B-129756, DEC. 4, 1956

B-129756: Dec 4, 1956

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TO THE CENTRAL MOTOR COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26. IN SUPPORT OF YOUR REQUEST YOU HAVE FORWARDED FOR OUR CONSIDERATION PHOTOSTATIC COPIES OF TWO GOVERNMENT TAX EXEMPTION CERTIFICATES EXECUTED NOVEMBER 28. ACCEPTANCE OF THE TRUCKS WAS ACCOMPLISHED BY THE GOVERNMENT ON JANUARY 18. PAYMENT WAS MADE THEREFOR ON JANUARY 24. YOU WERE THE ONLY PARTY AWARE OF SUCH FACT AT THE TIME THE PRESENT CONTRACT WAS EXECUTED. THE CONCLUSION IS INESCAPABLE THAT THE MISTAKE HERE ALLEGED WAS ENTIRELY UNILATERAL. THAT IS TO SAY. SUCH MISTAKE WAS NOT MADE BY BOTH PARTIES TO THE CONTRACT. THE COURTS REPEATEDLY HAVE HELD THAT A MUTUAL MISTAKE AFFORDS THE ONLY BASIS FOR THE REVISION OR MODIFICATION OF THE EXPRESSED TERMS OF A CONTRACT.

B-129756, DEC. 4, 1956

TO THE CENTRAL MOTOR COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1956, REQUESTING RECONSIDERATION OF OFFICE SETTLEMENT DATED JUNE 26, 1956, WHICH DISALLOWED YOUR CLAIM FOR $484.56 COVERING THE FEDERAL EXCISE TAX PAYABLE ON TWO GMC VAN TRUCKS SOLD TO THE GOVERNMENT PRINTING OFFICE UNDER PURCHASE ORDER NO. 4439, ISSUED SEPTEMBER 6, 1955.

IN SUPPORT OF YOUR REQUEST YOU HAVE FORWARDED FOR OUR CONSIDERATION PHOTOSTATIC COPIES OF TWO GOVERNMENT TAX EXEMPTION CERTIFICATES EXECUTED NOVEMBER 28, 1955, BY THE COMPTROLLER OF THE GOVERNMENT PRINTING OFFICE, WHICH APPEAR TO BE INTENDED FOR USE AND APPLICATION TO THE PURCHASES HERE INVOLVED. ACCORDING TO YOUR LETTER, THE MANUFACTURER EXTENDED YOU CREDIT FOR THE AMOUNT OF THE FEDERAL EXCISE TAX PAYABLE ON THESE TRUCKS, BUT SUBSEQUENTLY CHARGED YOU WITH SUCH TAX, ADVISING YOU TO OBTAIN REIMBURSEMENT THEREFOR DIRECT FROM THE GOVERNMENT.

ACCORDING TO THE FACTS OF RECORD, YOU QUOTED A TOTAL BID PRICE OF $9,032.12 ON THESE TRUCKS, LESS A TRADE-IN ALLOWANCE OF $150 ON SOME OLD EQUIPMENT, MAKING YOUR NET BID PRICE $8,882.12. FURTHER, YOU OFFERED A CASH DISCOUNT OF ONE HALF OF ONE PERCENT, AMOUNTING TO $44.41, FOR PAYMENT WITHIN 20 CALENDAR DAYS. ACCEPTANCE OF THE TRUCKS WAS ACCOMPLISHED BY THE GOVERNMENT ON JANUARY 18, 1956, AND PAYMENT WAS MADE THEREFOR ON JANUARY 24, 1956, IN THE NET AMOUNT OF $8,837.71. A PERTINENT CONDITION OF YOUR CONTRACT READS:

"FEDERAL TAXES.--- EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS CONTRACT, THE CONTRACT PRICE INCLUDES ALL APPLICABLE FEDERAL TAXES IN EFFECT ON THE CONTRACT DATE.'

YOU DID NOT EXPRESSLY STIPULATE "OTHERWISE" IN YOUR CONTRACT, AND HENCE YOU DIRECTLY REPRESENTED TO THE GOVERNMENT CONTRACTING OFFICER THAT THE QUOTED CONTRACT PRICE ON THESE TRUCKS INCLUDED "ALL APPLICABLE FEDERAL TAXES" THEN IN EFFECT, INCLUDING THE FEDERAL EXCISE TAX HERE IN DISPUTE.

IF, AS ALLEGED, THE QUOTED PRICE FOR THE TRUCKS DID NOT INCLUDE THE APPLICABLE FEDERAL EXCISE TAX THEREON, YOU WERE THE ONLY PARTY AWARE OF SUCH FACT AT THE TIME THE PRESENT CONTRACT WAS EXECUTED. THEREFORE, THE CONCLUSION IS INESCAPABLE THAT THE MISTAKE HERE ALLEGED WAS ENTIRELY UNILATERAL. THAT IS TO SAY, SUCH MISTAKE WAS NOT MADE BY BOTH PARTIES TO THE CONTRACT, SO AS TO MAKE IT MUTUAL.

THE COURTS REPEATEDLY HAVE HELD THAT A MUTUAL MISTAKE AFFORDS THE ONLY BASIS FOR THE REVISION OR MODIFICATION OF THE EXPRESSED TERMS OF A CONTRACT. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; OGDEN AND DOUGHERTY, V. UNITED STATES, 102 C.CLS. 249, 259. THE ERROR HERE ALLEGED WAS SOLELY YOUR OWN, OR UNILATERAL, NEITHER HAVING BEEN INDUCED NOR CONTRIBUTED TO BY THE GOVERNMENT.

ACCORDINGLY, AND NOTWITHSTANDING THE TAX EXEMPTION CERTIFICATES FURNISHED BY YOU, THE SETTLEMENT OF JUNE 26, 1956, IS HEREBY SUSTAINED.

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