B-139993, JUL. 7, 1959

B-139993: Jul 7, 1959

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AMPLE EVIDENCE HAS BEEN PRESENTED TO ESTABLISH THAT THE PARTIES TO THE CONTRACT INTENDED THAT THE UNIVERSITY SHOULD BE REIMBURSED FOR COSTS IN CONNECTION WITH MODIFICATION OF THE LINEAR ACCELERATOR AND AUTHORITY IS REQUESTED TO REFORM THE CONTRACT TO CLEARLY REFLECT SUCH INTENTION. FOR SUCH OF ITS ACTUAL COSTS AND EXPENSES * * * (II) AS ARE INCURRED IN CONFORMITY WITH THE PROVISIONS OF THIS CONTRACT. UNLESS THE QUOTED PROVISION IS INTERPRETED TO APPLY TO THE REIMBURSEMENT OF COSTS RELATING TO THE MODIFICATION OF THE LINEAR ACCELERATOR. IT IS A MERE REDUNDANCY COVERING CONSIDERATION FOR PERFORMANCE OF PORTIONS OF THE WORK ALREADY COVERED WITH MORE PARTICULARITY ELSEWHERE IN THE ARTICLE. WE HAVE NO OBJECTION TO THE PROPOSED REFORMATION.

B-139993, JUL. 7, 1959

TO THE HONORABLE JOHN A. MCCONE, CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

WE REFER TO A LETTER OF JUNE 22, 1959, SIGNED BY THE GENERAL MANAGER CONCERNING REIMBURSABLE COST TYPE CONTRACT NO. AT/30-1/-1349 WITH YALE UNIVERSITY.

THE CONTRACT, IN EFFECT SINCE MAY 14, 1952, PROVIDES FOR THE FOLLOWING WORK TO BE PERFORMED BY THE UNIVERSITY:

1. MODIFICATION OF A GOVERNMENT-OWNED PULSED LINEAR ACCELERATOR.

2. CONSTRUCTION OF A NEW BUILDING TO HOUSE THE ACCELERATOR.

3. PERFORMANCE OF A RESEARCH PROGRAM UTILIZING THE ACCELERATOR.

WHILE THE CONTRACT CALLS FOR PERFORMANCE OF ALL THREE OF THE FOREGOING ITEMS, IT CONTAINS, IN ARTICLE II--- CONSIDERATION, SPECIFIC PROVISION FOR PAYMENT ONLY WITH RESPECT TO THE LATTER TWO.

AMPLE EVIDENCE HAS BEEN PRESENTED TO ESTABLISH THAT THE PARTIES TO THE CONTRACT INTENDED THAT THE UNIVERSITY SHOULD BE REIMBURSED FOR COSTS IN CONNECTION WITH MODIFICATION OF THE LINEAR ACCELERATOR AND AUTHORITY IS REQUESTED TO REFORM THE CONTRACT TO CLEARLY REFLECT SUCH INTENTION.

WHERE BY REASON OF A MUTUAL MISTAKE A CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, THE CONTRACT MAY BE REFORMED TO REFLECT SUCH AGREEMENT. 30 COMP. GEN. 220. AS STATED, THE INTENTION OF THE PARTIES HAS BEEN CLEARLY ESTABLISHED.

WE NOTE THAT WHILE ARTICLE II OF THE CONTRACT SPECIFICALLY COVERS PAYMENTS WITH RESPECT TO THE TWO ITEMS ABOUT WHICH NO QUESTION HAS ARISEN, IT ALSO PROVIDES AT PARAGRAPH 2:

"THE CONTRACTOR SHALL BE REIMBURSED BY THE GOVERNMENT WITHOUT DUPLICATION, FOR SUCH OF ITS ACTUAL COSTS AND EXPENSES * * * (II) AS ARE INCURRED IN CONFORMITY WITH THE PROVISIONS OF THIS CONTRACT, * * *.'

UNLESS THE QUOTED PROVISION IS INTERPRETED TO APPLY TO THE REIMBURSEMENT OF COSTS RELATING TO THE MODIFICATION OF THE LINEAR ACCELERATOR, IT IS A MERE REDUNDANCY COVERING CONSIDERATION FOR PERFORMANCE OF PORTIONS OF THE WORK ALREADY COVERED WITH MORE PARTICULARITY ELSEWHERE IN THE ARTICLE. CONTRACTS SHOULD BE INTERPRETED SO AS TO GIVE MEANING TO EACH PART. 137872, JANUARY 27, 1959. THEREFORE, IT APPEARS THAT THE UNIVERSITY MAY BE REIMBURSED ITS COSTS IN CONNECTION WITH MODIFICATION OF THE LINEAR ACCELERATOR WITHOUT REFORMING THE CONTRACT. HOWEVER, SINCE THE ULTIMATE EFFECT WOULD BE THE SAME AND SINCE IT WOULD UNQUESTIONABLY RESULT IN CLARIFYING THE MATTER, WE HAVE NO OBJECTION TO THE PROPOSED REFORMATION.