Wood v. United States

United States Court of Appeals
For the First Circuit

No. 01-2028

PAMELA WOOD, GLENROY WOOD,

Plaintiffs, Appellants,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Ralph A. Dyer with whom the Law Offices of Ralph A. Dyer, P.A.
was on brief for appellants.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, were on brief for appellee.

May 10, 2002
 CAMPBELL, Senior Circuit Judge. The district court case

from which this appeal is taken derives from an accident at the

Cutler Naval Computer and Telecommunications Station on August 23,

1998 in which plaintiff Pamela Wood sustained serious injuries and

a coworker was killed. Wood was employed at the time by Abhe &

Svoboda, Inc. ("ASI"), an independent contractor chosen by the Navy

to remove lead from, and to paint, the tall radio towers located on

the naval base in Cutler, Maine. On December 15, 1999, Wood and

her husband filed a four-count complaint against the United States

alleging negligence and loss of consortium and seeking punitive

damages under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 2671, et seq. (1994 & Supp. 2001). On the government's motion,

the court granted summary judgment against the Woods, and this

appeal followed.

I.

A. The Facts

1. The Contract

In 1996, the Navy sought contractor bids for the lead

abatement and painting of radio towers ranging in height from 200

to 750 feet, located on the naval base in Cutler, Maine. As part

of the award process, bidders were required to submit a two-part

proposal. The first part related to pricing alone. The second

part consisted of a "technical proposal" with four factors to be

addressed: (1) technical expertise (including schedule, quality

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control, technical approach, and environmental control);

(2) corporate management (including organizational structure,

management plan, technical personnel, and subcontracting); (3) past

experience; and (4) safety plan (including safety plan, safety

record, proposed safety procedures, and safety programs/safety

awareness/EMR rating). In evaluating each bid, the Navy weighted

price and technical factors equally and the four technical factors

were also weighted equally with respect to each other. ASI

submitted a proposal and was awarded Naval Contract N62472-95-C-

0425 (the "Contract") on October 29, 1996. The Contract required

that ASI provide "appropriate controls to ensure a safe work

environment for employees." Prior to the start of work, ASI was

obligated to submit a safety plan demonstrating how the contractual

safety goals would be accomplished. ASI presented a safety plan

that dictated, inter alia, that all employees exposed to the

possibility of falling would wear safety belts and that a project

superintendent would make periodic inspections of equipment to

assure it was in safe operating condition and properly maintained.

According to the plan drafted by ASI, ASI’s supervisors would "have

the responsibility and the absolute authority to enforce [its] job

safety program" to "ensure that no laborer or mechanic employed on

this project is allowed to work in surroundings or under conditions

which are . . . dangerous to his/her health or safety." In

addition, the Contract provided that ASI would comply with all

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federal safety regulations as well as the "Safety and Health"

provisions of the Corp of Engineers Manual.

According to the Contract, the Navy was to notify ASI of

any non-compliance with the applicable safety provisions of the

Contract and identify the corrective action to be taken by ASI. If

ASI failed or refused to comply, the Navy was given the option to

"issue an order stopping all or part of the work until satisfactory

corrective action ha[d] been taken."

2. Safety Violations

After ASI commenced work, the Navy made limited and

cursory inspections of the work site. According to the testimony

of Navy personnel, it conducted walk-through inspections of the ASI

work site several times a week. Each inspection lasted less than

an hour and the inspections were confined to the ground level. The

inspections were meant to serve a dual purpose: to monitor the

quality of ASI’s work and to identify possible safety infractions.

As required by the Contract, the Navy notified ASI of safety

violations that it recognized. In 1997, after being apprized by

Navy personnel that ASI was not in compliance with certain safety

requirements, the Navy contacted ASI and requested that particular

corrective actions be taken. A letter was sent on March 27, 1997,

pointing out necessary amendments to ASI’s safety plan. After a

severe accident on August 20, 1997, another letter was sent to ASI

by the Project Engineer, Mark Leighton. In a letter dated

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August 26, 1997, Leighton noted that ASI was not in compliance with

the approved safety plan. On September 17, 1997, yet another

letter was sent observing that ASI had failed to address certain

issues outlined in the August 26 letter. The Navy recommended a

review of ASI’s fall protection plan and comprehension training for

all employees working on scaffolding.

