(concurring in part and dissenting in part):
I join in the first part of the court’s opinion but not in the discussion (under the heading of “Board Proceeding and Decision”) of the errors the court finds in the Board’s consideration of the appeal. Commissioner Maletz held that there were no material errors in the Board’s evaluation. I agree and would adopt that part of his opinion which the court rejects.
On this facet of the litigation I am sensitive to a number of significant aspects of the case which we cannot neglect:
(i) Article 6(e) of the contract (the escalation clause) entitled the plaintiff to an upward price adjustment only if the gain already made was less than the minimal “fair and reasonable profit”. No escalation at all could be allowed unless the existing profit was below the lowest reach of the broad spectrum, band, or range which comprises a “fair and reasonable profit”; it would never be enough for contractor merely to show that the claimed increase would leave it with no more than a fair and reasonable profit. The essential prerequisite is a showing of unfairness.
(ii) Newport News bore the burden of proving to the Board that its existing profit fell below this minimum amount, and the contractor likewise shoulders the burden of convincing the court that the Board erred either in its appraisal of the relevant criteria or in failing to consider them.
(iii) The Board’s handling of the case responded to the contractor’s presentation to it. As the Commissioner pointed out, plaintiff “directed its presentation and argument before the Board to factors which in its [the plaintiff’s] view justified an upward adjustment”, and “the Board in its decision discussed each of the factors thus urged by plaintiff and did not rely upon any new or novel factor which was not available for plaintiff’s presentation to it.” The Board should not be faulted for casting its opinion in terms of the arguments made to it and the factors it was asked to consider. It was not required to speak as to guidelines which the plaintiff did not see fit to bring into the case.
(iv) The Board, as the court recognizes, is the tribunal charged with the function of determining the minimal fair and reasonable profit, and that function necessarily calls for judgment and discretion — not for mathematical formulae, precise rules, or scientific demonstration.
(v) As a reviewing court, our task is to decide whether the Board’s decision was wrong — either because of the process it followed or because of a substantial error contributing to the decision. We are not called upon to review every sentence it uttered, let alone to agree with *535every sentence, standing alone. Only if we are persuaded that it committed a material error of omission or commission — looking at the opinion and decision as a whole, as well as at the nature of the Board’s function — should we set aside the administrative determination.
In the light of these considerations, and on the basis of Commissioner Maletz’s opinion, I conclude that the contractor has failed to persuade that the Board erred in determining that “the evidence and Appellant’s arguments do not convince us that $11,262,084.27 is less than a fair and reasonable profit.” Accordingly, I would hold that plaintiff is not entitled to recover and would dismiss its petition.