                  ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                    )
                                                )
Al Nawars Company                               )      ASBCA No. 59043
                                                )
Under Contract No. W9l7BE-06-C-OO18             )

APPEARANCE FOR THE APPELLANT:                          Mr. Buraier Yassen
                                                        Owner

APPEARANCES FOR THE GOVERNMENT:                       Thomas H. Gourlay, Jr., Esq.
                                                       Engineer Chief Trial Attorney
                                                      James D. Stephens, Esq.
                                                      Robert J. McKenney, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Middle East.
                                                       Winchester, VA

                OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN
            DISMISSING WITH PREJUDICE FOR FAILURE TO PROSECUTE

       This appeal arises from a contract awarded to appellant by a United States Army
Corps of Engineers contracting officer for a series of valve/pipe hardening projects in the
Iraqi Govemorate of Nineveh (R4, tab 4 at 1-4). The contract incorporated by reference
the standard Disputes clause, FAR 52.233-1, DISPUTES {JUL 2002)-ALTERNATE I
(DEC 1991) (R4, tab 4 at 10). 1 As discussed in our earlier decision denying the
government's motion to dismiss the appeal for lack of jurisdiction pursuant to the
Contract Disputes Act (CDA) six-year statute oflimitations, the government terminated
the contract for default; appellant subsequently submitted a monetary claim; and, upon
denial of the claim, appellant timely appealed to the Board. See Al Nawars Co., ASBCA
Nos. 59043, 59044, 15-1BCAif35,955.

      By Order dated 29 January 2015, the Board directed the government to state its
views as to whether the contract had been issued pursuant to the Commanders'
Emergency Response Program (CERP), or was a procurement contract under the CDA.
The government responded, by letter dated 27 March 2015, with its view that the contract
was a CERP agreement. By Order dated 9 April 2015, the Board then directed the parties

1
    The Disputes clause states that a "Contracting Officer's decision shall be final unless
         the Contractor appeals ... as provided in the [CDA]." FAR 52.233-l(f). The CDA
         provides that "[a] contractor, within 90 days from the date of receipt of a
         contracting officer's decision ... may appeal the decision to an agency board."
        41 U.S.C. § 7104(a).
to provide their views on the impact, if any, of the Board's opinion in Latifi Shagiwall
Constr. Co., ASBCA No. 58872, 15-1BCA~35,937, on the Board's jurisdiction to
adjudicate the appeal. In Latifi, the Board held that it lacked jurisdiction over an appeal
involving a CERP contract without any provision authorizing an appeal to the Board.
The government responded to the Board's 9 April 2015 Order and took the position that
the contract was a procurement contract and that the Board therefore had jurisdiction
under the CDA. Appellant did not respond to the Order.

        The contract in this appeal has a Disputes clause that contemplates an appeal to the
Board. We have previously found that such a clause may provide an independent basis
for our jurisdiction under the Board's Charter. See, e.g., Latiji, 15-1BCA~35,937 at
175,634; Patriot Pride Jewelry, LLC, ASBCA No. 58953, 14-1 BCA ~ 35,624 at 174,478
(clause granted the Board authority to adjudicate "all disputes arising under or relating
to" the parties' agreement). For purposes of this decision, it is unnecessary for us to
determine whether our jurisdiction to adjudicate the appeal derives from the CDA or the
Board's Charter.

        Despite numerous attempts to elicit responses from appellant, the Board has
received no correspondence from appellant in this appeal since 21April2015. By
motion dated 9 November 2015, the government requested the Board to issue an order
directing appellant to show cause why this appeal should not be dismissed with prejudice
for failure to prosecute pursuant to Board Rule 17. In support of its motion, the
government alleged that appellant had not responded to the government's communication
attempts since 20 April 2015. By Order dated 17 November 2015, appellant was ordered
to show cause no later than 17 December 2015 why the appeal should not be dismissed
with prejudice for failure to prosecute. The Board's 17 November 2015 Show Cause
Order was transmitted to two email addresses, both of which appellant had used
previously to communicate with the Board. The Board has received no response from
appellant. Accordingly, this appeal is dismissed with prejudice under Board Rule 17.

      Dated: 19 January 2016




                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals



(Signatures continued)


                                             2
I concur


  ~~---
MARK N. STEMPLER                                 RICHARD SHACKLEFORD
Administrative Judge                             Administrative Judge
Acting Chairman                                  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 Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 59043, Appeal of Al Nawars
Company, rendered in conformance with the Board's Charter.

      Dated:



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




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