ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Al Barih for General Contracting Ltd. ) ASBCA Nos. 57148, 57149, 57599
)
Under Contract No. W91GDW-07-D-2012 )
APPEARANCE FOR THE APPELLANT: Mr. Naseer A. Abdul-Ameer
President/CEO
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Tyler L. Davidson, JA
Trial Attorney
ORDER OF DISMISSAL FOR FAIL URE TO PROSECUTE
On 18 June 2014, the Board issued an Order To Show Cause why the
above-captioned appeals should not be dismissed. We stated:
These consolidated appeals have been on the
Board's docket for several years. Indeed, Al Barih's
original appeal, ASBCA 57148, was docketed in March
2010. During this lengthy period, appellant has engaged a
series of attorneys who later withdrew their representation.
Al Barih's most recent representative withdrew on
22 October 2013. On 30 January 2014, the Board's
Recorder forwarded a letter to the parties in which he
stated that "we have not received notice as to whether or
not new counsel has been retained.'' He stated further:
Since the withdrawal of counsel, several pretrial
milestones have passed: expert reports were to be
exchanged by 15 November 2013, all discovery
including depositions was to be completed by
24 January 2014, and mediation, if agreeable was to
be done by 28 January 2013. Other milestones will
come due in February 2014. Trial is set to begin on
5 May 2014 for five days at the Board's offices in
Falls Church, VA.
The Board's Recorder ordered the parties to file a
joint status report on or before 7 February 2014. He also
stated:
The report should include at a minimum, the
progress made on the pretrial milestones and appellant
should advise if it has new counsel or will appear prose.
If a joint report is not possible, the Board will accept
separate reports from the parties.
On 31January2014, the Army's counsel forwarded
a letter to appellant in which he recounted recent
developments and sought Al Barih' s co-operation in
responding to the Board's order. On 7 February 2014, the
due date for the joint status report, Al Barih acknowledged
receipt of the Army's letter dated 31 January 2014. It
stated: "[W]e would like [sic] inform you that we are in
the meantime discussing with our previous council [sic]
(legal representative) to continue again with this case in
new agreement between our two firms and to prepare to
the Board all the needed requirements mentioned in your
above letter."
Appellant took no further action, and on 7 February
2014, the government's counsel forwarded "a status
report without input from the appellant." He also
discussed various pretrial milestones which he had
attempted to complete but was unable to do so because of a
lack of co-operation from the appellant. Appellant did not
forward any submissions; nor did new counsel enter an
appearance for Al Barih.
On 7 February 2014, the Army also filed a motion
to compel discovery, noting that it had unsuccessfully
attempted to schedule depositions as early as 23 October
2013.
Appellant did not respond to the government's
motion. Accordingly, on 7 April 2014, the Board issued an
order cancelling the hearing scheduled to commence on
5 May 2014. The Board also ordered appellant to respond
to the Army's motion to compel on or before 7 May 2014.
The Board stated: "Any failure to comply with this order
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may result in dismissal of these appeals for failure to
prosecute."
On 5 May 2014, appellant forwarded a letter to the
Board in which it requested a one-month extension in
which to respond to the government's motion to compel. It
cited the alleged "severe financial strain on its ability to
retain and keep counsel." Through an order issued on
7 May 2014, the Board rejected appellant's request and
ordered it to respond to the Army's motion on or before
21 May 2014. The Board also stated: "Any failure on
appellant's part to comply with this order may result in
dismissal of these appeals for failure to prosecute."
Appellant failed to comply with the Board's order.
Instead on 20 May 2014, it sought a further two-week
extension. Noting that in our order of 7 May 2014, the
Board had clearly stated that "no further enlargements will
be granted," the Army opposed appellant's request for
additional time to respond to the government's motion to
compel. It also cited appellant's failure either to respond
to the government's discovery requests or to comply with
several Board orders.
As of this date, no new appearance has been entered
by counsel on Al Barih's behalf. Nor has appellant
responded to the Army's motion to compel. Accordingly,
appellant is ordered to show cause on or before 30 June
2014 as to why these appeals should not be dismissed with
prejudice for failure to prosecute.
The Board received appellant's response to our Show Cause Order on
30 June 2014. Al Barih did not include any responses to the Army's long-standing
discovery requests. Nor did it indicate that it had retained counsel. Instead, it stated
that it was in financial distress; in addition, appellant wrote that it was "still exploring
all possibilities for retaining counsel to represent us in connection with these
appeals .... " Al Barih's response is unsatisfactory. Many contractors are represented
pro se before this Board. They routinely respond to discovery requests and file
briefing materials. Considering the extended period of time these appeals have been
on the Board's docket, Al Barih's alleged financial condition does not excuse its
failure to prosecute these appeals. See Tele-Consultants, Inc., ASBCA No. 58129, slip
op. (9 June 2014) (Rule 30 Dismissal).
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CONCLUSION
Accordingly, these appeals are dismissed with prejudice under Board Rule 31
for failure to prosecute.
Dated: 7 July 2014
MICHAEL T. PAUL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~LIAMS
Administrative Judge
~J#ef
Administrative Judge
Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 57148, 57149, 57599,
Appeals of Al Barih for General Contracting Ltd., rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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