               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                   )
                                              )
Mylene Will Company LLC                       )       ASBCA No. 58332
                                              )
Under Contract No. W9128F-12-P-0041           )

APPEARANCE FOR THE APPELLANT:                         Mr. Greg Sullivan
                                                       Operations Manager

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      Melissa M. Head, Esq.
                                                       Engineer Trial Attorney
                                                       U.S. Army Engineer District, Omaha

           OPINION BY ADMINISTRATIVE JUDGE YOUNGER
  ON ORDER TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED

       In this appeal regarding a construction contract, appellant Mylene Will
Company LLC (Mylene Will or appellant) seeks to have the termination for default of
its contract converted to a no-cost termination. After the pleadings were filed, both
parties advised the Board that they elected to have the appeal decided on the record under
Board Rule 11.

       On the basis of that advice, the Board promulgated a schedule for the disposition
of the appeal by order dated 22 March 20 13. The order set forth six deadlines, as
follows:

              (a) 15 May 2013: conclusion of discovery;

              (b) 10 June 2013: supplementation of the record;

              (c) 28 June 2013: filing and service of rebuttal evidence;

              (d) 15 July 2013: filing and service of opening briefs; and

              (e) 31 July 20 13: filing and service of optional reply briefs.

The order provided that "[a]ny filing not made in a timely manner may be deemed
waived."
        The record reflects that appellant failed to comply with any of the deadlines set
forth in the Board's 22 March 2013 order. Accordingly, by date of 14 August 2013, the
Board ordered appellant to show cause why this appeal should not be dismissed pursuant
to Board Rule 31. The Board's order stated that the file "reflects no compliance with any
of the dates" set forth in the scheduling order, and directed appellant to show cause by or
before 20 September 2013. Appellant failed to respond to the show cause order.

         The Board thereafter issued a further show cause order by certified mail - return
receipt requested on 5 February 2014. In this further order, the Board advised appellant
that it "intend[ed] to dismiss this appeal with prejudice pursuant to Rule 31 unless
appellant show[ed] cause, by or before 20 February 2014, why the Board should not do
so, and unless appellant furnishes the Board with a schedule for the further prosecution of
the appeal." According to its records, the Postal Service attempted delivery on
8 February 2014, and that the order has been "[a]vailable for [p]ickup" by appellant since
that date. In any event, appellant did not show cause by 20 February 2014, nor did it
furnish a schedule for the further prosecution of the appeal.

       Our authority to take appropriate action for a party's failure to proceed with an
appeal is derived from Board Rule 31. It provides, in part, that:

                      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 appellant, issue an order to show
              cause why the appeal should not be dismissed .... If good
              cause is not shown, the Board may take appropriate action.

In tum, Board Rule 3 5 provides for discretionary sanctions where a party "fails or refuses
to obey an order issued by the Board." The "appropriate action" referenced in Board
Rule 31, and one of the sanctions contemplated by Board Rule 35, may include a
dismissal with prejudice. E.g., Government Therapy Servs., Inc., ASBCA No. 53972,
04-2 BCA ~ 32,774 at 162,063.

        "Fallowing the filing of an appeal with the Board, a contractor has an obligation to
demonstrate a meaningful effort to prosecute the appeal," Tech-Tron Constructors,
ASBCA No. 46367, 97-1 BCA ~ 28,746 at 143,478, but the present record reflects no
real effort to do so after the Board's scheduling order. The Board's file reflects no
discovery, no supplementation of the record, and no submission of rebuttal evidence.
Appellant also did not file either an opening or reply brief. Appellant's only
manifestation of interest in this appeal during the past year has been to submit official
records to show that its representative satisfied the requirements of Board Rule 26. This


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filing can hardly be deemed prosecution of the appeal in the face of appellant's
noncompliance with the deadlines in the scheduling order.

       If there were an excuse for this nonprosecution, appellant has twice failed to
proffer it. An order to show cause "is intended to give appellant the opportunity to
explain the circumstances surrounding its failure to move the appeal forward before it is
dismissed." Government Therapy Servs., 04-2 BCA ~ 32,774 at 162,063. The Board
twice afforded appellant opportunities to explain its conduct of the appeal with the
14 August 2013 order to show cause and the 5 February 2014 further order to show
cause, respectively. Appellant did not respond to either order.

       We have recognized that "dismissal with prejudice .. .is a harsh measure operating
as an adjudication on the merits, and we employ it sparingly." Generator Technologies,
Inc., ASBCA No. 53206, 03-1 BCA ~ 32,058 at 158,461 (quoting David's Econo-Move,
Inc., ASBCA Nos. 49105,49562, 00-1 BCA ~ 30,621 at 151,156). Viewing the record
before us, however, we can only conclude that dismissal with prejudice is warranted here.

                                     CONCLUSION

      The appeal is dismissed with prejudice pursuant to Board Rule 31.

      Dated: 18 March 20 14




                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur .



£,:~
Administrative Judge                             Administrative Judge
Acting Chairman                                  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. 58332, Appeal ofMylene
Will Company LLC, rendered in conformance with the Board's Charter.

      Dated:



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




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