B-123662, JUNE 1, 1955, 34 COMP. GEN. 641

B-123662: Jun 1, 1955

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955: REFERENCE IS MADE TO YOUR LETTER OF APRIL 18. THE LESSOR STATED THAT HE WAS SURPRISED TO LEARN THAT HE WAS REQUIRED TO PAY FOR ELECTRICITY. AS EVIDENCE THAT SUCH WAS NOT HIS INTENTION HE REFERRED TO HIS ORIGINAL OFFER AS CONTAINED IN LETTER OF OCTOBER 1. THIS WILL OUTLINE EXACTLY WHAT I HAVE TO OFFER TO THE GOVERNMENT. IT APPEARS THAT THE EXPIRED LEASE REFERRED TO BY THE LESSOR WAS FOR THE SAME BUILDINGS OCCUPIED UNDER THE CURRENT LEASE TOGETHER WITH ANOTHER BUILDING AND THAT PARAGRAPH 6 OF THE EXPIRED LEASE ONLY OBLIGATED THE LESSOR TO FURNISH AS PART OF THE RENTAL CONSIDERATION " WATER. PROSPECTIVE BIDDERS WERE INSTRUCTED TO CHECK BY MARK IN THE SPACE PROVIDED OPPOSITE EACH ITEM WHETHER SERVICE WAS TO BE FURNISHED BY THE LESSOR.

B-123662, JUNE 1, 1955, 34 COMP. GEN. 641

LEASES - ELECTRICITY AS OBLIGATION OF LESSOR - INTENTION OF PARTIES A LEASE WHICH CONTAINS A CLAUSE THAT REQUIRES THE LESSOR, AS PART OF THE RENTAL CONSIDERATION, TO FURNISH ELECTRICITY CONTRARY TO PRIOR NEGOTIATIONS AND THE UNDERSTANDING OF THE CONTRACTING OFFICER AND THE LESSOR, MAY BE MODIFIED TO RELIEVE THE LESSOR OF THE OBLIGATION TO FURNISH ELECTRIC CURRENT.

COMPTROLLER GENERAL CAMPBELL TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, JUNE 1, 955:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1955, WITH ENCLOSURES, REQUESTING TO BE ADVISED WHETHER WE WOULD BE REQUIRED TO OBJECT TO REFORMATION OF LEASE NO. GS-091B-2444, DATED NOVEMBER 16, 1954, WITH M. A. MYRON AND EDWANDA MYRON, AS JOINT TENANTS, TO RELIEVE THE LESSORS FROM FURNISHING ELECTRIC CURRENT FOR LIGHTING AND POWER.

UNDER PARAGRAPH 6 (B) OF THE LEASE THE LESSORS AGREED TO FURNISH TO THE GOVERNMENT AS PART OF THE RENTAL CONSIDERATION," ELECTRIC CURRENT FOR LIGHTING AND POWER (11O/220 V. 60 C., A.C.).' IN MR. MYRON'S LETTER OF JANUARY 22, 1955, TO THE REALTY OFFICER, LEASING BRANCH AT SAN FRANCISCO, THE LESSOR STATED THAT HE WAS SURPRISED TO LEARN THAT HE WAS REQUIRED TO PAY FOR ELECTRICITY. AS EVIDENCE THAT SUCH WAS NOT HIS INTENTION HE REFERRED TO HIS ORIGINAL OFFER AS CONTAINED IN LETTER OF OCTOBER 1, 1954, TO THE REALTY OFFICER, AS FOLLOWS:

I AM WILLING TO GO AHEAD WITH THE GOVERNMENT, UNDER THE SAME TERMS AND CONDITIONS OF THE SAID EXPIRED LEASE FOR A PERIOD OF 5 TO 6 YEARS, INCLUDING THE RIGHT OF THE GOVERNMENT TO TERMINATE SAME, UPON ISSUANCE OF 30 DAY WRITTEN ADVANCE NOTICE.

THEREFORE, FOR YOUR CONVENIENCE, I AM ENCLOSING COPY OF A PAGE OF THE EXPIRED LEASE. THIS WILL OUTLINE EXACTLY WHAT I HAVE TO OFFER TO THE GOVERNMENT.

