Forney Enterprises, Inc.
Docket: ASBCA 62005
Decision date: 2022-04-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE YOUNG  
ON THE GOVERNMENT’S MOTION TO DISMISS FOR FAILURE TO 
PROSECUTE 
 
 The Department of Defense, Washington Headquarters Services (government 
or WHS) moves to dismiss the present appeal arguing that appellant Forney 
Enterprises, Inc. (appellant or FEI) willingly and contumaciously failed to prosecute 
this appeal.1  FEI opposes the motion, arguing it was unable to fully prosecute the 
appeal due to circumstances beyond its control.  For the reasons below, we deny the 
motion. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 1.  Appellant filed its notice of appeal on March 19, 2019, and timely filed its 
complaint on May 17, 2019.  On November 4, 2019, we issued an Order instructing 
the parties to elect, within 60 days, whether they desired to proceed with an oral 
hearing or on the record.  Upon the expiration of the 60 days, the government 
                                              
1 The government also moved to dismiss this appeal arguing that appellant failed to 
meet Board Rule 15 representation requirements.  The government withdrew 
that part of the motion on October 15, 2020. 
Appeal of - )  
 )  
Forney Enterprises, Inc. ) ASBCA No. 62005 
 )  
Under Contract No. HQ0034-14-D-0008 )  
   
APPEARANCE FOR THE APPELLANT: Daryle A. Jordan, Esq. 
    Jordan Guydon LLP 
    Fairfax, VA 
 
APPEARANCES FOR THE GOVERNMENT: John S. Albanese, Esq. 
    Chief Trial Attorney 
 Elizabeth E. Urrutia, Esq. 
Stephan Piel, Esq.  
Michael G. Anderson, Esq. 
    Trial Attorneys 
    DoD Washington Headquarters Services &  
    Pentagon Force Protection Agency 
  Washington, DC 

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responded requesting to proceed under Board Rule 11, decision on the record.  The 
government indicated that attempts to coordinate with appellant were unsuccessful.  
On January 3, 2020, the government submitted its election to proceed on the record 
and proposed a pre-hearing schedule.  Not having received a submission from 
appellant, the Board accepted the government’s election and proposed schedule and on 
January 24, 2020, issued a Scheduling Order.  The government filed a motion to 
dismiss on February 25, 2020, asserting that FEI was “not in good standing under the 
laws of Maryland” and thus was not able to maintain this appeal (gov’t mot. dtd. 
February 25, 2020 at 1).    
 
 2.  On February 28, 2020, Mr. Keith Forney, the owner and President of FEI 
requested “a 90-day extension to retain a new lawyer and get them up to speed on the 
case” (Bd. corr. ltr. dtd. February 28, 2020).  The government opposed Mr. Forney’s 
request on March 5, 2020, requesting the Board deny the 90-day extension and raising 
a Board Rule 15 issue disputing that Mr. Forney was a representative of FEI for 
purposes of Rule 15 (Bd. corr. ltr. dtd. March 5, 2020).  On October 15, 2020, the 
government withdrew the part of the motion raising the Rule 15 representation issue. 
 
 3.  On March 9, 2020 the Board issued an Order for appellant “to show cause 
on or before April 9, 2020 why this appeal should not be dismissed for failure to 
comply with the Board’s representation requirements.”  Appellant failed to respond to 
this Order.  In accordance with the Scheduling Order, the government filed its initial 
Rule 11 brief on April 27, 2020.  On April 28, 2020, the Board issued an Order 
granting appellant’s request for an extension giving appellant until July 28, 2020, to 
respond to the government’s motion.  Appellant failed to make a submission by the 
expiration of the 90-day extension period.  The Scheduling Order set out appellant’s 
due date for the Rule 11 response as June 29, 2020.  Appellant did not timely file a 
response brief.   
 
 4.  On July 17, 2020, the government filed a motion to dismiss this appeal for 
appellant’s failure to prosecute.  On August 25, 2020, the Board issued an Order 
(Show Cause Order) directing appellant “to show cause why this appeal should not be 
dismissed for failure to prosecute.”  Appellant was given until September 15, 2020 to 
respond to the Show Cause Order.  
 
 5.  On September 14, 2020, appellant’s new counsel filed a notice of 
appearance with the Board, and on September 15, 2020, appellant filed a response to 
the Board’s Show Cause Order.
 2  Appellant included several exhibits in its response 
including a sworn declaration of Mr. Forney (app. resp. ex. A, Forney decl.).  
                                              
2 Appellant also opposed the government’s February 25, 2020 motion to dismiss.  As 
noted before, the government withdrew that motion on October 15, 2020.  

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 6.  Appellant’s response to the Show Cause Order and its exhibits detailed a 
myriad of issues that contributed to appellant’s inability to respond and delay in 
responding to filings by the government and Orders by this Board.  Appellant notes 
that prior counsel had “abandoned this case without notice and without any 
explanation.  [Counsel] did not return FEI’s case files and [appellant was] told that he 
did not notify the Board of his withdrawal.”  (Forney decl. at 2).  Appellant details 
financial challenges in engaging a new attorney to represent FEI in this appeal; the 
impact of COVID-19 on appellant’s ability to conduct regular business and the 
negative economic effects of the virus; Mr. Forney’s incarceration which impacted his 
ability to communicate including contacting family members and trying to engage new 
counsel; and Mr. Forney’s own illness with COVID-19 (id. at 4-5).    
 
