Maletz, Judge:
This is an action pursuant to 28 U.S.C. 1582(2) (1980)1 for the collection of liquidated damages arising from the [84]*84importation between 1975 and 1977 of BMW automobiles which did not conform with the Clean Air Act of 1955, as amended, 42 U.S.C. 7401 et seq. (1976, Supp. III). Before the court are defendants’ motions to dismiss or for summary judgment, and the Government’s opposition and cross-motion for an order deeming all of the relevant allegations of its complaint admitted as to defendant Aetna Casualty and Surety Company (Aetna).
I
Bavarian Motors, Inc. (BMI) and its chief executive officer, Alfred Gebhardt, imported various BMW automobiles into the United States from Germany. Vehicles imported into the United States are required, pursuant to 19 C.F.R. 1273(b) (T.D. 72-45),2 to be accompanied by a statement regarding the status of the vehicle under the Clean Air Act. Upon the importation of the subject entries, the above defendants advised Customs, pursuant to 19 C.F.R. 1273(b)(5)(x) (T.D. 72-45),3 that the imported cars were not covered by a certificate of conformity with Federal motor vehicle emission standards. These defendants stated that the cars would be brought into conformity with the clean air standards and that the vehicles were being imported under bond, as provided under 19 C.F.R. 1273(c) (T.D. 72-45).4
Defendants St. Paul Fire and Marine Insurance Company (St. Paul) and Aetna were sureties to BMI on the subject importations. When the appropriate bonds were obtained by BMI and Gebhardt, the vehicles were released by Customs into their custody with ninety days to conform the vehicles and notify Customs of that [85]*85fact. Defendants failed to do so, and Customs issued Notices of Redelivery to BMI. When the cars were not redelivered, Customs, on June 6, 1978, issued Notices of Liquidated Damages to BMI with copies to St. Paul pursuant to 19 C.F.R. 141.113(g) (T.D. 74-227) and 172.1 (T.D. 70-249).5 These Notices set forth the type of bond breached by name and form number, the amount of the bond, the name of the principal, the specific vehicles covered by the enumerated entry, and the name and identification number of the surety. Each recipient was advised that it could file a petition for relief. On the notice received by St. Paul was printed the notation “INFORMATION COPY ONLY, THIS IS NOT A DEMAND FOR PAYMENT.”
By letter dated July 5, 1978, St. Paul requested copies of the relevant entries and bonds, but alleges that it never received a reply from Customs. St. Paul did not petition for relief, but the principal, BMI, filed a petition for remission on July 26, 1978, commencing an administrative review process of some three years, culminating in mitigation of the Government’s claim followed by the institution of billing procedures against BMI on April 24, 1981. St. Paul claims it received no notice of these proceedings and consequently did not participate.
By letter dated December 2, 1981 to St. Paul, Customs demanded payment of the full amount of each bond as liquidated damages within ten days of its receipt. On December 15, 1981, St. Paul requested additional information and documentation of the liquidated damages claim. That same day, the Government commenced this action. Bavarian Motors International, Inc. (BM Int’l) and its chief executive officer, also Alfred Gebhardt, were alleged by the Government to have received all of the assets of BMI and, for that reason, were made parties to the lawsuit. On February 19, 1982, St. Paul filed a protest with regard to the damage claims. That protest has not yet been heard.
II
The demand by Customs on St. Paul seeking payment within ten days of liquidated damages incurred by BMI was mailed on December 2, 1981. This was the first demand for payment upon St. Paul.
A demand against a surety for payment against its bond gives rise to a right to protest that decision. Thus, section 514(c)(2) of the Tariff Act of 1930 (19 U.S.C. 1514(c)(2)), as amended by section 1001 of the Trade Agreements Act of 1979 (Pub. L. 96-39, 93 Stat. 305) [86]*86provides that “[a] protest by a surety which has an unsatisfied legal claim under its bond may be filed within 90 days from the date of mailing of notice of demand for payment against its bond.” This amendment to the Tariff Act of 1930 reflected Congressional concern with the frequency with which sureties did not receive notice of their principal’s failure to pay duties until after the time for filing a protest had expired. S. Rep. No. 96-249, 96th Cong., 1st Sess. 254 (1979).
