B-161195, JANUARY 12, 1968, 47 COMP. GEN. 365

B-161195: Jan 12, 1968

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WHERE THE CONTRACTING OFFICER IS NOT REQUIRED TO COMPARE BID PRICES ON INDIVIDUAL ITEMS. WHERE A 13-PERCENT DIFFERENCE BETWEEN THE LOW AGGREGATE OFFER AND THE NEXT LOWEST AGGREGATE OFFER IS NOT SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. WHICH REFLECTING THE INTENDED AGREEMENT OF THE PARTIES IS CONSIDERED TO HAVE BEEN AWARDED IN GOOD FAITH. THE FACT THAT THE ERROR WAS A MISTAKE IN JUDGMENT ON THE PART OF THE BIDDER. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 3. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH NEGOTIATED GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-OOS- 53583 IS BASED. WHICHEVER IS LATER.

B-161195, JANUARY 12, 1968, 47 COMP. GEN. 365

CONTRACTS - NEGOTIATION - MISTAKES - ITEM ERROR IN AGGREGATE BID UNDER A NEGOTIATED PROCUREMENT PROVIDING FOR AN AWARD OF A REQUIREMENTS CONTRACT IN THE AGGREGATE TO THE LOWEST BIDDER, WHERE THE CONTRACTING OFFICER IS NOT REQUIRED TO COMPARE BID PRICES ON INDIVIDUAL ITEMS, AND WHERE A 13-PERCENT DIFFERENCE BETWEEN THE LOW AGGREGATE OFFER AND THE NEXT LOWEST AGGREGATE OFFER IS NOT SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR, AN ALLEGED MISTAKE IN THE BID PRICE OF ONE ITEM MAY NOT BE CORRECTED, NO MUTUAL MISTAKE HAVING BEEN MADE IN THE DRAWING OF THE CONTRACT, WHICH REFLECTING THE INTENDED AGREEMENT OF THE PARTIES IS CONSIDERED TO HAVE BEEN AWARDED IN GOOD FAITH, AND THE FACT THAT THE ERROR WAS A MISTAKE IN JUDGMENT ON THE PART OF THE BIDDER, AND THAT THE ACTUAL REQUIREMENTS OF THE GOVERNMENT SUBSTANTIALLY EXCEEDED THE ESTIMATED REQUIREMENTS DOES NOT PROVIDE A LEGAL BASIS FOR REFORMING THE CONTRACT OR FOR GRANTING RELIEF BY AN INCREASE IN PRICE.

TO THE HAMMARLUND MANUFACTURING CO., INC., JANUARY 12, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1967, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH NEGOTIATED GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-OOS- 53583 IS BASED.

ON DECEMBER 10, 1965, THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, POD, WASHINGTON, D.C., ISSUED SOLICITATION FOR OFFERS NO. FPNME-W -57107 (ME/-N-12-27-65, REQUESTING QUOTATIONS FOR A 1 YEAR OPEN-END INDEFINITE QUANTITY REQUIREMENTS CONTRACTS FOR VHF-FM 1 AND VHF-FM-5 TRANSCEIVERS AND ACCESSORY ITEMS CONSISTING OF A TOTAL OF 20 ITEMS TO FILL THE REQUIREMENTS OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, AS NEEDED DURING THE PERIOD JANUARY 1, 1966, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH DECEMBER 31, 1966. THE SOLICITATION SPECIFIED BOTH ESTIMATED AND GUARANTEED MINIMUM QUANTITIES. PROSPECTIVE OFFERORS WERE ADVISED IN THE SOLICITATION THAT AWARD WOULD BE MADE TO THE LOWEST RESPONSIVE OFFEROR IN THE AGGREGRATE FOR ALL ITEMS SPECIFIED THEREIN AND OFFERORS WERE REQUIRED TO QUOTE ON ALL ITEMS. FOUR OFFERS WERE RECEIVED AS FOLLOWS:

TOTAL AGGREGATE PRICE

OFFEROR FOB POINT OF ORIGIN DISCOUNT

------- ---------------------- -------- THE HAMMARLUND MFG. CO., $1,786,929--------------- 1 PERCENT---

INC. 20 DAYS. MOTOROLA OVERSEAS CORP-- $2,153,123----------------------- -------- HALLICRAFTERS RADIO INDUS' $2,520,720; $2,450,185 2 PERCENT---

TRIES DIVISION. (ALTERNATE). 20 DAYS.

