B-16709, MAY 15, 1941, 20 COMP. GEN. 782

B-16709: May 15, 1941

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REQUESTS FOR DECISIONS IN SUCH MATTERS WILL BE GIVEN CONSIDERATION WHEN SUBMITTED DIRECTLY BY A CONTRACTING OFFICER. 1941: I HAVE YOUR LETTER OF MAY 8. (28 STAT. 208) ADVANCE DECISION IS REQUESTED UPON THE FOLLOWING MATTER: IN ADMINISTERING CONTRACTS FOR THE PRODUCTION OF ORDNANCE SUPPLIES. WHICH WERE NEGOTIATED UNDER THE AUTHORITY OF PUBLIC 703. WHICH WERE AGREED UPON DURING THE NEGOTIATIONS. WERE OMITTED FROM THE WRITTEN INSTRUMENT. A TYPICAL SITUATION IS THE FOLLOWING: WITH RESPECT TO CONTRACT NO. THE CONTRACTOR HAD IN HIS POSSESSION CERTAIN MACHINE TOOLS OWNED BY THE GOVERNMENT WHICH WERE BEING USED IN THE PERFORMANCE OF AN EDUCATIONAL ORDER CONTRACT. THROUGHOUT THE NEGOTIATIONS IT WAS RECOGNIZED BY ALL PARTIES THAT THESE MACHINE TOOLS WOULD BE USED IN THE PERFORMANCE OF THE PRODUCTION ORDER CONTRACT AND THAT THE PRICE ARRIVED AT WAS PREDICATED UPON USE BY THE CONTRACTOR OF SUCH GOVERNMENT-OWNED TOOLS.

B-16709, MAY 15, 1941, 20 COMP. GEN. 782

CONTRACTS - REFORMATION - JURISDICTION ADMINISTRATIVE OFFICERS OF THE GOVERNMENT MAY NOT REFORM CONTRACTS UNDER WHICH THE UNITED STATES HAS OBTAINED VESTED RIGHTS. THE ACCOUNTING OFFICERS OF THE GOVERNMENT, ON SUBMISSION TO THEM OF THE FACTS FULLY JUSTIFYING, MAY AUTHORIZE ADJUSTMENTS MADE NECESSARY BY MUTUAL MISTAKES IN, OR OMISSIONS FROM, CONTRACTS. IN ANY CASE INVOLVING A CONTRACT NEGOTIATED BY THE WAR DEPARTMENT UNDER AUTHORITY OF PUBLIC, NO. 703, APPROVED JULY 2, 1940, WHERE IT MAY APPEAR THAT THERE HAS BEEN A MUTUAL MISTAKE AND THAT THE CONTRACT DOES NOT EXPRESS THE REAL AND ENTIRE AGREEMENT OF THE PARTIES, THERE SHOULD BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE, PRIOR TO ANY CHANGE IN OR ADDITION TO THE CONTRACT, EVIDENCE TENDING TO ESTABLISH CLEARLY THE TRUE INTENT OF THE PARTIES, AND REQUESTS FOR DECISIONS IN SUCH MATTERS WILL BE GIVEN CONSIDERATION WHEN SUBMITTED DIRECTLY BY A CONTRACTING OFFICER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, MAY 15, 1941:

I HAVE YOUR LETTER OF MAY 8, 1941, AS FOLLOWS:

UNDER THE AUTHORITY OF THE ACT OF JULY 31, 1894, (28 STAT. 208) ADVANCE DECISION IS REQUESTED UPON THE FOLLOWING MATTER:

IN ADMINISTERING CONTRACTS FOR THE PRODUCTION OF ORDNANCE SUPPLIES, WHICH WERE NEGOTIATED UNDER THE AUTHORITY OF PUBLIC 703, 76TH CONGRESS, APPROVED JULY 2, 1940, IT HAS BEEN DISCOVERED IN SEVERAL INSTANCES THAT BY INADVERTENCE CERTAIN PROVISIONS, WHICH WERE AGREED UPON DURING THE NEGOTIATIONS, WERE OMITTED FROM THE WRITTEN INSTRUMENT. A TYPICAL SITUATION IS THE FOLLOWING:

