B-150613, JAN. 24, 1963

B-150613: Jan 24, 1963

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO LETTER OF JANUARY 11. THE CONTRACTING OFFICER'S STATEMENT OF THE PERTINENT FACTS IS AS FOLLOWS: "1. DINING ROOM FURNITURE WAS PURCHASED IN JUNE 1961 FROM VALLEY FURNITURE COMPANY. THIS FURNITURE UPON ARRIVAL IN JAPAN WAS FOUND BY AIR FORCE PERSONNEL AND GENERAL SERVICES ADMINISTRATION. THE VALLEY FURNITURE COMPANY FAILED TO MAKE SATISFACTORY PROGRESS IN HAVING THE FURNITURE REPAIRED AND THEIR RIGHTS TO PROCEED WERE TERMINATED AND A CONTRACT WAS VERBALLY NEGOTIATED WITH THE YAMAGUCHI COMPANY TO COMPLETE THE REPAIR AND REFINISHING. THE VERBAL NEGOTIATION WAS CONFIRMED IN WRITING AND SIGNED BY BOTH THE CONTRACTING OFFICER AND THE CONTRACTOR USING THE SAME REPAIR SPECIFICATION AS FURNISHED TO VALLEY FURNITURE IN THEIR CONTRACT WITH YAMAGUCHI COMPANY.

B-150613, JAN. 24, 1963

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO LETTER OF JANUARY 11, 1963, FROM THE ACTING ADMINISTRATOR, REQUESTING AUTHORITY TO REFORM CONTRACT GS-09S-10728 WITH YAMAGUCHI COMPANY LTD., TOKYO, JAPAN.

THE CONTRACTING OFFICER'S STATEMENT OF THE PERTINENT FACTS IS AS FOLLOWS:

"1. DINING ROOM FURNITURE WAS PURCHASED IN JUNE 1961 FROM VALLEY FURNITURE COMPANY, ST. LOUIS, MISSOURI ON CONTRACT GS-09S-9182 FOR SHIPMENT TO TACHIKAWA AIR BASE, JAPAN.

"2. THIS FURNITURE UPON ARRIVAL IN JAPAN WAS FOUND BY AIR FORCE PERSONNEL AND GENERAL SERVICES ADMINISTRATION, QUALITY CONTROL REPRESENTATIVES TO BE IN NEED OF MAJOR REFINISHING AND REPAIRING BECAUSE OF IMPROPER MANUFACTURE.

"3. THE GENERAL SERVICES ADMINISTRATION PREPARED SPECIFICATIONS FOR THE REPAIRING AND REFINISHING OF THE DEFECTIVE FURNITURE, AND USING THESE SPECIFICATIONS THE VALLEY FURNITURE COMPANY AWARDED A CONTRACT TO THE YAMAGUCHI COMPANY IN TOKYO, JAPAN FOR THE REPAIR AND REFINISHING OF THIS FURNITURE.

"4. THE VALLEY FURNITURE COMPANY FAILED TO MAKE SATISFACTORY PROGRESS IN HAVING THE FURNITURE REPAIRED AND THEIR RIGHTS TO PROCEED WERE TERMINATED AND A CONTRACT WAS VERBALLY NEGOTIATED WITH THE YAMAGUCHI COMPANY TO COMPLETE THE REPAIR AND REFINISHING. THE VERBAL NEGOTIATION WAS CONFIRMED IN WRITING AND SIGNED BY BOTH THE CONTRACTING OFFICER AND THE CONTRACTOR USING THE SAME REPAIR SPECIFICATION AS FURNISHED TO VALLEY FURNITURE IN THEIR CONTRACT WITH YAMAGUCHI COMPANY.

"AWARD WAS MADE UNDER CONTRACT GS-09S-10728 ON OCTOBER 3, 1962.

"5. BY LETTER OF NOVEMBER 3, 1962, THE CONTRACTOR REQUESTED THAT THE CONTRACT BE AMENDED SINCE IT SPECIFIED REPLACEMEMT OF LAMINATED PLASTIC TOPS, LEGS, ARMS, AND OTHER COMPONENT PARTS WHICH WERE MISSING OR DAMAGED OR SEASON CHECKED SO SEVERELY SO AS TO REQUIRE REPLACEMENT. THE CONTRACTOR STATED THAT THE CONTRACT AS WRITTEN DID NOT REFLECT HIS UNDERSTANDING OF THE NEGOTIATED TERMS.

"6. THE CONTRACTING OFFICER, AT THE TIME OF VERBAL NEGOTIATIONS WITH THE CONTRACTOR, AGREED THAT THE CONTRACTOR WOULD NOT BE REQUIRED TO FURNISH AND INSTALL (1) REPLACEMENT LAMINATED TOPS OR OTHER COMPONENT PARTS WHICH WERE EITHER MISSING OR DAMAGED EXCESSIVELY SO AS TO REQUIRE REPLACEMENT, AND (2) COMPONENT PARTS WITH SEASON CHECKS REQUIRING REPLACEMENT. IT WAS ALSO AGREED THAT SUCH PIECES WOULD BE PUT ASIDE AND THE CONTRACTOR WOULD FURNISH THE GENERAL SERVICES ADMINISTRATION, QUALITY CONTROL REPRESENTATIVE, COST PRICE ESTIMATES FOR ALL SUCH PIECES AND IF AND WHEN DETERMINED TO BE REASONABLE COSTS, THE GOVERNMENT WOULD ORDER SUCH REPAIRS BY SEPARATE PURCHASE.

"7. IN CONFIRMING THE VERBAL NEGOTIATIONS THE SPECIFICATIONS FOR VALLEY FURNITURE COMPANY TO REPAIR AND REFINISH THE FURNITURE WERE USED AND THROUGH INADVERTENCE THE CONTRACTING OFFICER FAILED TO MODIFY THE REQUIREMENTS AS AGREED UPON WITH THE CONTRACTOR DURING THE VERBAL NEGOTIATIONS. BASED ON PRESENT REWORKING OF THE FURNITURE THE FURNISHING AND INSTALLING OF REPLACEMENT PARTS WILL COST AN ESTIMATED $2,700.00.

"THE VERBAL NEGOTIATION WHICH I MADE WAS NOT CONSISTENT WITH THE CONFIRMING WRITTEN CONTRACT WHICH WAS SIGNED.'

AN AGREEMENT THAT IS REDUCED TO A WRITTEN INSTRUMENT THAT DOES NOT CONFORM TO THE ACTUAL AGREEMENT OF THE PARTIES, BECAUSE OF A MUTUAL MISTAKE IN REDUCING THE AGREEMENT TO WRITING, MAY BE REFORMED TO CONFORM TO THE PARTIES' ACTUAL AGREEMENT. SEE 30 COMP. GEN. 220. THEREFORE, SINCE IT APPEARS THAT THROUGH INADVERTENCE THERE WERE INCLUDED IN THE WRITTEN CONTRACT WITH THE YAMAGUCHI COMPANY LTD. REQUIREMENTS THAT WERE CONTRARY TO THE VERBAL AGREEMENT BETWEEN THE CONTRACTOR AND THE CONTRACTING OFFICER, THE CONTRACT MAY BE REFORMED TO CONFORM TO THE ACTUAL AGREEMENT OF THE PARTIES.