dispute brought here by plaintiff, i.e. that the Board miscalculated in totalling the figures so as to find that there was any overpayment at all. On the merits, however, we again agree with Trial Judge Cooper and incorporate what he wrote on this point: "The overpayment results from a shift in the basis on which plaintiff's equitable adjustment was computed. The Contracting Officer adopted a total-cost approach to determining the adjustment, while the ASBCA employed a change-by-change direct-cost approach. It was the direct-cost analysis that revealed that the Contracting Officer's award had been in excess of [the subcontractor's] actual costs for the disputed changes. llowever, the Government at one time had endorsed the total-cost approach and its auditors had attempted to negotiate a settlement on that basis. It was not until the ASBCA proceedings that the Government insisted on a direct-cost analysis for determining the equitable adjustment. !laving actively supported the total-cost approach which resulted in the overpayment, de fendant is in no position now to demand that, as a matter of fairness, it is entitled to interest as compensation for the loss of the use of the money found owing.

"Since, in the absence of contractual or statutory provisions, the award of interest is discretionary, Astro-Space Lab., Inc. V. United States 200 Ct. Cl. [282, 312], 470 F. 2d 1003, 1020 (1972) it is concluded that the Board did not abuse its discretion in denying interest in this case."

D. Finally, we reject the defendant's contention that plaintiff, by failing to raise the application of S&E Contractors has waived the point. Neither party seems to have presented this issue to the trial judge, although plaintiff's brief replying to the Government's cross-motion for summary judgment was filed several months after the Supreme Court's opinion. The finality of the administrative determination favorable to the contractor first became a recognized issue when Trial Judge Cooper held in his opinion that defendant's counterclaim was largely barred by S & E Contractors. Although the plaintiff has now espoused that position, defendant urges that the contractor necessarily waived this defense to the counterclaim by not raising it soon enough.

We hold that plaintiff should not be barred from adopting the trial judge's holding on the administrative finality question. It is instructive that, in the S&E Contractors case in this court, neither party addressed itself to this issue at first, and it was the trial judge who initially proposed that the case be resolved on that ground. 193 Ct. Cl. 335, 339, 433 F. 2d 1373, 1374 (1970). Although in the proper circumstances a party may waive a non-jurisdictional defense by failing to raise it (see Rule 38 (h)), it was not beyond Trial Judge Cooper's discretion to decide the matter on the basis of an important Supreme Court opinion handed down in the middle of the parties' briefing. Cf. Loral Electronics Corp. v. United States 187 Ct. Cl. 499, 503, 409 F. 2d 578, 580 (1969). Nor was it too late in the case for plaintiff to grasp the trial judge's approach and assert it as its own.

The final result is that, affirming the trial judge, we grant the plaintiff's motion for summary judgment to the extent that the amount of overpayment is reduced, and otherwise deny it; conversely, defendant's cross-motion for summary judgment is granted in part (in that an overpayment is recognized) and judgment is entered for defendant on its counterclaim in the sum of $36,348.88; de fendant's counterclaim is otherwise dismissed.

Plaintiff seeks, pursuant to a Private Act, $135,560 as compensation for the closing by de fendant of a segment of one of its roads. ***

FINDINGS OF FACT

1. This case is authorized by, and was instituted pursuant to, Public Law 88-425, 88th Congress, 2d Session, approved August 13, 1964, 78 Stat. 399. Such act provides:

AN ACT

Conferring jurisdiction upon the United

States Court of Claims to hear, determine, and
render judgment upon the claim of Sarpy County,
Nebraska.

Be it enacted by the Senate and House of
Representatives of the United States of America
in Congress assembled, That, notwithstanding any
statute of limitations pertaining to suits
against the United States, or any lapse of time,
or bars of laches, jurisdiction is hereby con-
ferred upon the United States Court of Claims to
here, determine, and render judgment upon any
claims of Sarpy County, Nebraska, arising out of
the closing of the north-south county road connect-
ing Bellevue and LaPlatte to make way for the
principal east-west runway at Offutt Air Force Base,
in said county.

Sec. 2. Suit upon any such claim may be
instituted at any time within one year after
the date of enactment of this Act. Nothing
in this Act shall be construed as an inference
of liability on the part of the United States.
Except as otherwise provided herein, proceed-
ings for the determination of such claim, and
review and payment of any judgment or judgments
thereon shall be had in the same manner as in
the case of claims over which such Court has
jurisdiction under section 1491 of title 28 of
the United States Code.

16. No payment of compensation has been made to plaintiff by defendant either in eminent domain proceedings or otherwise for the severing of Modification Road and its destruction as a through route from points north and east of the steel truss bridge in section 14 connecting the road with Country Road H-9, and points south thereof, by way of such country road.

*

1

22. Upon the basis of all the considerations herein above set forth, there is a necessity to supply a substitute road for the intersected Modification Road. Plaintiff's highway system did not, after the destruction of Modification Road as part of a through route, provide road facilities equal in utility to those destroyed. No existing roads serve the county's requirements as adequately, and in the same manner and to the same extent, as the old Modification Road-County Road H-O combination. There is now no bridge crossing Papillion Creek east of Highway 73-75 which is part of a through road system.

No such substitute road has been built, although there have been demands for one by the people of the country.

26. (a) The 1955 cost estimate of plaintiff's consulting engineers for the construction of the alternate proposed east-west county replacement road was $75,628. This estimate is reasonable.

(b) To construct the identical road at the present time would cost $110,600. However, this road necessitated, as stated, three railroad crossings at grade. Since then, one has been eliminated. In addition some flood control work has been performed in the area (i.e., the building of a levee in 1962 along the left bank of Papillion Creek), which has changed the drainage situation and reduced the need for some of the fill which the original estimate included. (The ground at this location is somewhat lower and at the time of the original estimate presented more earth work problems than the north-south substitute. 125,000 cubic yards of excavation was estimated for the east-west road as against only 50,000 for the north-south.) It would in all probability make unnecessary a proposed 70-foot concrete slab bridge over a drainage ditch for which $18,400 was included in the estimate, two 36-inch culverts now carrying the drainage at the point involved. It appears that an extension of the two culverts would now handle the situation. Accordingly, the reasonable cost of building the road at the present time, as so changed, would be approximately the same in 1955.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment is therefore entered for plaintiff in the amount of seventy-five thousand six hundred twenty-eight dollars ($75,628), plus interest, as part of just compensation, at the rate of 4 percent from the date of taking in 1954, the amount to be determined under Rule 47 (c).