               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Nimrah Construction Company                   )      ASBCA No. 61215
                                              )
Under Contract No. W91B4M-09-C-7174           )

APPEARANCE FOR THE APPELLANT:                        Mr. Abdul Basir
                                                      President

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     MAJ Adam Kama, JA
                                                      Trial Attorney

       OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE
          GOVERNMENT'S MOTION TO COMPEL AND DISMISSAL
                    FOR FAILURE TO PROSECUTE

        The government has moved to compel appellant to produce documents
requested on discovery. Appellant failed to produce the documents, failed to show
cause why the motion to compel should not be granted and has not responded to the
Board's orders to do so even as we advised that the appeal might be dismissed for
failure to prosecute. As set out below, we dismiss this appeal for failure to prosecute.
We deny the government's motion to compel as moot.

          STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS

       1. Nimrah Construction Company has appealed the denial of its claim for
$1,360,514.86 under the above-captioned Army construction contract performed in
Afghanistan.

      2. On 22 November 2017, the government submitted its first request for
production of documents with an agreed suspense date of 8 December 2017 (ex. G-3).*

      3. On 13 December 2017, the government inquired as to when the documents
would be produced (ex. G-4) to which appellant replied on 14 December 2017, that it
was working on it and hoped to get it out within a week (ex. G-5).




* Exhibits are to the government's motion to compel.
       4. Again the government inquired on 5 January 2018, as to when it could
expect the documents (ex. G-6). Appellant, on 16 January 2018, replied that it was
working on getting the documents and apologized for the delay (ex. G-8).

      5. On 1 February 2018, the government filed a motion to compel the
production of the documents requested and to provide information responsive to its
discovery request.

       6. By date of 6 February 2018, the Board issued to appellant an order to show
cause, on or before 2 March 2018, why the motion to compel should not be granted.

       7. As of 2 April 2018, the Board had not received a response to its order to
show cause. Thus, on that date, appellant was directed by the Board respond to its
order on or before 20 April 2018, or the Board might dismiss the appeal for failure to
prosecute.

         8. As of 15 May 2018, appellant has not responded to the Board's show cause
order.

                                        DECISION

         Board Rule 17 provides in part as follows:

                      Whenever the record discloses the failure of either
               party to file documents required by these Rules, respond to
               notices or correspondence from the Board, comply with
               orders of the Board, or otherwise indicates an intention not
               to continue the prosecution or defense of an appeal, the
               Board may, in the case of a default by the appellant, issue
               an order to show cause why the appeal should not be
               dismissed with prejudice for failure to prosecute .... If good
               cause is not shown, the Board may take appropriate action.

       Appellant has not complied with the Board order to show cause as to why the
government's motion to compel should not be granted. We advised appellant that its
continuing failure to respond to the order could lead to dismissal for failure to
prosecute. It has not responded to the government's motion and has not responded to
the Board's order although given ample opportunity to do so.




                                             2
        We find that appellant has not complied with Board orders and by its inaction
indicates an intention not to continue the prosecution of this appeal. Accordingly, the
appeal is dismissed for failure to prosecute pursuant to Board Rule 17. In light of this
result, the motion to compel is denied as moot.

       Dated: 16 May 2018



                                                  RICHARD SHACKLEFORD
                                                  Administrative Judge
                                                  Acting Chairman
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur



 OWEN C. WILSON
 Administrative Judge                             Administrative 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. 61215, Appeal ofNimrah
Construction Company, rendered in conformance with the Board's Charter.

      Dated:



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




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