The opinion
DAVIS, Judge
(dissenting in part):
I agree with Parts I and III of the court’s opinion, but I dissent from Part II. We are required, I think, by the rationale of United States v. Carlo Bianchi & Co., 373 U.S. 709 , 83 S.Ct. 1409 , 10 L.Ed.2d 652 (1963), to give the Board of Contract Appeals the opportunity to consider on the merits the issues brought before it by the plaintiff’s appeal to that Board under paragraph 2 of the letter of acceptability. The holdings prior to Bianchi support the action which the court orders today, but that ruling established new guideposts calling upon us to reappraise our earlier position.
In Bianchi the Supreme Court held that, in general, the boards, not the courts, are to be the fact-finders on issues of liability within their contract area of competence. The Court declared, expressly, that the “determination of the finality to be attached to a departmental decision on a question arising under a ‘disputes’ clause must rest solely on consideration of the record before the department” ( 373 U.S. at 714 , 83 S.Ct. at 1413 ) even where “the administrative record is defective or inadequate, or reveals the commission of some-prejudicial error” ( 373 U.S. at 717 , 83 S.Ct. 1415 ). To me that means that, where a board has committed the prejudicial error of refusing a timely appeal, 1 the court should “stay its own proceedings pending some further action before the agency involved” ( 373 U.S. at 717-718 , 83 S.Ct. at 1415 ). The essential principle is that, wherever possible, the evidence appropriate to an issue of liability under the Disputes clause should be taken by the board rather than the court. Certainly, a board, told by this court that it was wrong to dismiss an appeal as untimely, would undertake to hear and consider the case on its merits. We cannot assume otherwise; but if the board did continue to refuse, “the sanction of judgment for the contractor would always be available to the court” ( 373 U.S. at 718 , 83 S.Ct. at 1415 ). 2 The delay in *822 now having a hearing on the merits before the board will not necessarily be any greater than in now having a trial 'on the merits before our Commissioner. Even if it is, the rationale of Bianchi, as I understand it, gives predominance to the finding of facts (on the issues of liability) at the administrative level.
Since Bianchi, this court has tried contract issues of fact for itself (i. e., factual questions arising from a controversy within the Disputes clause) only where the remaining problem was solely one of damages and the board had not considered or taken evidence on damages, or the amount of recovery, because it had decided against the contractor on the merits. See Stein Bros. Mfg. Co. v. United States, 162 Ct.Cl. 802 , 337 F.2d 861 (1963), and succeeding cases. That line of decisions, with which I agree, rests on the clear demarcation between issues relating to liability and those concerning the measure of recovery. That distinction has been embodied in our own rules (Rule 47(c)), is found at many other places in the law, and represents an established and convenient boundary which can appropriately continue to be utilized after Bianchi to dispose of a tag-end issue of amount of recovery. But in my view it trenches upon the Wunderlich Act, as interpreted in Bianchi, to extend the same rule to instances in which a board refuses to decide the merits of a case because it errs as to its jurisdiction, the timeliness of an appeal, or some similar threshold question. Under Bianchi, the board should decide the merits of the eases properly before it. If it makes an error in that respect, it does not lose jurisdiction or the court gain it exclusively. After the court corrects the error, it should let the controversy on the merits proceed before the board until the facts have been properly determined.
Neither C. J. Langenfelder & Son, Inc. v. United States, Ct.Cl., 341 F.2d 600 , decided Feb. 19, 1965, nor H. B. Zachry Co. v. United States, Ct.Cl., 344 F.2d 352 , decided April 16, 1965, is a precedent for what the court does today. In both, a contracting officer failed to decide an issue. Since the contract impliedly requires a reasonably prompt determination, a refusal to decide is a serious breach -of the contract, entitling the contractor to bring suit to redress the failure. In those circumstances the contractor need not further pursue his administrative remedies before commencing an action. But the court did not hold in either case that, once suit had been begun, the facts on which the merits of controversies (within the Disputes clause) are to be resolved should not be presented to, and found by, the boards but are for this court alone. In Langenfelder, the court based its factual findings on the administrative record before the board. In Zachry, the court was not asked to stay proceedings to allow a board to determine the facts; the dictum that the plaintiff was excused from pursuing his administrative remedies was coupled with an express refusal to decide that the board had any jurisdiction over the matter. 3 Neither decision, in my view, supports the court’s present ruling.
On the other hand, the refusal to suspend proceedings to allow the Board to consider the merits of plaintiffs’ appeal is directly contrary to the recent, and unanimous, position of the court in Utah Constr. & Mining Co. v. United States, Ct.Cl., 339 F.2d 606 , decided Dec. 11, *823 1964. The Board of Contract Appeals had dismissed the contractor’s appeal, on the “concrete aggregate claim” in that case, on the ground of untimeliness. The majority of the court specifically ruled that if the claim was not for breach of contract but within the Disputes clause — and if the Board was wrong on the timeliness of the appeal— then the evidence on the merits should not be taken in this court but “we should suggest to the board that it consider it [the claim] on the merits and suspend proceedings here until it has a reasonable opportunity to do so.” 339 F.2d at 613. My separate opinion agreed with that position. Slip op., p. 19, 339 F.2d at 618-619. The Chief Judge concurred in the result. Now the court overrules that unanimous portion of Utah Construction.
LARAMQRE, Judge, joins in the foregoing dissenting opinion.
. Such a case is also one in which “the department had failed to make adequate provision for a record that could be subjected to judicial scrutiny” ( 373 U.S. at 718 , 83 S.Ct. at 1415 ).
. In this instance there is no reason to think 'that the Board will reject the appeal on grounds other than untimeliness. The Board clearly has jurisdiction over the claim for return of the bid deposit. It will not, under its consistent practice, pass upon the correctness or the validity of the determination by the Federal Housing Administration adjusting the 'bid price after the Secretary of Labor issues a new wage determination. Nor will the Board review the correctness or the validity of the Labor Department’s wage determination. The Board can, however, pass initially *822 upon other issues involved in plaintiff’s appeal. For instance, the Board can consider the crucial question of the correctness of plaintiff’s interpretation of the contract plans and specifications— as they bear upon the wage determinations. The Board can also pass upon the meaning of the wage determinations. If plaintiff’s interpretations are erroneous, there is clearly no basis either for recovery of the deposit or for damages. If those interpretations are correct, other issues may be presented.
. It makes a difference, too, that in such cases the contracting officer frustrates the entire administrative process, at its outset, by refusing to make any determination. A legal error by an appellate board, after facts have been found by the contracting officer, is different in character.