The opinion
NICHOLS, Judge,
(concurring) : *
I join in the decision of the court and in the opinion except where it is inconsistent with what follows.
Plaintiff advised defendant on May 14, 1968, that it was still waiting for an equitable adjustment. I think defendant *1360 might reasonably have regarded this as a waiver of whatever breach the contracting officer had allegedly committed up to then in failing to investigate, to make findings, and to reduce his decision to writing. Yet plaintiff, only two months later, without further notice, filed its petition in this court, alleging as breaches, among others, the very same wrongs it had only just now apparently waived. If this were all, it would naturally follow that defendant might be entitled to partial summery judgment.
Defendant, however, has moved only for full summary judgment or suspension. It has left us in doubt how it took the May 14, 1968, letter. In that regard I note the contracting officer’s purported decision in which he seems to acknowledge though he awarded nothing, that someone on defendant’s side of the table, at one time, apparently with authority, offered $150,000 for a settlement. It seems as if defendant, after receipt of the May 14, 1968, letter, felt it had received an ultimatum and that the parties soon would be at war; consequently, it was not going to yield any territory to the adversary. There may be a question whether this kind of document is the “decision” visualized in the disputes clause. The facts of this case indicate that the Board rushed the plaintiff into a hearing contrary to its own rules, while a suit was pending here. This may detract from the validity of the Board’s findings when made, at least on some aspects of the claim.
In the circumstances, I think we have fact issues, and plaintiff is entitled to show, if it can, that it did not waive any breach claims. When we have all the facts, it may still be that Universal Ecsco Corp. v. United States, 385 F.2d 421 , 181 Ct.Cl. 10 (1967) is a precedent for application here. I join in the court’s decision in the belief that it does not finally adjudicate anything. I agree that both motions for summary judgment should now be denied and our proceedings suspended pending a decision by the Board of Contract Appeals.
COWEN, Chief Judge, concurs in both of the foregoing opinions.