dissenting:
My disagreement with the majority opinion can best be understood perhaps by considering our different approaches to the problem before us and the difference in our views as to the present posture of the case. After a great deal of reflection and study, I have concluded that the majority opinion is in error in requiring the discretionary decision of the Board to be supported by substantial evidence.
We held in Maney Aircraft Parts, Inc. v. United States, 197 Ct. Cl. 159, 453 F. 2d 1260 (1972); Maney Aircraft Parts, Inc. v. United States, 202 Ct. Cl. 54, 479 F. 2d 1350 (1973); Moran Bros., Inc., v. United States, 171 Ct. Cl. 245, 346 F. 2d 590 (1965); Schlesinger v. United States, 181 Ct. Cl. 21, 383 F. 2d 1004 (1967); and Monroe M. Tapper & Assocs. v. United States, 198 Ct. Cl. 72, 458 F. 2d 66 (1972) that the Board may in the exercise of its discretion waive the 30 day time limit for a contractor to appeal to the Board from a decision of a contracting officer.
However, in the instant case the majority opinion seems to ignore the discretion vested in the Board by this court in the above cited decisions, and now establishes a different requirement to the effect that the Board’s decision must be supported by substantial evidence. In my opinion, the terms “exercise of discretion” and “supported by substantial evidence” are contradictory if required to exist at the same time. While it is true that as a matter of fact a discretionary decision of the Board may be supported by substantial evidence in a given case 'by happenstance, on the other hand it may not be. If the decision is required to be supported by substantial evidence, as the majority opinion holds, there is no discretion left to the Board. It appears that the majority opinion in this case takes away the discretion that we held in the above cited cases was vested in the Board.
*464The word “discretion” is defined in Webster’s Third New International Dictionary as follows:
At will; according to one’s judgment or pleasure; the latitude of decision within which a court or judge decides questions arising in a particular case not expressly controlled by fixed rules of law according to the circumstances and according to the judgment of the court or judge (as in suspension of a sentence or the amount of a fine).
The same dictionary defines the word “discretionary” as follows:
Left to discretion or individual judgment; exercised at one’s own discretion.
Eoget’s International Thesaurus, Third Edition, gives the following as synonyms to the word “discretion.”
Option, will, at will, free will, choice, free decision, volition, own volition, as one thinks best, and as it seems good or best.
It is clear that the holding of the majority that the Board’s discretionary decision must be supported by substantial evidence is contrary to the plain meaning of the words “discretion” and “discretionary.” As shown above by the quotation from the dictionary, a decision of a judge suspending a sentence or a fine in a criminal case is a discretionary act on his part. It would be unthinkable to say that his decision must be supported by substantial evidence. Our case is no different. Both situations involve decisions that are equitable in nature. We so held as to a Board’s decision in a situation like the one presently before us in Maney Aircraft Parts, Inc. v. United States, supra, where we said:
* * * The decision of the Board on this problem is essentially equitable rather than legad, with an objective to do justice under the circumstances. * * * [Emphasis supplied.] [202 Ct. Cl. at 60, 479 F. 2d at 1353.]
The majority opinion recognizes that the Board’s decision is equitable in nature by saying that the instant case was remanded to the Board so that it might exercise its discretion as to whether or not a waiver should be granted, and quoting from our remand decision:
* * * But when the equitable concept of discretion-to-waive is invoked, all the pertinent circumstances must
*465be evaluated, * * *. [Emphasis supplied.] [198 Ct. Cl. at 80, 458 F. 2d at 71.]
Yet the majority opinion imposes on the Board the legal test of substantial evidence in order for the Board to reach an equity decision.
Once a contract has been made, though, the case is entirely different. Both parties have commitments which restrict their freedom of action. Each has surrendered valuable consideration, and is legally entitled to his quid pro quo. At this point, the Wunderlich Act, 41 U.S.C. §§ 321-22 (1964), enters to guarantee at least a minimal measure of judicial review of administrative determinations under “any contract entered into by the United States” (emphasis added). The express requirement that “a question of law” be open for court examination under every federal agreement (41 U.S.C. § 322) covers most, if not all, major issues of procedure, and, of course, questions of abuse of discretion are subsumed under the review required (41 U.S.C. § 321) for arbitrariness or capriciousness. The court has held that operating-differential subsidy agreements are to be treated, especially with respect to abuse of discretion, lihe other government contracts CPacific Far East Line, Inc. v. United States, 184 Ct. Cl. 169, 184, 394 F. 2d 990, 998 (1968)), and there is no reason for a different hand-ling of construction-differential subsidy contracts. At a minimum, the Board is therefore responsible to the courts for legal errors and abuse of discretion— at least for procedural deficiencies. [Emphasis supplied.] [Footnote omitted.] [Id. at 669, 413 F. 2d at 583.]
