Prior to the final extension, consideration was given to a default termination because of plaintiff's delinquency in the submission of these Articles. In situations similar to the instant one, the court has consistently rejected damage claims based on the theory that all unreimbursed contract expenditures of every nature made throughout the life of the contract should be reimbursed. Urban Plumbing Heating Co. v. United States, 408 F.2d 382, 187 Ct.Cl. 15 (1969), petition for cert. filed July 25, 1969; Phillips Construction Co. v. United States, 394 F.2d 834, 184 Ct.Cl. 249 (1968); WRB Corp. v. United States, 183 Ct.Cl. 409 (1968); Turnbull, Inc. v. United States, 389 F.2d 1007, 180 Ct.Cl. 1010 (1967); Roberts v. United States, 357 F.2d 938, 174 Ct.Cl. 940 (1966); Wunderlich Contracting Co. et al. v. United States, 351 F.2d 956, 173 Ct.Cl. 180 (1965); Laburnum Construction Corp. v. United States, 325 F.2d 451, 163 Ct.Cl. 339 (1963); River Construction Corp. v. United States, supra; Snyder-Lynch Motors, Inc. v. United States, 292 F.2d 907, 910, 154 Ct.Cl. 476, 480 (1961); Lilley-Ames Co., Inc. v. United States, 293 F.2d 630, 164 Ct.Cl. 544 (1961); F.H. McGraw Co. v. United States, 130 F. Supp. 394, 131 Ct. Cl. 501 (1955); Christensen Construction Co. v. United States, 72 Ct.Cl. 500, 514 (1931). In Christensen Construction Co. v. United States, supra at 514, the court, noting that "the amount of [the claimed] recovery is based upon the alleged total expenditures of the entire work less the amount received from the Government," held that "[t]his is not the proper basis for recovery.
In the absence of such a time limit, the courts will imply a reasonable time. See, Nager Electric Co., Inc. v. United States, 177 Ct.Cl. 234, 368 F.2d 847, 864 (1966); Roberts v. United States, 174 Ct.Cl. 940, 357 F.2d 938, 946 (1966); Merritt-Chapman Scott Corp. v. United States, 174 Ct.Cl. 250, 355 F.2d 622, 627 (1966). The amici, American Transparents Plastic Corporation and Chicago Transparent Products, Inc., argue that final payment by the Government bars the assertion of a claim by either party to a Government contract.
McDonnell Douglas Corp.,aff'd in part, rev'din part 754 F.2d 365 MGMContracting Company, Inc.,MGM Contracting.Malonev. United States, 849 F.2d 1441 1444 McDonnellDouglas Corp.,aff'd in part, rev'd in part 754 F.2d 365 ZachryHercules EngineeringArrow Aluminum, supra,Paragon EnergyCorporation v. United States, 645 F.2d 966 971 see also Chandler Manufacturing and Supply,rejectedMalone,Simon Lono Limited,Joseph H. Roberts v. United States, 357 F.2d 938 948 SeeUnited Aero, Inc.,Federal Electric Corporation,aff'd,Overall Roofing Construction, Inc. v. United States, 929 F.2d 687 688-89 689-90 aff'gV. John Riismandel Under our precedents the direction of the contracting officers to perform the alleged extra work, even if designated a "final decision," would not be a Government claim.
See American Western Corp. v. U.S., 730 F.2d 1486, 1489 (Fed. Cir. 1984) (six weeks after final payment is not unreasonable for a claim based on reduction in the cost of raw materials during the contract term, when the contract provided for adjustment in the contract price upon such reduction and the contractor knew the cost had declined). The court in American Western relied on Roberts v. U.S., 357 F.2d 938, 946-47, 174 Ct.Cl. 940 (1966), wherein the court stated: when the Government is acting in its proprietary capacity, it may be estopped by an act of waiver in the same manner as a private contractor.