Meanwhile, the Occupational Safety and Health

Administration ("OSHA") was also investigating ASI’s compliance

with mandated safety regulations after the accident of August 20

had caused serious injury to one of ASI’s employees. The accident

occurred when two employees were riding a suspension scaffold. The

wire cable holding the scaffold broke, dropping the workers to a

roof thirty feet below. OSHA cited ASI with eight violations

classified as "serious" and administered a penalty of $80,000.

During the course of the investigation, OSHA uncovered a similar

accident that had occurred just two weeks prior in which a cable

broke on a scaffold suspended 720 feet in the air. Fortunately,

the five employees on that scaffold reached the ground safely. It

appears from the record that ASI had not informed the Navy of the

earlier August accident.

As a result of OSHA’s investigation and report, issued in

February 1998, the Navy informed ASI that, before the 1998

construction season began in June, a revised safety plan, along

with several other items, would have to be submitted. After two

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months had elapsed and ASI had not proffered the requested

documents, the Navy threatened to prohibit the start of work on

June 1, 1998. On that date, ASI responded to the Navy’s requests,

and it also hired a full-time Health and Safety Officer, Josh

Callander.

3. The Accident

On Sunday, August 23, 1998, Wood, David Boutell, Steve

Bailey and Josh Callander were painting one of the towers. They

were approximately 250 feet above the ground. As was the norm, the

crew had ridden to the work platform on a man-lift.1 Once the crew

arrived, one member descended in the man-lift a short distance,

secured it to the side of the tower and then returned to the work

platform via the internal ladder. As the crew progressed in its

work, the work platform was lowered and eventually the man-lift

needed to be lowered as well. It was at this juncture of the

process that Bailey instructed Boutell to lower the man-lift.

Boutell left the work platform without his safety

harness. Unfamiliar with operating the man-lift, Boutell was

having difficulty with the controls and Wood went to assist him.

She too failed to wear her safety harness. Apparently the wiring

1
A man-lift is essentially scaffolding suspended by two cables from
one side of the work platform. The man-lift is raised and lowered
by two electric motors, one for each cable, with a button for UP,
a button for DOWN, and an emergency kill button. In this case, the
man-lift cables were secured to the ground with a large, concrete
block to prevent the cables from swinging in the wind.

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of the man-lift’s motor control buttons had been reversed during an

earlier repair and had not been re-labeled to reflect the change.

As a result, the cable securing the man-lift moved up rather than

down. In so doing, it pulled on a large, 3,000 pound concrete

block to which the end of the cable was attached. This action

strained and broke the ropes securing the man-lift. The man-lift

fell approximately 70 feet before the slack in the cable ran out.

Boutell was thrown to his death. Wood managed to remain on the

platform but sustained injuries.

The subsequent OSHA investigation resulted in the

assessment of penalties of $383,500 against ASI. Five citations

were considered wilful and resulted in the maximum penalty allowed

under law. Several of the citations were directly related to the

accident. Specifically, OSHA cited ASI for making unauthorized

modifications to the scaffolds and their controls, including tying

off the man-lift to the tower, attaching the man-lift to a fixed

object on the ground, reversing the control buttons on the man-

lift’s hoist control and failing to label the change, and failing

to ensure that employees working were protected by the means of a

"personal fall arrest system." Following the accident, the Navy

temporarily suspended work on the towers.

Pamela Wood and her husband thereafter brought this

action in district court. In their complaint, the Woods allege

that the Navy acted negligently in both the selection and the

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supervision of Wood's employer, ASI. In Count I, the Woods

asserted that the Navy had negligently selected ASI to be the

contractor for the project. In Counts II and III, the Woods

alleged that the Navy had failed to take the precautions necessary

to protect ASI employees against known dangers, both by failing to

ensure a safe work environment and by failing to exercise

reasonable supervisory control over ASI. Finally, in Count IV, the

Woods sought punitive damages.2

The government moved to dismiss the complaint and, in the

alternative, sought summary judgment, asserting that the Woods'

claims were barred by the "discretionary function" exception to the

FTCA. 28 U.S.C. § 2680 (1994). After allowing limited discovery,

the district court concluded that the conduct alleged to be

negligent fell within the discretionary function exception. See

Wood v. United States, 148 F. Supp.2d 68 (D. Me. 2000); Wood v.

