B-151429, MAY 17, 1963

B-151429: May 17, 1963

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THE QUESTION OF PER DIEM PAYMENTS WAS DISCUSSED WITH YOU ON THE BASIS OF THE STANDARD GOVERNMENT TRAVEL REGULATIONS (FOREIGN AREAS) APPLICABLE IN TAIWAN. THAT THE MAXIMUM RATES SPECIFIED IN THE MOST RECENT ISSUE OF THE "SGTR-FA" WERE FOUND TO BE $16 WHILE IN TAIPEI AND $11 OUTSIDE OF TAIPEI. THAT ALL PARTIES UNDERSTOOD THAT THE $16 AND $11 RATES WERE THE RATES IN EFFECT AND APPLICABLE TO THE CONTRACTS. YOU FURTHER REPORT THAT SUBSEQUENT TO THE EXECUTION OF ALL EIGHT CONTRACTS AND AFTER ALL TEAM MEMBERS WERE IN TAIWAN. WAS BASED ON THE ERRONEOUS ASSUMPTION BY ALL PARTIES INVOLVED THAT THE RATES IN EFFECT ON TAIWAN WERE THE $16 AND $11 RATES. WOULD HAVE BEEN WRITTEN INTO THE CONTRACTS. QUOTED ABOVE: "A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE WHILE IN THE COOPERATING COUNTRY FOR PERFORMANCE OF WORK UNDER THIS CONTRACT WILL BE PAID AT THE RATE OF $16 PER DAY WHILE IN TAIPEI AND $11 PER DAY OUTSIDE OF TAIPEI.'.

B-151429, MAY 17, 1963

TO THE ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT:

THIS REFERS TO A LETTER OF APRIL 30, 1963, WITH ENCLOSURES, FROM YOUR AGENCY, REQUESTING OUR DECISION RELATIVE TO WHETHER CERTAIN CONTRACT AGREEMENTS, NAMELY, CONTRACT NOS. AID/FE-36 AND AID/FE-39 THROUGH 45, MADE, RESPECTIVELY, WITH EIGHT MEMBERS OF A POWER SURVEY TEAM SELECTED TO STUDY AND REPORT ON THE OVERALL POTENTIAL AND REQUIREMENTS OF THE POWER UTILITIES NOW SERVICING TAIWAN, MAY BE REFORMED IN THE MANNER INDICATED.

ARTICLE III, PARAGRAPH B, ENTITLED "SUBSISTENCE," OF THE EIGHT CONTRACTS IN QUESTION, PROVIDES AN ALLOWANCE FOR THE CONTRACTORS, AS FOLLOWS:

"A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE WHILE IN THE COOPERATING COUNTRY FOR PERFORMANCE OF WORK UNDER THIS CONTRACT AT THE SAME RATES PROVIDED U.S. EMPLOYEES OF U.S. AID IN OFFICIAL TRAVEL STATUS.' (U.S. AID MEANS THE AID MISSION TO THE COOPERATING COUNTRY.)

YOU REPORT THAT IN THE COURSE OF NEGOTIATING THESE INDIVIDUAL CONTRACTS, THE QUESTION OF PER DIEM PAYMENTS WAS DISCUSSED WITH YOU ON THE BASIS OF THE STANDARD GOVERNMENT TRAVEL REGULATIONS (FOREIGN AREAS) APPLICABLE IN TAIWAN; THAT THE MAXIMUM RATES SPECIFIED IN THE MOST RECENT ISSUE OF THE "SGTR-FA" WERE FOUND TO BE $16 WHILE IN TAIPEI AND $11 OUTSIDE OF TAIPEI; AND THAT ALL PARTIES UNDERSTOOD THAT THE $16 AND $11 RATES WERE THE RATES IN EFFECT AND APPLICABLE TO THE CONTRACTS.

YOU FURTHER REPORT THAT SUBSEQUENT TO THE EXECUTION OF ALL EIGHT CONTRACTS AND AFTER ALL TEAM MEMBERS WERE IN TAIWAN, THE U.S. AID CONTRACTOR IN TAIWAN INFORMED YOUR OFFICE THAT THE MAXIMUM RATES OF $16 AND $11 SPECIFIED IN THE SGTR-FA DID NOT APPLY; AND THAT RATES OF $13 AND $10 HAD BEEN PREVIOUSLY ESTABLISHED FOR TAIWAN BY LOCAL ADMINISTRATIVE ACTION. YOU STATE THAT THIS INFORMATION HAD NOT BEEN MADE KNOWN TO THE WASHINGTON OFFICE OF THE AID CONTROLLER OR THE NEGOTIATOR; THAT THE PROVISION FOR PAYING THE SAME PER DIEM RATES PROVIDED UNITED STATES EMPLOYEES OF U.S. AID CONTAINED IN THESE CONTRACTS, WAS BASED ON THE ERRONEOUS ASSUMPTION BY ALL PARTIES INVOLVED THAT THE RATES IN EFFECT ON TAIWAN WERE THE $16 AND $11 RATES; AND THAT IF THE REDUCED RATES ESTABLISHED FOR TAIWAN HAD BEEN KNOWN, SPECIFIC RATES IN EXCESS OF THAT AMOUNT AND EQUAL TO IF NOT GREATER THAN $16 AND $11, WOULD HAVE BEEN WRITTEN INTO THE CONTRACTS.

YOU ASK IF THESE CONTRACTS MAY BE RETROACTIVELY REFORMED, TO THE DATE OF CONTRACT EXECUTION, SO AS TO SUBSTITUTE THE FOLLOWING CLAUSE IN LIEU OF THE ARTICLE III, PARAGRAPH B, CLAUSE, QUOTED ABOVE:

"A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE WHILE IN THE COOPERATING COUNTRY FOR PERFORMANCE OF WORK UNDER THIS CONTRACT WILL BE PAID AT THE RATE OF $16 PER DAY WHILE IN TAIPEI AND $11 PER DAY OUTSIDE OF TAIPEI.'

WHERE, BY REASON OF MATERIAL 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. 39 COMP. GEN. 363, 365. THE EVIDENCE HERE CLEARLY SHOWS THAT THE PARTIES TO THESE CONTRACTS INTENDED TO PROVIDE FOR PER DIEM RATES OF $16 AND $11 PER DAY. THEY THOUGHT THAT THE CONTRACTS REFLECTED SUCH INTENTION BY PROVIDING FOR THE SAME RATES PROVIDED U.S. EMPLOYEES OF US AID IN TAIWAN. HOWEVER, THEY WERE MISTAKEN AS TO THE APPLICABLE PER DIEM RATES PREVAILING IN TAIWAN.

IN THESE CIRCUMSTANCES, WE OFFER NO OBJECTION TO REFORMATION OF THE CONTRACT AS PROPOSED.