               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                    )
                                                )
Phoenix Systems, Inc.                           )      ASBCA No. 60852
                                                )
Under Contract No. NOO 18-1 O-C-Z002            )

APPEARANCE FOR THE APPELLANT:                          Ms. Andrea Reyes
                                                        CEO/President

APPEARANCES FOR THE GOVERNMENT:                        Ronald J. Borro, Esq.
                                                        Navy Chief Trial Attorney
                                                       James J. Gross, Esq.
                                                        Trial Attorney
                                                        NA VSUP FLC Norfolk
                                                        Philadelphia, PA

               OPINION BY ADMINISTRATIVE JUDGE YOUNGER

       Appellant Phoenix Systems, Inc. (appellant or Phoenix) brought this appeal
under a contract for specified administrative services by notice of appeal dated
October 20, 2016. In its appeal, Phoenix seeks $6,116.33 for additional work under
one contract line item, and $3,344 under another.

       By date of October 21, 2016, we issued our notice of docketing and scheduling
under Board Rule 12.2 directing Phoenix to file its complaint by or before November 7,
2016. Phoenix thereafter failed to do so. Following multiple attempts by the Board to
contact Phoenix by telephone, appellant sent an email to the recorder by date of
December 1, 2016 stating that ·'[h]ere is what we submitted as a 'complaint letter.'"
Attached to the email was a copy of a March 29, 2016 letter to the contracting officer.
which predated the filing of the appeal.

       By order dated December 19, 2016 the Board revoked appellant's Rule 12.2
election. We concluded that "appellant has failed to meet the deadlines specified in
the Board's 21 October 2016 notice of docketing and scheduling under Rule 12.2.''
The following day, the Navy filed a motion for summary judgment. The Board also
cancelled a hearing set for January 12, 201 7.

        By date of May 18, 2017, we issued an order to show cause, noting that
appellant's response to the motion for summary judgment was due to be filed and
served on January 19, 2017. By date of May 31, 2017, Phoenix submitted a letter
stating that it is entitled to $9,460.33 and requesting that its appeal be sustained in that
amount.
       Phoenix has not responded, in its May 31, 2017 letter or otherwise, to the
Navy's December 19, 2016 motion for summary judgment. In its motion, the Navy
takes the position that Phoenix has been paid in full. Under Rule 7( d), the response to
the motion for summary judgment was due to be filed and served on January 19, 2017.

       By date of July 18, 2018, the Board noted the above history and issued a
supplemental order to show cause to afford Phoenix a further opportunity to show
cause by or before August 31, 2018, why the appeal should not be dismissed.

       Board Rule 17 reads:

                     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 with prejudice for failure to
             prosecute.... If good cause is not shown, the Board may
             take appropriate action.

       Phoenix has failed to respond to the second order to show cause. Accordingly,
this appeal is hereby dismissed with prejudice for failure to prosecute.

      Dated: February 21, 2019




                                                  Administrative Ju g
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur




 RICHARD SHACKLEFORD                              OWEN C. WILSON
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals


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          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. 60852, Appeal of Phoenix
    Systems, Inc., rendered in conformance with the Board's Charter.

          Dated:

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




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