*466The situation in that case was completely different to that in the instant case. There the plaintiffs were suing to enforce rights to subsidies they had under their contracts. Here the contract of the plaintiff has no provision whatever with reference to a waiver for late filing of an appeal. In fact, it is not even mentioned in the contract. Since the claim for waiver did not arise under the contract, the Wunderlich standards do not apply, and the reliance of the majority on the case of Moore-McCormack Lines, Inc. v. United States, supra, is misplaced.
If the majority opinion holds that the plaintiff’s waiver claim arose wader his contract and is redressable under it, which appears to be the case, we would have to dismiss his case for failure to exhaust his administrative remedies. This is so because the only way his claim for waiver could arise under his contract would be through the disputes clause in the contract. That clause provides very specifically that:
* * * [A]ny dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the contracting officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Contracting Officer shall be final and conclusive unless [the Contractor appeals within 30 days].
It is undisputed that the plaintiff did not present any request to the contracting officer for an extension or enlargement of time for the filing of his appeal, nor any request for a waiver of the 30 day time limit for filing an appeal, and, of course, the contracting officer never rendered an opinion on any of such matters. Consequently, if plaintiff’s claim for a waiver of the appeal time limit arose under the disputes clause, he failed to exhaust his administrative remedies. Plaintiff’s counsel was no doubt aware of this fact when he stated very emphatically in his oral argument that the plaintiff’s claim before the court did not arise under the disputes clause.
The majority opinion cites Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) in support of its substantial evidence test. In my opinion, that case is authority against the plaintiff on this point, as well as on others, *467instead of in Ms favor. There the Secretary of Transportation in the exercise of discretion, designated a highway through a public park and authorized federal funds for that purpose. The plaintiffs sued to set aside his decision on the grounds that his action was not authorized under the Department of Transporation Act of 1966 (49 U.S.C. § 1653) and the Federal-Aid Highway Act of 1968 (23 U.S.C. § 138) if there was in existence a feasible and prudent alternate route. The question was whether or not the Secretary had abused his discretion in making his decision and issuing the order. The Court held that the substantial evidence standard did not apply, saying in connection with the contentions of the plaintiffs:
* * * First, they contend that the “substantial evidence” standard of § 706 (2) (E)1 must be applied. In the alternative, they claim that §706(2) (F)2 applies and that there must be a de novo review to determine if the Secretary’s action was “unwarranted by the facts.” Neither of these standards is, however, applicable. [Emphasis supplied.] [401 U.S. at 414.]
The court not only rejected the substantial evidence test, but also adopted a “clear error of judgment” test, which is far less favorable to the plaintiff in the instant case than the substantial evidence test that the majority opinion advocates. In this connection the Supreme Court held:
* * * Section 706(2) (A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706 (2) (A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. Bomar, 296 F. 2d 235, 237 (CA6 1961); In re Josephson, 218 F. 2d 174, 182 (CA1 1954); Western Addition Community Organisation v. Weaver, 294 F. Supp. 433 (ND Cal. 1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F. 2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is *468not empowered to substitute its judgment for that of the agenoy, [Emphasis supplied.] [401 U.S. at 416.]
The Court also said:
Even though there is no de novo review in this case case and the Secretary’s approval of the route of I-iO does not have ultimately to meet the substantial-evidence test, * * * . [Emphasis supplied.] [401 U.S. at 415.]
In that case the court did state that in certain narrow and specifically limited situations (not present here), the substantial evidence standard could be used. The Court said:
* * * In certain narrow, specifically limited situations, the agency action is to be set aside if the action was not supported by “substantial evidence.” * * * 5 U.S.C. §§ 706(2) (E), (F) (1964 ed., Supp. V).
$ $ $ $ $
Eeview under the substantial-evidence test is authorized only when the agency action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 U.S.C. § 553 (1964 ed., Supp. V), or when the agency action is based on a public adjudicatory hearing. See 5 U.S.C. §§ 556, 557 (1964 ed., Supp. V). * * * [Emphasis supplied.] [401 U.S. at 414.]
