B-136300, JUN. 20, 1958

B-136300, JUN. 20, 1958

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED MAY 27, 1958, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING THE CONCURRENCE OF OUR OFFICE IN THE EXECUTION OF A SUPPLEMENTAL AGREEMENT TO A TIMBER SALE CONTRACT DATED DECEMBER 2, 1952, WITH HAROLD FRANKS, DURANGO, COLORADO, TO REFLECT THE TRUE UNDERSTANDING OF THE PARTIES AS TO THE DESCRIPTION OF THE AREA FROM WHICH THE TIMBER WAS LOGGED UNDER THE CONTRACT. WE UNDERSTAND THAT THE CONTRACT HAS BEEN FULLY COMPLETED AND PAYMENT MADE IN FULL BY FRANKS.

IT IS REPORTED THAT BOTH THE BUREAU OF LAND MANAGEMENT AND THE CONTRACTOR INTENDED THAT SECTIONS 1 AND 2, T.35N, R.13W., N.M.P.M. BE INCLUDED AS PART OF THE "CONTRACT AREA" SET OUT IN SECTION 2 OF THE CONTRACT, BUT THAT THESE SECTIONS WERE INADVERTENTLY OMITTED FROM THE ORIGINAL ADVERTISEMENT AND THE CONTRACT ON WHICH IT WAS BASED. HOWEVER, THE CONTRACT MAP, MADE A PART OF THE CONTRACT AS "EXHIBIT A," SHOWS THAT THE ABOVE DESCRIPTION WAS INCLUDED WITHIN THE AREA TO BE LOGGED, AND THE OPERATION HAS BEEN CONDUCTED IN ACCORDANCE WITH THE MAP. THE CONTRACTING OFFICER HAS ADVISED THAT IT WAS HIS INTENT TO DESCRIBE IN THE INVITATION AND CONTRACT THE PUBLIC DOMAIN LANDS ON WHICH THE DESIGNATED TIMBER WAS LOCATED, BUT THAT THROUGH INADVERTENCE THE LAND WAS MISDESCRIBED BOTH IN THE ADVERTISEMENT AND THE CONTRACT; THAT ALL PROSPECTIVE BIDDERS, INCLUDING THE CONTRACTOR, WERE REFERRED TO THE AREA UPON WHICH THE TIMBER ACTUALLY WAS DESIGNATED FOR INSPECTION PURPOSES; AND THAT IT WAS CLEARLY UNDERSTOOD BY THE CONTRACTOR THEREAFTER THAT THE SECTIONS OMITTED FROM THE DESCRIBED CONTRACT AREA, BUT INCLUDED ON "EXHIBIT A," WERE TO BE LOGGED. IT IS FURTHER UNDERSTOOD THAT THE PROPOSED SUPPLEMENTAL AGREEMENT WILL CORRECTLY REFLECT THE LEGAL DESCRIPTION OF THE AREA IN WHICH TIMBER WAS DESIGNATED AND FROM WHICH TIMBER WAS CUT UNDER THE CONTRACT, AND THAT ITS ONLY EFFECT WILL BE TO VALIDATE THE CUTTING WHICH HAS BEEN DONE, NO OTHER OR FURTHER OPERATIONS UNDER THE CONTRACT BEING CONTEMPLATED.

IN OUR OPINION, THE PROPOSED SUPPLEMENTAL AGREEMENT IS JUSTIFIED BY THE FACTS STATED IN YOUR REPORT, WHICH INDICATE NOT ONLY A MUTUAL MISTAKE AS TO THE CONTRACT DESCRIPTION OF THE LOGGING AREA BUT ALSO THAT THE DESIGNATION OF THE "CONTRACT AREA" WAS AT VARIANCE WITH "EXHIBIT A" TO THE CONTRACT. ACCORDINGLY, AND SINCE THE PROPOSED SUPPLEMENTAL AGREEMENT WILL CONFORM THE CONTRACT TO THE ACTUAL INTENTION OF THE PARTIES AND RESOLVE THE PATENT AMBIGUITY, YOU ARE ADVISED THAT OUR OFFICE HAS NO OBJECTION TO THE EXECUTION OF SUCH AGREEMENT.