B-121139, SEPTEMBER 15, 1954, 34 COMP. GEN. 124

B-121139: Sep 15, 1954

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1954: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20. BIDS WERE SOLICITED FOR THE FURNISHING OF REPORTING SERVICES TO BE RENDERED THE CIVIL AERONAUTICS BOARD FOR THE FISCAL YEAR 1955. PROSPECTIVE BIDDERS WERE ADVISED THAT THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO FURNISH TRANSCRIPTS OF PROCEEDINGS TO THE GOVERNMENT FREE OF CHARGE AND THAT. WAS ACCEPTED ON JUNE 28. THAT ITS BID ON ORDINARY COPY ($0.065) WAS FAR TOO LOW SINCE CONTEMPLATED SALES OF THE DAILY COPY ($0.28). THAT IT WILL SUFFER SEVERE FINANCIAL LOSSES IF IT IS REQUIRED TO CONTINUE TO FURNISH THE SERVICES AS REQUIRED BY THE CONTRACT FOR THE REMAINDER OF ITS TERM. YOU HAVE NO OBJECTION TO REFORMATION OF THE CONTRACT SO AS TO PERMIT A $0.15 PER-PAGE CHARGE TO THE PUBLIC FOR ORDINARY COPY.

B-121139, SEPTEMBER 15, 1954, 34 COMP. GEN. 124

CONTRACTS - STENOGRAPHIC REPORTING SERVICES - INCREASES IN PRICES CHARGED GENERAL PUBLIC - NO ADDITIONAL COST TO GOVERNMENT CONTRACT FOR FURNISHING STENOGRAPHIC REPORTING SERVICES AWARDED PURSUANT TO INVITATION WHICH REQUIRED BIDDER TO FURNISH TRANSCRIPTS OF HEARINGS TO THE GOVERNMENT FREE OF CHARGE, AND PROVIDED FOR EVALUATION OF BIDS ON BASIS OF PROPOSED CHARGES TO PUBLIC FOR ORDINARY COPY AND DAILY COPY OF THE TRANSCRIPTS, MAY NOT BE REFORMED TO PERMIT CONTRACTOR TO RAISE RATE TO THE PUBLIC TO AVOID FINANCIAL LOSSES, NOTWITHSTANDING THE GOVERNMENT WOULD CONTINUE TO RECEIVE COPY FREE OF CHARGE.

ACTING COMPTROLLER GENERAL WEITZEL TO THE CHAIRMAN, CIVIL AERONAUTICS BOARD, SEPTEMBER 15, 1954:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1954, WITH ATTACHMENTS, RELATIVE TO THE REQUEST OF THE ACE REPORTING COMPANY FOR AN INCREASE IN THE CHARGE TO THE PUBLIC FOR ONE OF THE ITEMS COVERED BY CONTRACT NO. CAB- 121-C, DATED JUNE 28, 1954.

BY INVITATION NO. 1034, DATED JUNE 9, 1954, BIDS WERE SOLICITED FOR THE FURNISHING OF REPORTING SERVICES TO BE RENDERED THE CIVIL AERONAUTICS BOARD FOR THE FISCAL YEAR 1955. PROSPECTIVE BIDDERS WERE ADVISED THAT THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO FURNISH TRANSCRIPTS OF PROCEEDINGS TO THE GOVERNMENT FREE OF CHARGE AND THAT, IN AWARDING THE CONTRACT, ALL BIDS WOULD BE EVALUATED ON THE BASIS OF THE PROPOSED CHARGES TO THE PUBLIC FOR ORDINARY COPY AND DAILY COPY OF THE TRANSCRIPTS. THE ACE REPORTING COMPANY SUBMITTED A PROPOSAL WHEREIN IT OFFERED TO FURNISH THE REQUIRED SERVICES TO THE GOVERNMENT WITHOUT COST AND COPIES OF TRANSCRIPT TO THE PUBLIC AT RATES NOT TO EXCEED $0.065 PER PAGE FOR ORDINARY COPY AND $0.28 PER PAGE FOR DAILY COPY. THIS BID, BEING THE LOWEST REGARDING CHARGES TO THE PUBLIC, WAS ACCEPTED ON JUNE 28, 1954.

