concurring in part and dissenting in part.
I agree with the narrow ground upon which the majority would in effect reinstate the original board opinion permitting the contractor to recover.
I reject the discussion in note 9 for two reasons. It is dicta unnecessary to the decision and is unsupported by any cited authority relevant to this case. The questions raised are delicate, sensitive, and judicially undecided in this circuit as to whether an unpublished procedural rule of the board is acceptable and binding on the contractor under the Wunderlich Act or whether it is barred by the Administrative Procedure Act, 5 U.S.C. § 552(a) (1982), and whether the Act is applicable at all in a Wunderlich Act case or to the board generally. Any expression or intimation of views on matters the majority concedes do not control here would better await a case where they need to be decided.