                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
TranLogistics LLC                              )      ASBCA No. 61436
                                               )
Under Contract No. M27100-17-P-6012            )

APPEARANCES FOR THE APPELLANT:                        Eric Whytsell, Esq.
                                                      Ross Watzman, Esq.
                                                       Jackson Kelly PLLC
                                                       Denver, CO

APPEARANCES FOR THE GOVERNMENT:                       Craig D. Jensen, Esq.
                                                       Navy Chief Trial Attorney
                                                      Maj John E. Buis, USMC
                                                       Associate Counsel
                                                       Eastern Area Counsel Office
                                                       Camp Lejeune, NC

           OPINION BY ADMINISTRATIVE JUDGE THRASHER ON THE
        GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
             AND APPELLANT'S MOTION TO WITHDRAW APPEAL

Background

      On 27 November 2017, the Board received correspondence from TranLogistics
LLC (TranLogistics or appellant), indicating a desire to appeal on the referenced contract.
The appeal was docketed the same day.

       On 11 December 2017, the Board received the government's motion to dismiss the
appeal for lack of jurisdiction, alleging the appeal was premature. According to the
government, appellant's claim for $13,853.00 was emailed 26 October 2017, received by
the contracting officer (CO) on 9 November 2017, and a decision would be forthcoming
within the 60-day timeframe established by FAR 33.21 l(c)(l)* (gov't mot. at 1, 2).

        Appellant responded to the government's motion on 16 March 2018, acknowledging
that it had prematurely contacted the Board in November, before the CO had issued the
8 January 2018 final decision (app. resp. at 1, 2). Therefore, conceded appellant, the Board

*   The CO subsequently issued a final decision, dated 8 January 2018, and appellant
         appealed the decision to the Board. That appeal, ASBCA No. 61574, was
         docketed 3 April 2018.
does not have jurisdiction over the matter (app. resp. at 3). Appellant stated it had proposed
to the government that the parties enter into a joint stipulation for voluntary dismissal without
prejudice. The government declined to do so. (App resp. at 2) Appellant moved to withdraw
the appeal without prejudice (app. resp. at 1, 3 ). The Board has received no further
correspondence from the government.

Discussion

        We do not have a rule governing when an appellant may withdraw an appeal and,
 as described in TTF, L.L.C., ASBCA No. 58494, 13 BCA ,! 35,343 at 173,463, citing
 Thorington Electrical and Construction Co., ASBCA No. 56895 et al., 10-2 BCA
,i 34,511 at 170,177 n.3, we look for guidance to the Federal Rules of Civil Procedure.
 FED. R. CIV. P. 41 provides in pertinent part that a "plaintiff may dismiss an action
without a court order by filing ... a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment." In TTF, L.L.C., the government
had filed a motion to dismiss the appeal for lack of jurisdiction, while appellant had filed
a motion to withdraw. The Board, citing Dick Pacific/GHEMM JV, ASBCA Nos. 55562,
55563, 07-1 BCA ,i 33,469 at 165,920, noted that dismissal pursuant to the government's
motion to dismiss for lack of jurisdiction would result in a dismissal without prejudice,.
the same result from a grant of appellant's motion. We allowed appellant to withdraw its
appeal without prejudice. TTF, L.L.C., 13 BCA ,i 35,343 at 173,464. Subsequently, we
described this result as a "reasonable, common sense approach" in reaching the same
conclusion in a similar case. UC! Services Group, Inc. ASBCA No. 60792, 17-1 BCA
,i 36,745 at 179,105. We see no reason to reach a different conclusion here.

       Appellant's motion to withdraw the appeal is granted and the appeal is dismissed
without prejudice. In light of our allowance of appellant's motion to withdraw the
appeal, the government's motion to dismiss for lack of jurisdiction is denied as moot.

       Dated: 30 April 2018




                                                  Administrative Judge
                                                  Chairman
                                                  Armed Services Board
                                                  of Contract Appeals


(Signatures continued)



                                             2
 I concur                                         I concur



 RICHARD SHACKLEFORD
 Administrative Judge                             Administra ive Judge
 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. 61436, Appeal ofTranLogistics LLC,
rendered in conformance with the Board's Charter.

      Dated:



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




                                            3
