ASBCA 62005

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Forney Enterprises, Inc. ) ASBCA No. 62005 ) Under Contract No. HQ0034-14-D-0008 ) APPEARANCE FOR THE APPELLANT: Daryle A. Jordan, Esq. Jordan Guydon LLP Fairfax, VA APPEARANCES FOR THE GOVERNMENT: John S. Albanese, Esq. Chief Trial Attorney Elizabeth E. Urrutia, Esq. Stephan Piel, Esq. Michael G. Anderson, Esq. Trial Attorneys DoD Washington Headquarters Services & Pentagon Force Protection Agency Washington, DC OPINION BY ADMINISTRATIVE JUDGE YOUNG ON THE GOVERNMENT’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE The Department of Defense, Washington Headquarters Services (government or WHS) moves to dismiss the present appeal arguing that appellant Forney Enterprises, Inc. (appellant or FEI) willingly and contumaciously failed to prosecute this appeal. 1 FEI opposes the motion, arguing it was unable to fully prosecute the appeal due to circumstances beyond its control. For the reasons below, we deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Appellant filed its notice of appeal on March 19, 2019, and timely filed its complaint on May 17, 2019. On November 4, 2019, we issued an Order instructing the parties to elect, within 60 days, whether they desired to proceed with an oral hearing or on the record. Upon the expiration of the 60 days, the government 1 The government also moved to dismiss this appeal arguing that appellant failed to meet Board Rule 15 representation requirements. The government withdrew that part of the motion on October 15, 2020. responded requesting to proceed under Board Rule 11, decision on the record. The government indicated that attempts to coordinate with appellant were unsuccessful. On January 3, 2020, the government submitted its election to proceed on the record and proposed a pre-hearing schedule. Not having received a submission from appellant, the Board accepted the government’s election and proposed schedule and on January 24, 2020, issued a Scheduling Order. The government filed a motion to dismiss on February 25, 2020, asserting that FEI was “not in good standing under the laws of Maryland” and thus was not able to maintain this appeal (gov’t mot. dtd. February 25, 2020 at 1). 2. On February 28, 2020, Mr. Keith Forney, the owner and President of FEI requested “a 90-day extension to retain a new lawyer and get them up to speed on the case” (Bd. corr. ltr. dtd. February 28, 2020). The government opposed Mr. Forney’s request on March 5, 2020, requesting the Board deny the 90-day extension and raising a Board Rule 15 issue disputing that Mr. Forney was a representative of FEI for purposes of Rule 15 (Bd. corr. ltr. dtd. March 5, 2020). On October 15, 2020, the government withdrew the part of the motion raising the Rule 15 representation issue. 3. On March 9, 2020 the Board issued an Order for appellant “to show cause on or before April 9, 2020 why this appeal should not be dismissed for failure to comply with the Board’s representation requirements.” Appellant failed to respond to this Order. In accordance with the Scheduling Order, the government filed its initial Rule 11 brief on April 27, 2020. On April 28, 2020, the Board issued an Order granting appellant’s request for an extension giving appellant until July 28, 2020, to respond to the government’s motion. Appellant failed to make a submission by the expiration of the 90-day extension period. The Scheduling Order set out appellant’s due date for the Rule 11 response as June 29, 2020. Appellant did not timely file a response brief. 4. On July 17, 2020, the government filed a motion to dismiss this appeal for appellant’s failure to prosecute. On August 25, 2020, the Board issued an Order (Show Cause Order) directing appellant “to show cause why this appeal should not be dismissed for failure to prosecute.” Appellant was given until September 15, 2020 to respond to the Show Cause Order. 5. On September 14, 2020, appellant’s new counsel filed a notice of appearance with the Board, and on September 15, 2020, appellant filed a response to the Board’s Show Cause Order. 2 Appellant included several exhibits in its response including a sworn declaration of Mr.