B-141077, NOV. 16, 1959

B-141077, NOV. 16, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 21, 1959, WITH ITS ENCLOSURES, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, REQUESTING A DECISION AS TO WHETHER THERE IS AUTHORIZED THE REFORMATION OF NEGOTIATED CONTRACT NO. DA-49-108-ENG-1991 DATED JANUARY 29, 1959, SO AS TO PROVIDE FOR PAYMENT OF SHIPPING AND PACKAGING CHARGES IN THE AMOUNT OF $1,850.

BY THE TERMS OF THE CONTRACT, TRANSMARES CORPORATION AGREED WITH THE ARMY MAP SERVICE TO FURNISH TWO TRANSFORMING RATIO PRINTERS AND ACCESSORIES FOR A PRICE OF $45,750, DELIVERY TO BE MADE "F.O.B. TRANSPORTATION OFFICER HEADQUARTERS FIRST U.S. ARMY GOVERNORS ISLAND, NEW YORK.' HOWEVER, IN THE QUOTATION SUBMITTED BY THE CONTRACTOR ON JULY 29, 1958, ON WHICH THE CONTRACT WAS BASED, A PRICE OF $47,254 WAS PROPOSED, DELIVERY TO BE MADE "FOB FACTORY, LESS PACKING.' IN RESPONSE TO A REQUEST TO SHIP THE EQUIPMENT PREPAID TO GOVERNORS ISLAND, THE CONTRACTOR, IN ITS LETTER DATED JULY 22, 1959, TO THE ARMY MAP SERVICE, CALLED ATTENTION TO THE TERMS OF THE QUOTATION AND REQUESTED THAT THE CONTRACT BE MODIFIED SO AS TO PROVIDE FOR PAYMENT OF THE PACKING AND SHIPPING CHARGES IN THE AMOUNT OF $1,850.

IN THE CONTRACTING OFFICER'S LETTER OF AUGUST 21, 1959, TO THE CHIEF OF ENGINEERS, IT IS STATED THAT THE CONTRACT PROVISION REQUIRING DELIVERY F.O.B. DESTINATION WAS INSERTED IN ERROR AND APPARENTLY WAS SIGNED IN ERROR BY THE CONTRACTOR; AND IT IS RECOMMENDED THAT THE CONTRACT BE MODIFIED TO PERMIT PAYMENT OF PACKING AND SHIPPING CHARGES OF $1,850.

UNDER CERTAIN CIRCUMSTANCES, A WRITTEN AGREEMENT NOT CONFORMING TO THE ACTUAL INTENTION OF THE PARTIES MAY BE REFORMED TO ACCORD WITH SUCH INTENTION. WHERE BY REASON OF 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 ACTUAL AGREEMENT WAS. SEE 36 COMP. GEN. 507, 509; 30 ID. 220, 221; 20 ID. 533 AND CASES THERE CITED. IT APPEARS TO BE CLEARLY ESTABLISHED THAT IT WAS THE INTENTION OF THE PARTIES TO PROVIDE FOR DELIVERY "FOB FACTORY, LESS PACKING" IN ACCORDANCE WITH THE QUOTATION SUBMITTED BY TRANSMARES CORPORATION. SINCE A DIFFERENT PROVISION WAS INCLUDED IN THE CONTRACT BY MUTUAL MISTAKE, IT IS OBVIOUS THAT THE CONTRACT AS EXECUTED DOES NOT CONFORM TO THE REAL INTENTION OF THE PARTIES. THEREFORE, WE OFFER NO OBJECTION TO REFORMATION OF THE CONTRACT AS PROPOSED. APPROPRIATE REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE MODIFICATION.