B-161349 L/M, JUL 14, 1967

B-161349 L/M, JUL 14, 1967

PRECIS-UNAVAILABLE

SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER ENGGC-C, DATED JUNE 6, 1967, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REPORTING ON THE REQUEST OF MAURICE DANTIN, ESQUIRE, ON BEHALF OF WALDEN LANDSCAPE, INC. (WALDEN), FOR RELIEF FROM CERTAIN CONTRACT PRICE REDUCTIONS UNDER CONTRACTS NOS. DACW29-67-C-0112, -67-C-0115, AND -67-C-0116. THE THREE CONTRACTS, AWARDED DURING DECEMBER 1966 BY THE UNITED STATES ARMY ENGINEER DISTRICT, NEW ORLEANS, LOUISIANA, PROVIDED FOR EXTENSIVE LANDSCAPING SERVICES TO BE PERFORMED BY WALDEN AT THREE DIFFERENT SITES IN THE STATE OF LOUISIANA.

PARAGRAPH NO. 10.14 OF THE TECHNICAL PROVISIONS OF THE THREE CONTRACTS READS AS FOLLOWS:

"FERTILIZING. THE AMOUNTS OF FERTILIZER TO BE USED ARE SHOWN BELOW:

SYNTHETIC ORGANIC: 2 LBS. PER CUBIC FOOT OF TOPSOIL OR PREPARED SOIL MIXTURE BACKFILL."

AFTER AWARD OF THE THREE CONTRACTS TO WALDEN, THE SUCCESSFUL LOW BIDDER IN EACH INSTANCE, THE CONTRACTING OFFICER'S REPRESENTATIVE ON CONTRACT NO. -0112 REALIZED THAT TECHNICAL PROVISION NO. 10.14, QUOTED ABOVE, DID NOT PROPERLY EXPRESS THE TRUE INTENT OF THE GOVERNMENT. IN FACT, IT WAS DETERMINED THAT IT WOULD BE EXTREMELY UNDESIRABLE TO REQUIRE THE CONTRACTOR TO USE TWO POUNDS OF SYNTHETIC ORGANIC FERTILIZER PER CUBIC FOOT OF SOIL (54 POUNDS PER CUBIC YARD.) THE MANUFACTURER OF THE FERTILIZER ADVISED IN THIS REGARD THAT THE MAXIMUM AMOUNT THAT COULD SAFELY BE USED WITH GOOD RESULTS WAS FIVE POUNDS OF FERTILIZER PER CUBIC YARD OF SOIL, AND THAT WHEN FERTILIZER WAS USED AT A RATE OF 10 POUNDS PER CUBIC YARD DAMAGE WAS NOTED.

SUBSEQUENT TO BEING APPRISED OF THESE FACTS, THE CONTRACTING OFFICER ISSUED AN AMENDMENT TO EACH OF THE THREE CONTRACTS WHICH CHANGED THE FERTILIZER RATE REQUIREMENT OF TECHNICAL PROVISION NO. 10.14 FROM TWO POUNDS OF FERTILIZER PER CUBIC FOOT OF SOIL TO FIVE POUNDS PER CUBIC YARD.

SHORTLY THEREAFTER, THE CONTRACTING OFFICER UNILATERALLY ISSUED THREE SUBSTANTIALLY IDENTICAL FORMAL DETERMINATIONS INFORMING WALDEN THAT THE GOVERNMENT WAS ENTITLED TO A TOTAL CREDIT OF $3,959.20, WHICH REPRESENTED THE VALUE OF THE DECREASE IN THE QUANTITY OF FERTILIZER REQUIRED UNDER THE THREE CONTRACTS, AS AMENDED. WE ARE ADVISED THAT CREDITS IN THE AMOUNTS OF $2,335.20, $1,044.40, AND $579.60 HAVE BEEN TAKEN ON CONTRACTS NOS. - 0112, -0115, AND -0116, RESPECTIVELY.