United States, 115 F. Supp.2d 9 (D. Me. 2000). Alternatively, the

court determined that ASI was an independent contractor, and that

the Navy was not liable for any breach of ASI’s duty to Wood as its

employee. We affirm.

2
The FTCA does not allow for the imposition of punitive damages
against the United States. 28 U.S.C. § 2674. Consequently, the
Woods do not challenge the dismissal of Count IV.

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 II.

A. The Federal Acquisition Regulations

In the Competition in Contracting Act of 1984 ("Act"),

Congress created the Office of Federal Procurement Policy

("Office") to exercise responsibility for, and oversight of, the

procurement of property and services3 for the federal government.

41 U.S.C. § 404 (1987 & Supp. 2001). To the administrator of the

Office ("Administrator"), Congress granted the discretion to

prescribe reasonable rules and regulations governing the

procurement of property and services by an executive agency,

including departments of the military. Id. §§ 403, 404. The goal

of the Act is to obtain maximum efficiency in the expenditure of

public resources.

To implement a uniform procurement system, the

Administrator has promulgated a set of rules and regulations, the

Federal Acquisition Regulations ("FAR"), 48 C.F.R. § 1 et seq.

(2001), that broadly outline procurement policies and procedures

for the acquisition of goods and services by the government on

behalf of the American taxpayer. It grants broad discretion to

"local procurement officials to take independent actions based on

their professional judgment" so as to obtain the "best value

3
The term procurement refers to all stages of the process of
acquiring property or services, starting with the identification of
the need for the property or service and ending with contract
completion. 41 U.S.C. § 403.

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product or service." Id. §§ 1.102, 1.102-2(c)(2). "Best value" is

viewed "from a broad perspective and is achieved by balancing the

many competing interests" in a system that promotes efficiency and

the maximization of resources. Id. § 1.102-1(b). To achieve

efficient operations, the FAR "shifts its focus from ‘risk

avoidance’ to one of ‘risk management.’" Id. § 1.102-2(c)(2). The

FAR views the cost to the taxpayer of attempting to eliminate all

risk as prohibitive. To avoid these costs, the FAR encourages the

broad use of discretion. It explicitly states that "[t]he

Executive Branch will accept and manage risk associated with

empowering local procurement officials to take independent action

based on their professional judgment." Id.

Congress provided guiding principles concerning the

retention of contractors like ASI by the Navy. Id. §§ 9.104-1,

9.104-3. Pursuant to both the statute and the FAR, some of the

factors to be considered include whether the prospective contractor

has adequate financial resources; the ability to comply with

delivery and performance schedule; a satisfactory performance

record; and a satisfactory record of integrity and business ethics.

41 U.S.C. § 403(7)(Supp. 2001); 48 C.F.R. § 9.104-1(a)-(d). Safety

considerations are mentioned within the broad category of having

"the necessary organization, experience, accounting and operational

controls, and technical skills, or ability to obtain them

(including, as appropriate, such elements as . . . safety programs

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applicable to materials to be produced or services to be performed

. . . .)." 48 C.F.R. § 9.104-1(e). Thus, in this case, the Navy

was to consider a variety of factors - safety programs among them -

when it evaluated bids and selected a contractor.

In regards to safety issues, the FAR mandates that

certain provisions be placed in the contract; these delegate

primary responsibility to the contractor to maintain a safe work

environment. Id. § 36.513. According to the required contract

clauses, the contractor must comply with all federal safety laws

and regulations, id. § 52.236-13(b)(2), must follow the pertinent

provisions of the United States Army Corps of Engineers Safety and

Health Requirements Manual, id. § 52.236-13(c), and must ensure

that any additional safety measures required by the contracting

officer are taken, id. § 52.236-13(b)(2). In addition, if the

contract involves hazardous work or materials, the contractor is

required to submit a written plan that must include "analysis of

the significant hazards of life, limb, and property inherent in

contract work performance and a plan for controlling these

hazards." Id. § 52.236-13(f)(1).

