Shubhada Industries

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Shubhada Industries ) ASBCA No. 58173)
Under Contract No. SPM4A7-10-M-C273 )
APPEARANCE FOR THE APPELLANT: Mr. Babu Metgud
Vice President
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Gregory T. Allen, Esq.
Trial Attorney
Defense Contract Management Agency
Chantilly, VA
OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE
GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE
In this appeal challenging the termination settlement decision of a supply
contract, the government moves to dismiss for failure to prosecute. We grant the
motion and dismiss the appeal with prejudice.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. By date of 7 May 2010, the Defense Supply Center, Richmond, Virginia (Center),
awarded Contract No. SPM4A7-10-M-C273 to Shubhada Industries (Shubhada) for the
supply of specified cover assembly ducts, as well as for first article testing (R4, tab 3 at 3,
8).
2. By date of 3 August 2010, the Center issued unilateral Modification No. POOOO 1
to Shubhada. The modification constituted a stop work order "DUE TO CHANGE
IN DEMAND AND POSSIBILITY OF TERMINATION/CANCELLATION." (R4, tab 4
at 1-2) Thereafter, by date of 12 August 2010, the Center issued unilateral Modification
No. P00002 to Shubhada, terminating the contract for the convenience of the government
(R4, tab 5 at 1-2).
3. By date of 10 August 2011, Shubhada submitted a settlement proposal (R4,
tab 1O; gov't mot., ex. G-10). The parties failed to agree on an amount, and by final
decision dated 20 March 2012, the terminating contracting officer determined that
Shubhada was entitled to $500 as a result of the termination of the contract (R4,
tab 40).
4. Shubhada thereafter brought this timely appeal. The Board concluded that
the appeal would be expedited ifthe government filed the complaint and Shubhada
filed the answer. Accordingly, by order dated 27 March 2013, the Board directed the
government to file and serve the complaint on or before 15 May 2013.
5. The government filed the complaint on 16 May 2013. By order dated
23 May 2013, the Board ordered Shubhada to file and serve an answer or other
responsive pleading by or before 20 June 2013.
6. Shubhada failed to file an answer as ordered by the Board. By date of
23 October 2013, the government filed a motion to compel Shubhada to answer the
complaint.
7. Shubhada persisted in failing to file an answer to the complaint, and, by
order dated 4 December 2013, the Board again ordered Shubhada to file an answer by
or before 24 December 2013.
8. Shubhada again failed to file an answer as ordered by the Board. On 7 April
2014, the government filed the present motion to dismiss for failure to prosecute. By
order dated 8 April 2014, the Board ordered Shubhada to file and serve its response to
the motion by or before 8 May 2014.
9. On 9 June 2014, the Board held a conference call with Shubhada's vice
president and with government counsel. Following the conference call, by order of the
same date, the Board granted Shubhada until 30 June 2014 to respond to the
government's motion.
10. In a 30 June 2014 email to the Recorder, Shubhada asserted that it had
prosecuted the appeal by filing its complaint. Shubhada also stated that the Board "has
been ... HARASSING our Small DISADVANTAGED BUSINESS" and "is not
Interested in Resolving the Issues Relating [to] the UNPAID INVOICE of this
company." Shubhada recited advice from unnamed attorneys, who were said to have
advised "seek[ing] the help of the REGULAR COURT." Since its email, Shubhada
has taken no further action to prosecute this appeal.
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DECISION
Our authority to take appropriate action for a party's failure to proceed with an
appeal is derived from Rule 17 of the Board's 2014 Rules, which was formerly Board
Rule 31. It provides, in part, that:
Whenever the 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 with prejudice for failure to prosecute .... If
good cause is not shown, the Board may take appropriate
action.
In tum, Board Rule 16 (formerly Board Rule 35) provides for discretionary sanctions
where a party "fails to obey an order issued by the Board." We construed the
reference to "appropriate action" in former Board Rule 31 to include a dismissal with
prejudice as one of the permissible sanctions. E.g., Government Therapy Servs., Inc.,
ASBCA No. 53972, 04-2 BCA ii 32,774 at 162,063. The same construction is
applicable to the closely parallel language in Board Rule 16.
Shubhada' s conduct falls within two categories specified in Board Rule 17.
First, the record discloses that Shubhada has failed to "comply with orders of the
Board." Shubhada has never complied with the Board's 23 May 2013 and
4 December 2013 orders to move the appeal forward by answering the government's
complaint (statements 5-8). Second, the record reveals that Shubhada, in the terms of
Board Rule 17, has "indicate[d] an intention not to continue the prosecution ... of [the]
appeal." Shubhada's 30 June 2014 email to the Recorder (statement 10) conveys no
intention to prosecute the appeal further by the filing of an answer, and is consistent
with Shubhada' s failure to take any action whatever in the six months since the email.
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CONCLUSION
The motion to dismiss for failure to prosecute is granted. The appeal is
dismissed with prejudice.
Dated: 20 January 2015
Armed Services Board
of Contract Appeals
I concur I concur
Administrative Judge
m
RICHARD SHACKLEFORD
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. 58173, Appeal of
Shubhada Industries, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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