ON DECEMBER 30, 1965, A REPRESENTATIVE OF YOUR FIRM WAS CONTACTED BY TELEPHONE AND WAS REQUESTED BY THE PROCURING AGENCY TO ASCERTAIN WHETHER YOUR QUOTED PRICES WERE YOUR BEST OFFER. IN THIS CONNECTION, YOU STATE IN YOUR LETTER OF APRIL 3, 1967, THAT AT THAT TIME, YOUR REPRESENTATIVE WAS REQUESTED TO VERIFY WHETHER ALL YOUR COSTS WERE INCLUDED IN YOUR QUOTATIONS. BY LETTER DATED DECEMBER 31, 1965, YOU ADVISED THE CONTRACTING OFFICER THAT YOUR OFFER WAS PREPARED IN ACCORDANCE WITH THE LASTEST PRICING DATA AND THAT IN THE ABSENCE OF ANY NEW CONDITIONS, YOUR INITIAL OFFER SHOULD BE CONSIDERED AS ITS FINAL OFFER. ON JANUARY 10, 1966, CONTRACT NO. GS-OOS-53583 WAS AWARDED TO YOUR FIRM AS THE LOWEST RESPONSIVE OFFEROR. THE RECORD INDICATES THAT THE CONTRACT WAS SUBSEQUENTLY AMENDED ON MARCH 1, 28, 31 AND APRIL 21, 1966.

ON FEBRUARY 2, 1967, YOU ALLEGED THAT YOUR COMPANY HAD SUBMITTED AN EXCEPTIONALLY LOW PRICE OF $32.11 FOR THE FM-5 POWER SUPPLY UNIT COVERED BY ITEM 12 OF YOUR PROPOSAL AND THAT BECAUSE OF SUCH LOW PRICE, YOUR FIRM HAD SUFFERED A LOSS OF APPROXIMATELY $75,000. YOU WERE ADVISED THAT IF A MISTAKE WAS BEING ALLEGED WITH REFERENCE TO ITEM 12, EVIDENCE IN SUPPORT THEREOF SHOULD BE SUBMITTED FOR CONSIDERATION AS TO WHETHER ANY RELIEF COULD BE GRANTED.

IN A LETTER DATED APRIL 3, 1967, TO OUR OFFICE, YOU REQUESTED THAT THE CONTRACT UNIT PRICE FOR THE POWER SUPPLY UNITS COVERD BY ITEM 12 BE INCREASED FROM $31.96 TO $86.75. YOU STATE THAT THE CLOSING DATE FOR SUBMISSION OF OFFERS WAS 5 P.M., DECEMBER 27, 1965, AND THAT UPON RECEIPT OF THE REQUEST FOR PROPOSALS ON DECEMBER 13, 1965, YOU PROCEEDED WITH ALL REASONABLE DILIGENCE CONSISTENT WITH THE LIMITED TIME AVAILABLE TO PREPARE YOUR PRICES. FURTHER, YOU ADVISE THAT IN VIEW OF THE FACT THAT THE POWER SUPPLY UNIT CALLED FOR UNDER ITEM 12 HAD FIRST TO BE DESIGNED BY YOUR FIRM PRIOR TO ESTABLISHMENT OF DETAIL MATERIAL AND PROCESSING REQUIREMENTS, AND SINCE IT WAS NOT POSSIBLE TO DO THIS WITHIN THE LIMITED TIME AVAILABLE FOR SUBMISSION OF PROPOSALS, YOU ATTEMPTED TO ESTABLISH A PRICE BASED ON LESS THAN COMPLETE KNOWLEDGE OF WHAT THE UNIT SHOULD CONSIST AND ESTIMATED THE VALUE OF THE UNIT AT $32.11 EACH. ALTHOUGH YOU BELIEVED THAT THE ESTIMATED PRICE FOR ITEM 12 APPEARED TO BE CONSERVATIVE, BASED ON THE LIMITED KNOWLEDGE THEN AVAILABLE, YOU RECOGNIZED THAT EVEN IF YOUR ESTIMATE FOR ITEM 12 WAS LOW WITHIN THE TOLERANCE OF REASONABLE ESTIMATES, THE NET EFFECT ON TOTAL COSTS WOULD BE NEGLIGIBLE IN THE LIGHT OF THE LIMITED QUANTITIES SPECIFIED FOR ITEM 12 (300 GUARANTEED MINIMUM--- 250 ESTIMATED) WHEN COMPARED TO THE TOTAL SCOPE OF THE PROCUREMENT.

