B-140659, MAY 29, 1963

B-140659, MAY 29, 1963

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

WE WISH TO EXPRESS OUR THANKS FOR THE LETTER DATED APRIL 3, 1963, FROM YOUR COMMISSIONER, TRANSPORTATION AND COMMUNICATIONS SERVICE, WHICH FORWARDED FOR OUR INFORMATION A CONFORMED COPY OF AN AGREEMENT DATED MARCH 29, 1963, BETWEEN THE UNITED STATES OF AMERICA, ACTING THROUGH YOUR OFFICE, AND 15 SCHEDULED AIR CARRIERS, ACTING THROUGH THE AIR TRAFFIC CONFERENCE, ESTABLISHING TERMS AND OPERATING METHODS FOR THE PROVISION OF TELETYPE TICKETING SERVICE TO AGENCIES OF THE GOVERNMENT. A PRELIMINARY DRAFT OF SUCH AGREEMENT WAS THE SUBJECT OF OUR DECISION DATED FEBRUARY 3, 1960, B-140659 (39 COMP. GEN. 554) TO YOU PREDECESSOR AND IT IS NOTED THAT THE PRESENT CONTRACT INCLUDES CHANGES DESIGNED TO OBVIATE CERTAIN OBJECTIONABLE FEATURES IN THE EARLIER DRAFT AGREEMENT AND SUGGESTIONS MADE AT MEETINGS ON MARCH 15, AND OCTOBER 19, 1961, BETWEEN AIR CARRIER REPRESENTATIVES, YOUR REPRESENTATIVES AND MEMBERS OF OUR OFFICE OF GENERAL COUNSEL.

WHILE WE APPRECIATE THAT SECTION 9 OF THE AGREEMENT WAS INCLUDED IN THE INTEREST OF CONCLUDING SUCCESSFULLY THE NEGOTIATIONS WHICH LED TO THE CONTRACT, AS INDICATED BY THE REPRESENTATIVES OF OUR OFFICE AT ONE OF THE CONFERENCES, IT IS OUR VIEW THAT THE LANGUAGE IN THE LAST SENTENCE OF THAT SECTION OF THE AGREEMENT AFFORDS NO PROTECTION TO AN AIR CARRIER WHICH IT WOULD NOT HAVE HAD IF THE SENTENCE WERE OMITTED FROM THE CONTRACT. THE FEDERAL TORT CLAIMS ACT, IF APPLICABLE, WOULD APPLY WHETHER OR NOT A REFERENCE THERETO WERE INCLUDED IN THE AGREEMENT. THUS, THE PROVISION APPEARS SUPERFLUOUS. ALSO, CONSIDERING THAT IF THE GOVERNMENT PERSONNEL WERE ACTING BEYOND THE SCOPE OF THEIR EMPLOYMENT, THE UNITED STATES COULD NOT UNDER THE FEDERAL TORT CLAIMS ACT BE HELD LIABLE FOR THEIR ALLEGED NEGLIGENCE (TUCKER V. UNITED STATES, 91 F.SUPP. 527, WRYNN V. UNITED STATES, 200 F.SUPP. 457) THE INCLUSION OF THE REFERENCE TO THAT ACT MAY BE ILLUSORY. THE QUESTION WHETHER AN EMPLOYEE WAS ACTING AS AN AGENT OF THE GOVERNMENT WITHIN THE SCOPE OF HIS EMPLOYMENT AND WHETHER HIS ACT OR OMISSION WOULD GIVE RISE TO A CLAIM UNDER THE FEDERAL TORT CLAIMS ACT WOULD APPEAR TO BE A MATTER FOR THE HEAD OF THE FEDERAL AGENCY (WHERE THE CLAIM IS LESS THAN $2,500, 28 U.S.C. 2672) OR THE UNITED STATES DISTRICT COURTS, 28 U.S.C. 1346 (B), TO DECIDE IN THE CIRCUMSTANCES SURROUNDING THE INDIVIDUAL CLAIM, AND WE WILL WATCH WITH INTEREST ANY EXPERIENCE UNDER SECTION 9 OF THE AGREEMENT AS WELL AS THE TELETYPE TICKETING OPERATION GENERALLY.