVEL OF SERVICE.

WITHOUT UNDERTAKING A DEFENSE OF EVERY EMERGENCY CONTRACT ENTERED INTO, WE CONTINUE TO BELIEVE THAT SUCH EVENTS AS THE SUDDEN LOSS OF AN RPO TRAIN SCHEDULE, THE UNEXPECTED CLOSING OF AN AIRPORT RUNWAY, CAUSING CERTIFICATED AIR CARRIERS TO TEMPORARILY SUSPEND SERVICE AT THAT AIRPORT, AND EVENTS OF SIMILAR IMPACT UPON NORMAL MAIL TRANSPORTATION PATTERNS, WARRANT USE OF THE POSTMASTER GENERAL'S AUTHORITY TO CONTRACT FOR AIR TRANSPORTATION FOR THE EMERGENCY PERIOD.

THE LETTER DID NOT ANSWER THE SPECIFIC QUESTIONS PRESENTED, BUT STATED THAT, IN VIEW OF THE LEGAL QUESTIONS RAISED CONCERNING THE USE OF EMERGENCY CONTRACTS FOR AIR TAXI MAIL SERVICE, IT HAD BEEN ARRANGED THAT NO SUCH CONTRACTS WILL BE EXECUTED WITHOUT THE APPROVAL OF THE GENERAL COUNSEL'S OFFICE, NOT ONLY AS TO THE SUBSTANCE AND FORM OF THE CONTRACT, BUT AS TO THE FACTS WHICH ARE DEEMED BY THE CONTRACTING OFFICER TO CONSTITUTE AN EMERGENCY.

WE ARE PLEASED TO NOTE THAT GREATER CARE WILL BE USED IN THE FUTURE IN ENTERING INTO SUCH "EMERGENCY" CONTRACTS. HOWEVER, WHILE WE AGREE THAT THE INCIDENTS CITED IN THE TWO PARAGRAPHS OF THE LETTER OF JULY 30, 1970, QUOTED ABOVE, MAY CONSTITUTE "EMERGENCIES," WE CANNOT CONCUR IN YOUR CONTENTION THAT ALL OF THEM WARRANT THE EXERCISE OF THE AUTHORITY GRANTED BY 49 U.S.C. 1375(H).

SECTION 405(H) OF THE FEDERAL AVIATION ACT OF 1958, SUPRA, 49 U.S.C. 1375(H), PROVIDES IN PART HERE PERTINENT AS FOLLOWS:

IN THE EVENT OF EMERGENCY CAUSED BY FLOOD, FIRE, OR OTHER CALAMITOUS VISITATION, THE POSTMASTER GENERAL IS AUTHORIZED TO CONTRACT *** .

OBVIOUSLY, THIS PROVISION CONTEMPLATES NOT MERELY AN "EMERGENCY," BUT A PARTICULAR TYPE OR KIND OF EMERGENCY - THAT IS, ONE "CAUSED BY FLOOD, FIRE, OR OTHER CALAMITOUS VISITATION" WHICH DISRUPTS REGULAR POSTAL TRANSPORTATION SERVICE.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL AVIATION ACT OF 1958 AND ITS PREDECESSOR, THE CIVIL AERONAUTICS ACT. OF 1938, APPROVED JUNE 23, 1938, CH. 601, 52 STAT. 973 (WHICH CONTAINED IDENTICAL LANGUAGE IN SECTION 405(K) AT 52 STAT. 997), HAS FAILED TO DISCLOSE ANY INDICATION OF THE INTENT OF THE CONGRESS IN ENACTING THE QUOTED LANGUAGE. HOWEVER, IN JONES V WILLIAMS, 45 S.W. 2D 130 (1931), THE SUPREME COURT OF TEXAS MADE THE FOLLOWING COMMENTS CONCERNING THE MEANING OF THE WORD "CALAMITY":

*** THE WORD "CALAMITY" INDICATES OR SUPPOSES A SOMEWHAT CONTINUOUS STATE, PRODUCED NOT USUALLY BY THE DIRECT AGENCY OF MAN, "BUT BY NATURAL CAUSES, SUCH AS FIRE, FLOOD, TEMPEST, DISEASE," ETC., WEBSTER'S REVISED UNABRIDGED DICTIONARY, BY G. AND C. MERRIMAN CO., EDITED BY DR. NOAH PORTER, OF YALE UNIVERSITY.

