ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
 
On February 21, 2023, the appellant filed an out-of-time request to enlarge the 
deadline to file its response to the government’s motion for summary judgment 
(response).  On February 24, 2023, the government filed a motion to dismiss for 
failure to prosecute, or in the alternative, to rule on the government’s motion for 
summary judgment as presented.  For the reasons discussed below, the appellant’s 
motion is granted, and the government’s motion is denied. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On December 15, 2021, the government filed a motion for summary judgment. 
 
2.  Throughout 2022, the appellant moved for enlargements of time to file its 
response.  The government assented to those motions, and we accordingly granted 
each motion. 
 
3.  On May 9, 2022, the government moved to stay proceedings in this appeal 
pending the resolution of its summary judgment motion.  On May 13, 2022, we 
granted that motion, but permitted the appellant to conduct limited discovery regarding 
the government’s prior knowledge of the location and depth of a pipeline. 
 
Appeal of - )  
 )  
RLB Contracting, Inc. ) ASBCA No. 62779 
 )  
Under Contract No. W9126G-17-C-0043 )  
   
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq.  
Casey J. McKinnon, Esq. 
    Cohen Seglias Pallas Greenhall & Furman PC 
    Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Clark Bartee, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Galveston 

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4.  On November 14, 2022, we issued our final order on the appellant’s motions for 
enlargements of time to file its response.  In that order, we granted appellant an 
enlargement of time to file its response to February 7, 2023. 
 
5.  Appellant failed to file a response or seek an enlargement of time by 
February 7, 2023.  Two weeks later, on February 21, 2023, appellant filed an out-of-
time motion for an enlargement of time to file its response to February 24, 2022.  The 
government opposes that motion. 
 
6.  On February 24, 2022, the appellant filed its response to the motion for 
summary judgment. 
 
7.  Also, on February 24, 2022, the government moved to dismiss for failure to 
prosecute, or in the alternative, to rule on the government’s motion for summary 
judgment as presented.  
 
DECISION 
 
We deny the government’s motion to dismiss for failure to prosecute or to rule 
on its summary judgment motion as presented and grant the appellant’s motion to 
extend the deadline to file its response.  Under our rules: 
 
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. 
 
Board Rule 17 
 
 Here, there was no failure to prosecute.  Taking over a year to respond to a 
summary judgment motion certainly seems excessive (SOF ¶ 2).  However, it does not 
constitute a failure to prosecute because—except for two weeks in February 2023—the 
appellant had sought and been granted enlargements.  Thus, the appellant complied 
with the Board’s orders (SOF ¶¶ 2, 4-5).  Indeed, having assented to all of those 
motions for enlargements, the government is in no position to turn around and 
complain about those enlargements (SOF ¶ 2).
1  While there was a two-week period in 
 
1 Likewise, having successfully moved the Board to stay proceedings in this appeal 
(SOF ¶ 3), the government cannot complain that the appellant’s failure to 

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February 2023, when the appellant did not comply with a Board order by filing its 
response or seeking an enlargement (SOF ¶¶ 4-5),2 that was not so extensive as to 
indicate an intention not to continue the prosecution of this appeal.  In fact, issuing an 
order to show cause would serve no useful purpose because the appellant already has 
filed its response, thereby evidencing its intent to prosecute this appeal (SOF ¶ 6). 
 
 Nor does that two-week period justify ruling on the government’s summary 
judgment motion as presented because the government has not shown any prejudice 
from that delay (gov’t motion to dismiss).  Moreover, due to that lack of prejudice, the 
appellant is entitled to an extension of the deadline to file its response.  
 
CONCLUSION 
 
We deny the government’s motion to dismiss for failure to prosecute or to rule 
on its summary judgment motion as presented.  We grant the appellant’s motion to 
extend the deadline to file its response.  Accordingly, the appellant’s response is 
accepted, and the government shall file any reply within thirty days of the date of this 
order. 
 
 Dated:  March 9, 2023 
 
 
 
 
 
 
(Signatures continued) 
 
engage in discovery constituted a failure to prosecute.  There was a narrow 
exception to that stay for the appellant to obtain discovery regarding the 
government’s prior knowledge of the location and depth of a pipeline (SOF 
¶ 3).  To the extent that the appellant failed to request that discovery, our order 
did not require the appellant to seek such discovery (SOF ¶ 3).  Thus, the 
appellant’s failure to seek such discovery did not violate a Board order, or 
otherwise indicate an intent not to prosecute this appeal.  Moreover, any failure 
to take advantage of that discovery opportunity benefited—instead of 
prejudicing—the government.  Thus, any failure is not a basis for refusing to 
consider the response. 
 
2 We caution the appellant that it has a duty to comply with Board-imposed deadlines 
or seek enlargements.  Even though there was no prejudice in this first instance 
of failing to do so, prejudice may result from repeated failures to comply with 
deadlines or seek enlargements.   
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

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I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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 No. 62779,
 Appeal of RLB 
Contracting, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  March 9, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals