Opinion of the Court 138 C. Cls. The overall result of the amounts of contributions to the State of Illinois during the years 1947 through 1950 is that the plaintiff paid $420,212.46 more in contributions because of its experience under contract 149 than it would have if its contribution rate was based only on the operations of its three normal peacetime plants which would necessarily exclude any experience plaintiff had under contract 149. In January 1944 the plaintiff employed Frank C. Hungerford and placed him in charge of the contracts and claims division of its Garfield Division. He had previously been a civilian engineer with the United States Corps of Engineers when, in January 1944, he obtained a leave of absence to enter plaintiff's employ where he remained until May 31, 1946, when contract 149, according to supplement number 6, came to an end. He then returned to civilian employment with the Corps of Engineers the following day, June 1, 1946, in the capacity of resident engineer at the Garfield plant. Contract 149 was originally executed with the Manhattan District of the then War Department and the Garfield plant was under its control and ownership. However, on December 31, 1946, pursuant to section 9 of the Atomic Energy Act of 1946, 42 U. S. C. § 1809, 60 Stat. 765, and Executive Order 9816, it was transferred to the Atomic Energy Commission. Thereafter, the Oak Ridge Operations Office of the Atomic Energy Commission had the authority and the responsibility for administration of contract 149 and for the payment of claims thereunder and it actually paid two claims on contract 149 thereafter. As of the effectuation of the transfer of the property to the Atomic Energy Commission, Mr. Hungerford became a civilian employee of that Commission but remained assigned to the Garfield plant. In January 1950 while still in the employ of the Atomic Energy Commission, Hungerford came to Detroit with two release forms which he urged plaintiff to sign alleging that the forms were necessary to meet the administrative requirements of the Government and that there was no reason why plaintiff should not sign them because he (Hungerford) knew from his own experience as a former employee of the plaintiff in connection with contract 149, that there were no claims under that contract. 301 Opinion of the Court He also stated that if there were any unknown claims, they were excepted by paragraph (b) of the release forms. The plaintiff at that time was unaware that the claims which it is now pursuing were reimbursable under the contract and contrary to advice of counsel, signed the forms, under corporate seal, on January 25, 1950. No payment or anything of value was given over by defendant at the time these forms were signed. The release follows: RELEASE The work under Contract No. W-7405-eng-149 dated June 10, 1943, between the United States of America and the undersigned contractor, having been completed and finally accepted, the United States of America, its officers and agents, and each of them, are hereby released from all claims and demands whatsoever arising under and by virtue of said contract, except as follows: (a) Claims in stated or estimated amounts-NONE. (b) Any and all claims arising out of the performance of said contract based upon the responsibility of the undersigned Contractor to third parties, not known at the time of executing this release. Executed this 25th day of January, 1950. [Corporate seal] Plaintiff first became aware of the reimbursable nature of the claim now being asserted in the spring of 1951, upon learning of the decisions of the Appeal Board, Office of Contract Settlement in the Certain-Teed Products Corporation, 4 App. Bd. OCS No. 317, p. 157; and the Hercules Powder Company, 5 App. Bd OCS No. 342, pp. 24 and 59, cases while attempting to work out provisions for another cost-plus-fixed-fee Government contract. The plaintiff then commenced an analysis and examination of its employment records at all of its plants for the purpose of determining the extent that contract 149 adversely affected its contribution rates so as to make a claim for the recovery of the excess payments. The claim was first mailed to the Atomic Energy Commission at Oak Ridge, Tennessee, on August 4, 1952. In reply to this claim the plaintiff was advised by the manager of the Oak Ridge Operations of the Commission that to determine the outcome of the claim it was necessary to make an initial determination as to whether 449492-58- -22 Opinion of the Court 138 C. Cls. the claim was properly a termination claim, as presented, or whether it was recoverable under the terms of the contract notwithstanding the Contract Settlement Act. In the same communication plaintiff was advised that the claim was being referred to the Contract Board of that office to make that determination and instructed plaintiff to conduct any further negotiations on the matter with Mr. John R. Moore, Chairman, Contract Board, Oak Ridge Operation. A conference was had between plaintiff and that board, the board taking the position that plaintiff should file its claim in voucher form as a reimbursable item under the contract rather than as a termination proposal because it was felt that the contract had not been terminated. Mr. Moore told plaintiff that because of the size of the claim it would after receipt in the form above noted, be forwarded to the General Accounting Office. He also said that the Oak Ridge Operation Office would recommend to the Atomic Energy Commission, in Washington, D. C., that the claim be considered a reimbursable cost under the contract. The plaintiff thereafter submitted its claim in voucher form and omitted any reference to the termination of the contract but attached thereto a memorandum within which plaintiff reserved any rights it may have had under the Contract Settlement Act because of a terminated contract. The Commission thereafter verified the claim and forwarded it with a memorandum dated March 23, 1953, and over the signature of Mr. Vanden Bulck, Assistant Manager to the Controller of the Atomic Energy Commission, Washington, D. C. Mr. Bulck, and the aforementioned Chairman of the Contract Board, Mr. Moore, each of whom was a contracting officer at Oak Ridge and with authority to settle all claims on contracts in amounts not in excess of $500,000, cooperated in the preparation of the memorandum. That memorandum supported the validity of plaintiff's claim wherein it stated as follows: *** For reasons hereinafter stated, and also set out in detail in the contractor's memorandum in support of the Form 1034 cost voucher, it is our opinion, based on the advice of counsel, that the costs constituting the basis of this claim are reimbursable under the terms of the contract. However, due to the novelty of the case and the large sum involved, we are suggesting that the 301 Opinion of the Court claim be submitted to the Comptroller General for an advance determination as to the propriety of payment. The Chairman of the Atomic Energy Commission on June 8, 1953, transmitted the claim to the Comptroller General of the United States who on July 1, 1953, by the Acting Comptroller General, in a letter to the Chairman of the Atomic Energy Commission denied the claim by decision No. B-115683. That decision was in turn transmitted to the plaintiff on July 24, 1953, whereupon on September 22, 1953, the plaintiff made demand for written findings by the Atomic Energy Commission pursuant to section 13 (a) of the Contract Settlement Act of 1944, supra. The Commission subsequently notified plaintiff that it was reiterating its position that the contract was completed rather than terminated and thus was outside the scope of that act. The Commission accordingly refused to submit findings. Section 13 (c) (2) (iii) of the Contract Settlement Act, supra, provides that in the case of failure to deliver such findings, the plaintiff has the right within one year after his demand therefor to initiate proceedings in the Court of Claims in accordance with section 13 (b) of that Act. To prevent the running of the statute of limitations during the pendency of its claims with the Atomic Energy Commission, plaintiff's original petition was filed in this court on April 17, 1953, on the basis of its claim under the contract. The subject matter of that original petition is now that which is contained in count II of plaintiff's second amended petition. On December 11, 1953, within the 1-year limitation above referred to, plaintiff filed its first amendment to its petition, adding as count I a count based upon its termination claim. Pursuant to the Contract Settlement Act, supra, the plaintiff had the option of appealing the agency's decision to either the Office of Contract Settlement Appeal Board, or the Court of Claims. While it would have been more advantageous from the plaintiff's point of view to appeal to the Appeal Board because that board had previously decided two cases, Certain-Teed Products Corporation and Hercules Powder Company, supra, squarely on point with the instant one in the favor of the plaintiffs, the plaintiff was unable at this time to appeal to that board as |