ASBCA 58173

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Shubhada Industries ) ASBCA No. 58173 ) Under Contract No. SPM4A7-10-M-C273 ) APPEARANCE FOR THE APPELLANT: Mr. Babu Metgud Vice President APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Gregory T. Allen, Esq. Trial Attorney Defense Contract Management Agency Chantilly, VA OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE In this appeal challenging the termination settlement decision of a supply contract, the government moves to dismiss for failure to prosecute. We grant the motion and dismiss the appeal with prejudice. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. By date of 7 May 2010, the Defense Supply Center, Richmond, Virginia (Center), awarded Contract No. SPM4A7-10-M-C273 to Shubhada Industries (Shubhada) for the supply of specified cover assembly ducts, as well as for first article testing (R4, tab 3 at 3, 8). 2. By date of 3 August 2010, the Center issued unilateral Modification No. POOOO 1 to Shubhada. The modification constituted a stop work order "DUE TO CHANGE IN DEMAND AND POSSIBILITY OF TERMINATION/CANCELLATION." (R4, tab 4 at 1-2) Thereafter, by date of 12 August 2010, the Center issued unilateral Modification No. P00002 to Shubhada, terminating the contract for the convenience of the government (R4, tab 5 at 1-2). 3. By date of 10 August 2011, Shubhada submitted a settlement proposal (R4, tab 1O; gov't mot., ex. G-10). The parties failed to agree on an amount, and by final decision dated 20 March 2012, the terminating contracting officer determined that Shubhada was entitled to $500 as a result of the termination of the contract (R4, tab 40). 4. Shubhada thereafter brought this timely appeal. The Board concluded that the appeal would be expedited ifthe government filed the complaint and Shubhada filed the answer. Accordingly, by order dated 27 March 2013, the Board directed the government to file and serve the complaint on or before 15 May 2013. 5. The government filed the complaint on 16 May 2013. By order dated 23 May 2013, the Board ordered Shubhada to file and serve an answer or other responsive pleading by or before 20 June 2013. 6. Shubhada failed to file an answer as ordered by the Board. By date of 23 October 2013, the government filed a motion to compel Shubhada to answer the complaint. 7. Shubhada persisted in failing to file an answer to the complaint, and, by order dated 4 December 2013, the Board again ordered Shubhada to file an answer by or before 24 December 2013. 8. Shubhada again failed to file an answer as ordered by the Board. On 7 April 2014, the government filed the present motion to dismiss for failure to prosecute. By order dated 8 April 2014, the Board ordered Shubhada to file and serve its response to the motion by or before 8 May 2014. 9. On 9 June 2014, the Board held a conference call with Shubhada's vice president and with government counsel. Following the conference call, by order of the same date, the Board granted Shubhada until 30 June 2014 to respond to the government's motion. 10. In a 30 June 2014 email to the Recorder, Shubhada asserted that it had prosecuted the appeal by filing its complaint. Shubhada also stated that the Board "has been ... HARASSING our Small DISADVANTAGED BUSINESS" and "is not Interested in Resolving the Issues Relating [to] the UNPAID INVOICE of this company." Shubhada recited advice from unnamed attorneys, who were said to have advised "seek[ing] the help of the REGULAR COURT." Since its email, Shubhada has taken no further action to prosecute this appeal. 2  DECISION Our authority to take appropriate action for a party's failure to proceed with an appeal is derived from Rule 17 of the Board's 2014 Rules, which was formerly Board Rule 31.