The majority opinion in the instant case says that a public adjudicatory hearing was held by the Board. I do not agree. There was no public hearing by the Board. In speaking of a public adjudicatory hearing, the Supreme Court had in mind the public hearings described in sections 556 and 557 of the Administrative Procedure Act (5 U.S.C. §§ 556-57) which deal with full-fledged hearings on the merits and hearings provided by statute. Neither type of hearing was had in the instant case, nor in Citizens to Preserve Overton Park, Inc., supra, where the Supreme Court refused to use the substantial evidence standard in reviewing the Secretary’s discretionary decision.
The decision of the Court in Bell Lines, Inc. v. United States, 306 F. Supp. 209 (S.D. W. Va. 1969) aff'd per curiam, 397 U.S. 818 (1970) appears to be very much in point. In that case suit was filed to set aside an order of the Interstate Commerce Commission granting temporary authority to certain motor freight lines to expand their services in eastern United States. The Congress vested authority in the Com*469mission by 49 U.S.C. § 810a. to grant, in its discretion, such temporary authority for carrier service. The court held that it had authority to review the action of the Commission by reason of the provisions of the Administrative Procedure Act, saying:
* * * Section 706 [of the Act] defines scope of review including review of agency action which is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” * * * [Id. at 212.]
The court held further that the substantial evidence rule did not apply, saying:
To recapitulate, the Court restates its disposition of the questions presented, as follows:
1. The Court has jurisdiction to review the orders of the Interstate Commerce Commission granting temporary authority to motor carriers under 49 U.S.C.A. Section 310a.
2. The scope of judicial review is limited, under the state of the record here, to a determination of whether the Commission’s orders are arbitrary or capricious, in abuse of discretion or for some other reasons contrary to law.
3. The “substantial evidence” rule, applicable in the judicial review of many Commission orders relating to grants of certificates of convenience and necessity, is not applicable in grants of temporary authority to motor carriers under 49 U.S.C.A. Section 310a. [Emphasis supplied.] [Id. at 218.]
The court went on to hold that there was no abuse of discretion by the Commission in issuing the order. The decision was affirmed by the Supreme Court without opinion.
One may well ask how the standard for judicial review of a discretionary decision of an agency or board can be determined. The Supreme Court in the Overton Park case, supra, said that the answer lies in the Administrative Procedure Act (The Act). The Court said:
* * * But the existence of judicial review is only the start: the standard for the review must also be determined. For that we must look to § 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1964 ed., Supp. V), which provides that a “reviewing court shall * * * *470hold unlawful and set aside agency action, findings, and conclusions found” not to meet six separate standards.30 In all cases agency action must be set aside if the action was “arbitrary, capricious, an abuse of discretion, _ or otherwise not in accordance with law” or if the action failed to meet statutory, procedural, or constitutional requirements. 5 U.S.C. §§706(3) (A), (B), (C), (D) (1964 ed., Supp. V). * * *
The applicable portions of tbe above quoted Act in the instant case are sections (2) and (2) (A). They provide that a reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In my opinion, this is the standard or test that should be used in the instant case in reviewing the Board’s discretionary decision. We quoted the pertinent parts of the above Act in our decision in Moore-McCormack Lines, Inc., supra, and, although not spelled out in so many words, we indicated, at least by inference, that the standard set forth in the above Act should be used by a reviewing court if the claim of the plaintiff did not arise wider a contract. See also Jones v. Freeman, 400 F. 2d 383 (8th Cir. 1968); Scanwell Laboratories, Inc. v. Shaffer, 424 F. 2d 859 (D.C. Cir. 1970); and Bell Lines, Inc. v. United States, supra.
Having established the proper test or standard we are required to apply in reviewing the discretionary decision of the Board as prescribed by the Act, I will now consider whether or not the Board’s decision is arbitrary, capricious, or an abuse of discretion.
*471We Held in Maney Aircraft Parts, Inc. v. United States, 202 Ct. Cl. 54, 479 F. 2d 1350 (1973) in remanding that case to the Board to exercise its discretion as to whether or not it should grant the plaintiff a waiver of the 30-day time limit for its appeal (which was the same situation as exists here) we said:
* * * In exercising its discretion, the Board should consider all facts and circumstances, including the conduct of both the contractor and the government and arrive at a decision that it considers fair, just, and equitable to both parties. [Id. at 61, 479 F. 2d at 1354.]
In the instant case, the findings of the Board show that it followed the above procedure and considered all the facts and circumstances, including all of the detailed facts in the majority opinion as well as those discussed below, many of which overlap with those set forth in the majority opinion, and arrived at a decision in the exercise of its discretion that it considered fair, just, and equitable to both parties.