CRABB'S ENGLISH SYNONYMES IN PART SAYS:

"THE DEVASTATION OF A COUNTRY BY HURRICANES OR EARTHQUAKES, AND THE DESOLATION OF ITS INHABITANTS BY FAMINE OR PLAGUE, ARE GREAT CALAMITIES. *** A CALAMITY SELDOM ARISES FROM THE DIRECT AGENCY OF MAN; THE ELEMENTS OR THE NATURAL COURSE OF THINGS ARE MOSTLY CONCERNED IN PRODUCING THIS SOURCE OF MISERY TO MEN."

MOREOVER, IT SHOULD BE NOTED THAT THE WORDS "OTHER CALAMITOUS VISITATION" IN THE QUOTED PORTION OF THE STATUTE ARE PRECEDED BY THE WORDS "FLOOD, FIRE, OR *** ." IN THIS CONNECTION, IT IS STATED IN 82 C.J.S. STATUTES 332B AS FOLLOWS:

UNDER THE RULE OF CONSTRUCTION KNOWN AS "EJUSDEM GENERIS," WHERE GENERAL WORDS FOLLOW THE ENUMERATION OF PARTICULAR CLASSES OF PERSONS OR THINGS, THE GENERAL WORDS WILL BE CONSTRUED AS APPLICABLE ONLY TO PERSONS OR THINGS OF THE SAME GENERAL NATURE OR CLASS AS THOSE ENUMERATED. THE RULE IS BASED ON THE OBVIOUS REASON THAT IF THE LEGISLATURE HAD INTENDED THE GENERAL WORDS TO BE USED IN THEIR UNRESTRICTED SENSE THEY WOULD HAVE MADE NO MENTION OF THE PARTICULAR CLASSES. ***

UNDER THIS RULE OR DOCTRINE GENERAL WORDS DO NOT EXPLAIN OR AMPLIFY PARTICULAR TERMS PRECEDING THEM, BUT ARE THEMSELVES RESTRICTED AND EXPLAINED BY THE PARTICULAR TERMS; GENERAL TERMS WHICH FOLLOW SPECIFIC ONES ARE LIMITED OR RESTRICTED TO THOSE SPECIFIED, AND WILL NOT INCLUDE ANY OF THE CLASSES SUPERIOR TO THAT TO WHICH THE PARTICULAR WORDS BELONG.

THE RULE FINDS APPLICATION AND HAS FREQUENTLY BEEN APPLIED WHERE SUCH TERMS AS "OTHER," "ANY OTHER," "OTHERS," "OR OTHERWISE," OR "OTHER THING" FOLLOW AN ENUMERATION OF PARTICULAR CLASSES, AND WHERE THIS OCCURS SUCH WORDS ARE TO BE READ AS "OTHER SUCH LIKE," AND ARE CONSTRUED TO INCLUDE ONLY OTHERS OF LIKE KIND OR CHARACTER.

