B-157899, NOV. 1, 1965

B-157899: Nov 1, 1965

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UNITED STATES ATOMIC ENERGY COMMISSION: REFERENCE IS MADE TO A LETTER DATED OCTOBER 20. THE REQUEST IS PREDICATED UPON A DISCOVERY BY THE CONTRACTING OFFICER THAT THE CONTRACT. AS IT WAS REVISED BY CLAUSE NO. 1 OF MODIFICATION NO. 2. IT WAS INTENDED BY THE CONTRACTOR. 000 AND THAT THIS METHOD OF UTILIZING TWO RATES WAS AGREED UPON TO ALLOW THE CONTRACTOR TO RECOUP HIS OVERHEAD COSTS WHERE THE QUANTITY OF COPY SHEETS PROCESSED BY HIM IN ANY ONE FISCAL YEAR WOULD BE SOME UNKNOWN QUANTITY ABOVE 24. THE WRITTEN INSTRUMENT MAY BE REFORMED IF IT CAN BE ESTABLISHED WHAT THE AGREEMENT ACTUALLY WAS. IT IS THE OPINION OF THIS OFFICE THAT THE CONTRACT MAY BE REFORMED AS REQUESTED BY DELETING SUBITEM B.

B-157899, NOV. 1, 1965

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

REFERENCE IS MADE TO A LETTER DATED OCTOBER 20, 1965, FROM MR. JOHN V. VINCIGUERRA REQUESTING AUTHORIZATION TO REFORM CONTRACT NO. AT (40 1/-3052 PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-3.104 AND 1 2.406-4 (I), IN ORDER THAT IT REFLECT THE TRUE INTENT OF THE PARTIES. THE REQUEST IS PREDICATED UPON A DISCOVERY BY THE CONTRACTING OFFICER THAT THE CONTRACT, AS IT WAS REVISED BY CLAUSE NO. 1 OF MODIFICATION NO. 2, DOES NOT ADEQUATELY REFLECT THE UNDERSTANDING OF THE PARTIES NOW, OR AT THE TIME OF THE EXECUTION OF THE MODIFICATION.

IT WAS INTENDED BY THE CONTRACTOR, DIMITRI R. STEIN, DOING BUSINESS AT THE ATOMIC ENERGY DOCUMENTATION CENTER, AND THE CONTRACTING OFFICER, THAT PAYMENT WOULD BE $0.2042 PER SHEET FOR SPECIFIED TECHNICAL DATA FOR THE FIRST 24,000 DELIVERED AFTER JULY 1, 1965, AND THE FIRST 24,000 DELIVERED AFTER JULY 1, 1964, AS HAD BEEN THE CASE IN THE TWO PREVIOUS FISCAL YEARS. HOWEVER, THE MODIFICATION AS WRITTEN PROVIDES THAT THE PRICE OF $0.2042 PER SHEET APPLIES TO THE FIRST 24,000 DELIVERED AFTER JULY 1, 1964, THROUGH JULY 1, 1966. THE CONTRACT INCLUDES A PRICE OF $0.0792 PER SHEET FOR ALL SHEETS DELIVERED AFTER THE FIRST 24,000.

A MEMORANDUM DATED SEPTEMBER 24, 1965, TO CHARLES W. HILL, YOUR CHIEF COUNSEL, STATES THAT THE REFORMATION WOULD COST THE GOVERNMENT $3,000 AND THAT THIS METHOD OF UTILIZING TWO RATES WAS AGREED UPON TO ALLOW THE CONTRACTOR TO RECOUP HIS OVERHEAD COSTS WHERE THE QUANTITY OF COPY SHEETS PROCESSED BY HIM IN ANY ONE FISCAL YEAR WOULD BE SOME UNKNOWN QUANTITY ABOVE 24,000.

WHERE, BY REASON OF MUTUAL MISTAKE, A CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT AND INTENTION OF THE PARTIES, THE WRITTEN INSTRUMENT MAY BE REFORMED IF IT CAN BE ESTABLISHED WHAT THE AGREEMENT ACTUALLY WAS. SEE 41 COMP. GEN. 34; 36 ID. 507, 509; 3 ID. 220; 20 ID. 533; UNITED STATES V. HURWITZ, 174 F.SUPP. 925; HELD V. UNITED STATES, 63 CT.CL. 392.

ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT THE CONTRACT MAY BE REFORMED AS REQUESTED BY DELETING SUBITEM B. OF ITEM 4 OF ARTICLE III--- PAYMENT, AND SUBSTITUTING IN LIEU THEREOF THE FOLLOWING NEW SUBITEMS B. AND C. SUGGESTED IN THE MEMORANDUM TO MR. HILL:

"B. WITH RESPECT TO THE PERIOD BEGINNING JULY 1, 1964, AND ENDING JUNE 30, 1965: $0.2042 PER SHEET FOR THE FIRST 24,000 COPY SHEETS DELIVERED; AND $0.0792 PER SHEET FOR ALL REMAINING COPY SHEETS DELIVERED.

"C. WITH RESPECT TO THE PERIOD BEGINNING JULY 1, 1965, AND ENDING JUNE 30, 1966: $0.2042 PER SHEET FOR THE FIRST 24,000 COPY SHEETS DELIVERED; AND $0.0792 PER SHEET FOR ALL REMAINING COPY SHEETS DELIVERED.'