The majority opinion discusses the facts in great detail. This is not a trial de novo, but a review of the discretionary decision of the Board. In this posture of the case we are not a fact finding body. That function is reserved to the Board. However, it may be helpful to comment on the procedure used by the Board after our remand of the case, and on the pertinent facts mentioned by the Board in its decision.
From an examination of the “Decision” of September 7, 1972, I am satisfied that the Board considered the relevant evidence, including, as directed by the court, “Granger’s role vis-a-vis the Government and the Government’s conduct toward and dealings with Granger.” With the court’s direction obviously in mind, the Board held a prehearing conference at which the issue to be tried was defined to the satisfaction of both parties.3 It then conducted a further hearing with a view to considering “all evidence — particularly evidence not previously offered — relating to the pertinent circumstances involved.”
*472The decision first reviews the Government-Granger relationship in the pre-construction phase, after the contract had been awarded Tapper and after Tapper had engaged Granger to perform the construction work. It notes Granger’s testimony that one of the things that established a course of conduct of direct dealing between him and the Government was that on August 14,1968, he wrote directly to Trich concerning the appointment of F. A. Nilson as Granger’s project manager and that Sandlin wrote, on August 21,1968, directly to Granger approving Nilson’s appointment. It points out, however, that at the pre-construction meeting held in Worcester on August 8,1968, at which Tapper himself, Granger, Trich and others were present, it was agreed that Granger would obtain Post Office Department approval of a project manager.
The decision recites the history of the backfill dispute: the telephone call of September 23, 1968, to the Post Office Department made by the Architect-Engineer at Granger’s request ; the oral answer that reimbursement would be denied; the letter of September 26,1968, from the Post Office Department to the Architect-Engineer confirming the oral denial of reimbursement, a copy of which Granger received from the Architect-Engineer on October 1,1968; Granger’s receipt on October 2,1968, directly from the Post Office Department, of what amounted to a copy of its letter of September 26 to the Architect-Engineer; Granger’s letter of October 23, 1968, directly to the Post Office Department, showing courtesy copies to Tapper and the Architect-Engineer and requesting a final decision; the return of this letter to Granger with a one-sentence letter by Trich to submit the request “to proper channels”; the November 14, 1968, construction conference at which oral instructions were given Granger’s representative about the proper handling of disputes, including:
Items over $2,000 should be submitted from the Lessor [Tapper] to the Architect to the P.O.D. In the case of a negative decision, the Lessor may appeal the decision,
the fact that on the same day (November 14,1968) Granger wrote about the backfill matter to the Architect-Engineer, the letter showing a courtesy copy to Tapper (which he received) and requesting a final decision; and the transmittal by the *473Architect-Engineer of Granger’s letter to the Post Office Department on November 19, 1968. Statements concerning tbe foregoing communications and minutes of the November 14 conference are accompanied by references to the record and exhibits. Referring to the above recitation, the Board said: “There simply is no evidence of a course of direct dealing by Respondent with Granger in regard to the subject of the backfill material.” [Emphasis supplied.] Inasmuch as any “course of dealing,” particularly of a formal nature (i.e. “the paperwork”), could be said to have been indirect, namely: from Granger to the Architect-Engineer to the Post Office Department, or from the Department to the Architect-Engineer to Granger, the Board’s statement can hardly be regarded as erroneous.4
Next the decision considers the matter of whether Granger was lulled into inaction by the Government’s [Post Office Department’s] delay in sending Granger a copy of the final decision.5 It points to the conflict between the parties over whether Granger’s representative was told by Trich on January 9, 1969, the date of the January construction progress meeting, that the Contracting Officer’s final decision had been mailed to Tapper and that it was unfavorable, namely: Trich’s recollection that Granger’s representative was so advised at that time vs. Granger’s claim that it was not until sometime near February 3, 1969, that Trich told him of the *474issuance of the adverse decision. The Board accepts Trich’s recollection “as the more reliable,” because: (1) Trich had the monthly construction progress meeting to serve as a guide; and (2) Granger testified that about halfway through the period between the time the final decision was requested (November 14, 1968) and the date of his receipt of a copy of the final decision (February 3,1969), Trich told him that the decision (which was dated December 23,1968) had been mailed to Tapper and that the Architect-Engineer would get a copy of it; so that “by Granger’s own statement he learned of the final decision at, or very shortly after, the time of its issuance.” The Board also said:
The fact that on February 3 Granger had in its possession a copy of the decision letter showing that it had been signed, and the additional fact that Granger had been advised of the decision by Trich on January 9, were more than adequate to have alerted Granger that on February 3 the appeal period was nearing its close.
