KELLY, Associate Judge.
The July, 1957 contract in which Heman Ward, Inc. (hereinafter Ward) agreed to build two bridges for the District of Columbia assessed against the contractor liquidated damages of $150 for each day that the job exceeded the completion period of 360 calendar days. During the course of construction, change orders and decisions of the contracting officer extended this completion period by 177 days. Because the actual completion date, April 10, 1959, was seventy-four days beyond the extended completion date, the contracting officer assessed liquidated damages of $11,100 against Ward.
Contending that the delay was excusable under Article 9
of the contract, Ward appealed under this article and Article 15,
the disputes clause, to the District of Columbia Contract. Appeals Board (hereinafter the Board). Considering four of Ward’s six separate appeals, the Board allowed Ward an additional twelve-day time extension. The remaining two claims were dismissed without a hearing. Ward then brought a breach of contract action against the District of Columbia in the District of Columbia Court of General Sessions for the remaining $9,300 withheld as liquidated damages. The record before the Board was stipulated as the record before- the trial court and the case was considered on cross-motions for summary judgment.
The District of Columbia appeals from the trial court’s decision on two of Ward’s claims and from the court’s remand to the Board of the two dismissed claims.
I
Although neither party asserts the finality of the Board’s decision, the fact that we have been cited to no District of Columbia authority denying finality to a factual determination by the Board and the strong “finality” language of Article 15
require us to comment on the question of review.
In Kenny Construction Company v. District of Columbia, 105 U.S.App.D.C. 8, 262 F.2d 926 (1959), the United States Court of Appeals for the District of Columbia noted that the presence of the Wunderlich Act
prevents the District from asserting United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), as a bar to the finality provision in the standard disputes clause and held that the Board’s decisions were not final as to questions of law. The rationale of
Kenny Construction
and the availability of many decisions of the United States Supreme Court
construing and applying standard United States contract provisions similar to those used by the District of Columbia
compel us to apply the Wunderlich Act standards of judicial review. Thus the Board’s decision can be afforded no finality if it can be shown to be “fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.”
II
Ward originally claimed thirty-five days of excusable delay due to unforeseeable unusually severe weather from January 25, 1958, to March 1, 1958. The contracting officer allowed one day during the January portion of this period and eight days during February, 1958. Noting that unusually severe weather delayed the project during all of the twenty-eight days of February, 1958, but that twelve days of such weather iyas foreseeable,
the Board allowed Ward an additional eight days for completion. The trial court found substantial evidence to support the Board’s February determination, but, because “there was no testimony in the record before the Board regarding foreseeability of unusually severe weather on these days in January,” the court could find no substantial evidence to support the January finding and granted Ward the six January days as excusable delay.
The second excusable delay claim was for twenty-seven days that an access road, needed to haul heavy steel girders, was blocked by the excavation of another contractor under contract with the District. The trial court found that the Board’s denial of this claim was not supported by substantial evidence and awarded Ward twenty-seven days excusable delay.
The District argues that the trial court erred because both decisions of the Board were, in fact, supported by substantial evidence.
To determine whether the Board’s findings were supported by substantial evidence, we must look to the entire record, or those parts to which the parties refer us, and ascertain whether such findings could be fairly and reasonably made. United States v. Carlo Bianchi & Company, Incorporated, 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Universal Camera Corporation v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Braniff Airways, Incorporated v. CAB, 126 U.S.App.D.C. 399, 408, 379 F.2d 453, 462 (1967).
In our judgment the trial court erred in holding that the Board’s finding that the contracting officer was correct in allowing only one day excusable delay for severe weather in January, 1958, was not supported by substantial evidence. We need not comment on the Board’s finding that the January delay was never pleaded by Ward because the Board noted, and the record reflects, that a District of Columbia Highway Department engineer testified that Ward performed substantial work on all of the days in question except Saturdays and Sundays. The unquestioned testimony of the engineer, who was on site during the days in question and who testified from a diary, indicated that the work was productive and not limited to bad weather clean-up. When compared with the whole record this evidence appears to be substantial in that the Board’s decision could be reasonably and fairly made, and therefore, the Board’s finding on this point is final.
The trial court also erred in finding no substantial evidence to support the Board’s finding that the excavation of a sewer contractor did not block Ward’s access to the site for the purpose of transporting heavy steel girders. A review of the whole record reveals substantial evidence to support the finding that during the period in question only part of the available
access area was blocked by the sewer excavation.
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KELLY, Associate Judge.
The July, 1957 contract in which Heman Ward, Inc. (hereinafter Ward) agreed to build two bridges for the District of Columbia assessed against the contractor liquidated damages of $150 for each day that the job exceeded the completion period of 360 calendar days. During the course of construction, change orders and decisions of the contracting officer extended this completion period by 177 days. Because the actual completion date, April 10, 1959, was seventy-four days beyond the extended completion date, the contracting officer assessed liquidated damages of $11,100 against Ward.
Contending that the delay was excusable under Article 9
of the contract, Ward appealed under this article and Article 15,
the disputes clause, to the District of Columbia Contract. Appeals Board (hereinafter the Board). Considering four of Ward’s six separate appeals, the Board allowed Ward an additional twelve-day time extension. The remaining two claims were dismissed without a hearing. Ward then brought a breach of contract action against the District of Columbia in the District of Columbia Court of General Sessions for the remaining $9,300 withheld as liquidated damages. The record before the Board was stipulated as the record before- the trial court and the case was considered on cross-motions for summary judgment.
The District of Columbia appeals from the trial court’s decision on two of Ward’s claims and from the court’s remand to the Board of the two dismissed claims.