WITH RESPECT TO CONTRACT NO. W-478-ORD-1305, THE CONTRACTOR HAD IN HIS POSSESSION CERTAIN MACHINE TOOLS OWNED BY THE GOVERNMENT WHICH WERE BEING USED IN THE PERFORMANCE OF AN EDUCATIONAL ORDER CONTRACT. THE CONTRACTOR ENTERED INTO NEGOTIATIONS WITH THE GOVERNMENT FOR A PRODUCTION ORDER CONTRACT. THROUGHOUT THE NEGOTIATIONS IT WAS RECOGNIZED BY ALL PARTIES THAT THESE MACHINE TOOLS WOULD BE USED IN THE PERFORMANCE OF THE PRODUCTION ORDER CONTRACT AND THAT THE PRICE ARRIVED AT WAS PREDICATED UPON USE BY THE CONTRACTOR OF SUCH GOVERNMENT-OWNED TOOLS. A STIPULATION TO THAT EFFECT WAS INCLUDED IN THE REPORT OF NEGOTIATIONS WHICH WAS SUBMITTED TO THE CHIEF OF ORDNANCE AND APPROVED BY HIM IN ACCORDANCE WITH THE CUSTOMARY PROCEDURE. HOWEVER, WHEN THE CONTRACT WAS DRAFTED, AN ARTICLE PERMITTING THE USE OF GOVERNMENT-OWNED MACHINE TOOLS WAS INADVERTENTLY OMITTED. THIS OMISSION WAS NOT DISCOVERED UNTIL AFTER THE CONTRACT WAS COMPLETELY EXECUTED AND APPROVED.

IN THE CASE OF CONTRACT NO. W-294-ORD-710, THE SITUATION IS GENERALLY THE SAME EXCEPT THAT THE ARTICLE WHICH WAS INADVERTENTLY OMITTED WOULD HAVE PROVIDED THAT IF CERTAIN SPECIFIED MACHINE TOOLS WERE NOT RECEIVED BY THE CONTRACTOR ON OR BEFORE CERTAIN SPECIFIED DATES, THE TIME FOR PERFORMANCE OF THE CONTRACT WOULD BE EXTENDED BY THE NUMBER OF DAYS BY WHICH RECEIPT OF SUCH MACHINE TOOLS WAS LATE. AS TO EVIDENCE OF INTENTION, WHILE THIS ITEM IS NOT ONE WHICH IS INCLUDED ON THE REPORT OF NEGOTIATIONS, CONTRACT NO. W-294-ORD-711 BETWEEN THE SAME PARTIES, ENTERED INTO ONE MONTH PREVIOUSLY CONTAINED THE ARTICLE IN QUESTION AND CERTAIN OF THE MACHINE TOOLS LISTED IN THIS ARTICLE 31 OF CONTRACT NO. W-294-ORD-711 ARE NECESSARY ALSO IN THE MANUFACTURE OF THE ITEMS COVERED BY CONTRACT NO. W- 294-ORD-710. FURTHER, THE CONTRACTING OFFICER STATES THAT IT WAS MUTUALLY INTENDED TO INCLUDE IN CONTRACT NO. W-294-ORD-710 AN ARTICLE CORRESPONDING TO ARTICLE 31 OF CONTRACT NO. W-294-ORD-711. ONE SUCH TOOL WAS NOT RECEIVED ON TIME, WITH THE CONSEQUENCE THAT THE CONTRACTOR WAS UNABLE TO MAKE THE FIRST DELIVERY ON SCHEDULE AND BECAME LIABLE FOR LIQUIDATED DAMAGES.

IT IS DESIRED TO EXPAND THESE CONTRACTS BY SUPPLEMENTAL AGREEMENTS, SO AS TO INSERT THE OMITTED ARTICLES. HOWEVER, SOME DOUBT AS TO THE PROPRIETY OF SUCH ACTION IS RAISED BY 27 COMP. DEC. 109. THIS STATES IN PART:

" THIS OFFICE HAS TAKEN THE POSITION, I THINK UNIFORMLY, THAT THE REFORMATION OF A WRITTEN CONTRACT MADE UNDER SECTION 3744, REVISED STATUTES, IS TO BE EFFECTED IN CASE OF MUTUAL MISTAKE BY THE PRODUCTION OF CLEAR EVIDENCE ON BOTH SIDES AS TO THE NATURE OF THE MISTAKE AND HOW IT OCCURRED AND AS TO THE INTENTION EACH PARTY HAD WHEN SIGNING THE WRITTEN AGREEMENT. IT IS HELD, ALSO, THAT REFORMATION IS ACCOMPLISHED NOT BY ANY WRITING IN THE FORM OF A SUPPLEMENTAL CONTRACT OR SUPPLEMENTAL AGREEMENT MERELY RECITING THE ALLEGED MUTUAL MISTAKE, BUT BY PROOF OF SUCH MISTAKE AND THE READING OF THE CONTRACT HAD READ IN ACCORDANCE WITH THE FACTS ESTABLISHED AS TO THE REAL INTENTION OF THE PARTIES WHEN THEY ENTERED INTO IT.