While the FAR gives primary responsibility for safety to

the contractor, the contracting officer is required to notify the

contractor of any instances, coming to the officer’s attention, of

"noncompliance with these requirements or any condition which poses

a serious threat or imminent danger to the health or safety of the

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public or Government personnel." Id. § 52.236-13(d). If, upon

notification, the contractor refuses to take corrective action the

contracting officer has the option to stop work until satisfactory

corrective action is taken. Id. The contracting officer is also

required to contact OSHA of instances where the contractor has been

notified to take immediate action to correct serious or imminent

dangers. Id. § 36.513(c).

The FAR prescribes broad oversight obligations for the Navy.

Specifically, "[c]ontracting officers are responsible for ensuring

performance of all necessary actions for effective contracting,

ensuring compliance with the terms of the contract, and

safeguarding the interests of the United States . . . In order to

perform these responsibilities, contracting officers should be

allowed wide latitude to exercise business judgment." Id.

§ 1.602-2. Thus, the FAR explicitly provides a contracting officer

with discretion in determining the manner in which the officer will

conduct oversight responsibilities.

B. The Federal Tort Claims Act

The FTCA is a limited waiver of the federal government’s

sovereign immunity. It allows civil actions against the United

States "for the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his

office or employment, under circumstances where the United States,

if a private person, would be liable to the claimant in accordance

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with the law of the place where the act or omission occurred." 28

U.S.C. § 1346(b). Absent this waiver of sovereign immunity, the

federal courts lack subject matter jurisdiction over torts against

the United States.

Congress has specified several circumstances in which the

waiver will not attach. 28 U.S.C. § 2680. The exception primarily

relied on by the district court relates to the claims "based upon

the exercise or performance or failure to exercise or perform a

discretionary duty . . . whether or not that discretion is abused."

28 U.S.C. § 2680(a).4 A line of Supreme Court cases explains the

purpose behind, and the boundaries of, the exception. See United

States v. Gaubert, 499 U.S. 315 (1991); Berkovitz v. United States,

486 U.S. 531 (1988); United States v. S.A. Emperesa de Viacao Aerea

Rio Grandenese (Varig Airlines), 467 U.S. 797 (1984); Dalehite v.

4
In the alternative, the district court determined that the Navy’s
conduct was protected from liability by the independent contractor
exception. 28 U.S.C. § 2671; United States v. Orleans, 425 U.S.
807, 815 (1976). Pursuant to this theory, the government cannot be
held vicariously liable for the negligence of an independent
contractor unless it supervised the day to day operations of the
contractor. Orleans, 425 U.S. at 815. Wood attempts to circumvent
this exception by first arguing that the Navy retained close
supervisory control over ASI’s work. We find no evidence in the
record to support this contention. Second, Wood fashions her
argument as one of direct rather than vicarious negligence. This
argument dovetails with the discretionary function exception in
that if the conduct of the government’s employees was
discretionary, it is protected from liability even if negligent.
Berkovitz, 486 U.S. at 539; Dalehite, 346 U.S. at 33; Attallah v.
United States, 955 F.2d 776, 784 n.13 (1st Cir. 1992). As a result,
we will limit our discussion to the discretionary function
exception.

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United States, 346 U.S. 15 (1953). The exception exists to protect

the "discretion of the executive or administrator to act according

to one’s judgment of the best course." Dalehite, 346 U.S. at 34,

and to prevent "judicial 'second-guessing' of legislative and

administrative decisions grounded in social, economic, and

political policy." Varig Airlines, 467 U.S. at 814. By creating

an exception for discretionary decisions, Congress intended "to

protect the government from liability that would seriously handicap

efficient government operations." United States v. Muniz, 374 U.S.

150, 163 (1963).

As the discretionary function jurisprudence has evolved,

an analytical framework has developed. We must first identify the

conduct that allegedly caused the harm. Gaubert, 499 U.S. at 322.

Next, we must determine whether the identified conduct is

discretionary. Id. Conduct is non-discretionary only when a

"federal statute, regulation or policy specifically prescribes a

course of action for an employee to follow." Id. Once the conduct

is deemed discretionary, we still must determine if the exercise of

that discretion involves, or is at least susceptible to, policy-

related judgments. Id. The Gaubert Court directed the lower

courts to look first to statutes, regulations and agency guidelines

as competent sources for determining established government policy.

