
    No. 553-80C.
    May 14, 1982
    Z.A.N. Company v. The United States
    
      Sam Zalman Gdanski, attorney of record, for plaintiff.
    
      
      Marsha D. Peterson, with whom was Assistant Attorney General J. Paul McGrath, for defendant.
    Before Davis, Nichols, and Smith, Judges.
    
   This is a "direct access” petition relating to a defense contract dispute. It seeks review of a contracting officer’s decision holding the contractor in breach of warranty. It alleges jurisdiction under the Contract Disputes Act, 41 U.S.C. §601 and ff (Supp. IV 1980). Defendant’s motion to dismiss says that plaintiff has an appeal pending in the Armed Services Board of Contract Appeals (asbca) filed at an earlier date than the petition herein that is a bar to the action in this court. Plaintiff has not responded to the motion though the time for doing so has long since expired. We conclude that plaintiff is not aware of any reason why the action here can be maintained. Defendant filed a counterclaim which we assume, since it is called contingent on our holding that we have jurisdiction of the claim in chief, defendant prefers to prosecute elsewhere. There is therefore no reason to frame our disposition of the petition so as to preserve the counterclaim. The petition and the so-called contingent counterclaim are hereby dismissed.  