concurring in part, dissenting in part:
I agree with and join in the portion of the court’s decision, Part I that deals with the plaintiff’s affirmative claim. As to Part II, that dismisses the counterclaim of the defendant on the supposed authority of S & E Contractors, Inc. v. United States, 406 U.S. 1 (1972), I think we are overreacting to our reversal therein, and respectfully, I dissent. I deny that we are required or even persuaded to dismiss by that decision. There is not present here the feature of unauthorized intermeddling by the GAO, causing prolonged delay though the contractor was willing to settle on the AEC determinations, including the ones adverse to it. This plainly aroused the ire of the Supreme Court majority — was its bete noire, as Justice Brennan said, dissenting, p. 62 — more than any other feature of the case. The majority views about that are 180° at variance from ours that had regarded the legality of GAO intervention as irrelevant. Divided as the higher Court was, there is nothing in its decision to show how it would have reacted to a situation where, as here, the GAO played no role. Plaintiff rejected the “settlement” the Board proposed, thus assuring that the litigation was not at an end, in all events, and all defendant did was to file what would normally have been considered a perfectly routine counterclaim.
Our decision in S & E Contractors, Inc. v. United States, 193 Ct. Cl. 355, 433 F. 2d 1373 (1970), reversed as above, did not write on a clean slate. We cited and followed Acme Process Equipment Co. v. United States, 171 Ct. Cl. 251, 347 F. 2d 538 (1965); and C. J. Langenfelder & Son, Inc. v. United States, 169 Ct. Cl. 465, 341 F. 2d 600 (1965), both of which squarely and unanimously held that the defendant was not bound in Wunderlich review by adverse Board determinations. The difference was that in those cases the GAO played no part. Two of our judges joined in Langenfelder, who afterwards dissented in S & E. The two cases were of course not binding on the Supreme Court, as they were on us. Assuming, however, that the majority above agreed with our dissenters, in S & E, as may be inferred from the lengthy and approving quote by Mr. Justice Blackmun of our late Judge Collins at 21, fn., the fact our dissenters. *753two at least, gagged primarily at the GAO intervention, is also significant.
I should add for completeness that our dissenters in S & E referred to Acme Process Equipment Co., and Langenfelder. Judge Collins said they were inconsistent with his views and should be overruled. Judge Skelton said they were distinguishable on the facts, but he would overrule them if in conflict with his opinion.
It seems to me, therefore, that we could limit the following of S & E to instances of GAO intervention, without doing violence to the Supreme Court’s authority. We could treat Acme Process Equipment and Langenfelder as still law, only limited, not discredited entirely, by S & E. The situation is, however, obviously fluid. Our responsibility is large. We are not told what to do. The Supreme Court, leaving so many questions unanswered, must have hoped we would be able to fashion new rules that would reconcile the various interests involved, with respect to situations that are only analogous or parallel to that in S & E. The rules we now announce should shorten litigation and favor settlement if they are to hold in check the evils that the Wunderlich Act, 41 U.S.C. §§ 321, 322, as construed by the Court, was designed to guard against. In seeking to do this, Judge Davis’s able and scholarly attack on the problem cannot be faulted as to purpose, but I find ominous his concession that the extreme positions of the parties would provide easier and simpler bases of adjudication than the middle line he proposes. We have all the expense, delay, and uncertainty in Wunderlich Act litigation that we need already, and must look with suspicion upon a line of future decisions that cannot but add to them.
That plaintiff’s position, especially as stated by amicus National Security Industrial Association, is extreme, beyond a doubt. It is best explained by counsel’s answer, in oral argument, that the Wunderlich Act procedure is unfair to the contractor, in its entirety, and needs to be corrected by a rule of litigation unfair to the Government. Defendant’s position seemed to me result-oriented and to suggest several alternative grounds for decision, some of which would be extreme if adopted. In saying, however, that S & E does not enable a *754contractor to rely on and repudiate a Board “decision” simultaneously, defendant is thinking along the right track if not with sufficient refinement, and deserves more attention than it is receiving. The court does adopt the position in part, though not for application to the instant case.
