ASBCA 57438

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Newhall Telecom, LLC ) ASBCA No. 57438 ) Under Contract No. W912CJ-06-D-0001 ) APPEARANCE FOR THE APPELLANT: Mr. Joseph F. Girard President & CEO APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Nicholes Dembinski, JA Robert T. Wu, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE HARTMAN ON GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE The Department ofthe Army moves to dismiss this appeal for lack of prosecution. We grant the motion. STATEMENT OF FACTS In Apri12006, the Army awarded Contract No. W912CJ-06-D-0001 to appellant, Newhall Telecom, LLC (Newhall) to provide cable television service to Fort Hunter Liggett, California (R4, tabs 1, 30, 31, 33; Complaint (Compl.) ~~ 15, 21, Answer~~ 15, 21). On 15 July 2010, the Army's contracting officer (CO) sent Newhall a Demand for Assurance and Notice to Cure stating: Our office and the Fort Hunter Liggett command have been notified by DirecTV and the US Army CID [Criminal Investigative Division] Command Field Office in Sacramento (In coordination with the United States Attorney's Office in San Jose) that your company ... is unlawfully retransmitting DirecTV's signal to Fort Hunter Liggett for cable TV service to the installation .... We have been further informed that DirecTV will stop transmitting signals to the accounts and equipment located on Fort Hunter Liggett and/or disconnect Newhall's accounts signal. ... Therefore, there is a good reason to believe that Newhall is not only in violation of Section H-4 of the franchise agreement, but [that] Newhall  will be unable to continue providing ... TV service to Fort Hunter Liggett. Because of the above allegations, and what the direct implications those allegations would mean for continued, uninterrupted cable service to this installation, we require Newhall to provide adequate assurance of its continued performance regardless ofDirecTV or any other satellite TV service provider's actions to terminate their service to Newhall. (R4, tab 82; Compl. ~~ 29, 30, Answer~~ 29, 30) After exchanging correspondence with Newhall for several weeks, on 26 August 2010, the CO terminated Newhall's contract for default, stating: This command has repeatedly over the course of the past forty-five days sought assurance ofNewhall's ability to lawfully perform [its] obligations under the subject contract. Your letter, dated August 3, 2010, and your attorney's letters and attachments dated August 20 and 25, 2010, are non-responsive to our request for you to provide evidence of Newhall's continued ability to perform under the contract, and that the services provided by Newhall have been legally obtained and retransmitted. Each non-response constitutes a separate basis for this command to terminate the subject contract with Newhall for default. (R4, tab 98; Compl. ~~ 33, 34, 40, 47, 48, 55, 59, Answer~~ 33, 34, 40, 47, 48, 55, 59) On 13 September 2010, a DirecTV representative wrote 4COM, Inc., which is in the business of purchasing programming rights from DirecTV and re-selling them to cable TV franchises, such as Newhall, that: On August 27, 2010, DIRECTV advised you that it was investigating account irregularities in connection to a 4COM transport account servicing Fort Hunter Liggett in Jolon, California (DIRECTV Account No. 19347921).