               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
UCI Services Group, Inc.                      )      ASBCA No. 60792
                                              )
Under Contract No. FA4800-11-R-OOO 1          )

APPEARANCE FOR THE APPELLANT:                        Mr. David Isham
                                                      CEO

APPEARANCES FOR THE GOVERNMENT:                      Jeffrey P. Hildebrant, Esq.
                                                      Air Force Deputy Chief Trial Attorney
                                                     P~illip E. Reiman, Esq.
                                                     Capt Ryan P. Payne, USAF
                                                      Trial Attorneys

                OPINION BY ADMINISTRATIVE JUDGE PROUTY

       In this matter we are presented with two competing motions to dismiss without
prejudice filed by the respective parties. Consistent with our past practice and there being
no good reason to deny appellant's request to withdraw its appeal without prejudice, we
grant appellant's motion and deny the government's motion as moot.

                           PROCEDURAL BACKGROUND

       This appeal of a contracting officer's final decision was filed with the Board
on 9 September 2016. The government promptly submitted its Rule 4 file to the
Board on 29 September 2016. On 8 November 2016, after the Board received from
appellant documents that it construed as its complaint, our staff recognized that the
government-provided Rule 4 file did not include a signed certification. We directed
the government to provide that document or to inform us that it did not exist on or
before 29 November 2016. On 18 November 2016, government counsel informed the
Board that it did not possess a signed copy of appellant's claim certification.

        On 22 December 2016, a Board staff attorney contacted the parties and made
them aware of law that requires a signed claim certification for the Board to possess
jurisdiction. Mr. Isham, appellant's chief executive officer, who represents appellant
prose, requested time to consider his next step, which was agreed to. The same day,
Mr. Isham forwarded to the Board a copy of a letter, dated 13 June 2016, which
appeared to be a stand-alone document purporting to certify appellant's claim. The
Board responded by sending a letter to the parties inquiring whether this letter had
been submitted to the contracting officer prior to the appeal and directing the
government to file a briefing on the matter by 30 January 2017.
        On 16 January 2017, Mr. Isham sent an email to the Board stating that, "I would
like to withdraw my appeal." The government responded with an email the next day
stating that it had no objection to the withdrawal of the appeal and that it considered the
request to obviate its need for further briefing on the appeal. On 23 January 2017, the
staff attorney assigned to this appeal discussed Mr. !sham's request to withdraw the
appeal with him and inquired whether he wished to do so with prejudice. Mr. Isham
asked for time to consider the matter. On 25 January 2017, Mr. Isham sent an email to
the Board explaining that he wished to withdraw the appeal because, "at this time" he
did not have the resources to pursue it. He concluded by stating, "therefore, I am
withdrawing my appeal without any prejudice." The next day, the staff attorney
assigned to this appeal directed the government's attorney to send an email to the
Recorder's Office with the government's viewpoint on appellant's request.

        Matters became complicated on 27 January 2017, when government counsel
sent two emails to the Board. The first email stated that the Air Force "will not object
to the Board treating the Appellant's 'withdrawal' as a motion to dismiss without
prejudice." The second email, sent a little more than four hours later, included an
attached "Joint Motion to Dismiss," which was to be with prejudice. The later email
represented that appellant "had objection to a Joint Motion to Dismiss with Prejudice."
In a follow up conversation with the Board's staff attorney later that day, government
counsel represented that he had meant to state, in the body of his second email, that
appellant had "no objection" to a dismissal with prejudice. When contacted by the
staff attorney on 1 February 2017, Mr. Isham stated that he had been confused by what
government counsel had requested and wished to have a dismissal without prejudice as
he had earlier requested. Government counsel, contacted by telephone the same day,
reiterated the government's desire for a dismissal with prejudice.

        On 9 February 2017, the Recorder's Office sent a letter to the parties
summarizing the procedural posture and reminding them that a dismissal for lack of
jurisdiction (which would be the grounds for a dismissal for failure to certify the
claim) would be without prejudice. The government was then given 21 days to file a
motion to dismiss for lack of a certified claim. The government did file such a motion
on 15 February 201 7, specifying that the appeal should be dismissed for lack of
jurisdiction and not arguing that it should be with prejudice. Appellant has not
responded to this motion despite a 9 March letter from the Recorder's Office
explaining that, if it failed to do so by 30 March 2017, the Board could take action
without further input from appellant.




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                                      DECISION

        Before the Board are two essentially unopposed motions from the respective
parties that both seek the same result by different routes: dismissal of appellant's
complaint without prejudice. We grant the first motion requesting this result,
appellant's.

        As discussed above, Mr. Isham has submitted multiple requests that his appeal
be dismissed and that it be done so without prejudice. The government has never
opposed the dismissal of the appeal. Only after its first, ambiguous email to the Board
on 27 January 2017 stating that the government did not object to our considering
Mr. !sham's request to the Board to be a motion for a dismissal without prejudice did
the government request that the dismissal be with prejudice. And that request was
posited as being supported by Mr. !sham's agreement to a prejudicial dismissal, rather
than any law supporting the imposition of that type of dismissal. After Mr. Isham
made clear that, whatever government counsel may have believed; he had never
intended to agree to a dismissal with prejudice, the government continued to express
its preference for a dismissal with prejudice. Whatever the government's preference, it
has never provided us a principled opposition to granting appellant's request in full.

        The government's subsequently-filed motion to dismiss for lack of jurisdiction,
for failure to submit a certified claim, does not give us any reason to deny appellant's
request. It is well established that the result of our granting a motion to dismiss for
lack of jurisdiction is a dismissal without prejudice. See Dick Pacific/GHEMM JV,
ASBCA Nos. 55562, 55563, 07-1 BCA if 33,469 at 165,920. Thus, were we to grant
the government's motion, we would have the same end result that appellant is seeking.

       We were presented with strikingly similar procedural circumstances in the
appeal of TTF, L.L.C., ASBCA No. 58494, 13 BCA if 35,343 at 173,463. In TTF, like
the matter here, the government submitted a motion to dismiss for lack of jurisdiction.
Id. Appellant responded by making its own motion to dismiss, which the government
opposed unless the dismissal were entered with prejudice. Id. We decided that, rather
than grant the government motion to dismiss, it would be better to simply grant the
appellant's motion to withdraw the appeal without prejudice. Id. at 173,464. We
perceive no basis to depart from the reasonable, common sense approach of TTF.




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       Accordingly, appellant's motion to withdraw its appeal is granted and the
appeal is dismissed without prejudice. The government's motion to dismiss for lack of
jurisdiction is denied as moot.

      Dated: 3 May 2017




                                                 J. REID PROUTY
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

 I concur                                        I concur




                                                  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. 60792, Appeal ofUCI
Services Group, Inc., rendered in conformance with the Board's Charter.

       Dated:


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




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