Similarly, Customs regulations provide that “protests shall be filed, in accordance with section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90 days after * * * the date of mailing of notice of demand for payment against a bond in the case of a surety which has an unsatisfied legal claim under a bond written by the surety.” 19 C.F.R. 174.12(e) (T.D. 80-271). Through its letter of December 15, 1981, and its formal protest of February 19, 1982, St. Paul has satisfied the statutory time limitations, but no administrative action has been taken prior to or during the pendency of this proceeding.6
Exhaustion of administrative remedies is generally a prerequisite to judicial review. 28 U.S.C. 2637(a)(d) (1980).7 “This reason is particularly pertinent where the function of the agency and the particular decision sought to be reviewed involve exercise of discretionary powers granted to the agency by Congress, or require application of special expertise.” McKart v. United States, 395 U.S. 185, 194 (1969). The administrative review by Customs of an importer’s protest is obviously a condition precedent to his commencement of a judicial proceeding. See Wear Me Apparel Corp. v. United States, 1 CIT 194, 198, 511 F. Supp. 814, 818 (1981); Sanho Collectións, Ltd. v. Chosen, 1 CIT 6, 11, 505 F. Supp. 204, 207 (1980). This requirement is no less applicable to the Government. “Although the situation presented by this case, of an agency seeking enforcement of administrative action prior to completion of the administrative review process, is much less common, there is no reason for a different standard to prevail.” United States v. Desiree International, U.S.A., 497 F; Supp. 264, 269 (S.D.N.Y. 1980).
In its present posture, the Government’s suit against St. Paul is thus premature. Accordingly, the action is dismissed as to St. Paul, without prejudice. Desiree International, id.
[87]*87III
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Maletz, Judge:
This is an action pursuant to 28 U.S.C. 1582(2) (1980)1 for the collection of liquidated damages arising from the [84]*84importation between 1975 and 1977 of BMW automobiles which did not conform with the Clean Air Act of 1955, as amended, 42 U.S.C. 7401 et seq. (1976, Supp. III). Before the court are defendants’ motions to dismiss or for summary judgment, and the Government’s opposition and cross-motion for an order deeming all of the relevant allegations of its complaint admitted as to defendant Aetna Casualty and Surety Company (Aetna).
I
Bavarian Motors, Inc. (BMI) and its chief executive officer, Alfred Gebhardt, imported various BMW automobiles into the United States from Germany. Vehicles imported into the United States are required, pursuant to 19 C.F.R. 1273(b) (T.D. 72-45),2 to be accompanied by a statement regarding the status of the vehicle under the Clean Air Act. Upon the importation of the subject entries, the above defendants advised Customs, pursuant to 19 C.F.R. 1273(b)(5)(x) (T.D. 72-45),3 that the imported cars were not covered by a certificate of conformity with Federal motor vehicle emission standards. These defendants stated that the cars would be brought into conformity with the clean air standards and that the vehicles were being imported under bond, as provided under 19 C.F.R. 1273(c) (T.D. 72-45).4
Defendants St. Paul Fire and Marine Insurance Company (St. Paul) and Aetna were sureties to BMI on the subject importations. When the appropriate bonds were obtained by BMI and Gebhardt, the vehicles were released by Customs into their custody with ninety days to conform the vehicles and notify Customs of that [85]*85fact. Defendants failed to do so, and Customs issued Notices of Redelivery to BMI. When the cars were not redelivered, Customs, on June 6, 1978, issued Notices of Liquidated Damages to BMI with copies to St. Paul pursuant to 19 C.F.R. 141.113(g) (T.D. 74-227) and 172.1 (T.D. 70-249).5 These Notices set forth the type of bond breached by name and form number, the amount of the bond, the name of the principal, the specific vehicles covered by the enumerated entry, and the name and identification number of the surety. Each recipient was advised that it could file a petition for relief. On the notice received by St. Paul was printed the notation “INFORMATION COPY ONLY, THIS IS NOT A DEMAND FOR PAYMENT.”
By letter dated July 5, 1978, St. Paul requested copies of the relevant entries and bonds, but alleges that it never received a reply from Customs. St. Paul did not petition for relief, but the principal, BMI, filed a petition for remission on July 26, 1978, commencing an administrative review process of some three years, culminating in mitigation of the Government’s claim followed by the institution of billing procedures against BMI on April 24, 1981. St. Paul claims it received no notice of these proceedings and consequently did not participate.
By letter dated December 2, 1981 to St. Paul, Customs demanded payment of the full amount of each bond as liquidated damages within ten days of its receipt. On December 15, 1981, St. Paul requested additional information and documentation of the liquidated damages claim. That same day, the Government commenced this action. Bavarian Motors International, Inc. (BM Int’l) and its chief executive officer, also Alfred Gebhardt, were alleged by the Government to have received all of the assets of BMI and, for that reason, were made parties to the lawsuit. On February 19, 1982, St. Paul filed a protest with regard to the damage claims. That protest has not yet been heard.
II
The demand by Customs on St. Paul seeking payment within ten days of liquidated damages incurred by BMI was mailed on December 2, 1981. This was the first demand for payment upon St. Paul.
