B-159937, OCT. 18, 1966

B-159937, OCT. 18, 1966

TO ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO LETTER DATED AUGUST 23, 1966, WITH ENCLOSURES, FROM THE ASSOCIATE DEPUTY ADMINISTRATOR RECOMMENDING REFORMATION OF A CONTRACT ENTERED INTO BY THE VETERANS ADMINISTRATION HOSPITAL, LYONS, NEW JERSEY, WITH ANTHONY G. MAZZOCCHI.

IT IS STATED THAT INVITATION FOR BIDS NO. 65-103 WAS ISSUED ON JUNE 3, 1965, FOR THE RELOCATION OF APPROXIMATELY 3,700 CUBIC YARDS OF COAL. THE BIDS WERE OPENED ON JUNE 24, 1965, AND A CONTRACT WAS AWARDED TO ANTHONY G. MAZZOCCHI WHO HAD SUBMITTED THE LOW BID OF $1,460. PURCHASE ORDER NO. 4237 WAS ISSUED TO ANTHONY G. MAZZOCCHI ON JUNE 30, 1965. MR. MAZZOCCHI, UPON COMPLETION OF THE JOB, CLAIMED TO HAVE MOVED 9,700 CUBIC YARDS OF COAL. THE STATION'S ENGINEERING DIVISION'S RECORDS INDICATE THAT 8,142.70 TONS WERE MOVED. TO RESOLVE THE MATTER, RARITAN VALLEY ENGINEERING, A PROFESSIONAL ENGINEERING FIRM, WAS CALLED TO MEASURE THE RELOCATED COAL PILE AND FOUND IT TO BE 4,058 TONS (5,566 CUBIC YARDS OF COAL). ESTIMATED 1,374 TONS WERE USED FROM THE PILE BETWEEN THE TIME THE JOB WAS COMPLETED AND THE TIME IT WAS MEASURED BY RARITAN, INDICATING THAT 5,432 TONS OR 7,451.3 CUBIC YARDS WERE MOVED BY THE CONTRACTOR. THE CUBIC YARDAGE WAS COMPUTED BY USING THE FORMULA OF 1.3717 CUBIC YARDS AS EQUAL TO ONE TON. THE CONTRACTOR AGREED TO RESUBMIT HIS BILL IN THE AMOUNT OF $2,940.28 COMPUTED AT 7,451.3 CUBIC YARDS AT $0.3946 PER CUBIC YARD, WHICH IS THE RATE USED BY THE CONTRACTOR IN PREPARING HIS BID. IT ALSO IS STATED THAT THE UNDER-ESTIMATION OF THE QUANTITY OF COAL IN THE COAL PILE TO BE RELOCATED, STATED IN THE INVITATION FOR BIDS, AROSE THROUGH A MATHEMATICAL ERROR UNDETECTED UNTIL AFTER THE COAL PILE HAD BEEN RELOCATED.

WE DO NOT FIND IN THE FOREGOING FACTUAL SITUATION THE ELEMENTS ESSENTIAL TO REFORMATION OF A CONTRACT. A WRITTEN INSTRUMENT MAY BE REFORMED ONLY IN THOSE CASES WHERE THE PARTIES HAVE IN FACT REACHED ACTUAL AGREEMENT AS TO WHAT THE CONTRACT BETWEEN THEM IS, AND FOR SOME REASON THAT AGREEMENT IS NOT CORRECTLY STATED IN THE WRITTEN INSTRUMENT. IN THE INSTANT CASE BOTH PARTIES WERE IN AGREEMENT AS TO THE MOVING OF A SPECIFICALLY IDENTIFIED PILE OF COAL TO A NEW SPECIFICALLY DESIGNATED LOCATION ABOUT ONE-THIRD MILE AWAY. THE CONTRACT AS WRITTEN ACCURATELY EXPRESSES THIS AGREEMENT.

IT MAY BE TRUE THAT BOTH PARTIES BELIEVED THE PILE OF COAL TO CONTAIN " APPROXIMATELY, 3,700 CUBIC YARDS.' THE AGREEMENT, HOWEVER, WAS TO RELOCATE THE SPECIFIC COAL PILE, NOT TO RELOCATE 3,700 CUBIC YARDS OF COAL, AND BOTH PARTIES KNEW SOME VARIATION IN QUANTITY MIGHT BE EXPECTED. AS A MATTER OF FACT, IF THE DIMENSIONS OF THE COAL PILE AS IT WAS TO BE RELOCATED ("WITHIN THE CONFINES OF AN AREA 85 FT. BY 165 FT. TO AN APPROXIMATE HEIGHT OF 20-INCHES) WERE TO BE TAKEN AS CUBIC DIMENSIONS, THE NEW PILE WOULD CONTAIN OVER 10,000 CUBIC YARDS.

HOWEVER, WE BELIEVE THE DESCRIPTION OF THE QUANTITY IN THE INVITATION AS "APPROXIMATELY 3,700 CUBIC YARDS" WAS SO ERRONEOUS THAT THE CONTRACTOR WAS MISLED AS TO THE AMOUNT OF WORK INVOLVED AND WAS NOT OBLIGATED UNDER HIS CONTRACT TO COMPLETE THE RELOCATION AT THE CONTRACT PRICE. WHILE, ADMITTEDLY, HE WOULD HAVE BEEN OBLIGATED TO RELOCATE THE COAL AT THIS PRICE IF THE ACTUAL QUANTITY HAD NOT BEEN TOO GREATLY IN EXCESS OF 3,700 CUBIC YARDS, AND THE GOVERNMENT WOULD HAVE BEEN OBLIGATED TO PAY THE TOTAL PRICE HAD THE QUANTITY BEEN NOT TOO GREATLY LESS, THE ESTIMATED QUANTITY WAS SO GROSSLY IN ERROR THAT THE CONTRACTOR IS, IN OUR OPINION, ENTITLED TO AN ADJUSTMENT OF THE CONTRACT PRICE. SEE EASTERN SERVICE MANAGEMENT COMPANY V. UNITED STATES 243 F.SUPP. 302.

THE RATE PER CUBIC YARD USED AS A MEASURE FOR DETERMINING THE REASONABLE VALUE OF THE EXTRA WORK IS THE SAME AS THE RATE USED BY THE CONTRACTOR IN THE PREPARATION OF HIS BID AND APPEARS REASONABLE. ACCORDINGLY, PAYMENT OF THE AMOUNT CLAIMED, IF OTHERWISE PROPER, MAY BE MADE TO THE CLAIMANT.

A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER COVERING THE PAYMENT.