ASBCA 58665

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.