The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Tele-Consultants, Inc. ) ASBCA No. 58129
)
Under Contract No. 000000-00-0-0000 )
APPEARANCES FOR THE APPELLANT: Thomas 0. Mason, Esq.
Francis E. Purcell, Jr., Esq.
Cooley LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.
Navy Chief Trial Attorney
Ellen M. Evans, Esq.
Senior Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MELNICK
ON APPELLANT'S MOTION TO DISMISS
Tele-Consultants, Inc., (TCI) seeks dismissal of its appeal without prejudice under
Board Rule 30, claiming it lacks the resources to pursue the appeal and wishes to seek
relief from Congress. The government opposes dismissal. We deny the motion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
On 15 June 2010, the Department of the Navy awarded to Advanced Solutions for
Tomorrow, Inc., (ASFT) Contract No. N00178-04-D-4003-N408 for various technical
tasks (compl., preamble, ii 4). On 1 October 2010, ASFT awarded a subcontract to TCI
(comp I. ii 7). ASFT subsequently directed TCI to stop work after the Navy suspended
ASFT's performance (compl. ii 8). TCI ultimately submitted a certified claim to the
contracting officer on 19 December 2011 for $282,302, which was denied on 15 February
2012 (compl. ii 17). TCI appealed to the Board on 11 May 2012. Originally, TCI's
complaint contended that ASFT acted as a purchasing agent to bind the government to
TCI. Later, TCI argued it had entered its own implied-in-fact contract with the
government.
In response to TCI' s appeal, the government moved to dismiss for lack of
jurisdiction, contending that to establish jurisdiction TCI had to prove it had entered into an
implied-in-fact contract with the government. Our 4 February 2013 decision denied the
government's motion. Tele-Consultants, Inc. , ASBCA No. 58129, 13 BCA ii 35,234. We
held that, under Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353-55 (Fed. Cir. 2011),
a claimant only needs to allege the existence of a contract with the government to establish
jurisdiction; it need not prove it. Proof of the contract's formation and breach relates to the
merits of the appeal.
Recently, the government has moved for summary judgment, or in the alternative,
to dismiss for failure to state a claim upon which relief can be granted. TCI has
responded to that motion with one to dismiss without prejudice under Board Rule 30. It
maintains it has insufficient resources to continue with the appeal, which it says is now
made worse by the need to respond to the government's motion for summary judgment,
and therefore is petitioning Congress for relief. It contends its resources are most
efficiently directed right now outside this forum.
The government opposes TCI's motion. It claims it is entitled to "clarification" or
"modification" of our earlier decision denying its motion to dismiss the appeal for lack of
jurisdiction. (Gov't opp'n at 1) It also complains that it should not be subjected to
potentially three years of pre-judgment interest due to delays caused entirely by TCI
(gov't opp'n at 5, 6). Finally, it stresses that it is ready and able to defend the appeal now
and that it should not have to face the risks associated with the passage of time that is
sought by TCI. 1
DECISION
Board Rule 30 addresses the suspension and dismissal of appeals without
prejudice. "Where the suspension has continued, or may continue, for an inordinate
length of time, the Board may, in its discretion, dismiss such appeals from its docket
without prejudice to their restoration when the cause of suspension has been removed."
If the appeal is not reinstated within three years, the dismissal is deemed with prejudice.
Here, TCI seeks a Board Rule 30 dismissal because it claims to lack the financial
resources to continue litigating the appeal and wishes instead to pursue a petition for
relief in Congress. A Board Rule 30 dismissal is discretionary upon the Board.
Gov't Technical Servs., LLC, ASBCA No. 57744, 13 BCA if 35,345. TCI has not
presented any evidence showing that its efforts at obtaining relief from Congress have
progressed in any way or have any chance at success. Thus, it has failed to provide any
1
The government's opposition requests the Chairman of the Board to "deny appellant's
request to withdraw this appeal without prejudice and refer this case for a decision
on its pending dispositive motions by the Senior Deciding Group" (gov't opp'n
at 2). Nothing in the Board's rules contemplates the Chairman acting personally
on an appellant's Board Rule 30 motion to dismiss. Accordingly, it is being
decided by this panel. The government's request that its dispositive motions be
ruled upon by the Senior Deciding Group will receive consideration upon
completion of their briefing.
2
reason to conclude that if the appeal is dismissed now TCI will not seek to reinstate it
later, assuming TCI is financially able to do so. The government persuasively observes
that the passage of time exposes it to more potential pre-judgment interest, risks dulling
the memories of its witnesses, and increases the chances they will become unavailable.
TCI chose to file this appeal and must either timely litigate it or become subject to
dismissal for failure to prosecute. It does not have the right to require the government to
wait while it pursues other avenues of relief. Nor is the fact that the appeal presents a
litigation expense a basis for a Board Rule 30 dismissal. E. Huttenbauer & Son, Inc.,
ASBCA No. 48290 et al. , 97-2 BCA ~ 29,104.
CONCLUSION
TCI's motion to dismiss without prejudice under Board Rule 30 is denied.
TCI has 30 days to respond to the government's motion for summary judgment or
to dismiss for failure to state a claim.
Dated: 9 June 2014
MARK A. MELNICK
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~~L_
Administrative Judge
RJC~EFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
3
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 58129, Appeal of Tele-Consultants, Inc.,
rendered in conformance with the Board's Charter.
Dated:
JEFFREYD. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4