American Western Corp. v. United States, 730 F.2d 1486, 1488-89 (Fed. Cir. 1984). In determining whether the contractors unreasonably delayed, we follow American Western, id. at 1486, by relying on the factors enunciated in Roberts v. United States, Great Am. Ins. Co., 357 F.2d 938 (Ct.Cl. 1966). There the Court of Claims examined whether delay was unreasonable by considering (1) if the facts supporting the claim were still readily available, and (2) if prejudice had occurred due to the delay.
The government can be estopped by the promises of an official within the scope of her authority, as the ASBCA concedes, referring to George H. Whike Construction Co. v. United States, 135 Ct.Cl. 126, 140 F. Supp. 560 (1956). To the same effect see California-Pacific Utilities Co. v. United States, 194 Ct.Cl. 703, 720 (1971); Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977), or by a contracting officer's waiver, Roberts v. United States, 174 Ct.Cl. 940, 357 F.2d 938 (1966) (to a price reduction for reduced cost under changes article). The question clearly is not the general rule but its application to the facts of this case.
See, e.g., Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977).See, e.g., Russell Corp. v. United States, 537 F.2d 474, 484 (Ct.Cl. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977) (doctrine of equitable estoppel will be applied, in appropriate case, to prevent United States from denying existence of a contractual agreement); Roberts v. United States, 357 F.2d 938, 946-47 (Ct.Cl. 1966) ("When the Government is acting in its proprietary capacity, it may be estopped by an act of waiver in the same manner as a private contractor."); United States v. Coast Wineries, 131 F.2d 643, 650 (9th Cir. 1942) (inability of judicial participants to rely on statements and stipulations of government counsel would produce "delay and confusion which would be seriously detrimental to the orderly administration of justice"); K. Davis, Administrative Law Text § 17.03 at 348 (1972) ("The government is estopped every hour by agreements, stipulations, concessions, failures to object, and representations made by government attorneys."). In addition to invoking a separation of powers rationale, some courts and commentators have relied on public policy considerations to support the no-estoppel rule, drawing in particular on several early Supreme Court opinions in which the Court expressed concern that holding the government bound by the improper acts of its agents might promote fraud and collu
Indeed the State does not seriously dispute that only reasonable settlement costs are eligible for federal participation. Nor does the State dispute the well-established rule in this court that a "government contractor bears the `burden of establishing the fundamental facts of liability, causation and resultant injury.'" Electronic and MissileFacilities, Inc. v. United States, 189 Ct.Cl. 237, 253, 416 F.2d 1345, 1355 (1969), citing Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 199, 351 F.2d 956, 968 (1965); Roberts v. United States, 174 Ct.Cl. 940, 956, 357 F.2d 938, 949 (1966). See also Huerta v. United States, 212 Ct.Cl. 473, 548 F.2d 343 (1977).
We do not think the facts of the two cases are analogous. Plaintiff's last argument on the timeliness question is that the long delay in issuing the letter notice, 17 months, amounts to a waiver of the right to reopen the cost reports, citing Roberts v. United States, 174 Ct.Cl. 940, 357 F.2d 938 (1966). Roberts is distinguishable from the present case in that (1) the Government's delay in presenting its claim prevented the plaintiff contractor from appealing any dispute on the matter to the head of the department, and (2) the dispute involved a situation where it was imperative to examine the evidence involved while a claim was still fresh.
Nor do we reach the substantial issue raised by Standard's claim that the procedures employed by the Acting Secretary in reaching his determination were so inadequate as to fall outside the due process required by the Wunderlich Act. See L. Rosenman Corp. v. United States, 390 F.2d 711, 712 n.2, 182 Ct.Cl. 586 (1968); Roberts v. United States, 357 F.2d 938, 944, 174 Ct.Cl. 940 (1966). On remand, the district court will need to consider arguments as to the adequacy of the procedures and record as well as the government's contention that Standard waived both procedural and substantive issues by failing to raise them before the Acting Secretary. It may be that after receiving affidavits and hearing argument from each party, the district court will find that the determination is supported by substantial evidence in the record and otherwise satisfies the dictates of the Wunderlich Act.