IN YOUR LETTER OF NOVEMBER 14, 1967, YOU STATE THAT IT IS APPARENT FROM THE RECORD THAT AT LEAST THREE VALID PREMISES EXIST UPON WHICH THE REQUESTED RELIEF CAN AND SHOULD BE GRANTED.

THE FIRST PREMISE IS THAT THE CONTRACTING OFFICER SHOULD, IN THIS INSTANCE, BE CHARGED WITH ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISTAKE IN YOUR BID AS HE EITHER KNEW, OR SHOULD HAVE KNOWN, OF THE DEFICIENCY IN YOUR BID PRICE FOR ITEM 12. YOU POINT OUT THAT THE PROCURING AGENCY HAS ADMITTED THAT LESS THAN 6 MONTHS PRIOR TO THE ISSUANCE OF THE SOLICITATION, IT HAD PURCHASED 100 SIMILAR POWER SUPPLY UNITS AT A PRICE OF $112 EACH. YOUR SECOND PREMISE IS THAT THE CONTRACTING OFFICER HAD NOT ONLY THE RIGHT, BUT THE DUTY, TO POINT OUT QUESTIONABLE AREAS OF YOUR PRICING, ESPECIALLY IN THOSE AREAS WHERE THE DIFFERENCE BETWEEN YOUR PRICE AND THE GOVERNMENT'S ESTIMATES, OR THE PRICE OF OTHER OFFERORS, WAS SO GREAT AS TO PLACE HIM ON ACTUAL OR CONSTRUCTIVE NOTICE THAT THE PRICE COULD BE ERRONEOUS.

THE CONTRACTING OFFICER HAS ADVISED US THAT IN THE EVALUATION OF THE OFFERS RECEIVED, IT WAS NOTED THAT THE UNIT PRICES QUOTED ON MOST ITEMS BY YOUR FIRM WERE SUBSTANTIALLY LOWER THAN THE PRICES QUOTED BY OTHER OFFERORS. THE CONTRACTING OFFICER ALSO ADVISED THAT SINCE THE PRICE DIFFERENTIALS WERE SUBSTANTIAL ON MOST ITEMS FOR ALL OFFERORS, HE HAD NO MORE REASON TO SUSPECT A MISTAKE IN YOUR PRICE FOR ITEM 12 THAN FOR ANY OTHER ITEM.

THE RECORD INDICATES THAT YOUR PRICES WERE SUBSTANTIALLY LOWER THAN THOSE OF THE OTHER OFFERORS ON A NUMBER OF ITEMS. THE FOLLOWING IS A COMPARISON OF THE APPROXIMATE PERCENTAGE DIFFERENCES BETWEEN YOUR QUOTATIONS ON THESE ITEMS AND THE QUOTATIONS OF THE SECOND LOWEST OFFEROR: ITEM

PERCENTAGE BY WHICH HAMMARLUND WAS LOWER ---- ---------------- ----------

12 66 PERCENT

2 24 PERCENT

3 61 PERCENT

6 47 PERCENT

13 64 PERCENT

18 66 PERCENT

19 72 PERCENT

20 65 PERCENT

TOTAL EVALUATED PRICE 13 PERCENT

ASSUMING THAT THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN YOUR BID AND THE OTHER BIDS ON ITEM 12, THAT FACTOR IS NOT CONTROLLING UNDER THE CIRCUMSTANCES OF THIS CASE. AS STATED ABOVE, THE SOLICITATION PROVIDED FOR AN AWARD IN THE AGGREGATE. IN OTHER WORDS, AWARD WAS REQUIRED TO BE MADE TO THE LOWEST AGGREGATE BIDDER. OUR OFFICE AND THE COURTS HAVE HELD THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE 17 COMP. GEN. 534, 42 ID. 383. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR PRIOR TO AWARD. HE ALSO NOTED THAT THE DIFFERENCE BETWEEN YOUR LOW AGGREGATE OFFER AND THE NEXT LOWEST AGGREGATE OFFER WAS ONLY 13 PERCENT. IN OUR VIEW, THIS 13-PERCENT DISCREPANCY WAS NOT SUFFICIENTLY GREAT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE CLAIMED MISTAKE. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY YOUR FIRM UNTIL MORE THAN A YEAR AFTER DATE OF THE AWARD. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249, 259, AND SALIGMAN V UNITED STATES, 56 F.SUPP. 505, 507.