 7.  On October 15, 2020 the government opposed appellant’s response to the 
Show Cause Order arguing that appellant’s failure to respond to numerous Board 
Orders and failing to communicate were not excused by FEI’s circumstances (gov’t 
reply at 2).  Additionally, the government responds that some of FEI’s excuses only 
explain missing initial deadlines and do not explain FEI’s failure to communicate with 
the Board (id.). 
 
 8.  On May 28, 2021, appellant submitted correspondence to the Board 
indicating that on May 10, 2021, it had filed with the contracting officer an additional 
claim related to the contract giving rise to the instant appeal.  Appellant asserted that, 
should the contracting officer deny this new claim, it intended to appeal the denial to 
the Board and request consolidation with the instant appeal.  
 
DECISION 
 
 In the motion before us, the government argues that (1) FEI has repeatedly 
failed to respond to notices or correspondence from the Board; (2) failed to comply 
with the Board’s order to confer on the schedule, ignored the Board’s order to show 
cause regarding its representation, and failed to submit a response to the government’s 
initial brief in disregard of the Scheduling Order; and (3) failed to maintain adequate 
representation throughout the appeal.  WHS asserts FEI’s conduct demonstrates a lack 
of intent to prosecute this appeal, and moves the Board to dismiss the appeal based on 
the appellant’s failure to prosecute.  (Gov’t mot. at 3) 
 
 Appellant argues that FEI “acted diligently and in good faith to comply with 
Board rules” and that FEl’s omissions stem from an array of obstacles which 
combined into a '"perfect storm" and impeded FEl’s effort to move this appeal forward 
(app. resp. at 1, 12).  These obstacles include: (1) the abandonment of FEI’s counsel 
without notice; (2) financial difficulties that impacted Mr. Forney’s ability to pay and 
hire new counsel; (3) the COVID-19 pandemic which caused delay in the delivery of 
correspondence; and (4) Mr. Forney’s incarceration, which precluded for a period his 

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communication with the outside world.  Appellant further argues that “[t]here is no 
evidence that FEI intended to abandon the appeal, or that FEI acted willfully or 
wantonly to evade the Board’s rules or instructions.”  (SOF ¶ 6; app. resp. at 12) 
 
 Board Rule 17 specifies how the Board may address parties’ failures to 
proceed.  It provides as follows: 
 
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, in the case of a default by the appellant, issue an 
order to show cause why the appeal should not be 
dismissed with prejudice for failure to prosecute. . . . If 
good cause is not shown, the Board may take appropriate 
action. 
 
 It is well settled that dismissal for failure to prosecute is a harsh and 
drastic sanction, appropriate when the record clearly supports the existence 
of willing delay or contumacious or contemptuous conduct.  See Newhall 
Telecom, LLC, ASBCA No. 57438, 13 BCA ¶ 35,391 at 173,644; 
Ellis 
Constr. Co., Inc., ASBCA No. 50091, 98-1 BCA ¶ 29,552 at 146,501.  
We have held that the parties have a basic obligation to maintain contact 
with the Board so that the Board can ensure expeditious administration 
and adjudication (Mac-In-Erny, Inc., ASBCA No. 28689, 88-1 BCA ¶ 
20,359 at 102,950 (quoting Pacific Steel Building Systems, ASBCA 
Nos. 26346, 26851, 83-2 BCA ¶ 16,722)), and appellant’s lack of 
communication may suffice to demonstrate an intention not to continue 
prosecution of an appeal (Bellal Aziz Constr. Co., ASBCA Nos. 60717, 
61035, 18-1 BCA ¶ 37,025 at 180,294).  
 
 However, we have declined to impose dismissal with prejudice when 
there was no bad faith or contumacious conduct on the part of appellant, but 
rather appellant's failure to respond stemmed from inability rather than 
willfulness, bad faith or fault.  See BMSI, Inc., ASBCA No. 41542, 94-3 
BCA ¶ 27,034 at 134,736. 
 
 Here, FEI has shown that its failure to prosecute was not due to bad 
faith or contumaciousness.  We find that appellant’s inability to prosecute 
and respond to deadlines in a timely fashion was due to a myriad of factors 
enumerated in FEI’s response to the Board’s Show Cause Order.  Unlike the 
parties in 
Bellal, appellant here has communicated since the issuance of the 

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Show Cause Order.  Similarly, unlike the parties in Newhall, FEI has 
provided many reasons why appellant was unable to timely respond to the 
Board that we find believable, and provided an explanation for FEI’s failure 
to respond in a timely fashion.  Additionally, since securing new counsel, 
appellant has communicated with the Board indicating that it filed an 
additional related claim with the contracting officer in May 2021, and 
intends to pursue the new claim, as appropriate, with the Board (SOF ¶ 8).  
In light of the harsh nature of dismissal with prejudice, of appellant’s 
believable reasons explaining its non-responsiveness, and appellant’s now 
active prosecution of the appeal, we deny the government’s motion to 
dismiss for failure to prosecute.   
 
CONCLUSION 
 
 For the reasons stated above, the government’s motion to dismiss is denied.   
 
 Dated:  April 13, 2022 
 
 
 
 
 
 
 
 
 
 
 
LIS B. YOUNG 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 
 
 
 


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 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. 62005, Appeal of Forney 
Enterprises, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  April 14, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals