ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Environmental Safety Consultants, Inc. ) ASBCA No. 58343
)
Under Contract No. N62470-95-B-2399 )
APPEARANCE FOR THE APPELLANT: Mr. Peter C. Nwogu
President
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
Ellen M. Evans, Esq.
Senior Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE FREEMAN
ON APPELLANT'S MOTION FOR RECUSAL
Environmental Safety Consultants, Inc. (ESCI) is appealing the deemed denial
of its termination settlement claim. After extensive pre-hearing proceedings, ESCI
now moves for recusal of the presiding judge and his panel on the grounds that they
have a bias and prejudice against appellant that makes a fair judgment impossible.
Alternatively, ESCI asks that we voluntarily transfer the appeal to the Civilian Board
of Contract Appeals (CBCA). The government has not responded to the motion.
After careful consideration, we find the motion without merit.
ESCI contends that: "The Board's administration of appellant's appeal is
plagued with bias and prejudice as demonstrated in the rejection of a[ n] evidential
hearing in appellant's ASBCA No. 58343 T4C, the denial of ASBCA No. 51722-
Appellant's Equal Access for Justice Act, the denial of ASBCA 58221 and ASBCA
58847-Appellant's Request for Payment of Invoice No. 7" (mot. at 2).
The rejection of an evidential hearing to which ESCI refers was a rejection of
ESCI's proposed hearing dates of 15-18 February 2014 because those dates did not
allow for completion of a Defense Contract Audit Agency (DCAA) audit report on the
claim. The audit report was not completed and published until 24 February 2014 (Bd.
corr. file). On 2 April 2014 the Board requested the parties to confer and propose a
mutually agreed hearing date no later than 15 May 2014 (Bd. corr. file email). The
parties to date have engaged in extensive motion practice and have not yet proposed a
mutually agreed hearing date for ASBCA No. 58343. 1
The Board's decisions in favor of the government in the EAJA claim in
ASBCA No. 51722 (13 BCA ~ 35,352, aff'd on recon., 14-1BCA~35,468, 2nd
recon. dismissed, 14-1BCA~35,520) and in the Invoice No. 7 appeals in ASBCA
Nos. 58221 (13 BCA ~ 35,329) and 58847 (14-1BCA~35,510) are no more
indicative of bias and prejudice against ESCI than the Board's decision in favor of
ESCI in the default termination appeal in ASBCA No. 51722 ( 11-2 BCA ~ 34,848) is
indicative of bias and prejudice against the government. We note in this regard that
the decision in ASBCA No. 51722 ( 11-2 BCA ~ 34,848) converting the default
termination to a convenience termination, without which ESCI would have no
termination settlement claim, was authored by the presiding judge in the present
appeal. The same judge also authored the Board's denial of the government's Motion
for Relief from Judgment from that decision (13 BCA ~ 35,316).
ESCI alleges that the presiding judge's suggestion of, and request for briefs on,
a potential lack of jurisdiction over a substantial amount of ESCI' s termination
settlement claim, and other interlocutory rulings and comments "with intent to favor
the Government. .. are evidence of deep-seated favoritism and partiality in favor of the
government" (mot. at 6). The ESCI termination settlement claim included substantial
amounts for changes and delays by the government incurred in contract performance
which, insofar as the pre-hearing record indicated, had not been submitted as claims
under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, within the
time prescribed for such claims. Considering that the CDA statute of limitations on
the submission of claims is jurisdictional, see Taj Al Rajaa Company, ASBCA
No. 58801, 14-1BCA~35,522 at 174,104, there were reasonable grounds for the
presiding judge's request for the parties to brief the issue.
ESCI states that: "the Board's management of appellant's appeal is based on
innuendos and false representations of the fact that the Board is receiving from
perceived extra judiciary communications between the Board and the Navy," and that
"[the presiding judge's] comment that appellant did not cooperate with DCAA audit
could have been derived from extrajudicial source since there was no evidential
1
ESCI states that "[the presiding judge] required appellant to travel with his
witnesses to [the Board's offices in Falls Church, Virginia] for the T4C hearing
in June 2014" (mot. at 16). The June hearing date was suggested, not required,
by the presiding judge, and both parties declined the suggested date.
Subsequently, ESCI's President and legal representative in the appeal requested
a "leave" from Board proceedings for the period 10 July-15 September 2014
for family commitments (Bd. corr. file, email