concurring in the result:
Here is another renegotiation case where the court has undertaken to make bricks without straw.
In floating, as we did, in Lykes Bros. Steamship Co. v. United States, 198 Ct. Cl. 312, 459 F.2d 1393 (1972), the idea that besides proving its financial data, the petitioner must make a prima facie case on factor analysis, we supposed, I believe, that the great prime defense contractors would be before us. Our new procedures were meant to make things easier for petitioners, but also had the unwanted effect of making the litigation slower and more costly. The idea that the majority of our litigants, allegedly swollen with excessive profits, would be little companies, as here, at the sub- or sub- sub-contract level, often impoverished to the degree of being unable to obtain a bond to stay collection of the refund ordered by the Board, was mercifully unknown to the court. As the cases revealed themselves, the defendant has repeatedly demanded dismissal for failure to make a prime facie case, and panels have as repeatedly declined to do it, as the court points out, with instances. Counsel have failed to make the investigations, and put on the stand the expert witnesses, that Lykes Bros, as construed by defendant, would demand. To me, at least, such a rigorous application of the Lykes Bros, standard would be to assess a penalty for being small and impecunious. The panel seems to me to intimate skepticism that any petitioner will ever fail the prima facie case test. Here, unlike most previous cases, defendant made a motion to dismiss at the close of plaintiffs case, which was the proper time to do so. Dynasciences Corp. v. United States, 214 Ct. Cl. 643 (1977). Probably its grounds for making such a motion were as strong as they will often be, that is, plaintiff offered practically nothing that, even if fully believed, established that the Board refund orders were excessive. Yet defendant somewhat lacks grace in moving to dismiss on such grounds, when its own case is going to suffer from the same defects. After denial of its motion, defendant went ahead, and its own case was just about *415equally empty. The problem is how to decide when both parties have shown us so little. I have a strong intuition that the clearances proposed by the trial judge would be miscarriages of justice. They would be taken, and justly taken, as indicating a lack of sympathy by the court with the purposes of the Renegotiation Act. To dismiss the petition would inevitably reinstate the decisions 'of the Board, which appear to me to be harsh ánd punitive.
We are unaided here by the opinion or opinions of the Board, and therefore are unable to say whether they present even a superficial appearance of being reasonable. We do not know how the Board applied the factors. While such are not available to defendant to help in sustaining its burden of proof, they should be so available to some extent for petitioner. That is to say, it should be able to get the opinions into the record, however impecunious it might be. Once in the record, the opinions should help to make the petitioner’s prima facie case. In Instrument Systems Corp. v. United States, 212 Ct. Cl. 99, 109, 546 F.2d 357, 362 (1976), we said:
* * * Plaintiff may accept as correct part of the Board factor analysis, as to some factors, and show that the Board has done injustice with respect to others, thus stressing what the contractor best knows, its own business.
Thus, if the Board said petitioner’s business was free from risk, and petitioner in its prima facie case showed a substantial risk, petitioner might be held to have made a prima facie case by tentatively accepting and relying on the Board analysis as to all but one statutory factor, and refuting it as to that one. It is only required to show it has acted responsibly in invoking relief in this court, and a substantial misapprehension by the Board as to even one factor would do it. I deeply regret that so many cases have been allowed to be tried without the Board opinions, useful as they also are for so many other purposes, even though enjoying no presumption of correctness. There has been some sort of strange idea that they cannot even be spoken of without bringing on mistrials. The statute says a "statement” furnished by the Board shall not be used as proof of facts or conclusions stated therein. 50 U.S.C. app. § 1215(a). This does not preclude the party against whom the order is issued from accepting part of them arguendo.
*416I would hope, if our renegotiation pipeline remains full, eventually there will emerge post- Major Coat Co. v. United States 211 Ct. Cl. 1, 543 F.2d 97 (1976) cases, that have been properly tried. When defendant has allowed petitioner to discover what should be discovered, and made the comparable cases it surely knows of also available to help the court, then it will be time to demand that the petitioner show that at least it had a responsible reason, other than delay, for rejecting Board proposals, taking its unilateral, and suing here. Our Lykes Bros, rule was not intended as weasel words, and should not be allowed to become such.
CONCLUSION OF LAW
The court concludes as a matter of law that for the 1967, 1968 and 1969 fiscal years plaintiff realized excessive profits of $80,300, $111,104 and $90,876 respectively from contracts and subcontracts subject to renegotiation under the Renegotiation Act of 1951, as amended. Judgment is hereby rendered on defendant’s counterclaim in the sum of two-hundred eighty-two thousand, two-hundred and eighty dollars ($282,280), less appropriate state and federal tax credits, plus interest thereon as provided by law.