ATTENTION IS ALSO INVITED TO THE CASE OF ALLIED CONTRACTORS, INC. V UNITED STATES, 159 CT. CL. 548. IN THAT CASE THE INVITATION FOR BIDS PROVIDED THAT THE WORK INVOLVED WOULD "BE AWARDED AS A WHOLE TO ONE BIDDER.' THERE WAS A GREAT DISCREPANCY BETWEEN THE PLAINTIFF'S BID AND THE OTHER BIDS ON ONE ITEM. HOWEVER, THE COURT FOUND THAT THE VARIANCE WAS NOT SUCH AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR SINCE HIS ATTENTION WAS DIRECTED PRIMARILY TO THE OVERALL BID, AND SINCE ON SUCH BASIS THE PLAINTIFF'S BID WAS IN LINE WITH OTHERS, THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER SUSPECT A MISTAKE HAD BEEN MADE AND THE PLAINTIFF'S PETITION WAS DISMISSED.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS THAT OF A BIDDER. SEE FRAIZER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163. IF, AS APPEARS FROM THE RECORD IN THIS CASE, YOU UNDERESTIMATED THE COST OF MANUFACTURING THE POWER SUPPLY UNIT COVERED BY ITEM 12, SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE. ANY ERROR THAT WAS MADE IN YOUR OFFER WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, THERE IS NO BASIS FOR GRANTING YOU RELIEF. SEE 40 COMP. GEN. 326, 332. MOREOVER, IN VIEW OF YOUR STATEMENT THAT YOU "ATTEMPTED TO ESTABLISH A PRICE BASED ON LESS THAN COMPLETE KNOWLEDGE OF WHAT THE UNIT SHOULD CONSIST," IT APPEARS THAT THE ALLEGED ERROR IN YOUR OFFER WAS A MISTAKE IN JUDGMENT, FOR WHICH RELIEF MAY NOT BE GRANTED AFTER ACCEPTANCE IN GOOD FAITH WITHOUT PRIOR NOTICE, ACTUAL OR CONSTRUCTIVE, OF ANY ERROR IN THE OFFER. WHEN SUBMITTED THE OFFER WAS AS INTENDED. CONSEQUENTLY, THE CONCLUSION IS WARRANTED THAT YOUR REQUEST FOR RELIEF IN THIS CASE IS SOLELY AN ATTEMPT TO AVOID THE CONSEQUENCES OF WHAT HAS BECOME AN ILL-ADVISED OFFER. SEE 11 COMP. GEN. 445; 14 ID. 612.

