              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                  )
                                             )
Thorpe Seeop Corporation                     )      ASBCA No. 58961
                                             )
Under Contract No. W911 W6-05-C-0047         )

APPEARANCE FOR THE APPELLANT:                       Mr. Virgil H. Clark
                                                     Vice President

APPEARANCES FOR THE GOVERNMENT:                     E. Michael Chiaparas, Esq.
                                                     DCMA Chief Trial Attorney
                                                    Stephen D. Sanders, Esq.
                                                     Trial Attorney
                                                     Defense Contract Management Agency
                                                     Dallas, TX
                                                    Douglas R. Jacobson, Esq.
                                                     Trial Attorney
                                                     Defense Contract Management Agency
                                                     Bloomington, MN

              OPINION BY ADMINISTRATIVE JUDGE STEMPLER
          ON APPELLANT'S MOTION PURSUANT TO BOARD RULE 31

       Thorpe Seeop Corporation (appellant) moves for entry of a default judgment or for
the issuance of a show cause order against the Defense Contract Management Agency
(government), pursuant to Board Rule 31, because ofthe inadequacy ofthe government's
answer and its earlier unjustified extension request.

        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. Appellant filed this appeal on 15 October 2013, based upon the failure of the
contracting officer (CO) to issue a final decision on appellant's $579,140.19 certified
claim, dated 12 August 2013.

      2. Appellant submitted its complaint by letter dated 11 November 2013, which the
Board received on 15 November 2013.

       3. By Order dated 3 January 2014, the Board noted the answer was overdue and
directed the government to file its answer within 21 days of the date of the Order. The
government requested, by letter dated 22 January 2014, an extension to file the answer,
and indicated that appellant opposed the request. The Board granted the government's
request but noted that further extensions would be granted only for good cause shown.
The government's answer, dated 3 February 2014, was received by the Board on
5 February 2014.

       4. By email dated 7 February 2014, appellant filed a motion. In its motion,
appellant asserts that the government's answer is inadequate and complains that the
government responded to many sentences in the complaint with the phrase, "no response
is required." The motion concludes:

             Therefore, the Appellant moves that if the ASBCA finds that
             the Defendant's (Government's) answer to Pleading to be
             inadequate per the terms of Rule 6 and would not constitute
             justification for an extension of time based upon "no response
             required" as used 45 times referencing Claims 2 through 5 of
             Pleading then Appellant moves that Claims 2 through 5 be
             awarded as stated.

       5. By Order dated 11 February 2014, the Board gave the government 30 days
from the date of the Order within which to respond to appellant's motion, as well as to a
motion appellant filed in a companion appeal, ASBCA No. 58960.

       6. By email dated 18 February 2014, the government stated that it understood
appellant's two motions to be in the nature of motions for summary judgment. The
government requested the opportunity to engage in discovery and proposed a schedule in
which it would respond to appellant's motions no later than 21 May 2014 or 30 days from
appellant's discovery response.

       7. By email dated 19 February 2014, appellant clarified that its motion in this
appeal "is made based upon Rule 31. Dismissal or Default for Failure to Prosecute or
Defend." The email provides, in pertinent part:

             In that the Government has failed to (per Rule 31) "to file
             documents required by these Rules," (documents not filed
             timely) "comply with orders of the Board," (general denial
             not adequate) and has failed to provide a defense (99 times
             using the phrase "no response is required["]) the Board may
             "in the case of a default by the Government, issue an order to
             show cause why the Board should not act thereon pursuant to
             Rule 3 5. If good cause is not shown, the Board may take
             appropriate action."




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             The Appellant contends that now - not in 90 days - the
             government must show cause why the government should not
             be ruled in default.

             The Appellant contends that if the government fails to
             respond within the 30 day time frame as stipulated by the
             Board then pursuant to Rule 3 5 the Board may rule that the
             government is refusing to obey an order issued by the Board
             and the Board may then make such order as it considers
             necessary to the just and expeditious conduct of the appeal.

        8. By Order dated 20 February 2014, the Board stated that it interpreted
appellant's motion, as amended by its 19 February 2014 submittal, to be a Motion for
Dismissal or Default for Failure to Prosecute or Defend under Board Rule 31 and stated
that it does not require a response from the government.

                                      DECISION

      Board Rule 31 provides as follows:

             Rule 31. Dismissal or Default for Failure to Prosecute or
             Defend

                     Whenever a 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 Government, issue an order to show
             cause why the Board should not act thereon pursuant to
             Rule 3 5. If good cause is not shown, the Board may take
             appropriate action.

      Board Rule 35 provides as follows:

             Rule 35. Sanctions

                    If any party fails or refuses to obey an order issued by
             the Board, the Board may then make such order as it
             considers necessary to the just and expeditious conduct of the
             appeal.




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       Appellant contends that the Board should either enter a default judgment against
the government or issue the government an order to show cause why such an entry should
not be made because the government's answer was untimely, inadequate, and failed to
provide a defense (SOF ~ 7).

        The sanction of the entry of a default judgment in favor of appellant is the severest
sanction the Board can issue against the government. Such a sanction should be reserved
for situations in which contumacious or contemptuous conduct is shown. See Utility
Construction Company, ASBCA No. 57224, 12-2 BCA ~ 35,128 at 172,468. The Board
has considerable discretion in evaluating a motion for sanctions. Bruce E. Zoeller,
ASBCA No. 56578, 10-2 BCA ~ 34,549 at 170,390.

        The Board does not agree with appellant's assertion that a show cause order, much
less the entry of a default judgment against the government, is appropriate in this
instance. While the government's answer was initially tardy, the Board granted one
requested extension and the government filed the answer within the time allowed
(SOF ~ 3). Although the government's initial failure to file a timely answer was
inappropriate, appellant has not shown that the government's conduct was contumacious
or contemptuous. Further, the Board has reviewed the government's answer and does not
find it to be inadequate.

       Appellant's motion is denied.

       Dated: 27 February 2014




                                                  Administrative Judge
                                                  Acting Chairman
                                                  Armed Services Board
                                                  of Contract Appeals




ruCHARDSHACKLEFORD
Administrative Judge                              A ministrative Judge
Acting 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. 5 8961, Appeal of Thorpe
Seeop Corporation, rendered in conformance with the Board's Charter.

      Dated:



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




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