ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN ON THE 
GOVERNMENT’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE 
 
On December 12, 2024, the Department of the Army (government) moved to 
dismiss these appeals pursuant to Board Rule 17 for failure to prosecute.  As discussed 
in detail below, we grant the government’s motion and dismiss these appeals with 
prejudice. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
These appeals have a long history.  The appeals involve a U.S. Army Morale, 
Welfare and Recreation Fund (Fund), a non-appropriated fund instrumentality (NAFI) 
contract for government quarters, including design, construction, and operation of a 
service lodging facility.  Appellant was previously before the Board in ASBCA 
Nos. 52488 and 52811 -- those appeals were sustained in a November 20, 2006 
decision and remanded to the parties for the determination of quantum.  The Minesen 
Co., ASBCA Nos. 52488, 52811, 07-1 BCA ¶ 33,456. 
 
On April 28, 2017, the parties reached a settlement of the long-standing 
litigation on quantum under ASBCA Nos. 55996 and 55997.  These quantum appeals 
related to the consolidated appeals 52488 and 52811.  As part of the settlement, it is 
understood that the parties agreed to delete a portion of the contract related to full 
forfeiture of the per diem for travelers who failed to stay at the Inn at Schofield 
Barracks, Hawaii (Inn) regardless of availability.  In 2018, the government issued a 
memorandum which appellant alleges is in violation of the spirit of the settlement 
agreement by categorizing the facility as non-government quarters.  This 
Appeals of - )  
 )  
The Minesen Company ) ASBCA Nos. 62096, 62104 
 )  
Under Contract No. NAFBA3-93-C-0001 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Max Jensen 
  President 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 Robert B. Neill, Esq. 
LTC Nolan T. Koon, JA 
    Trial Attorneys 

2 
 
characterization allowed travelers the flexibility to stay even if the Inn was available.  
Appellant filed a claim with the contracting officer seeking relief in the form of 
declaratory judgment related to the contract interpretation.  On May 16, 2019, a 
Contracting Officer’s Final Decision (COFD) was issued denying the claim.  Appellant 
timely filed a notice of appeal on June 10, 2019.  The matter was assigned ASBCA 
No. 62096.  On May 22, 2019, an additional COFD maintained that in March, April 
and May of 2019, appellant violated the terms of the agreement by selling alcohol and 
tobacco products, failing to pay outstanding utility bills, failing to modify the room 
rates as agreed, failing to change the name of the Inn, and not meeting contract 
reporting requirements.  The contract was terminated for default effective July 19, 
2019.  Appellant timely filed a notice of appeal on June 17, 2019.  The matter was 
assigned ASBCA No. 62104.  The appeals were consolidated on June 18, 2019. 
 
By letter dated July 8, 2019, appellant notified the Board that the Minesen 
Company filed for bankruptcy under chapter 11 on July 5, 2019.  In September 2019, 
the Bankruptcy Court ordered the debtor (Minesen) to file a motion to assume or reject 
the contract.  In December 2019, a hearing was held on the debtor’s motion to assume 
executory contracts and leases.  Thereafter, the Bankruptcy Court scheduled an 
evidentiary hearing for June 23, 2020.  The evidentiary hearing was delayed on several 
occasions, and other matters arose delaying the progress of the bankruptcy proceedings 
and the hearing has not yet taken place.  The parties agreed to a stay of proceedings of 
ASBCA No. 62104 (termination of the contract), however, the parties differ on how to 
proceed with ASBCA No. 62096 (declaratory relief).  Appellant requested that the stay 
be lifted in ASBCA No. 62096, to allow that appeal to proceed, arguing that it was not 
a matter to be decided by the Bankruptcy Court.  The government requested that the 
stay for ASBCA No. 62096 remain in place arguing that both appeals are inextricably 
intertwined and dependent upon the Bankruptcy Court’s ruling on the motion to 
assume.  The Board conducted a conference call on March 12, 2020, allowing the 
parties to present argument.   
 