We can, I think, agree that when a Board adjudicates :a single, unitary “dispute”, a contractor cannot bind the Government to parts of it that favor him, while rejecting and appealing the remainder. This would do nothing to mitigate the evils the Supreme Court took arms against, and is manifestly unfair. It would militate against the writing of honest and explicit Board decisions. It would become an Art to allow nothing favorable to a claimant to find its way into a decision adverse to him in its ultimate conclusion, to simply steamroller the party elected to lose. Moreover, it does not favor settlement, but encourages further litigation, if a party can come into this court exposing to Wunderlich review only the parts of the resolution of a dispute unfavorable to him, while the f avorable parts are and remain sacrosanct. This is a rule for the encouragement of litigation and the discouragement of efforts by Boards to settle and dispose of disputes in multifaceted cases, by resolving issues one by one for whichever party has the best case on that issue. The court is right about all this.
On the other hand, I am inclined to agree that the contractor’s keeping open one “dispute” does not supply an excuse for the Government to litigate another “dispute” which should be deemed “settled” by S & E standards. One “decision” possibly may deal with more than one “dispute”. The problem therefore is to determine whether a particular case or controvery is one “dispute” even if dealt with for convenience in a separate subsection of findings or an opinion. The court also recognizes this so I need not labor the point.
A single “dispute” may involve more than one contract, as in Gresham & Co. v. United States, 200 Ct. Cl. 97, 470 F. 2d 542 (1972), involving fifteen. The Board adjudicated the one “dispute” in two decisions, but we dealt with all together and any reader of the opinion will agree there was but one “dispute”. Conversely, more than one “dispute” may often arise under a single contract. However, the Board docketing *755of “disputes” as separate though under the same contract, must always be regarded with reserve. Thus in Liles Constr. Co. v. United States, 197 Ct. Cl. 164, 455 F. 2d 527 (1972) the Board adjudicated two “disputes” rising from the same operative fact. The contracting officer had wrongfully ordered the prime contractor to cease employing the painting subcontractor. One “dispute” related to the prime’s claim for reimbursement for the higher cost of employing a new subcontractor. The other “dispute” was as to the cost of settling with the original subcontractor for his wrongful ouster. They were really one “dispute”. Though docketed separately these “disputes” were tried together by the Board and decided together by us. In our order in Dynalectron Corp. v. United States, 199 Ct. Cl. 996 (1972) it appears one “dispute” related to a default termination and the other to excess repro-curement costs resulting therefrom. It would seem we treated the docketing of those matters by the Board as two cases to be practically conclusive that these were two “disputes”, though some minds might regard them as inextricably intertwined.
The court would go behind the docketing of cases by Boards and investigate the actual content of the “disputes” adjudicated. It must be admitted, the whimsical way issues get docketed as one case or several, gives support to the idea that it is not enough to look and see if one “decision” is reported, or several. On the other hand, the practice should work both ways and might well lead to the Liles and Dynaleotron controversies being deemed each a single “dispute” despite the plural docketing. Once negotiation between contractor and Government has broken down, the contracting officer may lump everything together and make one decision, or issue several in sequence. 'In either case, the contractor must appeal within BO days to save his rights. This leads to issues under the same contract dribbling into the Boards and being separately docketed. A piecemeal kind of litigation is apparently demanded by this procedure before the Boards, that courts in their area of cognizance would not tolerate. Boards may consolidate these bits and pieces of litigation, or they may not. I agree with Judge Davis that we *756cannot be bound in all cases by the extent of consolidation a Board has elected to employ.
The Liles case, cit. supra, illustrates also a class of dispute that cannot possibly be considered unitary with others. After the two appeals, already mentioned, dealing with the unlawful termination of the painting subcontractor, came a third that dealt with alleged extra work ordered of the electrical subcontractor. Just as it is obvious to me, and T hope, to the court, that the first two issues are intertwined and are one “dispute” so it is equally obvious that the third issue is another “dispute”. The electrical subcontractor in that issue clearly was the real party in interest, and he had no interest in the painters “dispute”. Had the Board decision been in the electrical subcontractor’s favor, it would have been a most unfair and unreasonable restriction of his S <& E protection to hold that the resort to this court on the painting dispute opened up his favorable decision to review under a Government counterclaim. This establishes that it cannot always be right that a contractor appeal of part of any single “decision” opens up for counterclaim any portion of the same “decision” that the Government dislikes.
