B-146241, AUG. 8, 1961

B-146241: Aug 8, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED JUNE 22. THE REQUIREMENT FOR FURNISHING SPARE PARTS LISTED ON THE LATTER DRAWING IS ALLEGED TO HAVE BEEN INCLUDED IN ERROR. IN THAT THESE PARTS ARE FOR REMOTE RECORDER. WHICH WAS FURNISHED UNDER A PRIOR CONTRACT BUT WAS NOT INCLUDED IN THE PRESENT CONTRACT. STATES "NO REMOTE RECORDERS WILL BE REQUIRED.'. 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. SINCE THE PARTIES TO THE CONTRACT AGREE THAT IT WAS NOT INTENDED THAT PARTS FOR THE REMOTE RECORDER BE FURNISHED.

B-146241, AUG. 8, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JUNE 22, 1961, WITH ENCLOSURES, FROM THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING, IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATIONS AND LOGISTICS), A DECISION AS TO THE PROPRIETY OF GRANTING THE REQUEST OF LEEDS AND NORTHRUP COMPANY, PHILADELPHIA, PENNSYLVANIA, FOR CORRECTION OF AN ALLEGED MUTUAL MISTAKE IN CONTRACT NO. DA-30-070-CML- 1239, NY 0-1340, DATED JUNE 28, 1960.

THE ABOVE CONTRACT COVERS THREE AUTOMATIC GAS ALARMS, TO BE FURNISHED WITH SPARE PARTS AS LISTED IN LEEDS AND NORTHRUP DRAWINGS NOS. SK-7034-3 AND SK-7034-4. THE REQUIREMENT FOR FURNISHING SPARE PARTS LISTED ON THE LATTER DRAWING IS ALLEGED TO HAVE BEEN INCLUDED IN ERROR, IN THAT THESE PARTS ARE FOR REMOTE RECORDER, ALSO KNOWN AS REMOTE CONTROLLER, WHICH WAS FURNISHED UNDER A PRIOR CONTRACT BUT WAS NOT INCLUDED IN THE PRESENT CONTRACT.

THE GOVERNMENT REPORT OF A PRECONTRACT CONFERENCE ON MARCH 31, 1960, BETWEEN REPRESENTATIVES OF THE CONTRACTING PARTIES, STATES "NO REMOTE RECORDERS WILL BE REQUIRED.' REPORT OF A SIMILAR CONFERENCE ON APRIL 12, 1960, AGAIN EMPHASIZES THE OMISSION OF THE REMOTE CONTROLLER AND REFERS TO THE OMISSION OF DRAWING NO. 7034-4 AS ONE OF THE CHANGES IN THE SPARE PARTS DRAWINGS.

THE CONTRACTOR'S PROPOSAL BY LETTER DATED APRIL 21, 1960, REFERS ONLY TO SPARE PARTS "AS LISTED IN SPEC. NO. SK-7034-3" AND THE COST AND PRICE ANALYSES SUBMITTED WITH THE PROPOSAL AND WITH SUPPLEMENT DATED MAY 25, 1960, DO NOT INCLUDE ANY CHARGES FOR SPARE PARTS LISTED IN SPEC.NO. SK- 7034-4.

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. SINCE THE PARTIES TO THE CONTRACT AGREE THAT IT WAS NOT INTENDED THAT PARTS FOR THE REMOTE RECORDER BE FURNISHED, AND SINCE THIS POSITION IS SUPPORTED BY THE RECORD, THE CONTRACT MAY BE REFORMED ACCORDINGLY.