Jeffrey C. Stone Inc., d.b.a. Summit Builders
Docket: ASBCA 58372
Decision date: 2015-09-17

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Jeffrey C. Stone Inc., d.b.a. Summit Builders 
Under Contract No. W912PL-10-C-0034 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
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ASBCA No. 58372 
John R. Jefferies, Esq. 
Justin R. DePaul, Esq. 
Fennemore Craig, P.C. 
Phoenix, AZ 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Gilbert H. Chong, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
Los Angeles 
OPINION BY ADMINISTRATIVE JUDGE SCOTT 
ON APPELLANT'S MOTION TO STRIKE ANSWER AND COUNTERCLAIM 
The much delayed hearing in this appeal is set to commence on 19 October 2015. 
Appellant has moved pursuant to Board Rule 16 for the Board's imposition of sanctions 
against the government for its failure to respond to appellant's discovery requests and 
Board orders. In particular, appellant requests that the Board strike the government's 
answer to the complaint; preclude the government from introducing any evidence of an 
alleged setoff due it or of any other alleged liability of appellant to the government 
related to this appeal; and enter a default judgment against the government. 
In its belated opposition to appellant's motion, the government avers that it has 
now, belatedly, served its responses to appellant's discovery requests. The government 
also refers to its 8 December 2014 response to the Board's 24 November 2014 order to 
show cause why sanctions should not be imposed against it for various delinquencies in 
connection with the potential government setoff claim and other matters. That response 
indicated that the government had earlier advised that it was unlikely that the contracting 
officer would issue a decision asserting the setoff allegation and that the government 
would not be pursuing this element of its defense. The government also asserts that 
appellant has not demonstrated prejudice because it has not shown that its discovery 
requests were related to the issues in controversy in this appeal and that entry of a default 
judgment in appellant's favor would be overly broad, unreasonable, relief. For the most 

part, the government has not directly addressed appellant's allegation that it has failed to 
respond to Board orders. 
DISCUSSION 
Board Rule 16, Sanctions, 1 provides that: 
If any party fails to obey an order issued by the Board, 
the Board may impose such sanctions as it considers 
necessary to the just and expeditious conduct of the appeal. 
Board Rule 17, Dismissal or Default for Failure to Prosecute or Defend, 
provides that: 
Whenever the record discloses the failure of either 
party to file documents required by these Rules, respond to 
notices or correspondence from the Board, comply with 
orders of the Board, or otherwise indicates an intention not to 
continue the prosecution or defense of an appeal, the Board 
may ... [i]n the case of a default by the Government...issue an 
order to show cause why the Board should not act thereon 
pursuant to Rule 16. If good cause is not shown, the Board 
may take appropriate action. 
The government has repeatedly failed to comply with Board orders in this appeal 
and to advance it toward resolution (see, e.g., Board's 24 November 2014 order to show 
cause; Board's 15 July 2015 memorandum of conference call). Moreover, the 
government's position on the setoff issue has been ambiguous. For example, in a 
30 October 2014 joint teleconference, government counsel stated that the government 
was not pursuing offset on a gear 
claim but would be pursuing others. The Board 
interprets the government's opposition to appellant's motion to strike to represent that it 
will not be pursuing any setoff claim against appellant in connection with this appeal. 
Therefore, that portion of appellant's motion appears to be moot. 
A default judgment '"is a drastic step which should be resorted to only in the most 
extreme cases."' Information Systems & Networks Corp. v. United States, 994 F.2d 792, 
796 (Fed. Cir. 1993) (quoting United Coin Meter Co. v. Seaboard Coastline Railroad, 
1 The Board's Rules were revised effective 21July2014. Board Rule 16 was formerly 
Board Rule 35 and Board Rule 17 was formerly Board Rule 31. 
2 

705 F.2d 839, 845 (6th Cir. 1983)). We have stressed that: 
The sanction of the entry of a default judgment in 
favor of appellant is the severest sanction the Board can issue 
against the government. Such a sanction should be reserved 
for situations in which contumacious or contemptuous 
conduct is shown .... The Board has considerable discretion in 
evaluating a motion for sanctions. 
Thorpe Seeop Corp., ASBCA No. 58961, 14-1BCA~35,541 at 174,167 (citations 
omitted). 
So far in this appeal, while the government's delinquencies have frustrated 
appellant and the Board and 
impeded the expeditious resolution of the appeal, the 
government ultimately has responded to the Board's orders. We do not deem its conduct 
to be contumacious or contemptuous to the extent that a default judgment is warranted. 
DECISION 
We deny appellant's motion to strike 
the government's answer. We deem it 
conceded by the government that no set-off is due the government in connection with this 
appeal. Appellant's motion for a default judgment is denied. 
Dated: 17 September 2015 
I 
concur 
inistrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
//P~~--~ 
MARK N. STEMPLE~ RICHARD SHACKLEFORD 
Administrative Judge 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. 58372, Appeal of Jeffrey C. 
Stone Inc., d.b.a. Summit Builders, rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals