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payment to the contractor in the amount of $174.98, representing the balance of the total contract price of $4,986.93, was made on D.O. Voucher No. 2622, January, 1959, accounts of T. J. Brantley, F.C., by Treasury check No. 26967, on January 13, 1959. Final release

forms sent to the contractor for execution were never executed.

By letter of December 19, 1958, addressed to the Contracting Officer, U.S. Army Ordnance District, Birmingham, Alabama, the contractor requested payment of the additional amount of $3,272.09 under the contract to cover the loss which it claimed to have sustained in its performance. In its letter, the contractor contends in substance that it made a mistake in submitting its bid in that it believed it was bidding on a type of amplifier which is less costly to produce than the one which was actually required to be furnished under the specifications. The contractor states that, prior to submitting its bid, it contacted the Birmingham Ordnance District and was advised that the prints [drawings] and specifications, referred to above as not being furnished with the invitation, were available, and an employee was sent to pick them up; that the employee returned with the information that the prints and specifications were not available for him to take along, but he had been allowed to study them, and that the article being procured was "just a two stage audio amplifier containing so many resistors, condensers, tubes, etc."; and that (inferentially) the contractor's bid was prepared on the basis of such information. The contractor further states that, after award of the contract, it requested a set of prints and specifications from the Birmingham Ordnance District and that "proper prints and specifications were forwarded to us on 22 January 1958."; that upon further investigation it found out that the employee involved, who is no longer with the company, never went to the Birmingham Ordnance District office; and that the information which he gave was fictitious.

By letter of February 2, 1959, the Birmingham Ordnance District, Legal Office, forwarded the above letter to the Commanding Officer, Frankford Arsenal, for the attention of Mr. Harry P. Edwards, Contracting Officer (who had awarded the contract involved), for comment, with particular reference to whether or not the contractor's bid price had been confirmed prior to award and, if so, whether General Electronics had been advised that its bid was substantially lower than the next lowest bidder. The contracting officer in question, by first endorsement of February 13, 1959, on behalf of the Commanding Officer of Frankford Arsenal, advised the Commanding Officer of the Birmingham Ordnance District that the contract had been awarded on the basis of the information given in Birmingham Ordnance Dis

trict's above quoted teletype of January 7, 1958, which indicated, among other things, that General Electronics had confirmed its bid price. The contracting officer stated that it was assumed that the Birmingham Ordnance District, in obtaining price confirmation, had fulfilled "the Government's responsibility for ascertainment of the correctness of the bid," in view of which no further action in this respect had been taken by Frankford Arsenal. In commenting on the amount of General Electronic's bid in relation to the other bids, the contracting officer stated:

*** From Abstract of Bids, it appears its price is considerably out of line with the general bid pattern; however, this Arsenal purchased the same item through advertising from a Philadelphia source in June 1957 at a unit price of $118.30. While the latter price is lower than the quotations on the subject Invitation, it is still approximately 35% higher than the current award figure and appears to point up the possibility that General Electronics, in fact, made an error in the submission of its bid.

In a memorandum dated March 17, 1959, to the Chief of Ordnance, with reference to the matter, the successor contracting officer states that he is of the opinion that the contractor made a bona fide mistake in the submission of its bid, and he recommends approval of the claim in the amount of $2,820.92, this being the amount of the additional costs claimed by the contractor which were found to be acceptable by the Army Audit Agency as a result of an audit of the contractor's records. The basis for the successor contracting officer's approval of the claim to the extent indicated is that the wide discrepancy between General Electronics' bid and the next lowest bid, as well as the previous procurement experience, referred to above, was sufficient to place the contracting officer on notice of the probability of error therein and to cast upon him the duty of obtaining a verification of the bid. Relative thereto, the successor contracting officer states that the confirmation of the bid which was obtained during the preaward survey was merely a "general confirmation" and the contractor "was not advised specifically of the wide discrepancy in the bids." This, the successor contracting officer contends, fell short of satisfying the requirements.

The Office of the Chief of Ordnance in a memorandum dated April 14, 1959, concurs with the views and recommendation of the successor contracting officer in the matter.

Even conceding that the contractor made the mistake in its bid as alleged, that the wide discrepancy between the bid and that of the next lowest bidder was sufficient to place the contracting officer on constructive notice of error therein, and that the Government did not fulfill its responsibility with respect to obtaining a verification of the bid, we still find no legal basis for allowance of the claim. These circumstances, at most, might have entitled the contractor to rescind the

contract when it received the prints and specifications forwarded to it by the Birmingham Ordnance District on Jaunary 22, 1958, and discovered its mistake, it being well established that a unilateral mistake may be a ground for rescinding, but not for reforming, a contract. Hearne v. Marine Insurance Co., 87 U.S. 488, 491. However, even after receipt of the complete drawings, the contractor proceeded with the performance of the contract entered into a supplemental agreement which acknowledged the contract to be a binding and subsisting agreement, and completed deliveries thereunder, before it alleged any mistake or presented any claim for additional compensation. In these circumstances, the contractor must be held to have affirmed the contract in all its terms, and to have waived whatever rights it may otherwise have had arising out of the mistake. See Board of Trustees of National Training School for Boys v. O. D. Wilson Co., Inc., 133 F.2d 399; Rood Company v. Board of Public Instruction, 102 So. 2d 139; Hobe Lumber Co. v. McGrath et al., 112 N.W. 1053, 1054; Eastern States Petroleum Co. v. Universal Oil Products Co., 49 A. 2d 612, 615; Staly v. McNerney, 10 N.W. 2d 584; State v. Cote et al., 65 A. 693, 698; John Monks & Sons v. West Street Improvement Co. et al., 134 N.Y.S. 39, 44; Grant Marble Co. v. Abbot, 124 N.W. 264, 268; Milford Yacht Realty Co. v. Milford Yacht Club, 72 A. 2d 482, 485; Brendese v. City of Schenectady et al., 85 N.Y.S. 2d 856, 861; Anderson v. Anderson et al., 96 N.E. 265, 267; 17 C.J.S. Contracts, Secs. 446, 448; Restatement, Contracts, Secs. 510, 484.

It follows that payment to the contractor of any amount in addition to the contract price would be unauthorized.

Senator Sparkman is being furnished a copy of the present decision, as requested in your letter, and the enclosures transmitted with your letter are returned herewith.

[B-138918]

Military Personnel-Reenlistment Bonus-Reenlistment of Officers-Qualification

An enlisted member of the Regular Army who, after involuntary transfer to the Air Force under the National Security Act of 1947, was discharged to accept a commission in the Army of the United States and, when relieved from active duty as an officer, immediately reenlisted in the Regular Army may be regarded as having been an enlisted member of the Regular Army immediately prior to his appointment as an officer in the Army of the United States, notwithstanding the Air Force service, for qualification for a reenlistment bonus under section 208 (d) of the Career Compensation Act of 1949, 37 U.S.C. 239 (d), payable for a first reenlistment.

Reenlistment bonus payments under section 207 of the Career Compensation Act of 1949, 37 U.S.C. 238, to former officers who enlisted on or prior to July 16, 1954 the date of the act amending the reenlistment bonus provisions of the 1949 act-even though their officer service was not preceded by enlisted service, will not be questioned in view of the broad language in subsections 207 (a) and

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(b) which does not specifically restrict or limit the bonus payments of former enlisted members who enlist, and does not specify that the qualifying service must have been rendered in an enlisted status or have been preceded by enlisted service; however, bonus payments to former officers who enlist after July 16, 1954, may not be made unless the member previously served as an enlisted man in the service in which he enlists, but such enlisted service does not have to immediately precede the officer service.

To Captain W. A. Bailey, Department of the Army, July 15, 1959: By second endorsement of March 3, 1959, the Chief of Finance, Department of the Army, forwarded here your letter of January 20, 1959, and enclosures, requesting an advance decision as to whether you are authorized to pay the claim of Master Sergeant Aljean L. Shelton, RO 15 256 470, for a reenlistment bonus in the circumstances shown. Your request for decision was assigned D.O. Number 403 by the Department of Defense, Military Pay and Allowance Committee.