The matter before the Bankruptcy Court relates to the debtor’s motion to 
assume executory contracts and leases.  At the evidentiary hearing in the court, the 
debtor (appellant) will be required to provide the court and the creditors with adequate 
assurances of future performance.  The Board determined at the March 12, 2020 
hearing that if the debtor was unable to assume the lease associated with the NAFI 
contract, it would have significant impact on the advancement of both appeals.  
Accordingly, the Board granted a stay of the proceedings in both ASBCA Nos. 62096 
and 62104.  Thereafter, the stay was extended several times pending action by the 
Bankruptcy Court.  The most recent stay ended on September 9, 2024. 
 
On August 26, 2024, counsel for appellant filed a Motion to Withdraw.  The 
firm of Waas Campbell Rivera Johnson & Velasquez LLP had represented appellant 
throughout these appeals and was instructed by The Minesen Company to cease 

3 
 
representation of appellant in the appeals before the ASBCA.  The motion was granted 
on August 27, 2024.  Appellant was directed by Order dated August 27, 2024, to 
notify the Board by September 30, 2024, whether it intends to substitute counsel, or be 
represented by one of its officers consistent with ASBCA Rule 15(a).  No response 
was filed by appellant. 
 
On November 7, 2024, appellant was directed to notify the Board by 
November 29, 2024, whether it intends to proceed with the prosecution of this case, 
and if so, how it chooses to be represented.  No response was filed by appellant. 
 
In the December 16, 2024 Order, the Board found that appellant’s lack of 
communication and repeated disregard of the Board’s Orders appears to demonstrate 
appellant’s desire not to prosecute these appeals any further.  As a result, appellant was 
ordered to show cause within 21 days why the appeals should not be dismissed with 
prejudice for lack of prosecution pursuant to Board Rule 17.  Appellant was advised in 
the Order to Show Cause that, if no response is filed by January 9, 2025, the Board 
intends to dismiss these appeals with prejudice for failure to prosecute with no further 
notice to the parties.  No response was filed by appellant. 
 
After an internal inquiry at the Board raised a question concerning whether we 
had delivered the December 16, 2024 Order to the appellant, on February 20, 2025, the 
Board once again ordered appellant to show cause why the appeals should not be 
dismissed with prejudice.  Appellant was directed to respond by March 3, 2025, or be 
subject to dismissal with prejudice without further notice.  As of this date, appellant 
has failed to respond. 
 
DECISION 
 
 On December 12, 2024, the government moved to dismiss these appeals 
pursuant to Board Rule 17 for failure to prosecute.  The government renewed its 
motion on February 4, 2025, and again on March 14, 2025, after having failed to 
receive any communication from Mr. Max Jensen even though copies of the 
government’s correspondence was sent to his address and email account of record.  In 
its motion, the government asserts as a basis appellant’s failure to respond to several 
Board Orders, including the most recent one directing appellant to show cause why the 
appeals should not be dismissed.  Board Rule 17 provides: 
 
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 

4 
 
order to show cause why the appeal should not be 
dismissed with prejudice for failure prosecute. . . . If good 
cause is not shown, the Board may take appropriate action. 
 
We conclude that appellant’s lack of communication reflects an intention not to 
continue the prosecution of this appeal.  See Andrews Contracting Servs., LLC, 
ASBCA No. 61512, 19-1 BCA ¶ 37,241 at 181,280 (Board dismissed the appeal for 
failure to prosecute when appellant failed to respond to the government’s discovery 
and numerous Board Orders). 
 
Accordingly, we grant the government’s motion and dismiss these appeals with 
prejudice. 
 
 Dated:  March 24, 2025 
 
 
 
 
 
 
 
 
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

5 
 
 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. 62096, 62104, Appeals of 
The Minesen Company, rendered in conformance with the Board’s Charter. 
 
 Dated:  March 25, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals