B-154920, AUG. 21, 1964

B-154920: Aug 21, 1964

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THE AFOREMENTIONED CONTRACT COVERING THE MANUFACTURING AND FURNISHING OF A HIGH FREQUENCY RADIO SYSTEM CONNECTING SEVERAL AREA LOCATIONS WAS AWARDED TO THE ALPHA CORPORATION ON MARCH 17. ALPHA WAS NOTIFIED THAT ITS PROPOSAL. WAS ACCEPTABLE. A COPY OF AN AGREEMENT WAS THEREUPON FORWARDED FOR APPROPRIATE SIGNATURE ON MARCH 22. THE CONTRACTING OFFICER STATES THAT THE INSTRUCTION MANUALS WERE CONSIDERED BY ALL PARTIES AS A SEPARATE PRICED ITEM AS INDICATED IN ALPHA'S ORIGINAL PROPOSAL. EQUALLY APPARENT IS THE FACT THAT THE PARTIES HAD AGREED THAT THE INSTRUCTION MANUALS WOULD BE PRICED AT $4.

B-154920, AUG. 21, 1964

TO THE HONORABLE GLENN T. SEABORG, CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

WE REFER TO A LETTER DATED AUGUST 7, 1964, WITH ENCLOSURES, FROM YOUR ASSISTANT GENERAL MANAGER FOR OPERATIONS, REQUESTING AUTHORITY TO REFORM CONTRACT NO. AT/29-2/-1126. THE AFOREMENTIONED CONTRACT COVERING THE MANUFACTURING AND FURNISHING OF A HIGH FREQUENCY RADIO SYSTEM CONNECTING SEVERAL AREA LOCATIONS WAS AWARDED TO THE ALPHA CORPORATION ON MARCH 17, 1961.

IN RESPONSE TO A REQUEST BY THE COMMISSION, ALPHA SUBMITTED A WRITTEN PROPOSAL DATED NOVEMBER 28, 1960, OFFERING TO FURNISH THE REQUIRED SYSTEM AT A GIVEN PRICE. BECAUSE OF CERTAIN REQUESTED CHANGES ALPHA SUBMITTED A SUPPLEMENTAL PROPOSAL DATED JANUARY 12, 1961. FURTHER CHANGES REQUIRED SECOND SUPPLEMENTAL PROPOSAL. BY TWX DATED MARCH 17, 1961, ALPHA WAS NOTIFIED THAT ITS PROPOSAL, AS AMENDED, WAS ACCEPTABLE. A COPY OF AN AGREEMENT WAS THEREUPON FORWARDED FOR APPROPRIATE SIGNATURE ON MARCH 22, 1964.

THE ADMINISTRATIVE REPORT SHOWS THAT THE FORMAL CONTRACT, AS PREPARED AND EXECUTED, DID NOT CONTAIN A PROVISION FOR PAYMENT FOR CERTAIN NECESSARY INSTRUCTION MANUALS AS CONTEMPLATED BY THE PARTIES. APPARENTLY, IN DRAWING THE ACTUAL CONTRACT, A MEMBER OF THE CONTRACTING OFFICER'S STAFF ONLY REFERRED TO ALPHA'S PROPOSAL OF JANUARY 12, 1961, AND DID NOT CONSIDER THE TERMS OF THE ORIGINAL PROPOSAL OF NOVEMBER 28, 1960. IN HIS STATEMENT DATED JULY 23, 1964, THE CONTRACTING OFFICER STATES THAT THE INSTRUCTION MANUALS WERE CONSIDERED BY ALL PARTIES AS A SEPARATE PRICED ITEM AS INDICATED IN ALPHA'S ORIGINAL PROPOSAL.

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 PROVIDED THAT THE INTENDED AGREEMENT CAN BE ESTABLISHED. 30 COMP. GEN. 220; 26 COMP. GEN. 899 AND 20 COMP. GEN. 533. IN THE PRESENT CASE IT SEEMS APPARENT THAT THE CONTRACT, AS REDUCED TO WRITING, DID NOT REFLECT THE ACTUAL INTENTION OF THE PARTIES. EQUALLY APPARENT IS THE FACT THAT THE PARTIES HAD AGREED THAT THE INSTRUCTION MANUALS WOULD BE PRICED AT $4,800. WHILE THE RECORD MAY BE CLEARLY SUFFICIENT TO AUTHORIZE REFORMATION, SINCE THE CONTRACTOR HAS COMPLETED ALL OF THE REQUIRED WORK INCLUDING THE DELIVERY OF THE INSTRUCTION MANUALS, REFORMATION OF THE INSTRUMENT DOES NOT APPEAR NECESSARY. THE CONTRACTOR HOWEVER MAY BE PAID THE $4,800.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING THE ADDITIONAL PAYMENT TO THE COMPANY.