B-140337, AUG. 14, 1959

B-140337: Aug 14, 1959

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JULY 24. A NUMBER OF CHANGE ORDERS APPEAR TO HAVE BEEN ISSUED UNDER THE INDICATED CONTRACT AND THE REQUEST FOR MODIFICATION HERE INVOLVED RELATES TO MODIFICATION NO. 8. THE CONTRACTOR WAS AUTHORIZED TO PERFORM CERTAIN ADDITIONAL WORK. IS A COPY OF A LETTER DATED APRIL 20. (RELOCATION) YOU ARE ADVISED THAT THE CLEARING FOR THE POLE LINE SHALL BE GENERALLY 20 FT. IT IS UNDERSTOOD THAT THE POLE LINE ON THE NEW EASEMENT WILL BE ERECTED BY THE BROCKTON EDISON COMPANY UNDER A SEPARATE CONTRACT WITH THIS OFFICE. IT IS ASSUMED THAT THE FAILURE TO INCLUDE AN ESTIMATE FOR THE RELOCATION WORK WAS DUE TO THE FACT THAT IN THE LETTER OF APRIL 20.

B-140337, AUG. 14, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 24, 1959, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING OUR DECISION AS TO WHETHER CHANGE ORDER NO. 8, DATED MAY 21, 1956, TO CONTRACT NO. DA- 19-016-ENG-4021, DATED JUNE 29, 1955, WITH THE WEXLER CONSTRUCTION COMPANY, INC., MAY BE MODIFIED SO AS TO PROVIDE FOR PAYMENT OF ADDITIONAL COMPENSATION IN THE AMOUNT OF $2,793.89 ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

THE RECORD SHOWS THAT UNDER DATE OF JUNE 29, 1955, THE NEW ENGLAND DIVISION, CORPS OF ENGINEERS, ENTERED INTO A CONTRACT WITH WEXLER CONSTRUCTION COMPANY, INC., FOR THE CONSTRUCTION OF SPECIAL AAA FACILITIES FOR THE BOSTON AREA AT BINGHAM AND COHASSET, MASSACHUSETTS, FOR THE TOTAL ESTIMATED CONSIDERATION OF $773,340. A NUMBER OF CHANGE ORDERS APPEAR TO HAVE BEEN ISSUED UNDER THE INDICATED CONTRACT AND THE REQUEST FOR MODIFICATION HERE INVOLVED RELATES TO MODIFICATION NO. 8,DATED MAY 21, 1956, UNDER WHICH, FOR AN INCREASE OF $1,166.55 IN THE STATED CONTRACT PRICE, THE CONTRACTOR WAS AUTHORIZED TO PERFORM CERTAIN ADDITIONAL WORK.

AMONG THE ENCLOSURES TO THE LETTER OF JULY 24, 1959, IS A COPY OF A LETTER DATED APRIL 20, 1956, FROM THE ASSISTANT CHIEF OF THE CONSTRUCTION DIVISION TO THE CONTRACTOR, ADVISING OF THE RELOCATION OF THE PRIMARY ELECTRICAL DISTRIBUTION SYSTEM, AND AN INCREASE IN THE SCOPE OF THE REQUIREMENTS FOR CLEARING CERTAIN AREAS. IN CONNECTION WITH THE RELOCATION OF THE ELECTRICAL DISTRIBUTION SYSTEM, THE LETTER OF APRIL 20, 1959, CONTAINED THE FOLLOWING PARAGRAPH:

"IN CONNECTION WITH THE FIRST PORTION OF THIS CHANGE, (RELOCATION) YOU ARE ADVISED THAT THE CLEARING FOR THE POLE LINE SHALL BE GENERALLY 20 FT. SOUTHERLY OF THE EXISTING STONE WALL MARKING THE NORTHERLY LIMIT OF THE CHILDREN'S AID SOCIETY PROPERTY AT COHASSET, MASSACHUSETTS. IT IS UNDERSTOOD THAT THE POLE LINE ON THE NEW EASEMENT WILL BE ERECTED BY THE BROCKTON EDISON COMPANY UNDER A SEPARATE CONTRACT WITH THIS OFFICE.

BY LETTER OF APRIL 24, 1956, THE CONTRACTOR SUBMITTED AN ESTIMATE IN THE AMOUNT OF $1,166.55 FOR "CLEARING FOR THE POLE LINE FROM ROUTE 3A," NO ESTIMATE BEING INCLUDED THEREIN FOR RELOCATION OF THE ELECTRICAL DISTRIBUTION SYSTEM. IT IS ASSUMED THAT THE FAILURE TO INCLUDE AN ESTIMATE FOR THE RELOCATION WORK WAS DUE TO THE FACT THAT IN THE LETTER OF APRIL 20, 1956, THE CONTRACTOR WAS ADVISED THAT SUCH WORK WOULD BE PERFORMED BY THE BROCKTON EDISON COMPANY UNDER A SEPARATE CONTRACT WITH THE CORPS OF ENGINEERS. NOTWITHSTANDING THE FACTS AS THEY APPEARED TOBE, BY MODIFICATION NO. 8 THERE WERE ADDED TO THE SPECIFICATIONS TWO NEW PARAGRAPHS AS FOLLOWS:

"2. RELOCATE THE PRIMARY ELECTRICAL DISTRIBUTION SYSTEM WHICH WAS ORIGINALLY INDICATED ON DRAWING 16-06-40, SHEET 12 OF 12, AS BEGINNING ON POLE 107 ON ROUTE 3A AND PROCEEDING GENERALLY WESTERLY UP CROCKER LANE FOR 6 POLES TO A METER LOCATED IN THE GENERAL VICINITY OF THE ACCESS ROAD TO THE LAUNCHER SITE. THIS SERVICE WILL NOW BEGIN AT A NEW POLE TO BE INSTALLED APPROXIMATELY MIDWAY BETWEEN 104 AND 105 ON ROUTE 3A AND PROCEED OVER A NEWLY ACQUIRED 25 FOOT EASEMENT WHICH IS GENERALLY LOCATED 20 FEET SOUTHERLY OF THE EXISTING STONE WALL MARKING THE NORTHERLY LIMIT OF THE CHILDRENS AID SOCIETY PROPERTY AT COHASSET, MASS.

"3. INCREASE THE SCOPE OF REQUIREMENTS FOR CLEARING TO THE WEST OF THE FUTURE UNDERGROUND MISSILE STORAGE STRUCTURES. THE AMOUNT OF CLEARING THAT IS PERFORMED UNDER THIS FEATURE BEGINS WITH THE FIRE BREAK AT THE SECURITY FENCE AND CONTINUES TO THE ROAD AROUND THE MORE SOUTHERLY OF THE 2 TYPE C UNDERGROUND MISSILE STORAGE STRUCTURES. THE NORTHERLY LIMIT BEING ON A LINE HAVING THE BEARING OF NORTH 70 DEGREES 55 MINUTES 28 SECONDS WEST, AND THE SOUTHERLY LIMIT BEING ON A LINE WITH THE BEARING OF NORTH WEST, AND THE SOUTHERLY LIMIT BEING ON A LINE WITH THE BEARING OF NORTH 78 DEGREES 32 MINUTES 4 SECONDS WEST (SEE DRAWING 16-06-40, SHEET 6 OF 12).'

BY LETTER OF JANUARY 23, 1957, THE CONTRACTOR REQUESTED THAT MODIFICATION NO. 8 BE REOPENED ON THE BASIS OF MUTUAL MISUNDERSTANDING, IT BEING STATED THAT THE CONTRACTOR HAD EXPECTED THE "EXTRA POLE LINE," CALLED FOR BY THE MODIFICATION, WOULD BE INSTALLED BY THE BROCKTON EDISON COMPANY. IN A PREVIOUS LETTER OF SEPTEMBER 24, 1956, THE CONTRACTOR HAD INDICATED THE COST OF THE RELOCATION AS IN THE AMOUNT OF $2,793.89. THE SUCCESSOR CONTRACTING OFFICER SET FORTH AT LENGTH IN HIS REPORT THE FACTS RELATING TO THE MISUNDERSTANDING IN THIS CASE AND EXPRESSED THE VIEW THAT A MUTUAL MISTAKE HAD BEEN MADE RELATIVE TO MODIFICATION NO. 8. FOR THE REASONS SET FORTH IN HIS REPORT, THE SUCCESSOR CONTRACTING OFFICER REQUESTED THAT HE BE GIVEN AUTHORITY TO REFORM MODIFICATION NO. 8 SO AS TO CONFORM TO THE INTENT OF THE PARTIES AT THE TIME IT WAS EXECUTED. THE VIEWS OF THE SUCCESSOR CONTRACTING OFFICER ARE SUPPORTED BY A MEMORANDUM DATED SEPTEMBER 2, 1958, BY MR. P. B. THORESEN, CHIEF OF THE CONSTRUCTION DIVISION.

WHERE, BY REASON OF A MUTUAL MISTAKE, A CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, THE WRITTEN INSTRUMENT MAY BE REFORMED IF IT CAN BE ESTABLISHED WHAT THE AGREEMENT ACTUALLY WAS. 36 COMP. GEN. 507, 509; 30 ID. 220; 26 ID. 899; 20 ID. 533, AND CASES THERE CITED. IN THE INSTANT CASE, IT APPEARS TO BE CLEARLY ESTABLISHED THAT THE PARTIES CONTEMPLATED THAT THE RELOCATION OF THE PRIMARY ELECTRICAL DISTRIBUTION SYSTEM--- ALTHOUGH INCLUDED IN MODIFICATION NO. 8 AS AN ITEM TO BE PERFORMED BY THE CONTRACTOR--- WAS, IN FACT, INTENDED TO BE PERFORMED BY ANOTHER CONTRACTOR UNDER A SEPARATE CONTRACT WITH THE CORPS OF ENGINEERS, AND THAT THE CONSIDERATION STATED IN THE MODIFICATION WAS NOT INTENDED TO COVER THE COST OF SUCH RELOCATION.

UPON THE BASIS OF THE FACTS REPORTED IN THIS CASE, WE OFFER NO OBJECTION TO MODIFICATION OF THE CONTRACT AS RECOMMENDED BY THE SUCCESSOR CONTRACTING OFFICER. APPROPRIATE REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE MODIFICATION.