               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                )
                                            )
GSC Construction, Inc.                      )      ASBCA No. 59046
                                            )
Under Contract No. W9126G-11-D-0061         )

APPEARANCE FOR THE APPELLANT:                      James S. DelSordo, Esq.
                                                    Argus Legal, LLC
                                                    Manassas, VA

APPEARANCES FOR THE GOVERNMENT:                    Thomas H. Gourlay, Jr., Esq.
                                                    Engineer Chief Trial Attorney
                                                   Ronald J. Goodeyon, Esq.
                                                   Jason R. Chester, Esq.
                                                   Keith J. Klein, Esq.
                                                    Engineer Trial Attorneys
                                                    U.S. Army Engineer District, Tulsa

      OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
   GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE

       The government requests that the appeal be dismissed because appellant failed
to respond to discovery requests by 29 April 2016, as the Board had ordered. The
Board subsequently ordered appellant to show cause why the appeal should not be
dismissed for failure to comply with that order. Appellant responded that it complied
with the Board's order with respect to the production of the documents, but through
oversight neglected timely to produce the written responses to the government's
requests. Appellant says that it has, since, provided those written responses. The
government replies that it now has the documents and the written responses (both
received late, it says), but continues to request dismissal, and, in the alternative,
requests the exclusion of evidence. The government also complains about the form in
which appellant produced the documents.

      The government's request for dismissal of the appeal is denied. Although the
Board looks unfavorably upon appellant's conduct, dismissal-a sanction universally
 recognized as a last resort*-is too harsh a remedy, particularly because the hearing of
 this appeal is more than six months off (23 January 2017).

        Dated: 14 June 2016




                                                 ~~
                                                  T~CILMAL
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur


#~~
"MARK N. STEMPLN                                  RICHARD SHACKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals



      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59046, Appeal of GSC
Construction, Inc., rendered in conformance with the Board's Charter.

       Dated:



                                                  JEFFREY D. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




* The Public Warehousing Co., ASBCA No. 56022, 13 BCA ~ 35,201at172,706.
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