ASBCA 57744

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of— ) ) Government Technical Services, LLC ) ASBCA No. 57744 ) Under Contract No. W912DY-05-D-0020 ) APPEARANCE FOR THE APPELLANT: Howell Roger Riggs, Esq. Huntsville, AL APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Kathryn R. Sommerkamp, Esq. Engineer Trial Attorney Margaret P. Simmons, Esq. Center Counsel U.S. Army Engineer District, Huntsville OPINION BY ADMINISTRATIVE JUDGE WILSON ON APPELLANT'S MOTION TO DISMISS WITHOUT PREJUDICE UNDER BOARD RULE 30 Government Technical Services, LLC (GTS or appellant) appealed the decision of the contracting officer terminating Task Order No. 0002 under the subject contract for default. For the majority of the time this appeal has been pending, GTS has been represented pro se by its president, Mr. Joseph Terry, who is currently under criminal indictment in United States District Court for the Northern District of Alabama. Appellant has moved that the Board suspend proceedings without prejudice pursuant to Board Rule 30 until the indictment can be resolved and has retained counsel for that limited purpose. We deem the motion to be one to dismiss the appeal without prejudice under Rule 30. The government opposes the dismissal contending, inter alia, that the Board should rule on its pending motion for summary judgment, as the contract at issue in this appeal is unrelated to the contract in the criminal case, and appellant has failed to show good cause for suspension of the proceedings under Board Rule 30. For the reasons stated below, appellant's motion is granted in part. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 4 January 2006, the U.S. Army Engineering and Support Center, Huntsville, Alabama (Corps or government), awarded a Multiple Award Task Order Contract to GTS for electronic security systems procurement and installation services and delivery of security and force protection measures to the Electronic Technology Systems Center, Engineering and Support Center, Huntsville, Alabama (R4, tab 1).  2. On 27 June 2007 the Corps awarded Task Order No. 0002 to GTS for the preparation of Access Control Points at Fort Rucker, Alabama, for installation of the U.S. Army Automated Installation Entry System (R4, tab 2). 3. By letter dated 1 June 2011, the contracting officer terminated the task order for default (R4, tab 20). Appellant filed a pro se notice of appeal with the Board, which was docketed as ASBCA No. 57744 on 19 August 2011. The parties agreed to have the appeal decided on the written record pursuant to Board Rule 11. 4. By letter dated 22 June 2012, the government requested a 90-day stay to allow time for the resolution of a fraud investigation of GTS and its president, Mr. Terry. The government contended that GTS's actions in connection with the subject contract were inextricably intertwined with the investigation. Accordingly, after receiving appellant's concurrence, the Board stayed the proceedings until 24 September 2012. 5. On 30 October 2012, Mr. Terry was indicted in the United States District Court for the Northern District of Alabama on numerous counts relating to alleged false statements in his application to obtain small business status (8(a)) from the Small Business Administration and further alleged fraudulent activity under a contract unrelated to the Fort Rucker contract that is the subject of this appeal. 6. By email dated 13 March 2013, Mr. Terry requested a stay of the matter until the pending indictment could be resolved, which he expected to be by July 2013. The Board, by order dated 24 April 2013, directed the parties to file a joint status report by 10 May 2013, to include a proposed Rule 11 briefing schedule for the disposition of the appeal. By letter dated 29 April 2013, the government filed a motion for summary judgment contending that appellant has provided no evidence to support its defenses to the default termination. Appellant has not yet replied to the motion. 7. By letter dated 9 May 2013, the government responded to the Board's direction for a status update.