dissenting.
I respectfully dissent. I believe that the Claims Court erred as a matter of law by failing to employ the approach of a de novo proceeding, which is mandated by the Contract Disputes Act of 1978, 41 U.S.C. § 601-613 (1988 & Supp. I 1993) (CDA or Act).1
BACKGROUND
In response to Wilner’s claims, the contracting officer made an award to Wilner based upon 260 calendar days of delay. Subsequently, Wilner brought a direct action suit in the Claims Court under the CDA. In the Claims Court, Wilner alleged that government conduct was the legal cause of all of the delay to the project: from October 1, 1986 (the original contract completion date) through January 19, 1988 (the date of contract completion).
Following a careful and thorough review of the evidence adduced at trial, however, the Claims Court concluded that the only critical path delay attributable to the government extended from February 27, 1987, to May 29, 1987, a total of 91 calendar days. Wilner v. United States, 26 Cl.Ct. 260, 275-77 (1992). Having so concluded, the Claims Court stated:
The problem that the court perceives is that its determinations thus far reflect the government-caused delays as proved by plaintiff at trial, rather than what the court perceives, but plaintiff failed to prove, to be the actual government-caused delays.
Id. at 277 (emphasis added).
Further on in its opinion, the Claims Court explained that, “[d]ue to the absence of a critical path analysis,” and without considering the contracting officer’s decision, it was “unable to determine whether delays caused by the Navy were properly compensable as critical path delays.” 26 Cl.Ct. at 279. The Claims Court then turned to the contracting officer’s decision, in which, as noted above, the contracting officer awarded Wilner compensation based upon 260 calendar days of delay. The Claims Court described the contracting officer’s decision as “evidence before the court that must be considered and weighed.” Id. After summarizing the contracting officer’s testimony explaining how he had reached his decision, the Claims Court stated:
Plaintiffs failure to present a critical path analysis at trial is an insufficient basis to reject the contracting officer’s determinations of critical path delay days based on the technical analysis [presented to the contracting officer].
Id. The Claims Court then went on to make an award to Wilner based upon 259 calendar days of government-caused critical path delay.
DISCUSSION
The CDA provides that “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 605(a). As far as the contracting officer’s decision is concerned, the Act states that “[s]pecific findings of fact are not required, but, if made, shall not be binding in any subsequent proceeding.” Id. The CDA further provides that, after a contracting officer renders a decision upon a claim, a contractor may bring an action directly on the claim in the Court of Federal Claims. 41 U.S.C. § 609(a)(1). In the Court of Federal Claims, the action proceeds “de novo in accordance with the rules of the court....” 41 U.S.C. § 609(a)(3).
In Assurance Co. v. United States, 813 F.2d 1202 (Fed.Cir.1987), this court addressed the question of the status of a contracting officer’s decision under the CDA. The issue in Assurance was whether the *790Armed Services Board of Contract Appeals (Board) could legally reduce a contracting officer’s award to a contractor when the contractor, dissatisfied with the award, brought an action before the Board. The court concluded that, under the CDA, the Board did have the power to reduce the contracting officer’s award. In reaching its conclusion, the court looked to the provisions of the CDA cited above which state that findings of fact by a contracting officer are not binding in any subsequent court proceeding, 41 U.S.C. § 605(a), and that in a court action on a contracting officer’s decision, the suit is to proceed de novo. 41 U.S.C. § 609(a)(3). In addressing the de novo nature of the proceedings under the CDA, the Assurance court stated:
[T]he Disputes Act itself suggests that, where an appeal is taken to a board or court, the contracting officer’s award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal.
813 F.2d at 1206.
The plain language of the CDA and this court’s decision in Assurance make it clear that when suit is brought following a contracting officer’s decision, the findings of fact in that decision are not binding upon the parties and are not entitled to any deference. Put another way, once an action is brought following a contracting officer’s decision, the parties start in court with a clean slate. This means that when, as here, the claim being asserted by the contractor is based upon alleged government-caused delay, the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor. See, e.g., William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984); Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed.Cir.1982).