IT APPEARS THAT THE EXPIRED LEASE REFERRED TO BY THE LESSOR WAS FOR THE SAME BUILDINGS OCCUPIED UNDER THE CURRENT LEASE TOGETHER WITH ANOTHER BUILDING AND THAT PARAGRAPH 6 OF THE EXPIRED LEASE ONLY OBLIGATED THE LESSOR TO FURNISH AS PART OF THE RENTAL CONSIDERATION " WATER, AND USE OF ALL OTHER FACILITIES WITHIN EACH BUILDING.'

UNDER PARAGRAPH 3 OF THE SPACE OFFERING INVITATION RELATING TO SERVICES TO BE FURNISHED, PROSPECTIVE BIDDERS WERE INSTRUCTED TO CHECK BY MARK IN THE SPACE PROVIDED OPPOSITE EACH ITEM WHETHER SERVICE WAS TO BE FURNISHED BY THE LESSOR. IN INSTANCES WHERE FACILITIES ONLY WERE OFFERED THE BIDDERS WERE INSTRUCTED THAT THE ITEMS SHOULD BE NOTED OR AMENDED ACCORDINGLY. AFTER ITEM 3 (A) B SPECIFYING " ELECTRIC CURRENT FOR LIGHTING AND OFFICE MACHINES" THE BIDDER WAS INSTRUCTED TO STATE THE TYPE IF OTHER THAN "110 V., 60 C., AC.' IMMEDIATELY FOLLOWING THIS ITEM MR. MYRON INSERTED THE FIGURE "220 V" AND INSERTED A CHECK IN THE " YES" COLUMN. IN EXPLANATION OF THIS ACTION IT IS STATED IN MR. MYRON'S LETTER OF JANUARY 22, 1955, THAT HE ADDED THE "220 V" WITH THE ,X" MARK TO INDICATE THAT IN THE EVENT THE AIR FORCE NEEDED OTHER THAN THE 110 VOLT CURRENT THE 220 VOLT CURRENT WOULD BE AVAILABLE AND THAT HE DID THIS BECAUSE SOME WIRINGS DO NOT HAVE THIS EXTRA ADVANTAGE.

IN MEMORANDUM OF FEBRUARY 14, 1955, THE REALTY OFFICER WHO HANDLED THE NEGOTIATIONS FOR THE CONTRACTING OFFICER STATES THAT WHILE THE FURNISHING OF ELECTRIC CURRENT WAS NOT SPECIFICALLY DISCUSSED WITH THE LESSOR THERE WAS A QUESTION IN HIS MIND REGARDING THE CONFLICT BETWEEN THE SERVICES INDICATED AND THE TWO DIFFERENT PARTS OF THE LESSOR'S OFFER. HE STATES, HOWEVER, THAT IT WAS HIS VIEW THAT THE BIDDER WOULD RAISE THE QUESTION AT THE TIME HE SIGNED THE LEASE IF IT WAS NOT HIS INTENTION TO FURNISH ELECTRIC CURRENT. IN MEMORANDUM OF FEBRUARY 17, 1955, THE CONTRACTING OFFICER WHO EXECUTED THE LEASE ON BEHALF OF THE GOVERNMENT STATES THAT AT ALL TIMES IT WAS HIS UNDERSTANDING THAT ELECTRICITY WAS NOT TO BE INCLUDED AS PART OF THE RENTAL CONSIDERATION AND THAT IN REVIEWING THE LEASE PRIOR TO EXECUTION HE WAS NOT SUFFICIENTLY CIRCUMSPECT IN READING PARAGRAPH 6.

THE FACTS AS PRESENTED BY YOU CLEARLY ESTABLISH THAT THE PARTIES DID NOT INTEND THAT THE LESSORS WOULD BE REQUIRED TO FURNISH ELECTRIC CURRENT AS PART OF THE RENTAL CONSIDERATION AND, THEREFORE, THAT PARAGRAPH 6 (B) OF THE LEASE OBLIGATING THEM TO DO SO DOES NOT EXPRESS THE TRUE AGREEMENT AND UNDERSTANDING OF THE PARTIES. ACCORDINGLY, THE LEASE SHOULD BE MODIFIED FOR THE PURPOSE OF RELIEVING THE LESSOR OF THE OBLIGATION TO FURNISH ELECTRIC CURRENT AS PROVIDED IN PARAGRAPH 6 (B). A REFERENCE TO THIS DECISION SHOULD BE MADE ON SUCH MODIFICATION.