ON defendant’s motion for rehearing and for REHEARING EN BANC
per curiam:This case comes before the court on defendant’s motion filed April 23, 1981, for rehearing and for rehearing en banc pursuant to Rules 7(d) and 151, with reference to the order entered herein on March 6, 1981, denying defendant’s motion to dismiss the petition for failure to state a claim and for lack of jurisdiction. Upon consideration thereof, without oral argument, by the active judges of the court (Judge Smith not participating) as to the suggestion for rehearing en banc under Rule 7(d), which suggestion is denied, and further having been so considered by the panel listed above as to the motion for rehearing under Rule 151, defendant’s said motion is denied. Both the suggestion for rehearing en banc and the motion for rehearing by the panel are denied on the ground that defendant should have been aware of, and should have cited to the court in its prior motion to dismiss, the orders of the court in Woodward v. United States, 209 Ct.Cl. 769 (1976), and Harris v. United States, 223 Ct.Cl. 762 (1980), which defendant now asserts (for the first time) is in conflict with the position taken in our prior order in this case. See Laka Tool and Stamping Co. v. United States, ante at 469-70, 650 F.2d 270, 271, cert. denied, 454 U.S. 1086 (1981). Defendant has offered no adequate excuse for its failure to cite these two orders in its motion to dismiss.
it is ordered therefore that defendant’s said motion for rehearing and rehearing en banc is denied.