The opinion
NICHOLS, Judge,
(concurring):
With all respect I think Commissioner Schwartz rewrites the stipulation too. He says plaintiff wants to make it read “continued to allocate” instead of “actually utilized” as it says. He makes it read “fully utilized,” which is not the exact language either. The parties, of course, knew that the facilities could not have been fully utilized during the delay period because if they had been there would have been no claim. So the stipulation is read as to be triggered only by a state of facts the parties knew to be impossible. If contractor reserved the involved facilities during the delay period and until completion, for the contract and not anything else, and if he utilized them to the extent the delay allowed him to, he “actually utilized” them, I say. If I might have driven my car 10,000 miles in May, but actually drove it only 1,000, so it was idle in the garage most of the time, I did not “actually utilize” it that month according to the Board’s and Commissioner Schwartz’s semantics, with which I do not agree.
The Board analyzed the overhead problem most carefully and I agree with it that the stipulation overhead is an excessive allowance, or at least, substantial evidence supports its position. There is nothing in the United States Constitution or the natural law that requires an administrative tribunal to honor a stipulation it can plainly see to be contrary to the facts. Cf. H. B. Zachry Co. v. Unit *1133 ed States, 170 Ct.Cl. 115, 344 F.2d 352 (1965). In this court, at least, the cited case would suggest that counsel could have had the stipulation reformed or expunged. It does not seem to me that giving it an unnatural interpretation is the best or even an acceptable way of resolving the problem it poses.
It would no doubt be foolish to return the case to the Board to correct a procedural error of this kind and I do not so suggest.