In its earlier opinion, this court noted that Granger’s explanation for the delay in filing an appeal was two fold: (1) his confusion resulting from the nature of the copy of the final decision [showing two dates — date typed and date stamped, with blank spaces for six concurrences], and his question of whether an official letter had ever been sent; and (2) Tapper’s insistence that he had not received any final decision. In response, the Board states that the copy of the decision letter should not have confused Granger since the markings were of the same character as the copy of the letter Granger received on October 2, 1968; further, that the delay in filing the appeal notice was not a result of reliance on respondent’s conduct, but, rather, of Granger’s misplaced reliance on Tapper’s conduct, first in not advising Granger of the decision letter, and subsequently in denying he had received it. At the hearing preceding the Board’s last decision, Granger himself testified as follows with respect to his first call to Tapper about receipt of the decision:
Q. And you telephoned Mr. Tapper ?
A. That’s right.
Q. And presumably, if Mr. Tapper had said yes, I’ve received it, you would have said file an appeal, is that correct?
*475A. I would have sent through the language for Mr. Tapper to file the appeal, yes, immediately.
Q. You knew the appeal had to come from Mr. Tapper, then didn’t you?
A. I knew that he had to sign the papers but we were going to prepare the language.
Thus, it is apparent that even if Granger had relied on receiving a copy of the final decision promptly after it was mailed to Tapper, he would “immediately” have sent the language for Tapper to file the appeal if, at the time of his first call to Tapper “in late January 1969,” he had been correctly informed by Tapper that the final decision had been received. On the basis that Granger seasonably asked Tapper (first after Trich told him in January that the final decision had been issued, and again on February 4, 1969) whether he had received the decision, it should be concluded that the Board’s finding that Tapper’s negative answers occasioned the failure to file the appeal by February 15, 1969, the deadline, was reasonably based on fact.6
When the appeal was finally filed, it was filed by Tapper, the prime contractor, and not by Granger, the subcontractor. This fact shows conclusively that Tapper and Granger both knew all the time that any appeal had to be made by Tapper.
We are not empowered to substitute our judgment on the facts for that of the Board. The Supreme Court made that perfectly clear in Citizens to Preserve Overton Park, Inc. v. Volpe, supra, when it said:
* * * The court is not empowered to substitute its judgment for that of the agency. [401 U.S. at 416.]
Nevertheless, the detailed treatment of the facts in the majority opinion, together with the decision of the majority overturning the decision of the Board on the facts, make it *476appear that the majority is substituting its opinion on the facts for that of the Board. I think this is error. It is true that there are facts in the case that are favorable to the plaintiff, but on the other hand, there are facts favorable to the Government. If these facts were before us in the first instance, there could be room for disagreement and we might reach a result different from that of the Board. But this is not the case. The Board has considered all the facts pro and con, and, in the exercise of its discretion, has decided in effect that the plaintiff has failed to show good cause or a justifiable excuse for failing to file his appeal on time as required by us in Maney Aircraft Parts, Inc. v. United States, 202 Ct. Cl. 54, 479 F. 2d 1350 (1973), and for that reason refused to grant the waiver of late filing.7 The plaintiff has not shown that the decision of the Board is arbitrary, capricious, or an abuse of discretion. In my opinion, the majority opinion is in error in holding to the contrary.
This is the first case where a discretionary decision of a Board not to grant a waiver of the 30-day time limit for an appeal by a contractor has been overturned by this court. The precedent established by the majority opinion should be a matter of grave concern to both contractors and the Government alike with respect to future contracts.
