B-177510, MAR 2, 1973

B-177510: Mar 2, 1973

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REFORMATION IS NOT PROPER IN THIS INSTANCE IN VIEW OF THE CONTRACTING OFFICER'S REPRESENTATION AND THE APPARENT LACK OF MUTUAL MISTAKE. SINCE THE DELAY WAS CAUSED BY SIERRA AND SIERRA APPARENTLY CONTEMPLATED COMMENCING THE LOGGING IN 1969 AT A RATE THAT WOULD HAVE PROVIDED COMPLETION BY THE ORIGINAL TERMINATION DATE. ACCARDI: REFERENCE IS MADE TO YOUR LETTER 2450 (6500) DATED NOVEMBER 20. THE BOARD OF FOREST APPEALS DENIED THE CONTRACTOR'S CLAIM FOR A CHANGE IN THE TERMINATION DATE ON THE BASIS THAT THE ACT WHICH IS RELIED UPON FOR A TIME EXTENSION AROSE PRIOR TO THE AWARD OF THE CONTRACT AND NOT UNDER THE CONTRACT. THE BOARD STATED THAT IT WAS WITHOUT JURISDICTION TO GRANT SUCH RELIEF. PARAGRAPH 8 OF THE TIMBER SALE PROSPECTUS PROVIDED THAT A NORMAL OPERATING SEASON UNDER THE CONTRACT IS MAY 15 TO NOVEMBER 15 INCLUSIVE AND THAT THE CONTRACT TERMINATION DATE IS DECEMBER 15.

B-177510, MAR 2, 1973

CONTRACT - REFORMATION - MUTUAL MISTAKE - DELAY IN AWARD - MERITORIOUS CLAIMS ACT DECISION THAT IT WOULD NOT BE PROPER TO CHANGE THE TERMINATION DATE IN A JORDAN PEAK TIMBER SALE CONTRACT AWARDED SIERRA FOREST PRODUCTS BY THE U.S. FOREST SERVICE. WHERE THROUGH MUTUAL MISTAKE A CONTRACT DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, IT MAY BE REFORMED TO CONFORM TO THE ACTUALLY INTENDED AGREEMENT. 39 COMP. GEN. 363 (1959). HOWEVER, REFORMATION IS NOT PROPER IN THIS INSTANCE IN VIEW OF THE CONTRACTING OFFICER'S REPRESENTATION AND THE APPARENT LACK OF MUTUAL MISTAKE. FURTHERMORE, SINCE THE DELAY WAS CAUSED BY SIERRA AND SIERRA APPARENTLY CONTEMPLATED COMMENCING THE LOGGING IN 1969 AT A RATE THAT WOULD HAVE PROVIDED COMPLETION BY THE ORIGINAL TERMINATION DATE, THIS SITUATION DOES NOT CONTAIN THOSE ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT SUBMISSION OF THIS CLAIM TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT.

TO MR. R. W. ACCARDI:

REFERENCE IS MADE TO YOUR LETTER 2450 (6500) DATED NOVEMBER 20, 1972, WITH ENCLOSURES, REQUESTING A DECISION WHETHER IT WOULD BE PROPER TO CHANGE THE DECEMBER 15, 1971, TERMINATION DATE IN JORDAN PEAK TIMBER SALE CONTRACT NO. 13-173 WITH SIERRA FOREST PRODUCTS TO DECEMBER 15, 1972.

THE BOARD OF FOREST APPEALS DENIED THE CONTRACTOR'S CLAIM FOR A CHANGE IN THE TERMINATION DATE ON THE BASIS THAT THE ACT WHICH IS RELIED UPON FOR A TIME EXTENSION AROSE PRIOR TO THE AWARD OF THE CONTRACT AND NOT UNDER THE CONTRACT. HOWEVER, THE BOARD SUGGESTED THAT THE CONTRACTOR MIGHT BE ENTITLED TO RELIEF BY WAY OF REFORMATION ON THE BASIS OF MUTUAL MISTAKE. THE BOARD STATED THAT IT WAS WITHOUT JURISDICTION TO GRANT SUCH RELIEF. AS A RESULT THE CONTRACTOR HAS REQUESTED REFORMATION OF THE CONTRACT BY OUR OFFICE.

PARAGRAPH 8 OF THE TIMBER SALE PROSPECTUS PROVIDED THAT A NORMAL OPERATING SEASON UNDER THE CONTRACT IS MAY 15 TO NOVEMBER 15 INCLUSIVE AND THAT THE CONTRACT TERMINATION DATE IS DECEMBER 15, 1971. THE NUMBER OF NORMAL OPERATING SEASONS BETWEEN THE FEBRUARY 7, 1967, BID RECEIPT DATE AND THE CONTRACT TERMINATION DATE IS FIVE. THE CONTRACTING OFFICER POSTPONED MAKING AN AWARD TO SIERRA UNTIL FEBRUARY 1, 1968, ABOUT A YEAR AFTER THE RECEIPT OF THE BID, BECAUSE SIERRA WAS UNABLE TO ESTABLISH UNTIL THAT TIME THAT IT HAD THE NECESSARY FACILITIES TO PERFORM THE CONTRACT. ALTHOUGH THE PROSPECTUS CONTEMPLATED FIVE OPERATING SEASONS, AND ONE HAD ELAPSED SINCE THE TIME AWARD WAS MADE, THE CONTRACTING OFFICER HAS STATED THAT THE SALE WAS AWARDED ON THE BASIS OF SIERRA'S PLANS WHICH PROVIDED FOR LOGGING AT SUCH A RATE THAT IT WOULD BE COMPLETED BY THE TERMINATION DATE. FURTHER, THE CONTRACTING OFFICER HAS STATED THAT HE CONSIDERED THE CONTRACT TERMINATION DATE TO BE A REQUIREMENT OF THE SALE WHICH COULD ONLY BE CHANGED PURSUANT TO CONTRACT PROVISIONS. ON THE OTHER HAND, SIERRA MAY STILL HAVE CONSIDERED THAT IT HAD FIVE OPERATING SEASONS TO PERFORM BEFORE THE TERMINATION OF THE CONTRACT.

WHERE THROUGH MUTUAL MISTAKE A CONTRACT DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES, IT MAY BE REFORMED TO CONFORM TO THE AGREEMENT THAT THE PARTIES ACTUALLY INTENDED. 39 COMP. GEN. 363, 365 (1959). VIEW OF THE CONTRACTING OFFICER'S REPRESENTATION, WE ARE UNABLE TO CONCLUDE THAT THERE WAS A MUTUAL MISTAKE AS TO THE CONTRACT TERMS WHICH WOULD FORM THE BASIS FOR REFORMATION.

SIERRA HAS REQUESTED RELIEF UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, IN THE EVENT REFORMATION IS NOT PROVIDED. REVIEW OF THE RECORD INDICATES THAT THE DELAY IN MAKING AN AWARD IS ATTRIBUTABLE TO SIERRA AND THAT SIERRA ACTUALLY CONTEMPLATED COMMENCING THE LOGGING OPERATION IN 1969, THE YEAR AFTER THE AWARD, AT A RATE THAT WOULD HAVE PROVIDED COMPLETION BY THE TERMINATION DATE. IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE SITUATION CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS REQUIRES OUR OFFICE TO SUBMIT THE MATTER TO THE CONGRESS FOR ITS CONSIDERATION.