B-173937, SEP 7, 1971

B-173937, SEP 7, 1971

CONTRACTS - MUTUAL MISTAKE - REFORMATION DECISION ALLOWING REFORMATION OF A CONTRACT BETWEEN THE FOREST SERVICE AND MADISON AVIATION, INC. FOR FURNISHING HELICOPTER FLIGHT SERVICE AND FURTHER ALLOWING PAYMENT OF $2,500 DELETED FROM INVOICES SUBMITTED BY CLAIMANT. WHILE THE RATE STATED IN THE CONTRACT WAS $225 PER HOUR OF FLIGHT TIME, AND THE AGREEMENT FURTHER STATED THAT "THIS RATE INCLUDES OVERNIGHT COSTS AND ON HELICOPTERS INCLUDES MECHANIC AND SERVICE TRUCK," IT IS CLEAR FROM THE RECORD THAT A TRUCK SERVICE CHARGE OF $50 PER DAY AND AN OVERNIGHT RATE OF $25 PER MAN WERE INTENDED TO BE INCLUDED AS SEPARATE AND DISTINCT CHARGES. BECAUSE OF THIS MUTUAL MISTAKE, THE CONTRACT MAY BE REFORMED AND PAYMENT MADE FOR THOSE SERVICES PREVIOUSLY RENDERED.

TO MR. ARVIN L. WHITE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1971, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT AMOUNTS AGGREGATING $2,500 DELETED FROM INVOICES SUBMITTED BY MADISON AVIATION, INCORPORATED, MESA, ARIZONA, FOR FURNISHING HELICOPTER FLIGHT SERVICE TO THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, UNDER BLANKET PURCHASE ARRANGEMENT-AIRCRAFT HIRE AGREEMENT NO. 12-5066, DATED APRIL 21, 1970.

IT IS REPORTED THAT SOME OF THE INVOICES SUBMITTED BY MADISON, FOR SERVICES RENDERED DURING THE MONTHS OF JULY AND AUGUST 1970, CONTAINED CHARGES FOR OVERNIGHT FEES FOR PILOTS AND CREW MEMBERS AWAY FROM BASE, AND A SERVICE TRUCK CHARGE OF $50 PER DAY. PAYMENT OF SUCH CHARGES WAS NOT MADE INASMUCH AS THE AIRCRAFT HIRE AGREEMENT PROVIDED FOR THE PAYMENT OF $225 PER HOUR OF FLIGHT TIME (INCLUDING PILOT), AND STATED THAT "THIS RATE INCLUDES OVERNIGHT COSTS AND ON HELICOPTERS INCLUDES MECHANIC AND SERVICE TRUCK."

MADISON CONTENDS THAT WHEN IT SUBMITTED ITS AIRCRAFT HIRE AGREEMENT THE OVERNIGHT AND TRUCK SERVICE CHARGES WERE INADVERTENTLY OMITTED. THE FOREST SERVICE CONTRACT SPECIALIST WHO SIGNED THE AGREEMENT ON BEHALF OF THE GOVERNMENT CONCURS THAT THE INTENT WAS TO INCLUDE THE "OVERNIGHT RATE" AND THE "SERVICE TRUCK RATE" AS SEPARATE AND DISTINCT CHARGES. THE COMPANY AND THE CONTRACT SPECIALIST REFER TO PAGE 3 OF FORM NO. 6300-35, EXECUTED APRIL 1, 1970, WHICH LISTS VARIOUS RATES FOR SERVICES, INCLUDING A FLIGHT TIME RATE OF $225 PER HOUR, A SERVICE TRUCK-HELICOPTER RATE OF $50 PER DAY AND AN OVERNIGHT RATE OF $25 PER MAN APPLICABLE TO PILOT AND/OR CREW MEMBERS AWAY FROM BASE.

THE RECORD SHOWS THAT THE AIRCRAFT HIRE AGREEMENT WAS AMENDED ON SEPTEMBER 23, 1970, TO PROVIDE FOR A SERVICE TRUCK CHARGE AND AN OVERNIGHT CHARGE. YOU STATE THAT SUBSEQUENT SIMILAR AGREEMENTS ALSO CONTAIN PROVISIONS FOR THOSE SEPARATE CHARGES. ALTHOUGH, AS YOU INDICATE, THE EXECUTED FORM NO. 6300-35 WAS NOT MADE A PART OF THE AGREEMENT, IT TENDS TO SUPPORT THE POSITION OF THE COMPANY AND THE GOVERNMENT'S CONTRACT SPECIALIST THAT THE INTENT OF THE AGREEMENT WAS TO INCLUDE THE OVERNIGHT RATE AND THE SERVICE TRUCK RATE AS SEPARATE AND DISTINCT CHARGES.

A CONTRACT MAY BE REFORMED WHERE IT IS SHOWN THAT BY REASON OF A MUTUAL MISTAKE THE CONTRACT AS REDUCED TO WRITING DOES NOT REFLECT THE ACTUAL AGREEMENT OF THE PARTIES AND IT CAN BE ESTABLISHED WHAT THE CONTRACT WAS OR WHAT IT WOULD HAVE BEEN IF A MISTAKE HAD NOT BEEN MADE. SEE 20 COMP. GEN. 533 (1941); 30 ID. 220 (1950). IN VIEW THEREOF, AND SINCE IT APPEARS THAT THE PARTIES HERE INVOLVED INTENDED TO INCORPORATE IN THE AIRCRAFT HIRE AGREEMENT A PROVISION FOR OVERNIGHT AND SERVICE TRUCK CHARGES WHICH WOULD BE IN ADDITION TO AND NOT INCLUDED IN THE FLIGHT TIME RATE OF $225 PER HOUR, THE AMOUNTS DELETED FROM THE INVOICES SUBMITTED BY MADISON AVIATION, INCORPORATED, COVERING SERVICES RENDERED DURING JULY AND AUGUST 1970, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.

THE CORRESPONDENCE AND DOCUMENTS ENCLOSED WITH YOUR LETTER ARE RETURNED.