It should be pointed out that, although there is no privity of contract between the Government and the subcontractor Granger, the majority opinion holds that because of dealings between the contracting officer and the subcontractor, the real party in interest is the subcontractor. Because of these dealings, the majority ignores the provisions of the contract between Tapper, the prime contractor, and the Government, and nullifies the 30-day time period for appeal by the contractor in the contract, and, in effect, rewrites the contract so as to give the contractor Tapper extra time to file his appeal (how much extra time is not indicated). The decision of the majority that the subcontractor is the real party in interest and by reason of dealings between him and the contracting *477officer the provision in the contract between the prime contractor and the Government limiting the appeal period for the contractor to 30 days is in effect nullified, is a very serious matter. It could well be very harmful to contractors as well as to the Government in the performance and administration of future contracts. This is true because in the performance of most contracts, especially those involving construction, the work on the job is done by subcontractors. These subcontractors have, in many cases, daily contacts with the contracting officers for the purposes of seeking advice, holding conferences, and obtaining interpretation of plans and various types of assistance. The full cooperation of the contracting officers is vital. In the future, because of the decision here, contractors may find that contracting officers will be reluctant to have dealings with subcontractors for fear that in case of a dispute, a court, as in the instant case, may hold that the subcontractors are the real parties in interest, notwithstanding the fact that there is no privity of contract between them and the Government. Such lack of cooperation could cause all kinds of problems and hamper, and perhaps delay, the performance of the contracts, and this would be detrimental to the Government.
Furthermore, the 30-day time limit for appeals in the disputes clause could well be rendered meaningless and unenforceable, as it has been in this case. Copies of decisions of contracting officers may have to be sent to all subcontractors to guard against the possibility that otherwise they might be held to be the real parties in interest, which could require a waiver of the 30-day time limit for an appeal, as in the instant case.
It seems to me by reason of the foregoing, that the majority opinion goes much further than merely holding that the Board abused its discretion in failing to find that the plaintiff has not shown good cause or a justifiable excuse for the late filing of his petition.
For all of the foregoing reasons, I would hold that the plaintiff has failed to show that the Board’s discretionary decision not to waive the 30-day time limit for plaintiff’s appeal was arbitrary, capricious, or an abuse of discretion and I would affirm the decision of the Board, deny plaintiff’s mo*478tion for summary judgment, and grant defendant’s cross-motion for summary judgment and dismiss plaintiff’s petition.
5 U.S.C. § 706(2)(E)
5 U.S.C. § 706(2)(E)
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
“(1) compel agency action unlawfully withheld or unreasonably delayed ; and
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
“(B) contrary to constitutional right, power, privilege, or immunity;
“(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
“(D) without observance of procedure required by law;
“(E) unsupported by substantial evidence in a ease subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute ; or
“(E) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. * * *” [Emphasis supplied.] [401 U.S. at 413^-14.]
It was: “Are there any circumstances, including the matter of whether Granger was not itself lulled Into inaction by the Government’s failure to send it a copy of the final decision, which would warrant the Board’s entertaining this appeal on its merits?”
R. J. Lamoureux, who was employes by the Architect-Engineer as Project Architect throughout the period of the dispute, testified: “We were the intermediary between Granger and Tapper and the Post Office.”
The decision also considers Granger’s belief that he had thirty days from the date on which he received the copy of the decision within which to give the necessary notice of intent to appeal, describing Granger’s testimony in support of this belief, and then setting forth the reasons why he knew or should have known that the thirty-day appeal period began to run as of the date of receipt by Tapper of the Contracting Officer’s final decision (e.g. the fact that reference was made to the disputes clause in Granger’s letters of October 23 and November 14, 1968, requesting a final decision; advice he received at the November 14, 1968, construction conference; and his knowledge that Tapper had to sign the appeal papers). It concludes that there is no adequate foundation for plaintiff’s assertion that the Government was “inexcusably careless” and “neglectful” because it had sent the final decision only to Tapper. Such a conclusion is reasonable, and I also note that the contract between Tapper and Granger provides that, in event of a dispute covered by the “disputes clause” of the Post Office Department General Conditions, Granger, within the time permitted will through Owner [Tapper], and in Owner’s name, pursue the procedure for disputes provided in such clause * *
Plaintiff’s argument that failure of the Post Office Department to send the final decision by certified mall pursuant to Federal Procurement Regulation § 1-1.318-1 (b) was responsible for improper filing in Tapper’s office, without it being called to his attention, is pure speculation as there is no evidence to that effect. Moreover, this regulation is designed merely to facilitate proof by the Government of actual receipt, which is moot here since the Board found when Tapper received the decision and Tapper has not challenged this finding. Moreover, the regulation was for the benefit of the Government and not the contractor. It could not possibly make the Government responsible for tlje way Tapper ran his office nor for his negligence in this case.
On remand In the Maney case, the Board found in exercising its discretion that the plaintiff had not shown good cause nor a justifiable excuse for failing to file its appeal within the 30-day time limit, and we approved the decision of the Board by order entered on the 16th day of January, 1975.