B-150366, APR. 16, 1963

B-150366, APR. 16, 1963

TO MR. MICHAEL CHERNICK AND MRS. BELLE CHERNICK:

REFERENCE IS MADE TO LETTER OF NOVEMBER 23, 1962, FROM YOUR ATTORNEY, MR. MARION EDWYN HARRISON, REQUESTING ON YOUR BEHALF REFORMATION OF PARAGRAPH 5 OF A CERTAIN AGREEMENT TO LEASE A POSTAL FACILITY AT SIOUX CITY, IOWA, ENTERED INTO ON JUNE 15, 1961, BETWEEN YOU AND THE POST OFFICE DEPARTMENT.

ON JANUARY 30, 1961, THE DEPARTMENT, ACTING UNDER AUTHORITY OF 39 U.S.C. 2103 AND 2112, ADVERTISED FOR BIDS FOR THE LEASE OF A NEW FACILITY AT SIOUX CITY, TO BE CONSTRUCTED BY THE LESSOR TO POST OFFICE SPECIFICATIONS, FOR A BASIC TERM OF 20 YEARS, WITH ONE 10-YEAR AND FOUR 5-YEAR RENEWAL OPTIONS. BIDDERS WERE INFORMED THAT THE DEPARTMENT HAD INSTITUTED EMINENT DOMAIN PROCEEDINGS FOR A SITE UPON WHICH THE BUILDING AND IMPROVEMENTS WOULD BE LOCATED; THAT UPON THE FILING OF THE DECLARATION OF TAKING, THE AMOUNT OF $180,000, REPRESENTING THE ESTIMATED AWARD FOR THE THREE PARCELS COMPRISING THE SITE, HAD BEEN DEPOSITED INTO THE REGISTRY OF THE COURT; THAT THE COURT MIGHT AWARD COMPENSATION IN EXCESS OF THE AMOUNT SO DEPOSITED; THAT INCIDENTAL TO THE ACQUISITION, THE GOVERNMENT HAD INCURRED AND PAID $3,249 FOR APPRAISALS, SURVEY, AND TITLE ABSTRACTS, MAKING A TOTAL ACQUISITION COST OF $183,249 AS OF THAT DATE; AND THAT THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO TAKE TITLE TO THE SITE AND REIMBURSE THE DEPARTMENT FOR THE ABOVE ACQUISITION COSTS, AND FOR ANY ADDITIONAL AMOUNTS THE GOVERNMENT MIGHT BE REQUIRED TO PAY TO COMPLETE ACQUISITION OF THE SITE. ALSO, BIDDERS WERE REQUIRED TO QUOTE PERCENTAGE RATES BY WHICH THE RENTAL QUOTED WOULD BE ADJUSTED IF THE ACTUAL COST INCIDENT TO THE SITE ACQUISITION EXCEEDED OR WAS LESS THAN THE TOTAL ACQUISITION COST OF $183,249 AS OF THE DATE OF THE INVITATION.

YOUR BID (AGREEMENT TO LEASE) DATED APRIL 10, 1961, AS AMENDED BY SUPPLEMENTAL AGREEMENT OF JANUARY 16, 1962, OFFERED TO FURNISH THE POSTAL FACILITY FOR THE BASIC 20-YEAR TERM, TOGETHER WITH MAINTENANCE, AT AN ANNUAL RENTAL OF $60,550, OR AT AN ANNUAL RENTAL OF $57,100 WITH GOVERNMENT MAINTENANCE. SEVEN OTHER BIDS WERE RECEIVED QUOTING ANNUAL RENTALS RANGING FROM $67,500 TO $90,500 FOR THE BASIC TERM WITH LESSOR MAINTENANCE, AND $58,500 TO $87,500 WITH GOVERNMENT MAINTENANCE FOR SUCH TERM.