YOUR THIRD PREMISE IS THAT THE ESTIMATED QUANTITIES FOR ITEM 12 AS STATED BY THE PROCURING AGENCY IN ITS REQUEST FOR PROPOSALS, UPON WHICH YOUR FIRM RELIED UPON IN ESTABLISHING YOUR PRICE FOR ITEM 12, WERE SO ERRONEOUSLY UNDERSTATED AS TO FALL FAR BEYOND THE BOUNDS OF REASONABLENESS AND, THUS, MAY BE CATEGORIZED AS A MUTUAL MISTAKE. IN THAT CONNECTION, YOU POINT OUT THAT IN THE REQUEST FOR PROPOSALS THE PROCURING AGENCY SHOWED THE ESTIMATED QUANTITY OF ITEM 12 TO BE PROCURED AS 250 UNITS WITH A GUARANTEED MINIMUM QUANTITY OF 300 UNITS. YOU STATE THAT DURING THE CONTRACT PERIOD, THE PROCURING AGENCY ACTUALLY ORDERED, AND YOUR FIRM ULTIMATELY DELIVERED, A TOTAL OF 1,421 UNITS, WHICH QUANTITY WAS APPROXIMATELY 568 PERCENT OF THOSE ESTIMATED AND 473 PERCENT OF THOSE GUARANTEED UNDER ITEM 12. IN THIS REGARD, YOU REFER TO OUR DECISION OF SEPTEMBER 9, 1960, B-143438, WHICH HELD, IN YOUR OPINION, THAT WHEN ACTUAL REQUIREMENTS EXCEED ESTIMATED REQUIREMENTS BY MORE THAN 100 PERCENT UNDER A REQUIREMENTS TYPE CONTRACT, SUCH AS HERE, IT IS TO BE CONSIDERED A UNILATERAL MISTAKE BY THE GOVERNMENT. ON THIS BASIS, YOU CONTEND THAT SO GREAT A VARIANCE BETWEEN ESTIMATED AND ACTUAL QUANTITIES INVOLVED HERE MUST BE CATEGORIZED AS A MISTAKE SINCE THE STATED ESTIMATED QUANTITIES MAY NOT BE CONSIDERED AS A REASONABLE ESTIMATE OF QUANTITY. WHILE WE DID ACKNOWLEDGE IN OUR SEPTEMBER 9, 1960, DECISION THAT A UNILATERAL MISTAKE WAS MADE BY THE GOVERNMENT IN ESTIMATING THE QUANTITIES OF TRASH TO BE REMOVED AND DISPOSED OF BY THE CONTRACTOR, WE HELD THAT A MISTAKE BY ONE PARTY COUPLED WITH THE IGNORANCE THEREOF BY THE OTHER PARTY DOES NOT CONSTITUTE A MUTUAL MISTAKE AS TO WHICH A LEGAL BASIS EXISTS FOR REFORMATION OF THE CONTRACT UNDER THE ESTABLISHED PRINCIPLES APPLICABLE THERETO.

THE CONTRACT HERE INVOLVED PROVIDED THAT THE ESTIMATED QUANTITIES WERE FOR THE INFORMATION OF OFFERORS ONLY AND THAT "THE CONTRACTOR IS OBLIGATED TO DELIVER HEREUNDER ALL SUCH QUANTITIES AS MAY BE SO ORDERED FROM TIME TO TIME TO MEET SUPPLY REQUIREMENTS.' IT FURTHER PROVIDED THAT THE STATED ESTIMATED REQUIREMENTS OF THE GOVERNMENT "SHALL NOT BE CONSTRUED TO REPRESENT ANY AMOUNT WHICH THE GOVERNMENT SHALL BE OBLIGATED TO PURCHASE UNDER THE CONTRACT NOR RELIEVE THE CONTRACTOR OF HIS OBLIGATION TO FILL ALL ORDERS WHICH MAY BE PLACED HEREUNDER.' MOREOVER, OFFERORS WERE PERMITTED TO SUBMIT WITH THEIR OFFERS LIMITATIONS ON THE QUANTITY OF ANY ITEM WHICH MAY BE ORDERED ON ORDERS WHICH ARE ISSUED FOR QUANTITIES IN EXCESS OF THE GUARANTEED MINIMUM QUANTITY. SINCE YOU DID NOT LIMIT THE QUANTITY YOU WOULD FURNISH UNDER ITEM 12, YOU WERE OBLIGATED TO DELIVER ALL QUANTITIES ORDERED BY THE GOVERNMENT TO MEET ITS NEEDS FOR THE EQUIPMENT COVERED BY ITEM 12.