Id.; see also Irving v. United States, 162 F.3d 154, 165 (1st Cir.

1998) (en banc). We review de novo the lower court’s determination

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that the discretionary function exception controls. Irving, 162

F.3d at 161.

III.

A. Count I

Wood claims that the Navy was negligent when it selected

ASI as the lead abatement and painting contractor. While Wood

concedes that selection of a contractor is a discretionary act, she

argues that ASI would never have been chosen if the Navy had not

negligently mis-read ASI’s so-called experience modification rating

("EMR"), causing it to select "a notoriously unsafe contractor to

perform work acknowledged to be highly or ultra dangerous."

According to Wood, the calculation of the EMR was non-discretionary

and therefore not protected by the exception.

The EMR is a rating used by worker’s compensation

underwriters to set insurance premiums. The higher the EMR, the

worse the safety record.5 At the time the present contract was

awarded, the Navy identified ASI’s EMR as .47, a rating considered

extremely good and admittedly better than the other contract

bidders. According to the affidavit of Robert Flynn, a consultant

in workplace safety, it was "extremely unlikely" that ASI had, in

fact, an EMR that low. In his opinion it was more likely 1.47 and

5
According to the information provided by plaintiffs’ workplace
safety consultant, an EMR range is generally 2.0 or higher for most
unsafe employers. For very large companies with an almost perfect
safety record the EMR may be as low as .30. The norm for employers
engaged in the same type of work as ASI is 1.0.

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it could have been as high as 2.87 given ASI’s poor safety record

on the jobs performed in the past. Flynn stated that ASI had

committed multiple OSHA violations and experienced a loss of life

prior to the commencement of the 1996 contract.

The government argues that the selection of a contractor

is the quintessential discretionary act and that, in this instance,

there was no directive to cabin the Navy’s discretion. Wood argues

that the issue is not the broad discretion in selecting a

contractor but the issue to conduct properly a mandatory activity,

the consideration of ASI’s EMR, and that this failure was causally

connected to the selection of ASI. The argument is that, but for

the negligent performance of a mandatory duty, ASI would have never

been selected. The argument fails for lack of proof. Wood points

to no express requirement, to which the Navy was subject, mandating

an assessment, whether or not accurate, of a contractor’s EMR, or

establishing a particular EMR benchmark as a precondition to

selection. Nor was there an express requirement that the

government disregard or disqualify a contractor based on a

contractor’s past failure to maintain some particular level of

safety compliance on other jobs. In the absence of a particular

criterion that the government failed to meet, or a mandated duty it

failed to perform, the conduct of a government employee must be

deemed discretionary.

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 Wood counters that even if the assessment of ASI’s EMR

was discretionary, it was not policy related. Because the law

presumes that the exercise of official discretion implicates policy

judgments, Wood bears the burden, when making this argument, of

demonstrating that the Navy’s conduct was not at least susceptible

to policy related judgments. Irving, 162 F.3d at 168. Wood

contends that the Navy’s award of the contract to ASI was based on

an erroneous assessment of ASI’s EMR. Because the decision was

based on a mistake, the Navy never made a conscious, policy-based

decision to accept a questionable EMR. In essence, Wood argues,

the Navy’s selection of ASI was based on error and not on a

weighing of competing factors.

But this argument, although made under the rubric of

whether the decision was "policy-driven," boils down to little more

than a restatement of the same argument we have just rejected

above: namely, that the Navy was required to conduct an EMR

assessment and that a satisfactorily low EMR was a mandatory

requirement, depriving the Navy of overall discretion to select a

contractor failing to meet such a criterion. As we have said, the

record simply does not support giving such pivotal importance to

the EMR. The FAR, the federal procurement regulations, do not

refer in any way to an EMR; they clearly mandate nothing in this

regard.

