CBCA 5272

DISMISSED FOR FAILURE TO PROSECUTE: February 16, 2022 CBCA 5272 UNITED FACILITY SERVICES CORPORATION dba EASTCO BUILDING SERVICES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. William Weisberg of Law Offices of William Weisberg PLLC, McLean, VA, counsel for Appellant. Brett A. Pisciotta and Kristi Singleton, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LESTER, SHERIDAN, and ZISCHKAU. LESTER, Board Judge. Pending before the Board is respondent’s motion to dismiss this appeal for failure to prosecute, filed December 21, 2021. Despite several extensions of time, appellant, United Facilities Services Corporation, doing business as Eastco Building Services (Eastco), has yet to respond to a set of written interrogatories that the General Services Administration (GSA) served on May 6, 2021. The Board issued orders notifying Eastco that no further enlargements to respond would be granted, and a show cause order that required either a response or delivery of the interrogatory responses by December 17, 2021, went unanswered. Although Eastco recently requested yet another enlargement of time, it has made no CBCA 5272 2 noticeable effort in the month since that request to respond to GSA’s interrogatories. We grant GSA’s motion to dismiss. Background I. Early Development of the Appeal This appeal was filed on April 8, 2016, by Eastco’s president. Eastco alleged that, when soliciting the contract at issue for operations and maintenance services at three federal buildings in Miami, Florida, GSA provided what was supposed to be a comprehensive list of equipment to be maintained. That list, Eastco alleged, failed to identify much of the equipment in the buildings that had to be maintained. Although the solicitation contained a site visit requirement and a disclaimer about the accuracy of the equipment or inventory list, Eastco alleged that some of the unlisted equipment was hidden above ceilings and in parts of the buildings that were difficult to access. Eastco claimed that all work it had to perform under the contract on equipment that was not listed constituted a constructive change, but it did not specifically identify the extra equipment that created extra work. Soon thereafter, Eastco hired counsel to represent it in the appeal. Over the course of the next two years, the Board denied a motion from GSA to dismiss the appeal for lack of jurisdiction, the parties engaged in discovery, and the parties briefed cross-motions for summary judgment through which they sought, in part, the Board’s view of the methodology that Eastco planned to use to prove entitlement and quantum. By decision dated July 2, 2018, the Board denied the cross-motions but indicated in its decision that, to prove its entitlement to damages, Eastco would have to produce certain information that was not currently in the record. United Facility Services Corp. v. General Services Administration, CBCA 5272, 18-1 BCA ¶ 37,086. Specifically, we held that, because of the combination of the site visit requirement in the solicitation and GSA’s representation in the solicitation that the equipment list might contain errors, Eastco would have to show the extent to which it would not have discovered unlisted equipment, and what equipment it would not reasonably have been expected to discover, had it conducted a reasonable site visit. Id. At the parties’ request, the Board soon thereafter suspended proceedings to allow the parties to engage in settlement negotiations. After almost a year of negotiations, Eastco filed another motion for summary judgment, this one focused exclusively on the adequacy of the cost estimates upon which it planned to rely to support its claimed damages, the resolution of which Eastco asserted would help with settlement negotiations. Ultimately, by decision dated January 30, 2020, the Board denied Eastco’s summary judgment motion and held that, to prove quantum, Eastco would have to produce direct, actual cost support to establish the costs that it incurred as a result of alleged changes, rather than the cost estimates upon which Eastco had planned to rely. United Facility Services Corp. v. General Services CBCA 5272 3 Administration, CBCA 5272, slip op. at 9-11 (Jan. 30, 2020).