UNDER A REQUIREMENTS CONTRACT, SUCH AS HERE, WHERE THE CONTRACT PROVIDES THAT THE QUANTITIES MENTIONED ARE ESTIMATES ONLY AND THE MEASURE OF GOODS TO BE ORDERED MUST BE THE NEEDS OF THE BUYERS, THE COURTS HAVE HELD THAT THERE MAY BE SUBSTANTIAL VARIATIONS FROM THE ESTIMATES AS LONG AS THE BUYER ACTS IN GOOD FAITH. BRAWLEY V UNITED STATES, 96 U.S. 168; JAMES D. WALTERS V UNITED STATES, 131 CT. CL. 218; SHADER CONTRACTORS, INC. ET AL. V UNITED STATES, 149 CT. CL. 535; STANDARD MAGNESIUM CORPORATION V UNITED STATES, 241 F.2D 677; AND 37 COMP. GEN. 688. SEE, IN PARTICULAR, THE CASE OF CARSTENS PACKING CO. V UNITED STATES, 52 CT. CL. 430, WHERE THE PLAINTIFF ENTERED INTO A CONTRACT WITH THE UNITED STATES FOR THE DELIVERY AT THE PUGET SOUND NAVY YARD OF 165,000 POUNDS OF MEAT, MORE OR LESS, WITH THE PROVISION THAT THE QUANTITIES CALLED FOR IN THE CONTRACT WERE ONLY ESTIMATED AND THE RIGHTS WAS RESERVED TO EXACT MORE THAN THE AMOUNT AT THE CONTRACT PRICE, OR TO ACCEPT LESS THAN THE FULL AMOUNT, AS THE NEEDS OF THE PUBLIC SERVICE MIGHT REQUIRE. AFTER THE CONTRACT WAS EXCUTED, THE PRICE OF MEATS INCREASED AND AFTER THE CONTRACTOR HAD DELIVERED, UNDER PROTEST, ABOUT 900,000 POUNDS OF MEAT, IT SOUGHT THE AID OF THE COURT TO RECOUP ITS PECUNIARY LOSSES. THE COURT HELD THAT THE CONTRACTOR WAS NOT ENTITLED TO ANY MONETARY RELIEF AND THAT IT WAS REQUIRED TO FURNISH THE QUANTITIES DETERMINED BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT AS NECESSARY TO THE NEEDS OF THE PUBLIC SERVICE.

WITH REGARD TO YOUR REQUEST TO REFORM THE CONTRACT BECAUSE OF AN ALLEGED MUTUAL MISTAKE OF THE PARTIES IN ESTIMATING THE QUANTITY OF POWER SUPPLIES TO BE PROCURED UNDER ITEM 12, THERE IS NO LEGAL JUSTIFICATION FOR SUCH ACTION HERE. REFORMATION OF AN INSTRUMENT MUST BE PREDICATED UPON THE MUTUAL MISTAKE OF THE PARTIES, AS WHERE THE CONTRACT, AS FINALLY DRAWN, DOES NOT REFLECT THE ACTUAL INTENT OF THE PARTIES AND IT IS ESTABLISHED CLEARLY WHAT THE CONTRACT ACTUALLY WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKE. 30 COMP. GEN. 220; 26 ID. 899; 37 ID. 688; 20 ID. 533. THE PURPOSE OF REFORMATION IS NOT TO MAKE A NEW AGREEMENT BETWEEN THE PARTIES, BUT, RATHER, TO ESTABLISH THE ALREADY EXISTING ONE. IN ORDER TO JUSTIFY THE REFORMATION OF ANY INSTRUMENT, THE MUTUAL MISTAKE MUST HAVE BEEN IN DRAWING THE INSTRUMENT AND NOT IN MAKING THE CONTRACT OUT OF WHICH IT GREW OR WHICH IT EVIDENCES. SEE 76 C.J.S., REFORMATION OF INSTRUMENTS, SEC. 25 (C),AND AUTHORITIES THERE CITED.

APPLYING THE ABOVE RULES TO THE PRESENT CASE, THERE CAN BE NO DOUBT THAT THE CONTRACT, AS MADE, WAS THE INTENDED AGREEMENT OF THE PARTIES. WHILE A MISTAKE MAY HAVE BEEN MADE IN ESTIMATING THE QUANTITY OF POWER SUPPLIES TO BE PROCURED, THERE IS NO EVIDENCE IN THE RECORD THAT YOU OR THE GOVERNMENT WERE AWARE OF THE ACTUAL QUANTITIES TO BE ORDERED PRIOR TO THE REDUCTION OF THE AGREEMENT TO WRITING. NOR WAS THERE ANY MISTAKE IN DRAWING THE CONTRACT; AS FINALLY FORMALIZED IT CLEARLY EXPRESSED THE INTENTION AND AGREEMENT OF THE PARTIES. UPON ACCEPTANCE OF YOUR OFFER, THE CONTRACT WAS COMPLETE. UNDER THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT THERE IS NO LEGAL BASIS FOR REFORMING THE CONTRACT OR FOR GRANTING RELIEF BY AN INCREASE IN PRICE FOR ANY OF THE POWER SUPPLY UNITS ORDERED AND FURNISHED TO THE GOVERNMENT.