The meaning of the Court of Claims' distinction between disputes over rights given by the contract and disputes over a violation of the contract has been clarified in a subsequent decision holding that to the extent complete relief is available under a specific contract adjustment provision, such as the changes or changed conditions clauses, the controversy falls within the disputes clause and cannot be tried de novo in a suit for breach of contract. Morrison-Knudsen Co. v. United States, 170 Ct. Cl. 757, 762, 345 F.2d 833, 837 (1965). With respect to relief available under the contract, therefore, the contractor must exhaust his administrative remedies and the findings and determination of the Board would be subject to review under the Wunderlich Act standards, as applied in Bianchi.

It is also agreed that Count XVII for delay damages is a breach-of-contract demand which, to the extent its facts differ from previously-litigated claims arising under the contract, should be tried in this court. See United States v. Utah Constr. Mining Co., 384 U.S. 394, 418-422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Morrison-Knudsen Co. v. United States, 345 F.2d 833, 837-838, 170 Ct.Cl. 757, 764 (1965); J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 241, 171 Ct.Cl. 70, 77 (1965). The real controversy is over the disposition of the reinspection claims (Counts I-XIII and XVI), and whether the hair (Counts XIV, XV, and XVII) should follow the hide.

Provisions for remedy (disputes clauses) have come under scrutiny with some degree of frequency in the federal courts because of contract disputes with the United States governmental agencies. As the United States Court of Claims recognized in Morrison-Knudsen Co., Inc. v. United States, 345 F.2d 833, 170 Ct. Cl. 757 (1965): "In the broad sense, every failure by the government to comply with its contractual obligations is a breach of contract. . . . But we know that this is not so." The Court of Claims went on to note that if "complete relief is available to the contractor under the provisions of the contract . . ., the action is not one for . . . breach of contract.

This court held in a prior proceeding in this case that such findings were gratuitous and did not preclude a trial de novo on the merits. Morrison-Knudsen Co. v. United States, 345 F.2d 833, 838, 170 Ct.Cl. 757, 764 (1965). See also United States v. Utah Construction Min. Co., 384 U.S. 394, 403-418, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966).

"Of course, if the findings made by the Board are not relevant to a dispute over which it has jurisdiction, such findings would have no finality whatsoever. See Part II, supra; Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757; Utah Constr. Mining Co. v. United States, 339 F.2d 606, 617, 168 Ct.Cl. 522, 539-540 (dissenting opinion of Judge Davis)."

In this case, if plaintiff is correct as a matter of law the Board could so decide and make an award under Article AL. If, on the other hand, the defendant is right and the tanks or vessels were "Save List Items", not sold to plaintiff, then the Board can so determine and refuse relief. The situation is analogous to the "constructive change", so familiar under the standard Changes articles, whereby relief is available under the contract if the Board, on appeal, holds incorrect the contracting officer's interpretation that the challenged work is already part of the specifications or contract (and not a change). See, e.g., Morrison-Knudsen Co. v. United States, 345 F.2d 833, 837 n. 2, 170 Ct.Cl. 757, 763 n. 2 (1965). The appellate remedy, within the administrative hierarchy, must therefore be exhausted, as well as the nisi prius stage.

Crown Coat Front Co. v. United States, 386 U.S. 503, 506, 87 S.Ct. 1177, 1179, 18 L.Ed.2d 256 (1967) [Emphasis added]. See Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757 (1965). This principle, enunciated by the Supreme Court, was recently restated by this court in Len Co. and Associates v. United States, 385 F.2d 438, 441-442, 181 Ct. Cl. 29, 36 (1967), as follows:

In comparable contexts this court has already recognized this predicament and the pressure it exerts on contractors to pursue the administrative process. We said in Morrison-Knudsen Company v. United States, 345 F.2d 833, 838, 170 Ct. Cl. 757, 764 (1965): "Faced with the prospect of having their suits in court dismissed for failure to exhaust their administrative remedies, contractors often feel compelled to present all claims relating to the contract to the contracting officer, and on appeal to the appeals board". Recently we referred to "the potential dilemma of a contractor who administratively presents his claim to protect his position even though he would prefer, and thinks he is entitled to, a judicial remedy. If he does not vigorously defend the applicability of the `disputes' clause, the Government, as in this case, would have us hold that he failed to exhaust his administrative remedies. If he argues too hard for administrative jurisdiction, he is likely to be faced with an estoppel argument".

Brief for the Government, p. 20, n. 14, indicates that it may actually take longer for the Court of Claims to dispose of a case than it would for the boards.To the extent that the Court of Claims may have been worried about duplicity of evidentiary hearings, see United States v. Carlo Bianchi, supra, at 717, it partially answered itself in Morrison-Knudsen Co. v. United States, 170 Ct. Cl. 757, 345 F.2d 833, decided the same day. There the Court of Claims held that when the Board of Contract Appeals has jurisdiction to consider a certain issue and to award full relief and it makes a record on the factual matters underlying that issue, judicial review of those factual findings, for whatever purposes, shall be limited to the record made by the Board. We hold, in United States v. Utah Construction Mining Co., supra, that factual findings made by a board pursuant to a claim properly before it, if they otherwise satisfy the standards of the Wunderlich Act, shall not be relitigated even in a court action for relief that is not available under the contract.

See, e.g., Crown Coat Front Co. v. United States, 386 U.S. 503, 505-06, 87 S.Ct. 1177, 1178-79, 18 L.Ed.2d 256 (1967) ("The `arising under' claims subject to final administrative determination are those claims asserted under other clauses of the contract calling for equitable adjustment of the purchase price or extensions of time. . . ."); Utah Constr. Mining, 384 U.S. at 405-06, 86 S.Ct. at 1151-52; Kyle Eng'g, 600 F.2d at 231 n. 4 (In dicta, the court stated that the issues raised by Kyle of delay, changes, and termination, are covered by specific contract provisions and thus by the disputes clause.); Zidell Explorations, Inc. v. United States, 427 F.2d 735, 737, 192 Ct.Cl. 331 (1970); Morrison-Knudsen Co., Inc. v. United States, 345 F.2d 833, 837, 170 Ct.Cl. 757 (1965); Harrington Richardson, Inc., ASBCA No. 9839, 72-2, BCA ¶ 9507 (1972). This is consistent with California case law on ejectment.