The opinion
Bennett, Judge,
concurring:
Judge Kunzig has ably demonstrated that the $75,000 which plaintiff forfeited to Aetna was, in the terms of 42 U.S.C. § 4653 (2) (1970), an expense necessarily incurred as a penalty cost for prepayment of a pre-existing recorded mortgage entered into in good faith encumbering real property sold to the United States. The statute requires that the head of the purchasing agency, "as soon as practicable after the date of payment of the purchase price,” reimburse the seller for such expenses "to the extent the head of such agency deems fair and reasonable.” I construe this language to require a determination of the extent to which reimbursement is fair and reasonable, not merely of the extent to which the penalty cost incurred by plaintiff was fair and reasonable. Not having been presented with a case requiring us to do so, we need not rule that reimbursement of penalty costs, in addition to the negotiated purchase price, will invariably be required once the penalty costs themselves are found reasonable. Of course, here the agency head, by refusing to recognize the expense as a penalty cost, avoided decision on the extent to which reimbursement would be fair and reasonable. Although the statute appears to confer some discretion upon the agency head in making such determination, I agree with the court that, in the circumstances of this case, and there being no allegation even of bad faith or collusion in arriving at the figure, it would be an abuse of discretion for him to order the reimbursement of any amount less than $75,000. Since the record mandates only one acceptable determination, remand to the agency is not necessary. *115 See Julius Goldman’s Egg City v. United States, 214 Ct. Cl. 345, 354 , 556 F. 2d 1096, 1100-01 (1977).