Judge Davis’s illustration of issues under a construction contract relating to the building excavation and the painting of the corridor ceiling (p. 738, ante) is of course a good example of separate “disputes” if, as normally would be the case, separate subcontractors were involved, claiming through the prime. In the event, however, that separate subcontractors are not involved, the answer, one “dispute” or two, is by no means self-evident without further facts. The two issues might involve time extensions, and the extra times involved might have to be added to one another to determine if completion was timely. Issues relating to cellar and attic might be invoked as illustrating a course of arbitrary and unlawful rejections by the Government resident inspector. Put the painting outside, and Government caused delay to the basement might postpone painting the roof into the inclement winter season. When you are finished with entitlement and move on to quantum, the relationship of separate items of the claim to one another shifts and varies again.
My quarrel with the court’s proposed way of distinguish*757ing between one “dispute” and several is in part that it demands, in the person drawing the distinction in an actual case, a knowledge of the case not likely to be possessed by anyone who has not already adjudicated the case on the merits, or done as much work as if he had. Thus, I agree with and join in the court’s decision in Northland Camps Inc. v. United States, post at 761, but I cannot help remarking that a complete Wunderlich Act review of all issues including the counterclaim, would have required no lengthier an opinion— it appears to be a simple case — and presumably no more work, yet as things are the Wunderlich Act review is still to be performed. In future cases, when the Government counterclaims, it will probably be better to consider simultaneously whether the Government can obtain review in face of S & E, and whether its contentions have merit in their substance. The latter issue being often easier, it will probably often be better to address it first, and if the Government is seen to have no case, to leave the S & E issue unaddressed.
This in fact the court has already done in Boeing Co. v. United States, 202 Ct. Cl. 315, 480 F. 2d 854 (1973). The case involved Wunderlich Act review of a Board decision interpreting a number of contracts. The issue was the right of the contractor to allocate to its costs of performing Government contracts part of the state and local taxes assessed on commercial property. Different ASPE provisions and different contract clauses were applicable to different contracts, and the Board had distinguished among them, allowing the allocation as to some and not others. Both sides sought our review, defendant by counterclaim. Our trial judge refused to consider the counterclaim on S da E grounds. I would have regarded this as a single, unitary “dispute” if ever there was one, despite the multiplicity of contracts. Others on the court having difficulties, we left the S db E issue to another day and all joined in holding that the counterclaim, even if allowable, lacked merit. Applying the criteria announced by Judge Davis, I am inclined to think we would now hold the case a single “dispute” but I am far from certain, because I do not know how he would balance his two sets of criteria. I would attach controlling weight to the evidently *758conscious decision of the parties and the Board to treat the issue procedurally as one “dispute”.
I do not refer to the case to debate that issue now, but to show how much simpler the merits often are, than the S & E issue, and particularly when the court insists on deciding the latter the hard way. Defendant’s counterclaims will not always so lack merit as to allow the by-passing of the S & E issue. The authors of the S & E decision I suppose hoped they were, if nothing else, at least contributing to economy of judicial manpower and that of the bar as well. Now it seems S & E is all we need to make a Jarndyce v. Jarndyce* out of some of our cases. It is always unsafe to predict what defendant will do. However, I foresee that conscientious Government counsel, applying the court’s subjective criteria, will now believe it their duty to draft counterclaims and test their position in many cases where the Board has allocated rewards and punishments to both sides alike, and the contractor brings his wounds here for assuagement.
It now devolves on me to explain how I would avoid extreme positions and still apply 8 <& E in a simple and rational way. I think the key is to respect and view as the primary factor the treatment of the controversy by the parties and the Board. If, as in the Boemg case, they have chosen to treat the controversy as one “dispute”, that should be decisive. In fact, after these decisions appear, I would expect Boards themselves to make express findings whether they regard a controversy as one or several. Such findings, if supported by substantial evidence, should be deemed binding on us. If they do not so find expressly, we may imply findings from the way the cases are dealt with. Counsel will be aware of the legal consequences, and will not allow disparate matters to be tossed into one grab-bag, or allow what is really one single “dispute” to be broken into several.
