B-134209, JAN. 2, 1958

B-134209: Jan 2, 1958

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UNITED STATES INFORMATION AGENCY: REFERENCE IS MADE TO LETTERS DATED OCTOBER 22. IT IS REPORTED THAT AFTER NEGOTIATIONS CONTRACT NO. IA-3752 WAS ENTERED INTO ON MARCH 22. THE FORMAL CONTRACT ITSELF WAS COMPLETE. FURTHER NEGOTIATIONS WERE HAD BY THE UNITED STATES INFORMATION AGENCY WITH MOVIETONE NEWS. THERE WERE EXECUTED AMENDMENTS NOS. 1. IT WAS FOUND THAT ALTHOUGH ELEMENTS NOS. 9 AND 11 WERE CLEARLY INCLUDED IN THE LANGUAGE OF AMENDMENT NO. 1. THEY WERE NOT IN FACT REQUIRED BY THE UNITED STATES INFORMATION AGENCY. SINCE AMENDMENT NO. 1 WAS EXECUTED BY MOVIETONE NEWS. THE QUESTION IS PRESENTED AS TO WHETHER THE MISTAKE MAY BE CORRECTED BY A FURTHER AMENDMENT TO THE CONTRACT WITHOUT ANY CHANGE IN THE PRICE THEREOF.

B-134209, JAN. 2, 1958

TO MR. GEORGE V. ALLEN, DIRECTOR, UNITED STATES INFORMATION AGENCY:

REFERENCE IS MADE TO LETTERS DATED OCTOBER 22, 1957, AND DECEMBER 12, 1957, WITH ENCLOSURES, FROM EDMUND L. CARTER, CHIEF, MOTION PICTURE CONTRACT BRANCH, AND CHARLES H. RIDGELY, ACTING CHIEF, FACILITIES PROCUREMENT SECTION, RESPECTIVELY, THE FIRST OF WHICH REQUESTED A DECISION AS TO WHETHER CONTRACT NO. IA-3752, DATED MARCH 22, 1957, MAY BE AMENDED TO COMPENSATE FOR A MUTUAL MISTAKE REGARDING DELIVERY ELEMENTS AS STATED IN AMENDMENT NO. 1 TO THE CONTRACT.

IT IS REPORTED THAT AFTER NEGOTIATIONS CONTRACT NO. IA-3752 WAS ENTERED INTO ON MARCH 22, 1957, BY THE UNITED STATES INFORMATION AGENCY WITH MOVIETONE NEWS, INC., FOR A CERTAIN MOTION PICTURE OPERATION. THE FORMAL CONTRACT ITSELF WAS COMPLETE, APPARENTLY PROVIDING FOR THE PRODUCTION OF A PICTURE OF VICE-PRESIDENT NIXON'S AFRICAN AND EUROPEAN TRIP, BUT PROVISIONAL AS TO SOME TECHNICAL ASPECTS, INCLUDING THE PREPARATION OF COPIES AND TRANSLATIONS. IN VIEW OF THE PROVISIONAL FEATURE OF THE CONTRACT, FURTHER NEGOTIATIONS WERE HAD BY THE UNITED STATES INFORMATION AGENCY WITH MOVIETONE NEWS, INC., TO FINALIZE THE PROVISIONS NOT DECIDED ON AT THE TIME OF THE ORIGINAL CONTRACT. AS A RESULT OF SUCH NEGOTIATIONS, THERE WERE EXECUTED AMENDMENTS NOS. 1, 2, AND 3 TO THE CONTRACT, ESTABLISHING AN ULTIMATE LUMP-SUM CONTRACT PRICE OF $20,995.06. IT APPEARS THAT AMENDMENT NO. 1 PROVIDED FOR ADDITIONAL SERVICES AND REQUIRED DELIVERY, FOR A LUMP-SUM PRICE OF $6,475, OF 12 ADDITIONAL ELEMENTS, INCLUDING ELEMENT NO. 9--- ONE 35MM EASTMAN COLOR COMPOSITE TURKISH ANSWER PRINT--- AND ELEMENT NO. 11--- ONE 35 MM TURKISH MIXED TRACK NEGATIVE.

SUBSEQUENTLY, IT WAS FOUND THAT ALTHOUGH ELEMENTS NOS. 9 AND 11 WERE CLEARLY INCLUDED IN THE LANGUAGE OF AMENDMENT NO. 1, THEY WERE NOT IN FACT REQUIRED BY THE UNITED STATES INFORMATION AGENCY, AND THE PROPOSAL OF MOVIETONE NEWS INC., FOR THE AMENDMENT HAD NOT BEEN PREDICATED UPON FURNISHING THESE ELEMENTS. SINCE AMENDMENT NO. 1 WAS EXECUTED BY MOVIETONE NEWS, INC., WITHOUT COMMENT UPON THE ERROR, THE QUESTION IS PRESENTED AS TO WHETHER THE MISTAKE MAY BE CORRECTED BY A FURTHER AMENDMENT TO THE CONTRACT WITHOUT ANY CHANGE IN THE PRICE THEREOF.

THE STATEMENT OF THE CONTRACTING OFFICER THAT THE PROPOSAL OF MOVIETONE NEWS, INC., FOR AMENDMENT NO. 1 WAS NOT PREDICATED UPON FURNISHING THESE TWO ELEMENTS APPEARS TO BE CONFIRMED BY THE LETTER DATED APRIL 11, 1957, OF MOVIETONE NEWS, INC. HENCE, THERE CAN BE NO DOUBT BUT THAT THE PART OF AMENDMENT NO. 1 TO THE CONTRACT PERTAINING TO ELEMENTS NOS. 9 AND 11 DID NOT REFLECT THE TRUE INTENTION OF EITHER ONE OF THE CONTRACTING PARTIES AND THEIR ENUMERATION IN THE AMENDMENT WAS A MUTUAL ERROR.

ACCORDINGLY, YOU ARE AUTHORIZED TO EXECUTE PROPOSED AMENDMENT NO. 4 TO CONTRACT NO. IA-3752 TO ELIMINATE ELEMENTS 9 AND 11 OF AMENDMENT NO. 1 WITHOUT ANY CHANGE IN THE CONTRACT PRICE.