B-157875, NOV. 16, 1965

B-157875: Nov 16, 1965

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15. REQUESTING A DECISION AS TO WHETHER THERE IS AUTHORIZED THE REFORMATION OF CONTRACT NO. IT IS RELATED THAT IN THE PERFORMANCE OF THE SUBJECT CONTRACT. SUCH PAYMENTS ARE EVIDENCED BY COPIES OF PAID RECEIPTS SUBMITTED HERE AS PART OF THE RECORD. HE WAS REQUIRED BY THE CITY OF LOS ANGELES TO PAY THE CHARGES IN QUESTION. BEFORE THESE CHARGES WERE PAID. STATED AS FOLLOWS: "IN VIEW OF THE CIRCUMSTANCES UNDER WHICH THIS CLAIM IS MADE BY THE CITY OF LOS ANGELES WE REQUEST OUR CONTRACT TO BE REFORMED TO INCLUDE AND PROVIDE PAYMENT FOR THE SEWER CONNECTION.'. IT IS STATED AS FOLLOWS: "THIS DIVISION HAD NO KNOWLEDGE OF ANY ACREAGE OF FRONT FOOT FEES WHICH WOULD BE IMPOSED BY THE CITY OF LOS ANGELES.

B-157875, NOV. 16, 1965

TO THE HONORABLE LAWSON B. KNOTT, JR., ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1965, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THERE IS AUTHORIZED THE REFORMATION OF CONTRACT NO. GS-09B-C-1721-SF, ENTERED INTO BETWEEN YOUR ADMINISTRATION AND E. B. KILSTOFTE, WILMINGTON, CALIFORNIA, FOR THE CONSTRUCTION OF A FEDERAL BUILDING AND UNITED STATES POST OFFICE IN HARBOR CITY, LOS ANGELES, CALIFORNIA.

IT IS RELATED THAT IN THE PERFORMANCE OF THE SUBJECT CONTRACT, THE CONTRACTOR, E. B. KILSTOFTE, ON APRIL 5, 1965, PAID TO THE CITY OF LOS ANGELES THE SUM OF $1,537.50 FOR "CHARGE FOR BONDED AND SPECIAL SEWER CONNECTIONS" BASED UPON THE FRONTAGE FOOT AREA AND THE SUM OF $367.31 FOR ,CONNECTION CHARGE FOR OUTLET FACILITIES" BASED UPON THE ACREAGE, PURSUANT TO SECTIONS 64.18 AND 64.16.1 OF THE MUNICIPAL CODE OF LOS ANGELES. SUCH PAYMENTS ARE EVIDENCED BY COPIES OF PAID RECEIPTS SUBMITTED HERE AS PART OF THE RECORD. IT APPEARS THAT BEFORE KILSTOFTE COULD PROCEED WITH HIS WORK UNDER THE CONTRACT, HE WAS REQUIRED BY THE CITY OF LOS ANGELES TO PAY THE CHARGES IN QUESTION. HOWEVER, BEFORE THESE CHARGES WERE PAID, THE CONTRACTOR, IN A LETTER DATED MARCH 8, 1965, TO THE GENERAL SERVICES ADMINISTRATION, STATED AS FOLLOWS:

"IN VIEW OF THE CIRCUMSTANCES UNDER WHICH THIS CLAIM IS MADE BY THE CITY OF LOS ANGELES WE REQUEST OUR CONTRACT TO BE REFORMED TO INCLUDE AND PROVIDE PAYMENT FOR THE SEWER CONNECTION.'

IN A MEMORANDUM DATED APRIL 20, 1965, FROM LAWRENCE A. HOFFMAN, ASSISTANT CHIEF, DESIGN AND CONSTRUCTION DIVISION, REGION 9, GENERAL SERVICES ADMINISTRATION, IT IS STATED AS FOLLOWS:

"THIS DIVISION HAD NO KNOWLEDGE OF ANY ACREAGE OF FRONT FOOT FEES WHICH WOULD BE IMPOSED BY THE CITY OF LOS ANGELES, WHEN WE PREPARED THE SPECIFICATIONS FOR THE WORK, OTHERWISE IT WOULD HAVE BEEN INCLUDED. THE GENERAL CONDITIONS ON ALL SPECIFICATIONS FOR WORK OVER $2,000.00 CONTAIN THE FOLLOWING REQUIREMENTS (GSA FORM 1139 SECTION 1-8 (C) );

" "THE CONTRACTOR SHALL OBTAIN AND PAY ALL FEES AND CHARGES FOR CONNECTIONS TO OUTSIDE SERVICES AND FOR USE OF PROPERTY OUTSIDE THE SITE.'