" THIS OFFICE HAS NOTICED THAT SOME DEPARTMENTS OF THE GOVERNMENT HAVE MADE USE OF SO-CALLED SUPPLEMENTAL CONTRACTS FOR THE PURPOSE OF CORRECTING ALLEGED MISTAKES OF FACT. SUCH PAPERS ARE OF LITTLE IF ANY VALUE AND CERTAINLY CANNOT BE ACCEPTED BY THE ACCOUNTING OFFICERS OF THE TREASURY AS CONCLUSIVELY ESTABLISHING THE EXISTENCE OR EXTENT OF THE ALLEGED MISTAKE. I THINK IT HAS BEEN WELL ESTABLISHED AS A MATTER OF PROCEDURE THAT DISBURSING OFFICERS SHOULD PAY LIABILITIES ARISING UNDER WRITTEN CONTRACTS IN ACCORDANCE WITH THE TERMS OF SUCH CONTRACTS EXECUTED UNDER PROVISIONS OF LAW AND THAT ANY ADDITIONAL PAYMENT THAT MAY BE CLAIMED BY THE CONTRACTOR SHOULD BE RECEIVED BY HIM AFTER THE EVIDENCE OF THE MUTUAL MISTAKE OF FACT HAS BEEN PRESENTED TO THE PROPER AUDITOR OF THE TREASURY AND GIVEN CONSIDERATION IN CONNECTION WITH THE CLAIM OF THE CONTRACTOR FOR PAYMENT IN EXCESS OF THAT PROVIDED FOR IN THE WRITTEN INSTRUMENT.'

DESPITE THE BROAD LANGUAGE USED, IT IS SUGGESTED THAT THERE ARE CERTAIN DISTINGUISHING FEATURES WHICH MAKE THAT DECISION NOT WHOLLY APPLICABLE TO THE MATTERS AT HAND.

THE INADVERTENT OMISSION OF AN AGREED UPON ARTICLE DOES NOT SEEM TO BE THE KIND OF "MUTUAL MISTAKE" REFERRED TO BY THE COMPTROLLER OF THE TREASURY. CERTAIN LANGUAGE IN THE OPINION INDICATES THAT HE HAD, IN MIND A SITUATION WHERE A PROVISION WRITTEN IN THE CONTRACT DOES NOT EXPRESS THE TRUE INTENTION OF THE PARTIES, AS, FOR INSTANCE, WHERE THE PRICE STATED IN THE CONTRACT IS NOT THE PRICE PREVIOUSLY AGREED UPON. THE TERM "MUTUAL MISTAKE OF FACT," AS USED IN THE OPINION, SEEMS TO IMPLY AN INCONSISTENCY BETWEEN THE WRITING AND THE CLAIMED INTENTION IN MATTERS OTHER THAN THE INVOLVING MERE FORMAL ERRORS. WHERE THE AGREEMENT AS REDUCED TO WRITING OMITS OR CONTAINS THE TERMS OR STIPULATIONS CONTRARY TO THE COMMON INTENTION OF THE PARTIES, THE INSTRUMENT SHOULD BE CORRECTED SO AS TO MAKE IT CONFORM TO THEIR REAL INTENT. THE EVIDENCE MUST BE SUCH AS TO LEAVE NO REASONABLE DOUBT AS TO EITHER OF THESE POSSIBLE SITUATIONS.

HERE, THERE IS NO SUCH INCONSISTENCY. INCLUSION IN EACH OF THE CASES CITED AS EXAMPLES, OF THE ARTICLE WHICH WAS OMITTED WOULD NOT VARY THE TERMS OF ANY OTHER ARTICLE OF THE CONTRACT AS IT NOW STANDS. THERE WOULD MERELY BE SOMETHING ADDED, A POINT WHICH WAS UNDERSTOOD BUT NOT COMMITTED TO WRITING. THE ONLY VARIANCE WHICH COULD POSSIBLY BE ASSERTED WOULD BE THE GRANTING OF SOME BENEFIT TO THE CONTRACTOR WHICH, BECAUSE IT WAS NOT AFFIRMATIVELY GRANTED IN THE ORIGINAL CONTRACT, BY IMPLICATION WAS INTENDED TO BE WITHHELD AND WOULD REQUIRE REDUCTION OF THE CONTRACT PRICE.