PARAGRAPH 5 OF YOUR BID, AS AMENDED BY YOUR LETTER OF JUNE 15, 1961, WHICH WAS ACCEPTED BY THE DEPARTMENT ON JUNE 15, 1961, PROVIDED THAT IF THE SITE COST EXCEEDED $183,249 ON ANNUAL RENTAL DURING THE BASIC TERM (20 YEARS) "SHALL BE INCREASED BY 8/10S OF 1 PERCENT ).8) PERCENT OF THE ADDITIONAL COST OF THE SITE ACQUISITION" AND THAT "IF THE SAID SITE COST IS LESS THAN THE SAID TOTAL AMOUNT, THEN THE ANNUAL RENTAL DURING THE BASIC 20-YEAR TERM SHALL BE REDUCED BY 7/10TH OF 1 PERCENT ).7) PERCENT OF THE DECREASED COST.' THE ABSTRACT OF BIDS SHOWS THAT THE OTHER BIDDERS QUOTED PERCENTAGES RANGING FROM 6 PERCENT TO 10 PERCENT FOR ANNUAL RENTAL INCREASE IN THE EVENT THE CONDEMNATION AWARD EXCEEDED $183,249, AND PERCENTAGES RANGING FROM 5 TO 8 PERCENT IN THE EVENT OF A DECREASE.

THE DEPARTMENT HAS REPORTED THAT FOLLOWING THE AWARD OF THE LEASE CONTRACT TO YOU ON JUNE 15, 1961, A DEFICIENCY JUDGMENT WAS ENTERED IN THE CONDEMNATION PROCEEDING AS TO PARCEL NO. 2 FOR $4,000 PLUS $47.50 INTEREST; THAT THE DEPARTMENT'S LETTER OF JULY 23, 1962, ADVISED YOU OF THAT JUDGMENT, AS WELL AS OF A POSSIBLE FURTHER DEFICIENCY OF $45,899.12 (SUBSEQUENTLY REVISED TO $45,969.86) BASED UPON A COURT AWARD OF $147,500 ENTERED IN MARCH 1962 WITH RESPECT TO PARCEL NO. 3, FROM WHICH, HOWEVER THE DEPARTMENT WISHED TO APPEAL. YOU REIMBURSED THE DEPARTMENT THE INCREASED SITE COSTS WITH RESPECT TO PARCEL NO. 2 TOGETHER WITH THE AMOUNT OF $183,249 AS SET OUT IN THE ADVERTISEMENT AN THE AGREEMENT TO LEASE; BUT IN THE MEANTIME, BY TELEGRAM DATED JULY 24, 1962, YOU ALLEGED, IN EFFECT, THAT PARAGRAPH 5 OF THE AGREEMENT TO LEASE RELATING TO SITE ACQUISITION COST CONTAINED A TYPOGRAPHICAL ERROR AND THAT THE INCREASED COST OF $4,047.50 FOR PARCEL NO. 2 SHOULD BE AMORTIZED AT 8 PERCENT ANNUALLY OR $323.80, INSTEAD OF 8/10TH OF ONE PERCENT AS STIPULATED IN THE BID. FOLLOWING RECEIPT BY THE DEPARTMENT OF NOTICE THAT A MOTION FOR A NEW TRIAL AS TO PARCEL NO. 3 HAD BEEN MADE AND DENIED, AND THAT THE DEPARTMENT OF JUSTICE DID NOT INTEND TO APPEAL, YOU WERE ADVISED ACCORDINGLY BY LETTER DATED AUGUST 28, 1962, AND REQUESTED TO REMIT $42,500 FOR THE DEFICIENCY PLUS $3,469.86 INTEREST THEREON.

YOUR ATTORNEY CONTENDS THAT EACH FIGURE USED IN PARAGRAPH 5 OF THE AGREEMENT TO LEASE IS INTERNALLY INCONSISTENT WITH ITSELF; THAT "8/10S OF 1 PERCENT" IS .008 AND NOT ".8" AND THAT CONVERSELY ".8" IS "80 PERCENT" AND NOT "8/10S OF 1 PERCENT; " THAT IT IS IMMATERIAL WHETHER THE CONTRACTING OFFICER CONSIDERED YOUR BID AS ".8 PERCENT OR 80 PERCENT" BECAUSE EITHER PERCENTAGE IS SO LOW IN RELATION TO THE OTHER BIDS AND SO FAR OUT OF LINE WITH MONEY MARKET PRACTICES THAT HE SHOULD HAVE BEEN ON NOTICE OF AN ERROR AND INVITED YOUR ATTENTION THERETO. IT IS FURTHER CONTENDED, IN EFFECT, THAT IN VIEW OF THE OTHER BIDDERS' PERCENTAGE INCREASES IT WAS AN UNCONSCIONABLE ACT ON THE PART OF THE CONTRACTING OFFICER TO ACCEPT YOUR PERCENTAGE INCREASE WITHOUT FIRST EXPLAINING THE MATTER TO YOU AND AFFORDING YOU AN OPPORTUNITY TO REBID THE PERCENTAGE AMOUNT TO AT LEAST 6 PERCENT, THE AMOUNT OF THE NEXT LOWEST PERCENTAGE INCREASE SUBMITTED BY TWO OF THE BIDDERS. ALSO, IT IS CONTENDED THAT THE GOVERNMENT HAD THE OPPORTUNITY, BY CONTROL OF THE CONDEMNATION PROCEEDINGS, TO LIMIT ITS ACQUISITION COSTS AND THAT HAVING UNDERTAKEN UNILATERALLY TO DO SO AND FAILED, IT WOULD BE UNCONSCIONABLE TO PERMIT THE GOVERNMENT TO PENALIZE YOU FOR SUCH FAILURE.

WE AGREE WITH THE CONCLUSION THAT "8/10S OF 1 PERCENT" IS " .008" AND NOT " .8," AND CONVERSELY THAT " .8" IS "80 PERCENT" AND NOT "8/10S OF 1 PERCENT.' SUCH CONCLUSION, HOWEVER, OVERLOOKS OR DISREGARDS THE FACT THAT YOUR BID AS SUBMITTED PROVIDED THAT IN THE EVENT THE SITE ACQUISITION COST EXCEEDED $183,249, THE ANNUAL RENTAL THEN WOULD BE INCREASED "BY 8/10S OF 1 PERCENT ).8) PERCENT OF THE ADDITIONAL COST OF SITE ACQUISITION" BOTH OF WHICH EXPRESSIONS CAN HAVE NO OTHER MEANING THAN 8/10S OF 1 PERCENT. THE " .8 PERCENT" OBVIOUSLY WAS INTENDED TO AFFIRM THE CORRECTNESS OF "8/10S OF 1 PERCENT.' FOR SUCH REASONS IT IS OUR VIEW THAT THERE WAS NO AMBIGUITY, CONFLICT, OR LACK OF CERTAINTY IN PARAGRAPH 5 OF YOUR BID (AGREEMENT TO LEASE).

WHILE THE PERCENTAGE INCREASE IN YOUR BID IS CONSIDERABLY LOWER THAN THE PERCENTAGE INCREASES OF THE OTHER BIDDERS THIS SUGGESTS THAT YOU EITHER DISREGARDED OR DID NOT EXPECT THE CONTINGENCY WHICH WOULD MAKE YOUR PERCENTAGE FACTOR IMPORTANT. ALSO, IT IS CONCEIVABLE THAT YOU MAY HAVE CONCLUDED THAT A LOW BID ON RENTAL INCREASE MIGHT BE ONE OF THE DETERMINING FACTORS IN THE CONSIDERATION OF YOUR BID. SUCH FACTORS WHEN VIEWED WITH THE FACT THAT IN THE ADVERTISEMENT FOR BIDS THE BIDDERS WERE NOTIFIED THAT IN DETERMINING PRICE, THE DEPARTMENT WOULD ALLOW GREATER WEIGHT TO THE RENTAL SPECIFIED DURING THE BASIC 20-YEAR LEASE TERM, ARE SUFFICIENT TO WARRANT THE CONCLUSION THAT THERE WAS NOTHING OF SUFFICIENT MAGNITUDE TO CHARGE THE CONTRACTOR WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID. THE CONTRACTING OFFICER'S VIEW WAS THAT THE PERCENTAGE FACTOR IN PARAGRAPH 5 OF THE BIDS WAS AS COMPETITIVE AS THE PER ANNUM RENTAL OFFERED BY THE BIDDERS, WHICH RANGED FROM A LOW OF $60,550 TO $90,500 ON LESSOR-MAINTENANCE AND FROM $57,100 TO $87,500 WITH GOVERNMENT- MAINTENANCE. IN THIS REGARD, IT IS SIGNIFICANT TO POINT OUT THAT IN THE EVENT THE AWARDS FOR SITE COSTS HAD BEEN LESS THAN $183,249 YOUR RENTAL WOULD HAVE BEEN DECREASED BY ONLY "7/10THS OF 1 PERCENT ).7) PERCENT OF THE DECREASED COST" WHEREAS ALL THE OTHER BIDDERS' RENTALS WOULD HAVE BEEN DECREASED FROM 5 TO 8 PERCENT. IN THE CIRCUMSTANCES, THE ACCEPTANCE OF YOUR BID MUST BE REGARDED AS HAVING BEEN MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL OVER A YEAR AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

EVEN ASSUMING THAT THE BID WAS SO OUT OF LINE WITH OTHERS AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR, SUCH NOTICE ALONE WOULD INVALIDATE THE AWARD ONLY IF IN FACT THERE WAS A DEMONSTRABLE ERROR WHICH COULD HAVE BEEN ASCERTAINED BY INQUIRY. IN THIS CASE WE FIND NOTHING TO SUPPORT YOUR ALLEGATION OF ERROR; THE WORDING OF THE BID IS TOO SPECIFIC AND PRECISE TO PERMIT OF THE POSSIBILITY OF A TYPOGRAPHICAL ERROR, AND NO OTHER EXPLANATION HAS EVEN BEEN OFFERED. IF THE ERROR RESULTED FROM ASSUMING THAT THE SITE ACQUISITION COSTS WOULD NOT EXCEED $183,249 BY ANY SUBSTANTIAL AMOUNT IT WAS SOLELY AN ERROR IN JUDGEMENT, IN NO WAY INDUCED BY THE GOVERNMENT, FOR WHICH NO RELIEF MAY BE GRANTED. THIS REGARD, YOUR ATTORNEY HAS STATED, IN EFFECT, THAT BECAUSE OF THE LANGUAGE IN PARAGRAPH 1 (C) OF THE AGREEMENT OF LEASE YOU WERE LED TO BELIEVE THAT THERE WOULD BE NO OBLIGATION ON YOU FOR REIMBURSEMENT OF ANY ADDITIONAL AMOUNTS FOR SITE ACQUISITION AFTER THE AWARD.

ON PAGE 2 OF THE ADVERTISEMENT BIDDERS WERE INFORMED THAT AWARD WOULD BE MADE THEREUNDER TO THE RESPONSIBLE BIDDER WHOSE BID "CONFORMING TO THIS ADVERTISEMENT FOR BIDS IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED" AND THAT---

