Phoenix Hawk Construction Company ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Phoenix Hawk Construction Company ) ASBCA No. 60987
)
Under Contract No. W56JSL-12-P-2162 )
APPEARANCE FOR THE APPELLANT: Mr. Aghasherin Ahmady
President and CEO
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
Dana J. Chase, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE TIMOTHY P. MCILMAIL
On June 4, 2020, the government filed a notice of its affirmative defenses in this
appeal, in which it included that the appeal was untimely under 41 U.S.C. § 7104(a), which
requires that a contractor must file a notice of appeal with the Board within 90 days from the
receipt of a contracting officer’s final decision. On June 8, 2020, the Board ordered that, no
later than June 26, 2020, appellant respond to the government’s June 4, 2020 suggestion of
no jurisdiction. Appellant never filed any such response. On July 27, 2020, the government
requested that the Board dismiss the appeal for failure to prosecute. On July 29, 2020, the
Board ordered that, no later than August 7, 2020, appellant (1) respond to the government’s
June 4, 2020 suggestion of no jurisdiction; (2) respond to the government’s July 27, 2020
motion to dismiss for failure to prosecute; and (3) show cause why the appeal should not be
dismissed for failure to comply with the Board’s June 8, 2020 order. Again, appellant never
responded. Appellant has deliberately ignored the Board’s orders, and has given no
consideration to the Board’s attempts to efficiently process the appeal. Accordingly, the
appeal is dismissed with prejudice for failure to prosecute the appeal or comply with Board
orders under Board Rule 17. See Courtney Ake, ASBCA No. 61610, 2018 WL 6578658
(Nov. 26, 2018) (citing cases).
Dated: December 10, 2020
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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
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. 60987, Appeal of Phoenix
Hawk Construction Company, rendered in conformance with the Board’s Charter.
Dated: December 10, 2020
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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