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 The record makes plain that in selecting a contractor,

the Navy was required to evaluate and weigh a plethora of factors,

using its overall judgment as to the final choice. The Navy’s bid

application makes safety just one aspect of the selection decision

and the EMR rating just one piece of information being sought

pertaining to safety. As noted earlier, the Navy evaluated and

awarded the project based on proposals submitted by the various

bidders. The proposals consisted of both price information and

technical data - each weighted equally. Safety was one of four

issues addressed in the technical data, and within the safety

information provided to the Navy, the EMR was but one of six items.

All of these factors appear to have been considered in

the selection of ASI. Marilyn Colot, the Deputy Director of

Contracts for the Navy, identified several factors that led to

ASI’s selection. Specifically, ASI presented a "schedule of work

and work force that supported their [sic] ability to both phase and

complete the outlined tasks"; it was prepared to do all the work

"in-house" with the exception of electrical work; it proposed using

employees that "far exceed[ed] the minimum experience

qualifications required by the solicitation"; and it presented a

"well qualified team of technical personnel" for accomplishment of

the project. In addition, the firm’s corporate management plan

showed that top management personnel would be directly involved in

the project. Further, ASI’s past performance information

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demonstrated that it had experience in large contracts specializing

in painting and lead abatement of bridges and other structures over

500 feet in height. The Navy contacted ASI’s previous customers to

verify satisfaction and performance. Finally, ASI’s proposed

safety plan was "by far the best of the proposers," its corporate

safety plan was excellent, and its EMR was low.

In sum, the evidence indicates that the Navy’s selection of

ASI was a discretionary decision grounded in a broadly-based policy

judgment that ASI represented the "best value" for the American

taxpayer. It is pure speculation that the Navy would have

reconsidered its choice of ASI if ASI’s EMR had been significantly

higher than what the Navy apparently believed it to be. It was

certainly not required to do so, nor was it obvious it would have

done so. This is exactly the type of decision that Congress

intended to protect from judicial second-guessing. Consequently,

the Navy’s decision to engage ASI is protected by the discretionary

function exception.

B. Counts II & III

Wood contends in Count II that the failure of the Navy to

ensure contract compliance with safety requirements creates

landowner liability pursuant to Restatement (Second) of Torts

§§ 343, 343A. In Count III, Wood alleges that the Navy had a

responsibility to supervise carefully an independent supervisor

under Restatement (Second) of Torts §§ 413, 414. We pass no

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judgment on whether either theory, if established, would support

liability against the Navy. Both theories rely on the premise that

the Navy was mandated to supervise closely and to ensure ASI’s

compliance with its contractual obligations, including all safety

requirements. Because the two claims are rooted in the same

operative facts, we consider them together.

Wood does not suggest that the Navy failed to perform

inspections, nor, for that matter, does she suggest that the Navy

violated its explicit obligations under the contract; rather she

alleges that the inspections and oversight were inadequate to

ensure that ASI was in compliance with the safety requirements.

Once again Wood concedes that the Navy’s determination of how to

ensure ASI’s compliance with the contract was discretionary and

involved the balancing of competing factors. Wood contends,

however, that there was no discretion provided the Navy on whether

it ensured that ASI was in compliance with the contract.

Wood relies on a document, prepared by Marilyn Colot,

delegating administration of the ASI contract, to support her

contention that the Navy had accepted the responsibility to ensure

that ASI was following the mandated safety requirements. According

to Wood, this document represents the Navy’s policy in regards to

the Contract and mandates that the naval officers overseeing the

project made certain that ASI was in compliance. The document

outlines generally the administrative functions to be performed by

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the oversight officer. Included amongst the almost thirty duties

was the directive to "ensure contractor compliance with the

contractual safety requirements." Pursuant to Wood’s theory, this

document removes the Navy’s conduct from the safe harbor created by

the discretionary function exception.

Wood’s reliance on Colot’s memorandum is misplaced,

however. In Irving we addressed, at some length, the source of

policy pronouncements and what role that source plays in

determining the existence of discretion. 162 F.3d at 165.

Congress has the ultimate authority to render a function

discretionary or obligatory. Id. (citing Martin v. Occupational

Safety and Health Review Comm’n, 499 U.S. 144, 152-53 (1991)). In

this case, it delegated that authority to the Administrator, not to

Navy officials. Thus, we must look first to the statements of the

official policymaker, as set forth in the FAR, to determine the

Navy’s obligations with respect to ASI’s compliance with safety

requirements. Gaubert, 499 U.S. at 322.