I
Although neither party asserts the finality of the Board’s decision, the fact that we have been cited to no District of Columbia authority denying finality to a factual determination by the Board and the strong “finality” language of Article 15
require us to comment on the question of review.
In Kenny Construction Company v. District of Columbia, 105 U.S.App.D.C. 8, 262 F.2d 926 (1959), the United States Court of Appeals for the District of Columbia noted that the presence of the Wunderlich Act
prevents the District from asserting United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), as a bar to the finality provision in the standard disputes clause and held that the Board’s decisions were not final as to questions of law. The rationale of
Kenny Construction
and the availability of many decisions of the United States Supreme Court
construing and applying standard United States contract provisions similar to those used by the District of Columbia
compel us to apply the Wunderlich Act standards of judicial review. Thus the Board’s decision can be afforded no finality if it can be shown to be “fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.”
II
Ward originally claimed thirty-five days of excusable delay due to unforeseeable unusually severe weather from January 25, 1958, to March 1, 1958. The contracting officer allowed one day during the January portion of this period and eight days during February, 1958. Noting that unusually severe weather delayed the project during all of the twenty-eight days of February, 1958, but that twelve days of such weather iyas foreseeable,
the Board allowed Ward an additional eight days for completion. The trial court found substantial evidence to support the Board’s February determination, but, because “there was no testimony in the record before the Board regarding foreseeability of unusually severe weather on these days in January,” the court could find no substantial evidence to support the January finding and granted Ward the six January days as excusable delay.
The second excusable delay claim was for twenty-seven days that an access road, needed to haul heavy steel girders, was blocked by the excavation of another contractor under contract with the District. The trial court found that the Board’s denial of this claim was not supported by substantial evidence and awarded Ward twenty-seven days excusable delay.
The District argues that the trial court erred because both decisions of the Board were, in fact, supported by substantial evidence.
To determine whether the Board’s findings were supported by substantial evidence, we must look to the entire record, or those parts to which the parties refer us, and ascertain whether such findings could be fairly and reasonably made. United States v. Carlo Bianchi & Company, Incorporated, 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Universal Camera Corporation v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Braniff Airways, Incorporated v. CAB, 126 U.S.App.D.C. 399, 408, 379 F.2d 453, 462 (1967).
In our judgment the trial court erred in holding that the Board’s finding that the contracting officer was correct in allowing only one day excusable delay for severe weather in January, 1958, was not supported by substantial evidence. We need not comment on the Board’s finding that the January delay was never pleaded by Ward because the Board noted, and the record reflects, that a District of Columbia Highway Department engineer testified that Ward performed substantial work on all of the days in question except Saturdays and Sundays. The unquestioned testimony of the engineer, who was on site during the days in question and who testified from a diary, indicated that the work was productive and not limited to bad weather clean-up. When compared with the whole record this evidence appears to be substantial in that the Board’s decision could be reasonably and fairly made, and therefore, the Board’s finding on this point is final.
The trial court also erred in finding no substantial evidence to support the Board’s finding that the excavation of a sewer contractor did not block Ward’s access to the site for the purpose of transporting heavy steel girders. A review of the whole record reveals substantial evidence to support the finding that during the period in question only part of the available
access area was blocked by the sewer excavation. While recognizing the technical problems created by this particular overweight and overlength delivery, we can find no reason to invalidate the Board’s finding that Ward could have constructed an access road (in an area which Ward had to eventually clear anyway) to the west of the route Ward allegedly intended to use.
The Board could have made this finding from Ward’s own evidence — certain diagrams showing the weekly progress of the excavating, pipelaying, and backfilling operations through Ward’s construction site. We also note that Ward’s job manager testified, on cross-examination, that Ward never advised the sewer contractor that any particular access route would be needed for delivery purposes.
Substantial evidence does not mean overwhelming evidence. Even as to matters not requiring expertise, the “whole record” definition of substantial evidence does not allow a court to upset an administrative finding between two fairly conflicting views, even though the court could justifiably make a different finding if the matter were before it de novo. Universal Camera Corporation v. NLRB,
supra
at 488, 71 S.Ct. at 456. The whole record here would not justify a directed verdict in favor of Ward. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).
There is substantial evidence to support the Board’s finding and, therefore, it is final.
Ill
The District of Columbia also cites as error the trial court’s order remanding to the Board for disposition on the merits two of Ward’s previously dismissed appeals from the decision of the contracting officer. The Board’s order, dismissing the appeals without a hearing, noted that Ward filed notices of appeal with the Board in March and May of 1959; that Ward failed to cite a reason, as requested by the Board in May of 1963, why the appeals should not be dismissed for failure to file an appeal petition within thirty days after filing a notice of appeal as required by the Rules of the Board; and that Ward failed to oppose the District’s June, 1964, motion to dismiss.
While admitting that Ward’s conduct was “dilatory” and that the appeals were not prosecuted “diligently and expeditiously,” the trial court found, as a matter of law, that the Board was “overtechnical in its requirements and that in the interests of substantial justice [Ward] should be afforded an opportunity to exhaust its administrative remedies and to present evidence in support of these appeals.” We cannot agree.
There was nothing arbitrary, unreasonable, or unfair about the Board’s Rules or the Board’s application of them. Refusing to oppose a motion for dismissal below, Ward cannot now, on appeal, contest the resulting dismissal order. By failing to perfect the appeal, Ward is in the same position as any claimant who has failed to exhaust his administrative remedies. “The view has been consistently espoused that a contracting officer’s determination shall be considered final and conclusive unless an appeal is lodged within the 30-day period set out in the disputes clause. Appeals after such time cannot be entertained.” Schlesinger v. United States, 383 F.2d 1004, 1008, 182 Ct.Cl. 21 (1967).
Reversed with instructions to enter judgment for appellant.