MOTION TO DISMISS DENIED: May 23, 2013
CBCA 2414, 2657
PROTEUS, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Leonard C. Parker, Director of Proteus, Inc., appearing for Appellant.
Ricarto Brazela, Office of the General Counsel, Department of Veterans Affairs,
Washington, DC, counsel for Respondent.
Before Board Judges BORWICK, McCANN, and WALTERS.
BORWICK, Board Judge.
Respondent moves to dismiss these appeals for failure to prosecute, alleging a pattern
of inaction and dilatoriness.  For the reasons below, the motion is denied.  
Background
CBCA 2414 and 2657 are construction cases that have been on the Board’s docket
since May 5, 2011.  CBCA 2414 was docketed on May 5, 2011, and subsequently
consolidated with the later-filed CBCA 2657.  The cases involve the Department of Veterans
Affairs (VA or agency), and Proteus, Inc., who entered into a construction project to correct

CBCA 2414, 2657 2
sidewalk subsidence at the VA Medicare Health System Center, Baltimore, Maryland.  The
claim, which is the same for both dockets, is for $1,013,866 based upon alleged differing
site conditions and alleged uncompensated change orders.  
On January 31, 2013, appellant’s counsel served notice that he wished to withdraw
as counsel for appellant and act as counsel for a subcontractor and as special counsel for 
appellant presenting a pass-through claim of the subcontractor’s pursuant to a liquidating
agreement.  Respondent’s motion focuses on appellant’s failure to comply with a Board
order of March 27, 2013, requiring appellant to identify new counsel or a new representative
by April 1, 2013.  That order was preceded by a series of Board orders dated February 7,
February 26, and March 5, 2013, dealing with the putative substitute representative as well
as other issues.  Appellant did not retain counsel or identify a corporate representative by
April 1 as required by the order.  Appellant’s representative--one of its directors--entered his
formal appearance as appellant’s representative on April 3.  He explained that appellant was
encountering difficulty in retaining counsel given the then-scheduled trial date of July 8,
2013.  Since April 3, appellant’s director has fully participated in conferences with the
Board, including establishment of a new schedule of proceedings.  
The reason these cases have been pending for an inordinate length of time is a pattern
of reciprocal inaction by both parties, including respondent’s request for an extension of
time to submit the appeal file and its two requests for extensions of time to submit its expert
report.  
The first request was based on a change in the VA’s procurement procedure.  The
second request was based upon the hospitalization of the VA’s expert.1  Although the Board
in its order of November 15, 2012, set a trial date of July 8, 2013, the VA advised the Board
on April 15, 2013, that proceeding to trial on July 8 might not be possible. 
Progress towards trial has been further delayed by the parties’ mutual request for
suspension of proceedings to allow for settlement negotiations.  Settlement negotiations
were held between May 23 and November 1, 2012, but proved fruitless. 
As a result of these delays the Board issued an order on April 15, 2013, establishing
new dates for the submission of expert reports, a new trial date of January 13, 2014, and a
status conference on or after June 7, 2013, to discuss further settlement negotiations and the
possibility of engaging in alternative dispute resolution procedures.  
1 Additionally, the VA lost the base contract against which tasks orders for project
implementation were issued and has not been able to locate it.  

CBCA 2414, 2657 3
Discussion
As appellant notes in its opposition, a dismissal for lack of prosecution requires a
finding of an egregious situation where a party has repeatedly failed to comply with a
tribunal’s orders in a willful manner with prejudice to the opposing party.  CCJN & Co.
Architects & Planners v. General Services Administration, CBCA 811, et al., 10-1 BCA
¶ 34,420.  The record here does not support a finding of appellant’s contumacy; rather, the
record shows a pattern of non-egregious, albeit frustrating, delay by both parties.  
 
Decision
Respondent’s motion to dismiss for failure to prosecute is DENIED.  
  ________________________________
ANTHONY S. BORWICK
Board Judge
We concur:
_______________________________ ________________________________
R. ANTHONY McCANN RICHARD C. WALTERS
Board Judge Board Judge