As noted earlier, the Navy’s primary objective under FAR

in entering and overseeing the Contract was to obtain the best

value for the American taxpayer. While the Navy was required

generally to ensure performance of contract terms, the FAR dictates

that contracting officers be provided "wide latitude to exercise

business judgment" in this endeavor. 48 C.F.R. § 1.602-2. The FAR

does not prescribe a course of action the Navy must follow in

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ensuring contractor compliance with contractual safety

requirements. Pursuant to the FAR and the mandated contract

provisions, the Navy had limited supervisory duties - it needed to

review and to approve the safety plan, contact ASI if it noted that

it was not in compliance with the contract, and contact OSHA if the

Navy notified ASI regarding a serious or imminent danger.

Even if Colot’s pronouncement was controlling in this

case, it is too general to satisfy the specific prescription

requirement set forth in Gaubert and Berkovitz. Shansky, 164 F.3d

at 691. Colot’s directive is simply a goal that, to attain,

required Navy personnel to make discretionary judgments. Contrary

to Wood’s assertion, Colot’s testimony supports this conclusion.

When Colot was asked how Lieutenant Schroeder, the navy officer in

charge of administration of the Contract, ensured compliance with

the safety requirements of the contract she replied: "Well I think

that you would have to ask Lieutenant Schroeder that question

because that varies widely by activity, by office, by resource, by

contract."

The context of the directive also bolsters this

conclusion. See id. The statement is embedded in a list of thirty

other goals including, but not limited to, that the contracting

officer ensure compliance with applicable labor laws; that he

ensure compliance with contractual quality assurance requirements;

and that he ensure contractor compliance with small disadvantaged

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business subcontracting plans. The list, read as a whole, simply

echoes the objectives set forth in the FAR, and like the FAR,

leaves the implementation of these objectives to the discretion of

the contracting officer. The Navy’s performance of safety

oversight was plainly discretionary, a point that Wood

acknowledges.

The Navy’s decisions regarding safety oversight also

involved the permissible exercise of policy judgment. See Shansky,

164 F.3d at 692; Irving, 162 F.3d at 168. The Supreme Court has

stated that "if a regulation allows the employee discretion, the

very existence of the regulation creates a strong presumption that

a discretionary act authorized by the regulation involves the same

policies which led to the promulgation of the regulation."

Gaubert, 499 U.S. at 324. For this claim to survive, Wood must

allege some facts to support a finding that the contested conduct

is not grounded in the policy of the regulatory regime. Id. at

324-25. Wood offers no real challenge to the position that the

Navy’s actions were policy-driven.

In meeting the objectives of the FAR, the Navy was

required to balance a host of competing factors, among them the

cost, quality and timeliness of the delivered product as well as

the minimization of administrative operating costs. 48 C.F.R.

§ 1.102-2(a) and (c). Here, the Navy decided the best manner to

achieve these sometimes-competing objectives was to conduct brief,

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ground-level inspections several times a week to assess ASI’s

compliance with the safety requirements of the contract.

Moreover, the policy objectives set forth in the FAR do

not show that Congress intended the contracting officer to be

responsible ultimately for the safety practices of a contractor.

To the contrary, the FAR places primary responsibility for safety

on the contractor; a limited supervisory role is given to

contracting officers. The delegation of the responsibility for

safety issues to the contractor suggests that, in promulgating the

FAR, the Administrator had determined already that in obtaining the

"best value" for the American taxpayer, worker safety should be a

primary concern of the contractor. See Varig Airlines, 467 U.S. at

816.

We disagree with Wood’s attempt to equate this case with

the Supreme Court’s decision in Indian Towing Co. v. United States,

350 U.S. 61 (1955). There, the Coast Guard assumed direct and sole

responsibility for the operation of a lighthouse, a charted

navigational aid, any failure of which would create unique dangers

to shipping. Id. at 62. The light was allowed to go out and a

vessel ran aground. Id. The Court held the Coast Guard liable,

reasoning that, once it had exercised its discretion to operate the

lighthouse, it was obligated to act with reasonable care. Id. at

68. Here, the Navy itself did not assume responsibility for the

safety of the contractor’s own employees working at the towers but

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rather left that responsibility to the contractor, with minimal

oversight.

