Atty., Des Moines, IA, on the brief), for appellee.
We agree that these mandatory provisions must be read in conjunction with the discretionary language in paragraph 44 but do not agree that the language in paragraph 44 transforms mandatory provisions into discretionary ones. As a result, federal common law applies to the determination of Audio Odyssey's status as a third-party beneficiary. In that case, the Department of Housing and Urban Development (HUD) was being sued by a class of tenants in housing projects in Wisconsin. These contracts were made pursuant to Section 8 of the Housing and Community Development Act and they provided the terms under which HUD would disburse rent subsidies to the owners on behalf of eligible tenants. The declared policy of the Small Business Act states that the security and economic well-being of the nation cannot be realized “unless the actual and potential capacity of small business is encouraged and developed.” 15 U. The 1978 Guaranty Agreement states that its purpose is to allow the Bank to “make and the SBA to guarantee loans to small business concerns pursuant to the Small Business Act.” The 1978 Guaranty Agreement allows small businesses to get loans from the Bank that they might not have gotten otherwise.Dincer and that the Bank would give Audio Odyssey until p.m. Hoffman believes the call came after he had spoken to Bradley. Dincer time to negotiate a payment plan with the IRS on his tax liability. Dincer that he would have to discuss this workout proposal with Bradley. Dincer claims he called Bradley several times on July 13 but that his calls were not returned. Dincer, on July 13 he went to the Bank with a large sum that would cover the missed June and July payments. Dincer instructed the teller to apply the funds to those loan payments. To determine whether an action by a government official was discretionary, we employ a two-part test defined by the Supreme Court in Berkovitz v. According to SOP 50 51 1 ¶ 2(b)(1), the “mandatory parts of the SOP are identified through the use of the words ‘shall,’ ‘will,’ and ‘must.’ ” Several of the steps that Audio Odyssey claims the SBA failed to take are written in mandatory language.the next day-July 13, 1995-to bring everything current. It is not clear from the record if those funds were credited to the loan payments. For example, SOP 50 51 1 ¶ 44(a) states that when the guaranteed lender notifies the SBA of a delinquency or situation that may lead to liquidation, “[d]uring the conversation, the SBA spokesperson will arrange for the required field visit and advise the lender that no action, including making demand on the borrower, is to be taken without SBA's written approval.” Audio Odyssey claims that Hoffman failed to inform the Bank that it was to take no action, including making a demand on the borrower, or file suit without written approval.Proceeding on an event-by-event basis is usually appropriate when using a lender for specific tasks or in complex cases when events may take any of several twists. As discussed below, the Bank and the SBA may have had some discretion in how they executed the mandatory requirements of the SOP, but they did not have the discretion to eliminate those steps in the liquidation process entirely. The Authorization and Loan Agreement, which was signed by Audio Odyssey and the SBA, specifically states that the Authorization is subject to the provisions of the 1978 Guaranty Agreement. Therefore, for tort claims that may be brought under section 1346(b) against government agencies, the FTCA provides the exclusive remedy. But claims for “interference with contract rights” are not within the scope of the FTCA. The case is remanded to the district court for further proceedings not inconsistent with this opinion. For an extended discussion of the facts of this case, many of which are not pertinent to the issues presented here, see this Court's opinion in a related case, Audio Odyssey, Ltd. Brenton First Nat'l Bank, 245 F.3d 721 (8th Cir.2001).3. These provisions are nearly identical to the SBA's regulations. When the lender is to handle the entire liquidation, an overall liquidation plan must be approved in advance. To the extent Audio Odyssey is alleging that the SBA was negligent for a complete failure to undertake certain mandatory procedures, the discretionary function exception does not apply and the district court has jurisdiction to address those claims. As a result, we find that Audio Odyssey is a third-party beneficiary of the provisions of the 1978 Guaranty Agreement which require written approval prior to acceleration of the note or the institution of any suit upon it. TORTIOUS INTERFERENCE WITH CONTRACT We affirm the finding of the district court that there is no jurisdiction for Audio Odyssey's claim of tortious interference with contract. § 634(b)(1), the SBA may “sue or be sued,” but this waiver is limited by the FTCA with regard to tort claims. Claims for tortious interference of contract are cognizable under section 1346(b) because the SBA, if a private person, could be liable to Audio Odyssey under “the law of the place where the act or omission occurred”-namely Iowa. Neither party takes issue with the district court's finding that Iowa law would provide Audio Odyssey with a remedy against a private party in similar circumstances.4. If that failed, the Bank was going to take possession of the collateral. On July 14, the Bank delivered a letter to Audio Odyssey at a.m. Although the FTCA generally waives sovereign immunity with respect to tort claims, its waiver does not extend to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U. Similarly, Audio Odyssey claims that the SBA was negligent in authorizing the Bank to sue without written consent in violation of the 1978 Guaranty Agreement. § 120.201-1 stated that “[t]he holder of the note shall not, without the prior written consent of the other participant: ․ (d) Sue: Sue upon any loan instrument.” The 1978 Guaranty Agreement also states that the “[h]older of the note (Lender or SBA) shall not, without prior written consent of the other: ․ (c) accelerate the maturity of any note; (d) sue upon any Loan Instrument.”Audio Odyssey claims that the SBA failed to obtain a written liquidation plan or arrange for a field visit as mandated by the SOP.