"THE POST OFFICE DEPARTMENT HAS INSTITUTED EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE SITE UPON WHICH THE BUILDING AND IMPROVEMENTS WILL BE LOCATED. THE SUM OF $180,000.00 WAS DEPOSITED INTO THE REGISTRY OF THE COURT UPON THE FILING OF THE DECLARATION OF TAKING AS ESTIMATED JUST COMPENSATION. THE COURT MAY AWARD COMPENSATION FOR THE TAKING EXCEEDING THE ABOVE SUM. IN ADDITION, THE GOVERNMENT HAS INCURRED AND PAID, INCIDENTAL THERETO, THE SUM OF $3,249.00 FOR APPRAISALS, SURVEY, AND TITLE ABSTRACTS, MAKING A TOTAL SITE ACQUISITION COST TO DATE OF $183,249.00. SUCCESSFUL BIDDER SHALL REIMBURSE THE POST OFFICE DEPARTMENT THE ABOVE LAND ACQUISITION COST. FURTHER, THE SUCCESSFUL BIDDER SHALL REIMBURSE THE POST OFFICE DEPARTMENT FOR ANY ADDITIONAL AMOUNTS IT MAY PAY IN ORDER TO COMPLETE SITE ACQUISITION. THE SITE WILL BE CONVEYED BY QUITCLAIM DEED FROM THE GOVERNMENT TO THE SUCCESSFUL BIDDER, WHO WILL LEASE THE GROUND, TOGETHER WITH THE REMODELED BUILDING AND IMPROVEMENTS, TO THE POST OFFICE DEPARTMENT. TO PROTECT THE GOVERNMENT'S INTEREST, THE QUITCLAIM DEED PROVIDES THAT SAID LAND, TOGETHER WITH ANY BUILDINGS OR IMPROVEMENTS THEREON, IF ANY, WILL REVERT TO THE GOVERNMENT IF THE GRANTEE FAILS TO CARRY OUT THE TERMS OF THE AGREEMENT TO LEASE. TITLE EVIDENCE, INCLUDING ABSTRACTS, AND CONTINUATIONS THEREOF, TITLE CERTIFICATES, OR POLICIES OF TITLE INSURANCE, WHICH MAY BE DESIRED BY THE SUCCESSFUL BIDDER, WILL BE PROCURED BY HIM AT HIS SOLE COST AND EXPENSE. THE GOVERNMENT WILL, HOWEVER, COOPERATE WITH THE SUCCESSFUL BIDDER, OR HIS AUTHORIZED AGENT IN THIS CONNECTION, BY PERMITTING EXAMINATION AND INSPECTION OF SUCH DEEDS, ABSTRACTS, TAX RECEIPTS, AFFIDAVITS OF TITLE, JUDGMENT IN CONDEMNATION PROCEEDINGS, OR OTHER DOCUMENTS RELATING TO THE TITLE OF THE PREMISES AND PROPERTY INVOLVED, AS MAY BE AVAILABLE. PAYMENT OF ANY STATE OR LOCAL TAXES, CHARGES OR FEES WHICH PROPERLY APPLY TO THE TRANSFER OR CONVEYANCE OF THE LAND FROM THE GOVERNMENT TO THE SUCCESSFUL BIDDER, TO THE RECORDING OF THE DEED TO SAID PROPERTY OR TO ANY OTHER ACT OR TRANSACTIONS IN CONNECTION WITH THE TRANSFER THE PROPERTY, SHALL BE THE SOLE OBLIGATION OF THE SUCCESSFUL BIDDER.'

IN RESPONSE TO THE ADVERTISEMENT YOU SUBMITTED AN AGREEMENT TO LEASE WHICH PROVIDED THAT---

"THIS BID IS SUBMITTED IN RESPONSE TO THE ADVERTISEMENT FOR BIDS DATED JANUARY 30, 1961, PERTAINING TO THE LEASING OF A POSTAL FACILITY IN THE CITY OF SIOUX CITY * * *.