The plain language of the CDA and this court’s decision in Assurance also make it clear that, in court litigation, a contractor is not entitled to the benefit of any presumption arising from the contracting officer’s decision. Rather, the contractor has the burden of proving the fundamental facts of liability and damages de novo. In this case, however, the Claims Court gave the contractor the benefit of just such a presumption. After reading J.D. Hedin Constr. Co. v. United States, 171 Ct.Cl. 70, 347 F.2d 235 (1965), as indicating that “the findings of a contracting officer are entitled to a strong presumption of validity, subject to rebuttal,” Wilner, 26 Cl.Ct. at 277, and after stating that Wilner had failed to carry its burden of proof with respect to alleged government-caused delay, id., the Claims Court stated that Wilner’s failure to present a critical path analysis was “an insufficient basis to reject the contracting officer’s determinations of critical path delay days based on the technical analysis.” Id. at 279. Thus, contrary to the mandate of the CDA that a contracting officer’s findings of fact are not “binding in any subsequent proceeding,” 41 U.S.C. § 605(a), and contrary to the conclusion in Assurance that a contracting officer’s award is owed neither “special deference [nor] acceptance on appeal,” the Claims Court accorded the contracting officer’s findings a presumption of validity, which it weighed against the evidence at ■ trial, thereby allowing Wilner to escape the consequences of its failure to meet its burden of proof. In my view, this approach constituted error because it was contrary to the concept of proceeding de novo, which is mandated by the CDA.2
I respectfully disagree with the majority’s view that the Claims Court conducted a de novo review because it gave “weight” to the contracting officer’s testimony. Opinion at 787. I believe that a review of the pertinent portion of the Claims Court’s opinion — which appears under the heading “Contracting Officer’s final decision” — Wilner, 26 Cl.Ct. at *791279, reveals that, in fact, what the court did was rely upon the contracting officer’s decision, not the testimony of the contracting officer at trial. The Claims Court’s opinion makes it quite clear that Contracting Officer Lindstrom did not offer testimony which independently established the determination of 260 calendar days of government-caused delay. Indeed, Mr. Lindstrom had no firsthand knowledge of the events that transpired during performance of the contract, and no specific recollection of the documents he reviewed in making his decision. Rather, Mr. Lindstrom testified to the general practices within his office and the bases for his final decision. In short, Mr. Lindstrom explained what he relied upon for the conclusions in his final decision. His testimony, however, added nothing to, and provided no support for, those conclusions.3
The majority rests its affirmance of the Claims Court’s decision upon the proposition that “a contracting officer decision which is favorable to a contractor can logically be considered an evidentiary admission by the government....” From this proposition, the majority concludes that the contracting officer’s decision in this case constituted “a strong evidentiary admission, subject to rebuttal, of the extent of the government’s liability.” For its position, the majority relies upon the authority of Dean Constr. Co. v. United States, 188 Ct.Cl. 62, 74, 411 F.2d 1238, 1245 (1969); J.D. Hedin Constr. Co., supra, 171 Ct.Cl. at 83-84, 347 F.2d at 245; Robert E. Lee & Co. v. United States, 164 Ct.Cl. 365, 370 (1964); Vulcan Rail & Constr. Co. v. United States, 158 Ct.Cl. 234, 241 (1962); George A. Fuller Co. v. United States, 108 Ct.Cl. 70, 94, 69 F.Supp. 409 (1947); and Irwin & Leighton v. United States, 101 Ct.Cl. 455, 475 (1944).
In my view, the majority’s reliance upon Dean, Hedin, Robert E. Lee, Vulcan, Fuller, and h'win & Leighton is misplaced. The most recent of these cases predates the effective date of the CDA by almost ten years, and “[w]ith the passage of the [CDA], a new era in the resolution of government contracts emerged.” Tuttle/White Constructors, Inc. v. United States, 228 Ct.Cl. 354, 357, 656 F.2d 644, 646 (1981).
Most importantly, the view which these cases take of the legal effect of a contracting officer’s decision is at odds with the plain language of the Act. That language provides that “[s]pecific findings of fact [by the contracting officer] ... shall not be binding in any subsequent proceeding,” 41 U.S.C. § 605(a), and that an action in court on a claim “shall proceed de novo_” 41 U.S.C. § 609(a)(3). Contrary to section 605(a), the majority opinion makes a contracting officer’s findings binding upon the government as admissions in a subsequent proceeding unless they are rebutted. Likewise, I do not think that a court proceeding on a claim can fairly be termed “de novo” within the meaning of section 609(a)(3) if the government is said to enter the proceeding fettered by the proposition that the contracting officer’s decision on the claim “constitutes a strong evi-dentiary admission, subject to rebuttal, of the extent of the government’s liability.”