If the parties and the Board treat as related parts of one “dispute” what 'appears to be on its face an unrelated series of claim items, I would presume, if not irrebuttably, at least strongly, that they know what they are doing and a connection must be apparent in their minds even if not in ours. I *759would separate out any claim that appears on its face clearly severable, as e.g., one on behalf of a subcontractor not interested in the remainder of the claims in suit. There probably will with more experience emerge other issues of that kind. Absent them, I would presume the prosecution of a series of claim items in a single proceeding, under one contract, occurs because the parties and the Board perceive a connection between them. Within the ordinary contract “dispute” a list of several claim items lists counters to be played on the same checker board. Such counters have a relationship in the minds of the players, and we do not always understand their play. The contractor wants the highest possible price, 'and thus there is no lack of connection in his mind between any two claim items that converge towards this end. Even when the issues are different, stated as abstract doctrine, it usually turns out that the claims overlap to some extent when the cost of satisfying them is computed. Unless they are in the special category noted above, or some other, they are connected. The court recognizes the treatment by the parties as a factor, but spoils this good work by allowing factors of a different kind to control. The effort of separating factors out along the “second category” suggested in the prevailing opinion is not only laborious and unrealistic, in my opinion, but sterile and conceptualistic too. The purpose of the Wunderlich Act being to encourage settlements without court litigation, the interpretation of the word “dispute” should be adopted which most encourages and facilitates settlement. This is, I submit, the interpretation that includes in one “dispute” claim items that counsel would ordinarily discuss together in settlement negotiations and trade off one against the other, according to each side the benefit of its strongest points, and each surrendering its weakest.
Parties litigate for money, not for concepts. In the case before us, it appears to me that the plaintiff’s claim for $144,065 as dealt with in Part I is, in life, a trading for the same money as defendant’s claim of an alleged overpayment, dealt with in Part II, and is one “dispute”. The outcome, which leaves the Board decision standing in toto, and both Teachings struck down, is perhaps not unfair. If we had accorded more respect to plaintiff’s claim, the silencing of the *760counterclaims would in my view display all the unfairness so eloquently dealt with in Subpart IIA, of the court’s opinion, and it is not perceived only because of the conceptualistic dogma that a multiplicity of stated claim items necessarily imports a multiplicity of “disputes”. The mistake seems to be the unstated but felt idea that a single “dispute” requires the parties to make diametrically opposing contentions respecting a single issue, whereas trying for the same money by contentions that do not meet and join are not one “dispute” but two or more. I differ.
Our practical problem, if I am right so far, will be in the cases decided below before the present date, when it was not realized that the way the parties dealt with issues might control application of S & E. Thus the mere happenstance previous history of cases has allowed disparate issues to be thrown into one grab-bag and closely related issues to be dealt with separately. To a limited extent I would reform or restructure such proceedings to reflect their true nature. In Board cases after the present date, this would normally not be necessary because the Boards should henceforward identify separate “disputes” and deal with them accordingly. In some few cases their error might be so gross as to constitute abuse of discretion, but normally their structuring of the “disputes” before them should guide us and relieve us from our difficulties. It is so, I believe, here.
Thus my objection to the application of the S & E decision announced by the majority is that it requires a sterile and conceptualistic analysis of “laundry lists” of separate claim items, as commonly found, particularly in construction contract disputes, and a classification of such claim items as one or several “disputes” possibly contrary to the perception of relationship the parties themselves entertain. So far as it puts into separate “disputes” items that would normally be traded off against one another in bona fide negotiation, such classification will discourage honest, candid Board decisions, discourage settlement on the basis of Board decisions, and encourage the prolongation of litigation and the multiplication of Jarndyce v. Jarndyce situations.
In my judgment the plaintiff in the case before us put forward its claim respecting Modification 47 in good faith, no *761doubt, but still as a counter to trade with, and having put it in play, I think it should be deemed to have also put in play all the other counters still on the board.
An Imaginary lawsuit, described by Charles Dickens In the novel “Bleak House,” that bankrupted all the litigants.