"IN COMPLIANCE WITH THE ABOVE-STATED ADVERTISEMENT FOR BIDS, AND SUBJECT TO ACCEPTANCE BY THE UNITED STATES OF AMERICA, THE UNDERSIGNED AGREE/S) WITH THE UNITED STATES OF AMERICA THAT UPON WRITTEN ACCEPTANCE OF THIS BID, MAILED OR OTHERWISE FURNISHED WITHIN 60 DAYS AFTER OPENING OF BIDS THAT HE SHALL: * * *"

THUS, CLEARLY, YOU WERE ON NOTICE OF THE REQUIREMENT ON THE SUCCESSFUL BIDDER TO REIMBURSE THE DEPARTMENT FOR THE LAND ACQUISITION COSTS IN EXCESS OF $183,249 NECESSARY FOR COMPLETING THE SITE ACQUISITION. THAT YOU SO UNDERSTOOD YOUR OBLIGATION IN THIS RESPECT IS EVIDENCED BY YOUR TELEGRAM OF JULY 24, 1962, WHEREIN YOU STATED, IN EFFECT, THAT THE ADDED SITE COST SHOULD BE AMORTIZED AT "EIGHT PERCENT YEARLY.'

THE SUPPLEMENTAL AGREEMENT DATED JANUARY 16, 1962--- AS TO WHICH YOUR ATTORNEY CONTENDS THERE WAS NO CONSIDERATION--- REFERS TO THE CASHIER'S CHECK FOR $183,249 THEN BEING HELD IN ESCROW AND STATES:

"* * * UPON THE POST OFFICE DEPARTMENT'S APPROVAL OF YOUR WORKING DRAWINGS AND SPECIFICATIONS YOU WILL REIMBURSE THE DEPARTMENT FOR ANY ADDITIONAL COSTS IT INCURS IN CONNECTION WITH SITE ACQUISITION, AND THE DEPARTMENT WILL ACCEPT AND DEPOSIT THE ABOVE CASHIER'S CHECK AND SUCH REQUIRED ADDITIONAL SUMS. * * * * * * * * * *

"YOU WILL INDICATE YOUR AGREEMENT TO THE TERMS AND CONDITIONS OUTLINED IN THIS LETTER BY EXECUTING, DATING AND HAVING WITNESSED THE ACCEPTANCE AT THE PLACE INDICATED HEREON, AND RETURNING IT TO ME. * * *"

THE FOREGOING SUPPLEMENTAL AGREEMENT SHOWS THAT IT WAS SIGNED BY YOU AND WITNESSED ON JANUARY 19, 1962. THE DEPARTMENT IS DISAGREEING WITH YOUR ATTORNEY'S CONTENTION AS TO THE LACK OF CONSIDERATION FOR THIS AGREEMENT HAS POINTED OUT THAT THERE WAS AMPLE CONSIDERATION AND BENEFIT RUNNING TO YOU FOR THE EXECUTION OF SAME, INCLUDING FORBEARANCE FROM DECLARING YOU IN DEFAULT ON THE CONTRACT FOR REASONS INDICATED THEREIN. SINCE YOU SIGNED THE SUPPLEMENTAL AGREEMENT WITHOUT TAKING EXCEPTION TO THE STATEMENTS THEREIN CONCERNING YOUR DEFAULT UNDER THE AGREEMENT TO LEASE YOUR ATTORNEY'S CONTENTION IN THIS RESPECT IS WITHOUT MERIT. WHILE IT IS TRUE THAT THE SUPPLEMENTAL AGREEMENT MADE NO DEMAND UPON YOU FOR ADDITIONAL SITE COSTS, THE DEPARTMENT NECESSARILY COULD MAKE NO SUCH DEMAND ON YOU AT THAT TIME SINCE THE FINAL JUDGMENT IN CONDEMNATION WAS NOT ENTERED UNTIL THE FOLLOWING MARCH. FURTHERMORE, IT WAS NOT UNTIL AUGUST 1962 THAT THE DEPARTMENT OF JUSTICE ADVISED THE POST OFFICE DEPARTMENT THAT IT WOULD NOT APPEAL THE JUDGMENT IN CONDEMNATION ON PARCEL NO. 3.

