Thorpe Seeop Corporation

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Thorpe Seeop Corporation ) ASBCA No. 58961)
Under Contract No. W911 W6-05-C-0047 )
APPEARANCE FOR THE APPELLANT: Mr. Virgil H. Clark
Vice President
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Stephen D. Sanders, Esq.
Trial Attorney
Defense Contract Management Agency
Dallas, TX
Douglas R. Jacobson, Esq.
Trial Attorney
Defense Contract Management Agency
Bloomington, MN
OPINION BY ADMINISTRATIVE JUDGE STEMPLER
ON APPELLANT'S MOTION PURSUANT TO BOARD RULE 31
Thorpe Seeop Corporation (appellant) moves for entry of a default judgment or for
the issuance of a show cause order against the Defense Contract Management Agency
(government), pursuant to Board Rule 31, because ofthe inadequacy ofthe government's
answer and its earlier unjustified extension request.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. Appellant filed this appeal on 15 October 2013, based upon the failure of the
contracting officer (CO) to issue a final decision on appellant's $579,140.19 certified
claim, dated 12 August 2013.
2. Appellant submitted its complaint by letter dated 11 November 2013, which the
Board received on 15 November 2013.
3. By Order dated 3 January 2014, the Board noted the answer was overdue and
directed the government to file its answer within 21 days of the date of the Order. The
government requested, by letter dated 22 January 2014, an extension to file the answer,
and indicated that appellant opposed the request. The Board granted the government's
request but noted that further extensions would be granted only for good cause shown.
The government's answer, dated 3 February 2014, was received by the Board on
5 February 2014.
4. By email dated 7 February 2014, appellant filed a motion. In its motion,
appellant asserts that the government's answer is inadequate and complains that the
government responded to many sentences in the complaint with the phrase, "no response
is required." The motion concludes:
Therefore, the Appellant moves that if the ASBCA finds that
the Defendant's (Government's) answer to Pleading to be
inadequate per the terms of Rule 6 and would not constitute
justification for an extension of time based upon "no response
required" as used 45 times referencing Claims 2 through 5 of
Pleading then Appellant moves that Claims 2 through 5 be
awarded as stated.
5. By Order dated 11 February 2014, the Board gave the government 30 days
from the date of the Order within which to respond to appellant's motion, as well as to a
motion appellant filed in a companion appeal, ASBCA No. 58960.
6. By email dated 18 February 2014, the government stated that it understood
appellant's two motions to be in the nature of motions for summary judgment. The
government requested the opportunity to engage in discovery and proposed a schedule in
which it would respond to appellant's motions no later than 21 May 2014 or 30 days from
appellant's discovery response.
7. By email dated 19 February 2014, appellant clarified that its motion in this
appeal "is made based upon Rule 31. Dismissal or Default for Failure to Prosecute or
Defend." The email provides, in pertinent part:
In that the Government has failed to (per Rule 31) "to file
documents required by these Rules," (documents not filed
timely) "comply with orders of the Board," (general denial
not adequate) and has failed to provide a defense (99 times
using the phrase "no response is required["]) the Board may
"in the case of a default by the Government, issue an order to
show cause why the Board should not act thereon pursuant to
Rule 3 5. If good cause is not shown, the Board may take
appropriate action."
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The Appellant contends that now - not in 90 days - the
government must show cause why the government should not
be ruled in default.
The Appellant contends that if the government fails to
respond within the 30 day time frame as stipulated by the
Board then pursuant to Rule 3 5 the Board may rule that the
government is refusing to obey an order issued by the Board
and the Board may then make such order as it considers
necessary to the just and expeditious conduct of the appeal.
8. By Order dated 20 February 2014, the Board stated that it interpreted
appellant's motion, as amended by its 19 February 2014 submittal, to be a Motion for
Dismissal or Default for Failure to Prosecute or Defend under Board Rule 31 and stated
that it does not require a response from the government.
DECISION
Board Rule 31 provides as follows:
Rule 31. Dismissal or Default for Failure to Prosecute or
Defend
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 Government, issue an order to show
cause why the Board should not act thereon pursuant to
Rule 3 5. If good cause is not shown, the Board may take
appropriate action.
Board Rule 35 provides as follows:
Rule 35. Sanctions
If any party fails or refuses to obey an order issued by
the Board, the Board may then make such order as it
considers necessary to the just and expeditious conduct of the
appeal.
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Appellant contends that the Board should either enter a default judgment against
the government or issue the government an order to show cause why such an entry should
not be made because the government's answer was untimely, inadequate, and failed to
provide a defense (SOF ~ 7).
The sanction of the entry of a default judgment in favor of appellant is the severest
sanction the Board can issue against the government. Such a sanction should be reserved
for situations in which contumacious or contemptuous conduct is shown. See Utility
Construction Company, ASBCA No. 57224, 12-2 BCA ~ 35,128 at 172,468. The Board
has considerable discretion in evaluating a motion for sanctions. Bruce E. Zoeller,
ASBCA No. 56578, 10-2 BCA ~ 34,549 at 170,390.
The Board does not agree with appellant's assertion that a show cause order, much
less the entry of a default judgment against the government, is appropriate in this
instance. While the government's answer was initially tardy, the Board granted one
requested extension and the government filed the answer within the time allowed
(SOF ~ 3). Although the government's initial failure to file a timely answer was
inappropriate, appellant has not shown that the government's conduct was contumacious
or contemptuous. Further, the Board has reviewed the government's answer and does not
find it to be inadequate.
Appellant's motion is denied.
Dated: 27 February 2014
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
ruCHARDSHACKLEFORD
Administrative Judge A ministrative Judge
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. 5 8961, Appeal of Thorpe
Seeop Corporation, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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