BY LETTER DATED APRIL 19, 1967, MR. DANTIN EXPLAINED THAT WALDEN IDENTIFIED THE REQUIREMENT IN EACH INVITATION FOR TWO POUNDS OF FERTILIZER PER CUBIC FOOT OF SOIL AS A TYPOGRAPHICAL ERROR, AND THEREFORE PREPARED AND SUBMITTED ITS BIDS ON THE BASIS OF TWO POUNDS PER CUBIC YARD FOR EACH PROJECT. THE VERACITY OF THE FOREGOING STATEMENT IS EVIDENCED BY THE FACT THAT THE BIDDER HAD IN HIS POSSESSION, AT THE TIME HIS BIDS WERE SUBMITTED, AN ADVERTISING BROCHURE PREPARED BY THE MANUFACTURER OF THE FERTILIZER WHICH RECOMMENDED THE USE OF TWO TO THREE POUNDS OF FERTILIZER PER CUBIC YARD OF SOIL FOR BEST RESULTS.

THE CONTRACTING OFFICIAL WHO DRAFTED THE TECHNICAL SPECIFICATIONS FOR EACH OF THE THREE SUBJECT CONTRACTS CONFIRMED MR. DANTIN'S STATEMENT THAT THE REQUIREMENT FOR TWO POUNDS OF FERTILIZER PER CUBIC FOOT OF SOIL WAS A TYPOGRAPHICAL ERROR, AND ADDED FURTHER THAT IT OCCURRED IN TRANSPOSING THE TECHNICAL PROVISIONS FROM HIS PAPERS TO THE BID FORMS. HE ALSO REPORTED THAT ORIGINALLY IT WAS THE GOVERNMENT'S INTENTION TO REQUIRE THE CONTRACTOR TO USE TWO POUNDS OF FERTILIZER PER CUBIC YARD OF SOIL AND, THAT IF THE REQUIREMENT FOR TWO POUNDS PER CUBIC FOOT HAD BEEN ENFORCED AS ORIGINALLY CALLED FOR, THE FERTILIZER WOULD HAVE KILLED ALL PLANT MATERIAL FERTILIZED.

OUR OFFICE HAS AUTHORIZED REFORMATION OF CONTRACTS ON OCCASIONS WHERE IT CAN BE SHOWN THAT BY REASON OF MISTAKE A CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES; AND IF IT CAN BE ESTABLISHED WHAT THE ACTUAL AGREEMENT WAS. SEE UNPUBLISHED DECISIONS B- 152287, SEPTEMBER 12, 1963; B-145927, JULY 19, 1961. CF. 41 COMP. GEN. 34.

IN THE INSTANT CASE IT IS CLEAR FROM THE FACTS OF RECORD THAT THE CONTRACTOR AND THE CONTRACTING OFFICIALS MUTUALLY CONTEMPLATED THAT THE THREE SUBJECT CONTRACTS WOULD EACH INCLUDE A TECHNICAL PROVISION REQUIRING THE USE OF TWO POUNDS OF FERTILIZER PER CUBIC YARD OF SOIL.

ACCORDINGLY, IT IS THE OPINION OF OUR OFFICE THAT THE THREE CONTRACTS MAY BE REFORMED, AS ADMINISTRATIVELY RECOMMENDED, BY CORRECTING TECHNICAL PROVISION NO. 10.14 OF EACH CONTRACT TO PROPERLY REFLECT THE TRUE INTENT AND AGREEMENT OF THE PARTIES; THAT IS, ON EACH PROJECT, THE CONTRACTOR SHALL BE REQUIRED TO USE TWO POUNDS OF FERTILIZER PER CUBIC YARD OF SOIL. SINCE THE GOVERNMENT HAD PREVIOUSLY AMENDED THE CONTRACTS TO REQUIRE THE CONTRACTOR TO USE A LARGER QUANTITY OF FERTILIZER THAN HAD BEEN ORIGINALLY ANTICIPATED, THE CONTRACTOR MAY BE ENTITLED TO AN EQUITABLE PRICE ADJUSTMENT. HOWEVER, UNDER THE CHANGES CLAUSES OF EACH CONTRACT THE AMOUNT OF PRICE ADJUSTMENT, IF ANY, IS A MATTER FOR NEGOTIATION BETWEEN THE PARTIES. THEREFORE, WE AGREE THAT THE MATTER OF PRICE ADJUSTMENT BE REMANDED TO THE CONTRACTING OFFICER FOR NEGOTIATION AND SETTLEMENT UNDER THE CONTRACT TERMS.

THE ATTORNEY FOR THE CONTRACTOR IS BEING ADVISED OF THIS DECISION.