Finally, I believe that today’s decision could have unfortunate consequences for the resolution of government contract disputes. First of all, the decision adds a complicating factor to litigation under the CDA. In certain cases, judges of the Court of Federal Claims and the boards of contract appeals will now have to engage in the preliminary activity of weighing evidence. They will have to do so in order to determine whether a “strong evidentiary admission” in favor of the contractor arising from findings of the contracting officer has been rebutted.
Second, the CDA was intended to implement the recommendations of the Commission on Government Procurement. Paragon Energy Corp. v. United States, 227 Ct.Cl. 176, 185, 645 F.2d 966, 972 (1981). One of those recommendations was to “[e]mpower contracting agencies to settle and pay ... all claims or disputes arising under or growing out of or in connection with the administra*792tion or performance of contracts entered into by the United States.” 4 Report of the Commission on Government Procurement at 22. In addition, it has been recognized that one of the purposes of the CDA’s certification requirement is to “encourage settlements.” Folk Constr. Co. v. United States, 226 Ct.Cl. 602, 604 (1981). I believe that an unintended result of today’s decision could be that, contrary to the intent of Congress, it will beconie more difficult to resolve contract disputes before the contracting officer, with the result that more time and money will be spent in board and court litigation by both the government and contractors.
The reason I say this is that I believe today’s decision creates an incentive for contractors to litigate rather than settle and a disincentive for contracting officers to make partial awards in response to contractor claims. By permitting a contractor to use a partial award as evidence, we create an incentive for the contractor to litigate rather than settle. We do so because we increase the contractor’s chances of getting the government’s partial award — in effect, the government’s initial offer — as its recovery floor. With its downside risk lessened, the contractor’s upside gain may not need to be great before it is in the contractor’s interest to litigate rather than settle. , Likewise, if a contracting officer knows that a decision making a partial award to a contractor constitutes “a strong evidentiary admission, [albeit] subject to rebuttal, of the extent of the government’s liability,” it is not unreasonable to expect that he or she will decide not to risk tying the government’s hands in subsequent litigation by issuing a decision which could give rise to such an admission. In short, I believe that a result of today’s decision could well be that fewer cases will settle and that there will be fewer partial awards to contractors.
CONCLUSION
For the foregoing reasons, I would reverse the decision of the Claims Court and would remand the case to the Court of Federal Claims for a computation of the award, if any, to which Wilner is entitled, based upon the determination of the Claims. Court, following a review of the evidence at trial, that the government was responsible for 91 calendar days of critical path delay.
ORDER
Aug. 2, 1993.
The appellant, the United States, having filed a petition for rehearing, and a response thereto having been invited by the court and filed by the appellee, and the petition for rehearing having been referred to the panel that heard the appeal and denied, and thereafter the suggestion for rehearing in bane and response having been referred to the circuit judges who are in regular active service,
Upon consideration thereof, it is
ORDERED that the suggestion for rehearing in banc be, and the same hereby is, accepted.
IT IS FURTHER ORDERED that the judgment of the court entered on May 24, 1993, is vacated and that the opinions of the court accompanying the said judgment are withdrawn.
Additional briefing and argument are not indicated at this time.
. Unless the context requires otherwise, I refer to the trial court by the name which it had while this case was pending before it and before it was renamed the United States Court of Federal Claims.
. Moreover, as noted in Assurance, Court of Claims precedent after Iiedin held that, in the event of an appeal to a board of contract appeals under the Disputes clause of a government contract, the contracting officer's decision was deemed "vacated” and enjoyed "no presumptive validity whatever." Southwest Welding & Mfg. Co. v. United States, 188 Ct.Cl. 925, 954, 413 F.2d 1167, 1184-85 (1969). "There is no reason to believe that, in enacting the Contract Disputes Act, Congress intended to change this established rule.” Assurance, 813 F.2d at 1206.
. As a general proposition, I do not disagree with the majority’s statement that “contracting officer testimony is not without value.” Opinion at 787. What I would say, though, is that in this case, that proposition is not relevant. The reason is that, as just discussed, the Claims Court’s decision is based upon the contracting officer’s decision, not his testimony.