IT IS A PHYSICAL IMPOSSIBILITY TO COMMIT TO WRITING EVERY DETAIL OF THE UNDERSTANDING WHICH IS THE BASIS OF A CONTRACT. THERE ARE ALWAYS SOME DETAILS WHICH ARE TACITLY UNDERSTOOD AS BEING PART OF THE BARGAIN. WOULD SEEM ALWAYS PERMISSIBLE TO PUT ONE OF THESE DETAILS INTO WRITING AT SOME LATER DATE IN ORDER TO CLARIFY PERFORMANCE. CONCEDING THAT PROVISIONS SUCH AS WERE OMITTED IN THE CITED EXAMPLES ARE SUFFICIENTLY IMPORTANT TO WARRANT INCLUSION IN THE ORIGINAL WRITING, AND CONCEDING THAT IT WAS INTENDED TO DO SO, THE "MISTAKE" OF SIGNING A CONTRACT WHICH DID NOT INCLUDE THE PROVISION IN QUESTION STILL DOES NOT APPEAR TO BE A "MUTUAL MISTAKE OF FACT" WHICH CANNOT PROPERLY BE CORRECTED BY A SUPPLEMENTAL AGREEMENT.

EVEN IN THE EVENT THE INADVERTENT OMISSIONS DESCRIBED ARE CONSIDERED AS "MUTUAL MISTAKES" WITHIN THE MEANING OF THE COMPTROLLER'S DECISION, THERE APPEAR TO BE CERTAIN OTHER GROUNDS FOR NOT APPLYING THAT DECISION TO THE INSTANT CASES.

IN THE FIRST PLACE, THE EFFECT OF THE SUPPLEMENTAL AGREEMENT CONSIDERED BY THE COMPTROLLER OF THE TREASURY WOULD HAVE BEEN TO INCREASE PAYMENTS TO THE CONTRACTOR TO AN AMOUNT OVER AND ABOVE THE CONTRACT PRICE. NO SUCH EFFECT IS PRESENTED IN THE INSTANT CASES. IN BOTH EXAMPLES THE CONTRACT PRICE IS UNCHANGED. IN ONE EXAMPLE NO MONEY AT ALL IS INVOLVED; IN THE SECOND, THE MONEY INVOLVED IS MERELY THE MEASURE OF DAMAGES, WHICH THE CONTRACTING OFFICER COULD WAIVE UPON A FINDING OF FACT THAT THE GOVERNMENT WAS RESPONSIBLE FOR THE DELAY.

IN THE SECOND PLACE, THE PROBLEM IS ONE OF ADMINISTRATION OF CONTRACTS RATHER THAN FINAL SETTLEMENT. THE RIGHTS OF THE PARTIES MUST BE ESTABLISHED AT ONCE AS TO TERMS OF THE CONTRACT WHICH RELATE TO CONDITIONS OF PRODUCTION AND NOT MERELY THE AMOUNT OF MONEY TO BE PAID AFTER COMPLETION. QUESTIONS SUCH AS WHETHER THE CONTRACTOR IS ENTITLED TO USE CERTAIN MACHINE TOOLS MUST BE SETTLED IMMEDIATELY IN ORDER THAT PRODUCTION MAY GO FORWARD.