IN A LETTER DATED JULY 26, 1954, TO THE SECRETARY, CIVIL AERONAUTICS BOARD, THE ACE REPORTING COMPANY, STATES THAT IT MADE A SERIOUS MISCALCULATION IN ITS BID; THAT ITS BID ON ORDINARY COPY ($0.065) WAS FAR TOO LOW SINCE CONTEMPLATED SALES OF THE DAILY COPY ($0.28), ON WHICH IT HOPED TO MAKE ITS PROFITS UNDER THE CONTRACT, FAILED TO MATERIALIZE; AND THAT IT WILL SUFFER SEVERE FINANCIAL LOSSES IF IT IS REQUIRED TO CONTINUE TO FURNISH THE SERVICES AS REQUIRED BY THE CONTRACT FOR THE REMAINDER OF ITS TERM. THE CONTRACTOR, THEREFORE, SUGGESTED TO THE BOARD THAT IT BE PERMITTED TO RAISE ITS RATE ON ORDINARY COPY TO THE PUBLIC FROM $0.065 PER PAGE TO $0.15 PER PAGE, WITH ALL OTHER PROVISIONS OF THE CONTRACT REMAINING AS WRITTEN.

IN YOUR LETTER OF AUGUST 20, YOU STATE THAT, SINCE THE BOARD WOULD CONTINUE TO RECEIVE COPY FREE OF CHARGE, YOU HAVE NO OBJECTION TO REFORMATION OF THE CONTRACT SO AS TO PERMIT A $0.15 PER-PAGE CHARGE TO THE PUBLIC FOR ORDINARY COPY--- WHICH PRICE WOULD STILL BE BELOW THE OTHER BID RECEIVED--- PROVIDED THERE ARE NO LEGAL OBSTACLES TO SUCH REFORMATION.

IT IS FUNDAMENTAL THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN AND THAT THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR ENTITLE A CONTRACTOR TO ADDITIONAL COMPENSATION. HENCE, THERE CAN BE NO INCREASE IN THE PRICES STIPULATED IN THE CONTRACT UNLESS THE LEGAL REQUIREMENTS FOR REFORMATION ARE MET.

THE BROAD GROUND ON WHICH A COURT WILL REFORM AN INSTRUMENT IS THAT IT DOES NOT ACCURATELY SET FORTH THE TERMS OF THE AGREEMENT WHICH IT WAS SUPPOSED OR INTENDED TO EXPRESS. R.F.C. V. CHILDRESS, 186, F.2D 698. GREENFIELD V. AETNA CASUALTY AND SURETY CO. ET AL., 61 N.E.2D 226. OTHER WORDS, IF THE INSTRUMENT STATES ACCURATELY THE AGREEMENT WHICH THE PARTIES MADE, REFORMATION CANNOT BE HAD. MANUFACTURER'S FINANCE CO. V. MCKEY, 294 U.S. 442.

THERE IS NO SUGGESTION THAT THIS CONTRACT WAS ENTERED INTO AS THE RESULT OF A MUTUAL MISTAKE IN THE DRAWING OF THE CONTRACT. THE PRICES QUOTED IN THE BID AND ACCEPTED BY THE GOVERNMENT WERE THE PRICES INTENDED BY BOTH PARTIES. THE REQUEST FOR RELIEF ADMITTEDLY IS BASED UPON THE FACT THAT SUBSEQUENT TO THE SUBMISSION AND ACCEPTANCE OF THE BID IT WAS FOUND TO HAVE BEEN AN IMPROVIDENT BID DUE TO A MISCALCULATION ON THE PART OF THE CONTRACTOR REGARDING THE VOLUME OF DAILY COPY THAT WOULD BE PURCHASED BY THE PUBLIC. SUCH A FACT, HOWEVER, IS NOT LEGALLY SUFFICIENT TO ENTITLE A PARTY TO A CONTRACT TO RELIEF AGAINST THE CONSEQUENCES OF HIS AGREEMENT WHERE, AS HERE, BOTH PARTIES DEALT AT ARM'S LENGTH AND NO FRAUD OR MISREPRESENTATION INTERVENED. THE LAW DOES NOT PROTECT AGAINST CONDITIONS, HARSH THOUGH THEY MAY BE, WHICH A PARTY TO A CONTRACT HAS SEEN FIT VOLUNTARILY TO IMPOSE UPON HIMSELF. TAHIR ERK V. GLENN L. MARTIN CO., 32 FED.SUPP. 722; UNITED STATES V. GOLDEN GATE BRIDGE AND HIGHWAY DISTRICT. OF CALIFORNIA; 37 FED.SUPP. 505.

I, THEREFORE, AM CONSTRAINED TO HOLD THAT THERE IS NO LEGAL BASIS FOR REFORMING THE CONTRACT SO AS TO INCREASE THE COST OF COPY AS REQUESTED.