CONCERNING YOUR ATTORNEY'S CONTENTION WITH RESPECT TO THE ABSENCE OF ANY REFERENCE TO ADDITIONAL SITE COSTS IN THE QUITCLAIM DEED OF FEBRUARY 14, 1962, EXCEPT THE REFERENCE TO THE PRELIMINARY COSTS OF $183,249, REFERRED TO IN THE ADVERTISEMENT FOR BIDS AND THE AGREEMENT TO LEASE, THE DEPARTMENT HAS REPORTED THAT THE AMOUNT USED IN THE QUITCLAIM DEED WAS SO STATED BECAUSE THIS WAS THE ACTUAL AMOUNT IN HAND AT THAT TIME PAID BY YOU; THAT IT IS IN ACCORD WITH GOOD CONVEYANCING PRACTICE NOT TO BURDEN DEEDS WITH COLLATERAL CONTRACTUAL PROVISIONS BETWEEN THE PARTIES; THAT AS A GENERAL MATTER, DEEDS NORMALLY RECITE A NOMINAL CONSIDERATION LEAVING THE ACTUAL MONETARY CONSIDERATION TO OTHER DOCUMENTS BETWEEN THE PARTIES; AND THAT THE DEPARTMENT DESIRED YOU TO HAVE A CLEAN CONVEYANCE AS QUICKLY AS POSSIBLE SO THAT YOU WOULD BE ABLE TO FINANCE CONTRACT PERFORMANCE.

WITH RESPECT TO THE ATTORNEY'S CONTENTION CONCERNING YOUR LACK OF NOTICE AS TO THE PROGRESS OF THE CONDEMNATION ACTION AND THE ABSENCE OF AN OPPORTUNITY TO APPEAR AMICUS CURIAE OR OTHERWISE TO GUIDE ITS PROSECUTION, THE DEPARTMENT HAS POINTED OUT THAT ALL PROCEEDINGS WERE HANDLED BY THE DEPARTMENT OF JUSTICE; THAT SUCH PROCEEDINGS WERE, OF COURSE, A MATTER OF PUBLIC RECORD; THAT BY MERE INQUIRY, YOU COULD HAVE DETERMINED THE STATUS OF THE CONDEMNATION PROCEEDINGS AT ANY STAGE THEREOF; AND THAT NO INQUIRY WAS EVER MADE BY YOU IN THIS REGARD, DESPITE THE NOTICE IN THE ADVERTISEMENT THAT ALL BIDDERS WERE INVITED TO EXAMINE THE FILES IN THESE MATTERS. IT APPEARS THAT YOU WERE NEITHER AFFORDED NOR DENIED AN OPPORTUNITY TO APPEAR AS AMICUS CURIAE IN THE CONDEMNATION PROCEEDINGS, SINCE NO REQUEST THEREFOR WAS EVER MADE BY YOU. FINALLY, THE DEPARTMENT HAS REPORTED THAT THE CONTRACTING OFFICER ENDEAVORED TO HAVE THE DEPARTMENT OF JUSTICE APPEAL THE COURT JUDGMENT ON PARCEL NO. 3 BUT THAT IN THE CONSIDERED VIEW OF THE LATTER DEPARTMENT THERE WAS NO SUBSTANTIAL GROUND FOR APPEAL.

THE ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168 AND SIMPSON V. UNITED STATES, 172 U.S. 372. ALSO, THE GENERALLY ACCEPTED RULE IS THAT "WHERE ONE AGREES TO DO FOR A FIXED SUM A THING POSSIBLE TO BE PERFORMED, HE WILL NOT BE EXCUSED OR BECOME ENTITLED TO ADDITIONAL COMPENSATION, BECAUSE UNFORESEEN DIFFICULTIES ARE ENCOUNTERED.' 40 COMP. GEN. 684, 687 AND DECISIONS THEREIN CITED.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO LEGAL BASIS FOR AUTHORIZING REFORMATION OR MODIFICATION OF PARAGRAPH 5 OF THE AGREEMENT TO LEASE AS REQUESTED BY YOUR ATTORNEY.