FINALLY, THE CONDITIONS OF THE PRESENT EMERGENCY SEEM TO PRESENT A STRONG CASE FOR REFORMATION OF CONTRACTS BY SUPPLEMENTAL AGREEMENT. THE LARGE NUMBER OF CONTRACTS WHICH ARE BEING ENTERED INTO, THE USE OF THE PROCESS OF NEGOTIATION INSTEAD OF THE MORE FORMAL BID AND AWARDS, THE DEMAND FOR SPEED IN EXECUTING THESE CONTRACTS AS SOON AS NEGOTIATIONS HAVE BEEN COMPLETED, AND THE UNAVOIDABLE USE OF INEXPERIENCED PERSONNEL HAVE HAD THE UNFORTUNATE CONCOMITANT OF MISTAKES SUCH AS DESCRIBED ABOVE. IT IS BELIEVED THAT THE NATIONAL DEFENSE PROGRAM WILL BE FURTHERED IF THESE FEW MISTAKES CAN BE CORRECTED AS SOON AS THEY ARE NOTICED. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE FACT THAT A CONTRACTING OFFICER DOES NOT HAVE A RIGHT TO REQUEST AN ADVANCE DECISION IN SUCH MATTERS UNLESS BY REQUEST OF THE HEAD OF THE DEPARTMENT. SEE ACT OF JULY 31, 1894 (28 STAT. 208, 31 U.S.C. 74). IF IT WERE POSSIBLE FOR THE CONTRACTING OFFICER TO REQUEST ADVANCE DECISIONS IN THE SAME MANNER AS DISBURSING OFFICERS, MANY IMPORTANT DECISIONS COULD BE SECURED WITH A MINIMUM OF DELAY IN THE ADMINISTRATION OF GOVERNMENT CONTRACTS. YOUR DECISION IN 16 COMP. GEN. 565 HAS NOT BEEN OVERLOOKED. HOWEVER, IF AN AFFIRMATIVE DECISION COULD BE RENDERED AT THIS TIME AUTHORIZING CONTRACTING OFFICERS TO REQUEST ADVANCE DECISIONS IN SIMILAR MATTERS AS ARE AUTHORIZED BY DISBURSING OFFICERS OF THE GOVERNMENT, THE RESULT WOULD BE GREATLY BENEFICIAL TO THE EXECUTIVE ESTABLISHMENTS OF THE GOVERNMENT AS WELL AS TO ENABLE YOUR OFFICE TO RENDER DECISIONS PROMPTLY AT THE TIME MATTER AT ISSUE ARISES. PRODUCTION WILL NO DOUBT BE EXPEDITED BY THE REMOVING OF AS MANY UNCERTAINTIES AS POSSIBLE FROM THE PERFORMANCE OF THESE CONTRACTS.

YOUR OPINION IS REQUESTED WHETHER SUPPLEMENTAL AGREEMENTS MAY BE ENTERED INTO TO CORRECT MUTUAL MISTAKES (1) INVOLVING NO MONEY BUT MERELY A CONDITION OF PERFORMANCE AND (2) INVOLVING DELIVERY DATES AND APPLICATION OF LIQUIDATED DAMAGES PROVISIONS, AND WHETHER CONTRACTING OFFICERS MAY REQUEST ADVANCE DECISIONS.

IN VIEW OF THE URGENCY OF THE SITUATION, AN EARLY REPLY WILL BE APPRECIATED.

ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO REFORM CONTRACTS UNDER WHICH THE UNITED STATES HAS OBTAINED VESTED RIGHTS. REFORMATION OF CONTRACTS IS A JUDICIAL, RATHER THAN AN ADMINISTRATIVE, FUNCTION, AND MAY BE EFFECTED ONLY WHERE THE FACTS FULLY JUSTIFY SUCH ACTION. SEE HYGIENIC FIBRE CO. V. UNITED STATES, 59 CT. CLS. 598; AND AMERICAN SALES CORPORATION V. UNITED STATES, 27 F./2D) 389, AFFIRMED 32 ID. 141, AND CERTIORARI DENIED, 280 U.S. 574. SEE, ALSO, 18 COMP. GEN. 114, 116.

WITH REFERENCE TO THE SCOPE OF THE DECISION REPORTED IN 27 COMP. DEC. 109, QUOTED IN PART IN YOUR LETTER, IT MAY BE NOTED THAT SAID DECISION HELD, ALSO, ON PAGE 110 THAT---

THE PURPOSE OF THE LAWS REQUIRING CONTRACTS OF THE WAR DEPARTMENT TO BE IN WRITING AND SIGNED AT THE END THEREOF BY THE CONTRACTING PARTIES IS NOT CARRIED OUT, IT SEEMS TO ME, IF THE REFORMATION OF A CONTRACT IS TO BE PERMITTED UPON ANY EXCEPT CONCLUSIVE PROOF THAT THE WRITTEN CONTRACT DID NOT CARRY OUT THE INTENTION OF BOTH PARTIES AND SATISFACTORY EVIDENCE IS PRODUCED TO SHOW AS TO EACH PARTY WHAT WAS THE REAL AGREEMENT ENTERED INTO FROM WHICH MAY BE DECIDED WHAT WAS THE MUTUAL MISTAKE BY WHICH THE CONTRACT IN FORM REQUIRED BY LAW DID NOT CARRY OUT THE REAL INTENTION. UNITED STATES V. MILLIKEN CO., 202 U.S. 186; CRAMP V. UNITED STATES, 239 U.S., 221; ACKERLIND V. UNITED STATES, 280 U.S., 531.