Rather than to Indian Towing, the Navy’s decision-making

and conduct are better analogized to the Federal Aviation

Administration’s ("FAA") conduct discussed in Varig Airlines, 467

U.S. at 799. In Varig Airlines the government was facing tort

liability for several plane accidents allegedly caused by the FAA’s

negligence in issuing safety compliance certificates. Id. Pursuant

to regulations promulgated by the Secretary of Transportation, the

FAA was empowered to enforce compliance with minimum safety

standards in aircraft according to its best judgment. Id. at 816.

In the exercise of this discretion, the FAA devised a certification

process that placed the duty to ensure that an aircraft met with

FAA safety regulations in the hands of the manufacturer and

operator, while the FAA retained the responsibility for policing

compliance. Id. at 817. To meet its responsibility, the FAA

devised a "spot-check" system.

The Court held that the implementation and performance of

the "spot-check" system "for compliance review is plainly

discretionary activity of the ‘nature and quality’ protected by

§ 2680(a)." Id. at 819. The Court reasoned that:

When an agency determines the extent to which
it will supervise the safety procedures of
private individuals, it is exercising
discretionary regulatory authority of the most
basic kind. Decisions as to the manner of
enforcing regulations directly affect the

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 feasibility and practicality of the
Government’s regulatory program; such
decisions require the agency to establish
priorities for the accomplishment of its
policy objectives by balancing the objective
sought to be obtained against such practical
considerations as staffing and funding.

Id. at 819-20.

Here, the Navy’s contracting officer was empowered to

enter a contract and to ensure compliance with the contract,

including the safety requirements mandated in the FAR and set forth

in the contract. Part of ensuring that ASI was in compliance with

the safety aspects of the contract, including all applicable safety

regulations, was to require that ASI submit a safety plan outlining

its program to comply with all safety requirements. Before the

contract began, ASI submitted and the Navy approved such a plan.

In its safety plan, ASI assured the Navy that ASI’s supervisors

would "have the responsibility and the absolute authority to

enforce [its] job safety program" to "ensure that no laborer or

mechanic employed on this project is allowed to work in

surroundings or under conditions which are . . . dangerous to

his/her health or safety." Prior to Wood’s accident, the Navy

required that ASI amend the plan to respond to noted safety

deficiencies. In terms of ongoing oversight, the Navy implemented

a system in which ASI was required to submit daily logs, including

accident reports, and the Navy visited the work site two to three

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times a week to perform walk-through inspections to identify

possible safety violations.

In this instance, the statutory and regulatory scheme

provides the Navy broad discretion to balance a number of competing

factors in making its supervisory decisions. Varig Airlines, 467

U.S. at 814; Shansky, 164 F.3d at 693; Mercado Del Valle v. United

States, 856 F.2d 406, 409 (1st Cir. 1988). There is nothing in the

record to suggest that the Navy’s discretionary decision regarding

the implementation and administration of a supervisory system was

anything other than policy-driven. Decisions regarding the

exercise of supervisory authority are traditionally the sort the

discretionary function exception was designed to encompass. See

Attallah v. United States, 955 F.2d 776, 784 (1st Cir. 1992)

(ruling extent Custom service supervises employees protected by the

discretionary function exception); Mercado Del Valle, 856 F.2d at

409 (concluding that Air Force’s supervision of student military

organization discretionary); Andrews v. United States, 121 F.3d

1430, 1441 (11th Cir. 1997) (holding Navy’s supervision of

contractor’s adherence to waste disposal safety regulations

encompassed by discretionary function exception); Domme v. United

States, 61 F.3d 787, 792-93 (10th Cir. 1995) (ruling that

Department of Energy’s supervision of contractor’s compliance with

applicable safety regulations protected by exception); Kirchmann v.

United States, 8 F.3d 1273, 1277 (8th Cir. 1993) (concluding Air

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Force’s supervision of contractor’s disposal of TCE protected by

exception).

Because the Navy’s conduct is protected by the

discretionary function exception, the United States has not waived

its sovereign immunity. Consequently, there is no subject matter

jurisdiction.

AFFIRMED.

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