B-161269, MAR. 19, 1968

B-161269, MAR. 19, 1968

TO JAMES W. MCNULTY, ESQUIRE:

WE REFER TO YOUR LETTERS DATED JULY 20, 1967, AND FEBRUARY 21, 1968, REQUESTING REVIEW OF THE DISALLOWANCE BY THE CLAIMS DIVISION OF THIS OFFICE OF THE CLAIM OF MR. PRIMO MARIANELLI FOR DAMAGES DUE TO THE GOVERNMENT'S ALLEGED BREACH OF AN AGREEMENT TO LEASE CERTAIN PREMISES BELONGING TO THE CLAIMANT IN SCRANTON, PENNSYLVANIA.

IN THE SETTLEMENT DATED MAY 18, 1967, THE CLAIM WAS DISALLOWED BECAUSE THE WRITTEN RECORD BEFORE US DID NOT ESTABLISH THAT THE GOVERNMENT HAD MANIFESTED TO MR. MARIANELLI OR TO HIS AGENT AN INTENTION TO BE BOUND PRIOR TO FORMAL EXECUTION OF THE PROPOSED LEASE. LETTERS IN THE FILE FROM BOTH THE ARMY AND CLAIMANT'S BROKER RECOGNIZED THE NECESSITY FOR GOVERNMENT ACCEPTANCE AND FORMAL EXECUTION OF THE LEASE SUBSEQUENT TO EXECUTION BY THE CLAIMANT.

ESSENTIALLY YOU TAKE THE POSITION THAT THE LEASE PREPARED BY THE CORPS OF ENGINEERS AFTER DISCUSSIONS BETWEEN THE PARTIES WAS AN OFFER WHICH, BY THE LESSOR'S ACCEPTANCE, BECAME A BINDING CONTRACT. YOU STATE THAT YOUR REVIEW OF THE CORRESPONDENCE BETWEEN CLAIMANT'S BROKER AND THE ARMY RECONFIRMS YOUR POSITION AND, FURTHER, THAT THE STATEMENT IN THE BROKERS' LETTER TO ARMY RELATIVE TO SUBSEQUENT GOVERNMENT ACCEPTANCE IS NOT IN ACCORD WITH THE FACTUAL SITUATION. IN SUPPORT THEREOF YOU CITE SECTION 26 OF THE RESTATEMENT OF CONTRACTS WHICH STATES THAT: "MUTUAL MANIFESTATIONS OF ASSENT THAT ARE IN THEMSELVES SUFFICIENT TO MAKE A CONTRACT WILL NOT BE PREVENTED FROM SO OPERATING BY THE MERE FACT THAT THE PARTIES ALSO MANIFEST AN INTENTION TO PREPARE AND ADOPT A WRITTEN MEMORIAL THEREOF; BUT OTHER FACTS MAY SHOW THAT THE MANIFESTATIONS ARE MERELY PRELIMINARY EXPRESSIONS AS STATED IN SEC. 25.'

WHILE YOU HAVE NOT STATED PRECISELY HOW THE CORRESPONDENCE BETWEEN CLAIMANT'S BROKER AND THE ARMY ILLUSTRATES THAT MANIFESTATIONS OF ASSENT WERE SUFFICIENT IN THIS CASE TO MAKE A CONTRACT, WE HAVE REVIEWED THE ENTIRE FILE IN ACCORDANCE WITH YOUR REQUEST AND ARE CONSTRAINED BY THE WRITTEN RECORD OF THIS CASE TO ADHERE TO THE CONCLUSION THAT THE GOVERNMENT MANIFESTED NO INTENTION TO BIND ITSELF TO THE TERMS OF THE WRITTEN FORM OF LEASE IT PREPARED WITHOUT SUBSEQUENT APPROVAL AND EXECUTION OF THE INSTRUMENT ON ITS PART. WE CANNOT ACCEPT THE CONTENTION THAT THE TENDER OF THE PROPOSED LEASE WAS AN OFFER BY THE GOVERNMENT, SINCE IT WAS NEITHER SIGNED ON BEHALF OF THE GOVERNMENT NOR TRANSMITTED BY A SIGNED COMMUNICATION WHICH COULD BE CONSTRUED AS AN OFFER, NOR WAS THE LIASE FORM ENCLOSED WITH THE WE BELIEVE CLAIMANT HAD SUFFICIENT REASON TO KNOW THAT THE GOVERNMENT'S FORWARDING OF A WRITTEN FORM OF LEASE WAS NOT INTENDED AS AN EXPRESSION OF A FIXED PURPOSE UNTIL IT HAD GIVEN A FURTHER EXPRESSION OF ASSENT, AND THE BLANK LEASE THEREFORE CANNOT BE CONSIDERED AS MORE THAN A "PRELIMINARY EXPRESSION" AS STATED IN SECTION 25 OF THE RESTATEMENT.

ALTHOUGH YOU TAKE THE POSITION THAT THE PRESENT CASE IS ANALOGOUS TO UNITED STATES V LANDERS, 128 F.SUPP. 97, WHERE THE FORWARDING OF A SALES AGREEMENT BY THE GOVERNMENT TO A BIDDER CONSTITUTED ASSENT TO GOVERNMENT'S LETTER OF JULY 17, 1964, THE ONE WHICH WAS FINALLY SIGNED. THE OFFER, WE ARE UNABLE TO AGREE WITH YOUR ANALOGY SINCE IN THE CITED CASE THE BIDDER HAD PREVIOUSLY SUBMITTED A SIGNED BID AND VARIOUS MODIFYING TELEGRAMS WHICH TOGETHER WERE CONSIDERED TO BE A FIRM COMMITMENT TO PURCHASE CERTAIN CHEMICALS WITHOUT QUALIFICATION AS TO THE MANNER IN WHICH THE GOVERNMENT COULD ACCEPT THE OFFER.

ACCORDINGLY, THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN DISALLOWING YOUR CLAIM MUST BE SUSTAINED.