THE JURISDICTION BEING IN THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO MAKE FINAL DETERMINATION--- INSOFAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED--- AS TO THE VALIDITY OF PAYMENTS UNDER CONTRACTS, THE PROCEDURE HAS LONG BEEN, AND OPERATES TO SAVE THE COST AND DELAY OF LITIGATION, ON SUBMISSION TO THEM OF THE FACTS FULLY JUSTIFYING, TO AUTHORIZE ADJUSTMENTS MADE NECESSARY BY REASON OF MUTUAL MISTAKES OR OMISSIONS. 15 COMP. GEN. 238, 240.

WITH RESPECT TO CONTRACT NO. W-478-ORD-1305, IN VIEW OF YOUR SPECIFIC REPORT THAT THE PRICE ARRIVED AT THEREUNDER WAS PREDICATED UPON USE BY THE CONTRACTOR OF CERTAIN GOVERNMENT-OWNED TOOLS AND THAT A STIPULATION TO THAT EFFECT WAS INCLUDED IN THE REPORT OF NEGOTIATIONS SUBMITTED TO AND APPROVED BY THE CHIEF OF ORDNANCE, IT SEEMS APPARENT THAT SUCH CONTRACT, AS REDUCED TO WRITING, DID NOT--- DUE TO A MUTUAL MISTAKE IN OMITTING THEREFROM A PERTINENT PROVISION--- REFLECT THE ENTIRE CONTRACT ON WHICH THE PARTIES HAD AGREED AND ATTEMPTED TO NEGOTIATE. ACCORDINGLY, IF SUCH BE THE FACTS, THIS OFFICE IS NOT REQUIRED TO OBJECT TO AN ADDENDUM TO THE CONTRACT TO SHOW THE PROVISION OMITTED FROM THE ORIGINAL CONTRACT DUE TO MUTUAL MISTAKE. WITH RESPECT TO CONTRACT NO. W-294-ORD-710, IF IT BE DEFINITELY DETERMINED, AND CERTIFIED BY BOTH PARTIES TO THE CONTRACT, THAT THERE WAS INADVERTENTLY OMITTED FROM THE CONTRACT AS EXECUTED A PROVISION INTENDED TO BE INSERTED THEREIN TO THE EFFECT THAT THE GOVERNMENT WOULD FURNISH CERTAIN SPECIFIED MACHINE TOOLS ON OR BEFORE CERTAIN SPECIFIED DATES AND THAT IF THEY WERE NOT RECEIVED BY SAID DATES THE CONTRACT TIME WOULD BE EXTENDED BY THE NUMBER OF DAYS BY WHICH THE RECEIPT OF SUCH TOOLS WAS LATE, AN ADDENDUM TO THE CONTRACT TO SHOW THE OMITTED PROVISION IS AUTHORIZED.

IN ANY OTHER CASE WHERE IT MAY APPEAR THAT THERE HAS BEEN A MUTUAL MISTAKE AND THAT THE CONTRACT DOES NOT EXPRESS THE REAL AND ENTIRE AGREEMENT OF THE PARTIES, THERE SHOULD BE SUBMITTED TO THIS OFFICE, PRIOR TO THE MAKING OF ANY CHANGE IN OR ADDITION TO THE CONTRACT, SUCH EVIDENCE AS MAY TEND TO ESTABLISH CLEARLY WHAT THE CONTRACT ACTUALLY WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKE, AND, IN VIEW OF THE REPRESENTATIONS MADE IN YOUR LETTER, REQUESTS FOR DECISION IN SUCH MATTERS WILL BE GIVEN CONSIDERATION WHEN SUBMITTED DIRECTLY TO THIS OFFICE BY A CONTRACTING OFFICER, PROVIDED THE REQUEST FOR DECISION IS SUPPORTED BY PROPER EVIDENCE AS OUTLINED ABOVE.