              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                  )
                                             )
Fahim Noori Construction Company             )      ASBCA No. 60829
                                             )
Under Contract No. W91B4M-07-C-7167          )

APPEARANCE FOR THE APPELLANT:                       Mr. Ziaullah Haq
                                                     President

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    CPT Douglas A. Reisinger, JA
                                                     Trial Attorney

    OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S
        REQUESTS FOR RECONSIDERATION OF DISMISSAL ORDER
                AND REINSTATEMENT OF THE APPEAL

       On October 30, 2017, we dismissed the appeal with prejudice, under Board
Rule 17, for failure to respond to an order to show cause. Fahim Noori Construction
Co., ASBCA No. 60829, 2017 WL 5500567 (Oct. 30, 2017). On March 18, 2018,
appellant requested what we interpret as reconsideration of that dismissal and
reinstatement of the appeal. See Mac-In-Erny, Inc., ASBCA No. 28689, 88-1 BCA
120,359 at 102,949, aff'd, 862 F.2d 321 (Fed. Cir. 1988) (table). We have not
requested a response from the government. See RECO Rishad Engineering
Construction ORG, ASBCA No. 60444, 17-1BCA136,767 at 179,167.

       We sent the dismissal order to appellant on October 31, 2017, to the email
address for appellant that we had on file, the same email address from which we had
received appellant's September 30, 2016 notice of appeal, and from which we had
received correspondence from appellant as late as January 3, 2017. Appellant had
30 days from receipt of the order-until November 30, 2017-to file its motion for
reconsideration. Board Rule 20. It did not do so; consequently, the request for
reconsideration is untimely.

       Appellant blames its "acting agent who [was] supposed[] to deal with [its]
claim matters" for failure to respond to the order to show cause, and says that it was
not aware of our September 7 order because it has not had control of the email address
to which we have been sending Board correspondence (email dtd. 18 March 2018).
However, it was appellant's responsibility to keep us informed of its correct mailing
address; indeed, failure to do so is grounds to dismiss an appeal with prejudice. See
Manshul Construction Corp., ASBCA Nos. 47795, 47797, 02-1BCA131,766 at
156,892. To the extent that appellant relied upon its "acting agent" for notice,
appellant is charged with the notice that we sent on October 31, 2017. See
RESTATEMENT (THIRD) OF AGENCY§ 5.03 (2006), comment a (a principal is charged
with "notice of facts that an agent knows or has reason to know"). Appellant does not
even name the "acting agent" it blames (the "acting agent" does not appear to be
appellant's president, who is appellant's representative before the Board), does not say
when it supposedly lost control of its email, and does not say when it learned of our
October 30, 2017 decision. The request for reconsideration is denied.

       As for the request for reinstatement of the appeal, dismissal with prejudice
under Rule 17 (essentially, for failure to prosecute or comply with Board orders) will
be vacated, and an appeal reinstated, only under the most compelling circumstances.
See Manshul, 02-I BCA 131,766 at 156,892 (concerning former Board Rule 31). We
see no such circumstances here; indeed, in dicta, we have indicated that under
circumstances like these, a similar request, to, in effect, vacate a dismissal order and
restore an appeal to the Board's docket would be summarily denied. See id. The
request for reinstatement of the appeal is denied.

       Dated: 24 April 2018




                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur



RICHARD SHACKLEFORD                               J. REID PROUTY
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                           2
      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. 60829, Appeal ofFahim
Noori Construction Company, rendered in conformance with the Board's Charter.

      Dated:



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




                                         3