HENCE, IT IS OUR VIEW THAT THE AUTHORITY GRANTED IN SECTION 405(H) OF THE FEDERAL AVIATION ACT OF 1958, SUPRA, MAY NOT BE EXERCISED UPON THE OCCURRENCE OF ANY UNFORESEEN EVENT WHICH RENDERS NORMAL MAIL TRANSPORTATION FACILITIES UNAVAILABLE FOR THE DURATION OF THE EMERGENCY, SUDDEN LOSS OF AN RPO TRAIN SCHEDULE, AND UNEXPECTED CLOSING OF AN AIRPORT RUNWAY CAUSING CERTIFICATED AIR CARRIERS TO TEMPORARILY SUSPEND SERVICE AT THAT AIRPORT, AS STATED IN THE LETTER OF JULY 30, 1970. WE BELIEVE THAT, AS A GENERAL RULE, THE WORD "CALAMITY" MUST BE DEFINED ALONG THE LINES INDICATED IN JONES V WILLIAMS, SUPRA, AND THAT THE "CALAMITOUS VISITATION" MUST BE OF THE SAME NATURE AS THE FLOOD AND FIRE STIPULATED IN THE STATUTE; THAT IS PRODUCED NOT USUALLY BY THE DIRECT AGENCY OF MAN, BUT BY NATURAL CAUSES, WHICH WOULD INCLUDE AMONG OTHER THINGS, TEMPEST, HURRICANES, EARTHQUAKES, AND OTHER MAJOR DISASTERS ARISING GENERALLY FROM NATURAL CAUSES. WE AGREE THAT THERE MIGHT BE A FEW MAJOR OCCURRENCES CAUSED BY THE DIRECT AGENCY OF MAN RENDERING MAIL TRANSPORTATION FACILITIES UNAVAILABLE WHICH WOULD WARRANT AN EXCEPTION TO SUCH GENERAL RULE ON A CASE BY CASE BASIS AND THAT A NATIONWIDE RAIL STRIKE MIGHT BE ONE. MANY OF THE CONTRACTS WE REVIEWED, HOWEVER, NOT ONLY WOULD NOT MEET THIS TEST, BUT WOULD NOT EVEN COMPLY WITH YOUR EXTREMELY BROAD INTERPRETATION OF SECTION 405(H).

WITH REGARD TO OUR DECISION OF JANUARY 29, 1968, B-162766, REFERRED TO IN THE LETTER OF JULY 30, 1970, YOU ARE ADVISED THAT SUCH DECISION INVOLVED A BID PROTEST AND ONLY THE QUESTION OF THE VALIDITY OF THE PROTEST WAS DECIDED THEREIN. NO QUESTION WAS RAISED AS TO THE AUTHORITY OF THE POST OFFICE DEPARTMENT TO EXECUTE THE CONTRACT UNDER THE PROVISIONS OF 49 U.S.C. 1375(H) IN THE CIRCUMSTANCES THERE EXISTING, AND SUCH QUESTION WAS NEITHER CONSIDERED NOR DECIDED. HENCE, SUCH DECISION HAS NO BEARING HERE.

IN THE FUTURE, THE AUTHORITY GRANTED BY SECTION 405(H) SHOULD BE EXERCISED ONLY IN CIRCUMSTANCES CONFORMING WITH OUR INTERPRETATION AS SET OUT ABOVE, AND THE DURATION OF CONTRACTS SO EXECUTED MUST BE LIMITED TO SUCH PERIODS AS EMERGENCY SERVICES MAY BE REQUIRED TO MAINTAIN MAIL SERVICE BECAUSE OF THE INADEQUACY OF OTHER FACILITIES CAUSED BY SUCH EMERGENCY. MOREOVER, ANY SUCH CONTRACTS STILL IN EFFECT WHICH WERE NOT EXECUTED IN CIRCUMSTANCES CONFORMING WITH THE ABOVE INTERPRETATION, AS WELL AS ANY SUCH CONTRACTS WHICH MAY REMAIN IN EFFECT AFTER THE EMERGENCY HAS ENDED, SHOULD BE TERMINATED AS SOON AS PRACTICABLE. WE RECOGNIZE THAT THE NEW POSTAL SERVICE WILL BE AUTHORIZE UNDER 39 U.S.C. 5001 AS REVISED BY THE POSTAL REORGANIZATION ACT, PUBLIC LAW 91-375, TO MAKE ARRANGEMENTS ON A TEMPORARY BASIS, FOR THE TRANSPORTATION OF MAIL WHEN, AS DETERMINED BY THE POSTAL SERVICE, AN EMERGENCY ARISES, BUT SUCH ARRANGEMENTS ARE ALSO REQUIRED TO BE TERMINATED WHEN THE EMERGENCY CEASES. SEE ALSO 39 U.S.C. 5402(C).

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