"AS STATED ABOVE, WE HAD NO KNOWLEDGE OF ADDITIONAL FEES AND ASSUMED THAT THE CONNECTION CHARGES ORDINARILY CHARGED BY THE CITY WERE ALL THE CHARGES INVOLVED. THE CONTRACTOR ALSO WAS NOT AWARE OF THE ACREAGE FEE NOR THE FOOT FRONTAGE FEES CHARGED BY THE CITY OF LOS ANGELES.'

IN SUBSTANTIATION OF HIS CLAIM IN THIS MATTER, THE CONTRACTOR BY SWORN STATEMENT DATED FEBRUARY 15, 1965, STATES THAT HE ONLY EXPECTED TO PAY $18 FOR THE SEWER CONNECTION PERMIT AND THAT THE BONDED SEWER CHARGES OR ACREAGE FEES WERE NOT INCLUDED IN HIS BID, NOR DID HIS SUBCONTRACTORS INCLUDE SUCH CHARGES IN THEIR BIDS. THE RECORD CONTAINS NOTARIZED STATEMENTS DATED FEBRUARY 5 AND 19, 1965, BY OFFICIALS OF JACK WOOD AND J. H. STOCKTON, RESPECTIVELY, SUBCONTRACTORS, CORROBORATING THE CONTRACTOR'S CONTENTION THAT THESE CHARGES WERE NOT INCLUDED IN THE BIDS SUBMITTED BY THEM TO THE CONTRACTOR. CONSISTENT WITH THE CONTRACTOR'S CONTENTIONS, IT IS STATED IN YOUR LETTER THAT THE GENERAL SERVICES ADMINISTRATION DID NOT INTEND TO IMPOSE THE OBLIGATION OT PAY FOR THE CHARGES IN QUESTION UPON THE CONTRACTOR, NOR DID THE CONTRACTOR INTEND OR EXPECT TO PAY SUCH CHARGES. ALL THAT WAS COMTEMPLATED BY BOTH PARTIES UNDER SECTION 1-8 (C) OF THE GENERAL CONDITIONS OF THE CONTRACT WAS AN $18 SEWER CHARGE FOR A PERMIT IMPOSED BY THE CITY OF LOS ANGELES. IN THIS CONNECTION YOU HAVE CITED OUR DECISION B-140837, DATED APRIL 7, 1960, WHICH WAS A RECONSIDERATION OF DECISION B-140837, DATED NOVEMBER 6, 1959, 39 COMP. GEN. 363, BASED ON ALMOST IDENTICAL FACTS AND THE SAME SECTIONS OF THE LOS ANGELES CODE HERE INVOLVED, WHEREIN WE AUTHORIZED PAYMENT BY THE GENERAL SERVICES ADMINISTRATION OF THE SAME CHARGES HERE PRESENTED. IN VIEW OF THE FOREGOING, YOU ASK WHETHER YOUR ADMINISTRATION MAY REIMBURSE THE CONTRACTOR FOR THE PAYMENT OF THE SAME CHARGES IN THE PRESENT SITUATION.

AS STATED BY YOU, IN OUR DECISION OF APRIL 7, 1960, B-140837, WE HELD THAT A WRITTEN AGREEMENT NOT CONFORMING TO THE ACTUAL INTENTION OF THE PARTIES MAY BE REFORMED TO ACCORD WITH SUCH INTENTION. IT APPEARS TO BE CLEARLY ESTABLISHED IN THE PRESENT SITUATION THAT BOTH PARTIES CONTEMPLATED THAT THE CONTRACTOR SHOULD PAY ONLY THE ORDINARY SEWER CONNECTION FEE OF APPROXIMATELY $18 AND NOT THE ACREAGE AND FRONT FOOT FEES IMPOSED BY THE CITY OF LOS ANGELES IN THE AMOUNT OF $1,904.81. VIEW THEREOF, WE WOULD OFFER NO OBJECTION TO MODIFICATION OF THE CONTRACT TO PROVIDE THAT THE GENERAL SERVICES ADMINISTRATION SHALL REIMBURSE THE CONTRACTOR FOR PAYMENT OF THE REFERRED-TO ACREAGE AND FRONT FOOT FEES.