B-143604, MAR. 16, 1965

B-143604, MAR. 16, 1965

TO MR. MICHAEL J. STACK, JR:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12, 1965, CLAIMING THAT THE TELE-TRIP COMPANY, INC., SHOULD BE ALLOWED TO OPERATE AT DULLES INTERNATIONAL AIRPORT UNTIL MAY 1967 INSTEAD OF NOVEMBER 30, 1965, THE TERMINATION DATE STIPULATED IN CONTRACT FA-BNCA 4064.

THE CONTRACT AUTHORIZED TELE-TRIP TO ESTABLISH AND OPERATE A FLIGHT INSURANCE SALES CONCESSION AT WASHINGTON NATIONAL AIRPORT AND DULLES INTERNATIONAL AIRPORT. ARTICLE V OF THE CONTRACT STIPULATED THE TERM OF THE CONTRACT AS FOLLOWS:

"THE CONTRACTOR SHALL HAVE THE RIGHT AND PRIVILEGES AS SET FORTH IN THIS AGREEMENT, FOR A TERM COMMENCING UPON THE 1ST DAY OF DECEMBER, 1960 AND TERMINATING UPON THE 30TH DAY OF NOVEMBER, 1965, UNLESS SOONER TERMINATED AS PROVIDED HEREIN; PROVIDED, HOWEVER, THAT CONTRACTOR'S OPERATION AT DULLES INTERNATIONAL AIRPORT SHALL NOT COMMENCE PRIOR TO THE OFFICIAL OPENING OF THAT AIRPORT, UNLESS OTHERWISE SPECIFICALLY AUTHORIZED IN WRITING BY THE GOVERNMENT.'

DURING THE TIME THE CONTRACT WAS BEING NEGOTIATED DULLES INTERNATIONAL AIRPORT DID NOT EXIST AS AN OPERATIONAL AIRPORT. YOU STATE THAT PUBLIC UTTERANCES OF THE FEDERAL AVIATION AGENCY AND THE UNDERSTANDING OF PEOPLE IN THE AVIATION INDUSTRY WERE THAT THE AIRPORT WOULD BE OPEN IN 1961, POSSIBLY BY JANUARY, BUT NO LATER THAN JULY. IN THIS REGARD YOU REFER TO STATEMENTS MADE BY THE FEDERAL AVIATION AGENCY IN HEARINGS FOR SUPPLEMENTAL APPROPRIATIONS FROM CONGRESS AND THE REPORTS OF AVIATION TRADE MAGAZINES WITH RESPECT TO THE AIRPORT OPENING DATE. YOU STATE FURTHER THAT, DESPITE THESE REPRESENTATIONS, THE AIRPORT DID NOT OPEN UNTIL NOVEMBER 1962 AND DID NOT BECOME OPERATIONAL UNTIL JANUARY 1963. YOU THEREFORE CLAIM THAT, IN VIEW OF THE LATE OPENING OF THE AIRPORT, THE TERMINATION OF THE CONTRACT WITH RESPECT TO DULLES INTERNATIONAL AIRPORT SHOULD BE CONSIDERED AS 1 1/2 YEARS FROM NOVEMBER 30, 1965, OR MAY 1967, ON THE BASIS OF THE "MEETING OF THE MINDS" AND "REASON TO KNOW" DOCTRINES.

IN OUR OPINION, THERE IS NO BASIS FOR ANY EXTENSION OF THE CONTRACT TERM STIPULATED IN THE CONTRACT. ARTICLE V IS DEFINITE THAT THE CONTRACT TERMINATES ON NOVEMBER 30, 1965. WHILE TELE-TRIP MAY HAVE ESTIMATED THAT THE CONTRACT WOULD COMMENCE EARLIER THAN IT DID, IN VIEW OF THE VERY SPECIFIC DATE STIPULATED FOR TERMINATION OF THE CONTRACT AND OF THE ABSENCE OF ANY AGREEMENT FOR TIME EXTENSIONS DUE TO DELAYS, ANY CONFUSION ABOUT THE TERMINATION DATE MUST BE ATTRIBUTED TO THE CONTRACTOR'S OWN FAULT OR OVERSIGHT.

IF IT COULD BE ESTABLISHED THAT IT WAS THE UNDERSTANDING OF THE PARTIES THAT THE DULLES INTERNATIONAL AIRPORT PHASE OF THE CONTRACT WAS TO COMMENCE BY NO LATER THAN JULY 1961, IT SEEMS THAT, AT BEST, THE CONTRACTOR MIGHT CLAIM BREACH OF CONTRACT FOR FAILURE OF THE AIRPORT TO OPEN ON TIME. WE DO NOT AGREE WITH YOUR CONTENTION THAT THE FEDERAL AVIATION AGENCY PUBLIC UTTERANCES CONSTITUTED AN ABSOLUTE UNDERTAKING THAT THE AIRPORT WOULD BE OPERATIONAL BY A CERTAIN DATE. IT IS OUR VIEW THAT SUCH STATEMENTS ABOUT THE OPENING OF THE AIRPORT-- WHICH CONCEIVABLY MIGHT HAVE TO BE MODIFIED BY CONSTRUCTION DIFFICULTIES AND DELAYS AND OTHER PROBLEMS AS WELL--- ARE AT BEST APPROXIMATIONS OR PREDICTIONS, THOUGH POSSIBLY STATED AS POSITIVE STATEMENTS, SO THAT ANYONE READING OR HEARING THEM SHOULD KNOW PERFECTLY WELL THAT THE EXPRESSION IS NECESSARILY ONLY ONE OF OPINION UPON WHICH UNDUE RELIANCE SHOULD NOT BE PLACED. THEREFORE, EVEN IF SUCH STATEMENTS COULD BE LOOKED TO, WE DO NOT BELIEVE THAT ANY LIABILITY FOR DAMAGES DUE TO THE LATE OPENING OF DULLES INTERNATIONAL AIRPORT WOULD ATTACH TO THE GOVERNMENT.

THERE IS THEREFORE NO ACTION WHICH OUR OFFICE WILL TAKE ON THIS MATTER.