
    No. 386-79C.
    May 7, 1982
    G.M. Shupe, Inc. v. The United States
    
      Patrick A. Sullivan, attorney of record, for plaintiff. Winston & Cashatt, of counsel.
    
      Alvin A. Schall, with whom was Assistant Attorney General J. Paul McGrath, for defendant. Michael J. Denton, of counsel.
    Before Friedman, Chief Judge, Davis and Bennett, Judges.
    
   per curiam:

This case arises out of a contract plaintiff had with the Bureau of Reclamation for the construction of a dam in New Mexico. In August 1979 plaintiff filed a petition in this court, in four counts, under the Contract Disputes Act of 1979, 41 U.S.C. §601 et seq, and in October 1981 amended that petition to state a fifth cause of action. The present motion by the defendant relates solely to that fifth cause of action. As originally filed, the motion sought partial summary judgment, as to that count, for three reasons: (1) lack of jurisdiction in this court because the contracting officer had not yet rendered a decision on the plaintiffs claims set forth in the fifth cause of action; (2) those claims are barred, in any event, because plaintiff failed to provide timely notice of those claims to the contracting officer; and (3) the claims are also barred because plaintiff failed to assert them before final payment under the contract.

Since the filing of the motion the Government’s jurisdictional defense has been mooted. Plaintiff certified the relevant claims and the contracting officer rendered his decision thereon (denying the claims) on April 16, 1982. Plaintiff then moved to amend its petition to state these facts, and to invoke its right of "direct access” to this court under the Contract Disputes Act. We grant that motion to amend. Plaintiff has now satisfied the jurisdictional requirements for "direct access” and his case as to the fifth cause of action is properly in this court.

The second and third of the defenses summarized above go, not to jurisdiction, but to the contractor’s right to pursue its claims. Plaintiff has not itself moved for summary judgment, but rather appears to assert factual grounds, as well as legal bases, for denial of these defenses. In view of the contracting officer’s decision of April 16, 1982-which finds that the contractor is asserting the claims after a release, and after payment under the contract-the court deems that the two defenses should be considered in the Trial Division, including, if necessary and appropriate, an inquiry into the relevant facts. Accordingly, defendant’s motion will be denied without prejudice as to those two defenses.

it is therefore ordered that defendant’s motion for partial summary judgment is denied with respect to jurisdiction, and is denied without prejudice as to the other two defenses. The case is returned to the Trial Division for further proceedings.  