A demand against a surety for payment against its bond gives rise to a right to protest that decision. Thus, section 514(c)(2) of the Tariff Act of 1930 (19 U.S.C. 1514(c)(2)), as amended by section 1001 of the Trade Agreements Act of 1979 (Pub. L. 96-39, 93 Stat. 305) [86]*86provides that “[a] protest by a surety which has an unsatisfied legal claim under its bond may be filed within 90 days from the date of mailing of notice of demand for payment against its bond.” This amendment to the Tariff Act of 1930 reflected Congressional concern with the frequency with which sureties did not receive notice of their principal’s failure to pay duties until after the time for filing a protest had expired. S. Rep. No. 96-249, 96th Cong., 1st Sess. 254 (1979).
Similarly, Customs regulations provide that “protests shall be filed, in accordance with section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90 days after * * * the date of mailing of notice of demand for payment against a bond in the case of a surety which has an unsatisfied legal claim under a bond written by the surety.” 19 C.F.R. 174.12(e) (T.D. 80-271). Through its letter of December 15, 1981, and its formal protest of February 19, 1982, St. Paul has satisfied the statutory time limitations, but no administrative action has been taken prior to or during the pendency of this proceeding.6
Exhaustion of administrative remedies is generally a prerequisite to judicial review. 28 U.S.C. 2637(a)(d) (1980).7 “This reason is particularly pertinent where the function of the agency and the particular decision sought to be reviewed involve exercise of discretionary powers granted to the agency by Congress, or require application of special expertise.” McKart v. United States, 395 U.S. 185, 194 (1969). The administrative review by Customs of an importer’s protest is obviously a condition precedent to his commencement of a judicial proceeding. See Wear Me Apparel Corp. v. United States, 1 CIT 194, 198, 511 F. Supp. 814, 818 (1981); Sanho Collectións, Ltd. v. Chosen, 1 CIT 6, 11, 505 F. Supp. 204, 207 (1980). This requirement is no less applicable to the Government. “Although the situation presented by this case, of an agency seeking enforcement of administrative action prior to completion of the administrative review process, is much less common, there is no reason for a different standard to prevail.” United States v. Desiree International, U.S.A., 497 F; Supp. 264, 269 (S.D.N.Y. 1980).
In its present posture, the Government’s suit against St. Paul is thus premature. Accordingly, the action is dismissed as to St. Paul, without prejudice. Desiree International, id.
[87]*87III
Defendant Gebhardt moves to dismiss or alternatively seeks summary judgment. His first claim is that he was not a party to the bonds, but merely acted as agent for BMI. All that is before the court in support of this claim is a factual assertion of counsel. This has no probative value. See South Corp. v. United States, 3 CIT 28, 33, 531 F. Supp. 180, 184 (1982), and cases cited.
Gebhardt next argues that the action is barred by the three year statute of limitations for claims founded in tort. See 28 U.S.C. 2415(b) (1976). However, this proceeding arises out of the breach of a surety bond by defendant BMI — and suretyship arises only in contract. Stearns, The Law of Suretyship, 1915, at 2. An action for damages founded in contract is governed by a six year statute of limitations. 28 U.S.C. 2415(a) (1976). The record indicates that the action has been commenced within the statutory time period. Accordingly, defendant Gebhardt’s motion to dismiss or alternatively for summary judgment must fail.
IV
BM Int’l, too, moves to dismiss or, in the alternative, for summary judgment. It claims that it was not a party to the subject bonds and has not received assets from defendant BMI and is a separate and distinct entity. Again, all that is before the court in support of this claim is a flat assertion by counsel — which has no probative weight. Thus its motion to dismiss or alternatively for summary judgment must be denied.
V
Defendant Aetna, in its answer, asserts that it has been discharged as a matter of law and moves to incorporate by reference the grounds set forth in the motion of defendant St. Paul to dismiss or, in the alternative, for summary judgment. The Government in turn cross-moves for an order deeming the allegations of its complaint admitted to the extent they are applicable to defendant Aetna on the ground that Aetna has failed to file a responsive pleading either admitting or denying the allegations of the complaint.
It is true that rule 10 of this court provides that “statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.” But here, Aetna’s motion — in contrast with St. Paul’s — fails to provide the court with any factual basis in support of its claim or to indicate why it should be treated the same as St. Paul.
Given this situation, Aetna’s motion for incorporation is denied. However, in the interest of justice, Aetna is allowed 30 days within which to file an amended answer or a proper motion in conformance with the rules of this court. The Government’s cross-motion [88]*88for an order deeming the allegations of its complaint admitted as to Aetna is denied.
VI
In summary, the court orders:
1. The Government’s action against St. Paul is dismissed, without prejudice, as premature;
2. Defendant Gebhardt’s motion to dismiss or, in the alternative, for summary judgment is denied;
3. Defendant BM Int’l’s motion to dismiss or, in the alternative, for summary judgment is denied;
4. Aetna’s motion for incorporation is denied, and the Government’s cross-motion for an order deeming the allegations of its complaint admitted as to Aetna is also denied; and
5. Aetna is allowed 30 days to file an amended answer or a proper motion in conformance with the rules of this court.