It appears that Sergeant Shelton enlisted in the Regular Army (Army Air Forces) on September 28, 1947; that he was tranferred to the United States Air Force pursuant to the provisions of the National Security Act of 1947, 61 Stat. 495 5 U.S.C. 171 note; that he was discharged from the United States Air Force on September 20, 1948, to accept a commission as first lieutenant, Army of the United States; and that he accepted such commission and reported for active duty on September 21, 1948. He was relieved from active duty as a captain on September 30, 1957, and on October 1, 1957, he reenlisted in the Regular Army for a period of four years. He is now claiming a reenlistment bonus under the provisions of section 208 of the Career Compensation Act of 1949, as added by section 2 of the act of July 16, 1954, 68 Stat. 488, 37 U.S.C. 239. That section contains the following provisions:

(a) Subject to subsections (b) and (c) of this section, a member of a uniformed service who reenlists in the regular component of the service concerned within ninety days after the date of his discharge or release from active duty, and who is not covered by section 207 of this Act, is entitled to a bonus ***.

(d) An officer of a uniformed service who reenlists in that service within ninety days after his release from active duty as an officer is entitled to a bonus computed according to the table in subsection (a), if he served in an enlisted status in that service immediately before serving as an officer. ***

Paragraph 9-8, Army Regulations 37-104, provides that an officer who reenlists in the Regular Army within 90 days after his release from active duty as an officer is entitled to a reenlistment bonus under section 208 of the Career Compensation Act if he served on active duty in an enlisted status in the Army immediately before serving as an officer. Paragraph 9–63a, Army Regulations 37-104, provides that a reenlistment bonus may be paid upon first reenlistment in the Regular Army following discharge or separation from the Regular

Air Force if the member is otherwise entitled. Payment is authorized only in those cases where the member was involuntarily transferred to the Air Force under the National Security Act of 1947, as amended.

Section 305 (a) of the National Security Act of 1947, 61 Stat. 508, 5 U.S.C. 851, provides that all laws applicable with respect to any functions, activity, personnel, etc., transferred under that act, shall have the same effect as if such transfer had not been made. Section 208 (c) of the act, 61 Stat. 504, 5 U.S.C. 626c (c), provided for transfer of officers and enlisted men in the Air Corps, United States Army, and in the Army Air Forces, to the United States Air Force, and that:

*** No such change in status shall alter or prejudice the status of any individual so assigned, so as to deprive him of any right, benefit, or privilege to which he may be entitled under existing law.

In decision of February 17, 1949, 28 Comp. Gen. 460, to the Secretary of the Army, it was held that enlisted men who were transferred from the Army to the Air Force under the 1947 act and who subsequently were discharged as members of the Air Force, are entitled, in view of the provisions of section 208 (c) and the savings provisions of section 305 (a) of the National Security Act of 1947, to an enlisment allowance upon their first subsequent enlistment in the Air Force or reenlistment in the Regular Army measured by their combined prior continuous active Federal service in the Air Force and the Army as provided in section 8 of the act of October 6, 1945, 59 Stat. 541, 37 U.S.C. 110. The principle stated in that decision is equally applicable to this case. Thus, for purposes of the reenlistment bonus it may be considered that Sergeant Shelton served as an enlisted member in the Regular Army immediately prior to his appointment as an officer in the Army of the United States.

It is, therefore, concluded that Sergeant Shelton qualifies under subsection 208 (d) of the Career Compensation Act of 1949, as amended, 37 U.S.C. 239 (d), for the reenlistment bonus payable under subsection (a) for a first reenlistment. 34 Comp. Gen. 715. The claim is returned for payment, if otherwise correct.

An additional question is presented by the Chief of Finance as stated in paragraph 3 of second endorsement of March 3, 1959, as follows:

3. Further, question arises as [to] whether former officers are required to have had enlisted service immediately prior to their appointments as commissioned officers to be entitled to a reenlistment bonus under Section 207 (a) of the Career Compensation Act of 1949, if 'otherwise entitled thereto. It appears that former officers, who reenlist in the same service as enlisted members, are not required to have had previous enlisted service to be entitled to a reenlistment bonus under Section 207 (a), since that section does not specify that officers must have served as enlisted members. Sections 207 (d) and 208, however, contain a provision, whereby payments authorized therein may be made only if the individual served in an enlisted status in the same service immediately

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