DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE:  February 8, 2008
 CBCA 104 
McCLELLAN, M&M CONSTRUCTION, 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Keysha Bailey, Owner/President of McClellan, M&M Construction, Carbondale, CO, 
appearing for Appellant. 
Steven C. Silverman, Office of General Counsel, Department of Agriculture, Denver, 
CO, counsel for Respondent. 
Before Board Judges PARKER , POLLACK , and SHERIDAN . 
POLLACK , Board Judge. 
On August 31, 2005, McClellan, M&M Construction (hereinafter M&M or appellant) 
filed an appeal from a July 12, 2005, termination for default issued by the Department of 
Agriculture, Forest Service (FS), Rocky Mountain Region, Golden, Colorado. The matter 
was initially docketed  by the Department of Agriculture Board of Contract Appeals as 
AGBCA No. 2005-163-1. Appellant was represented by counsel. That appeal, as well as a 
second appeal, addressed later below, were ultimately consolidated into CBCA 104 when 
those matters were transferred to the Civilian Board of Contract Appeals (CBCA) on 
January 6, 2007, pursuant to Pub. L. No. 109-163, §§47, 119 Stat. 3136-95 (2006). 

 
 
   
 
  
      
        
  
   
    
   
      
 
    
   
2 CBCA 104 
On  September 26, 2005, appellant filed its complaint.  The complaint asserted that 
the letter terminating the contract did not contain all the statements in Federal Acquisition 
Regulation (FAR) 49.402-3(g) (dealing with appeal rights) and, as such, it was not clear 
whether the notice terminating the contract was intended to constitute a final decision by the 
FS contracting officer (CO).  Nevertheless, appellant proceeded with the appeal.  The FS 
provided its answer.  
On February 28, 2006, the Agriculture Board held a conference with counsel for the 
parties.  Based on statements made by counsel for appellant, the board queried as to whether 
appellant had claims under the terminated contract that had not yet been submitted, but which 
could later become relevant to the proceedings.  Appellant stated that it had such claims, 
specifically referencing a claim for alleged design problems.  The claim, however, had not 
yet been submitted to the FS.  In addition, appellant revealed that it had made a request for 
payment as to various invoices and that the CO had issued a final decision denying the 
release of the invoiced funds.  As of the date of the conference, the board did not have that 
appeal in hand nor did it have a copy of the referenced final decision. Appellant stated that 
it intended to appeal the matter involving the invoices.  
At the close of the conference, counsel for the FS indicated a potential willingness to 
discuss global issues, but stated that before moving forward, the FS needed to have 
appellant’s full claim.  The board then suggested that the parties first deal with securing that 
claim information and that the parties hold off any imminent proceeding on the default until 
all claims were submitted to and reviewed by the FS. Appellant’s counsel, however, stated 
that while he would proceed to provide the information as to the non-submitted claims, 
appellant still wished to move forward with resolving the default and, as such, asked for the 
board to schedule a hearing.  The board advised the parties that the hearing would be 
scheduled for some time in August 2006. 
Within days of the conference, appellant filed the appeal as to the invoices.  That 
appeal was dated February 27, 2006, and docketed by the Agriculture Board as AGBCA No. 
2006-138-1. As noted above, the CO in his decision refused to  release funds requested by 
appellant in various invoices.  The CO explained that the money was being held pending 
determination of potential liabilities attributed to appellant.  The referenced liabilities, 
however, were not specifically identified or quantified and the CO made no claim for such 
damages in the final decision.   
The FS then filed an answer to the second appeal, and in that answer, the FS laid out 
counterclaims which were essentially setoffs to the money sought in the invoices.  Although 
the counterclaim was set out in the answer, the FS had not addressed counterclaims in a CO’s 
decision and, thus, the board did not have before it those matters. 

    
  
  
     
    
   
   
    
              
    
        
  
               
      
 
 
  
      
3 CBCA 104 
As understood by the board, the parties continued to engage in contacts.  By letter of 
June 1, 2006, counsel for appellant forwarded a letter to the board between it and the FS 
counsel, wherein appellant referenced its plan to discuss settlement and where it noted that 
it would need additional time to supplement the appeal file.       
The situation soon changed significantly.  By letter dated November 20, 2006, counsel 
for M&M sent a letter to the board in which counsel withdrew his representation of appellant. 
The withdrawal letter provided the board with the name and address of a representative of 
M&M for further communication. The board did not immediately hear from appellant.   The 
board made several telephone attempts to contact M&M to find out the status of the appeals 
and to discuss how appellant planned to proceed.  During the time period when the board 
attempted to contact appellant, the functions of the Agriculture Board were transferred to the 
newly created CBCA. Having received no response, the Board wrote to appellant by letter 
of February 12, 2007, and there again asked for appellant to contact the Board, noting that 
failure to respond could result in the appeal being dismissed.  
The Board received no reply.  Accordingly, the Board issued an order to show cause 
on March 9, 2007. On March 13, 2007, the Board received a letter from Ms. Keysha Bailey, 
Owner/President of M&M, notifying the Board that M&M was in the process of retrieving 
its case files from its withdrawn counsel. Ms. Bailey stated that appellant continued to want 
to pursue the matter and anticipated needing a year to retrieve files and to search for 
appropriate counsel. 
On March 21, 2007, the Board issued an order staying the proceedings for six months, 
with the stay to terminate on September 20, 2007.  The Board stated that if appellant needed 
more time, it was to advise the Board at least fifteen days prior to the expiration date.  On 
September 27, 2007, not having heard from appellant, the Board issued a letter to appellant 
advising appellant that the stay had expired.  The Board noted that it had tried to contact 
appellant by telephone but the contact numbers the Board had for telephone and facsimile 
were not viable. Appellant was directed to contact the Board.  The above letter was sent via 
certified mail, return receipt requested.  The Board received no receipt showing  delivery, nor 
was the letter returned to the Board from the Postal Service.    
Having still not heard from appellant and the stay having expired, the Board 
proceeded, on November 21, 2007, to issue an order to show cause.  The order reviewed 
matters to that point in time and gave appellant fifteen days to show cause why the appeals 
should not be dismissed.  Unlike the letter of September 27, 2007, the Board did receive a 
receipt showing delivery of the November order.  The receipt was signed by Karen Bristol 
and showed the date of receipt as November 26, 2007. The Board awaited a reply.  To date, 
the Board has received no reply to its order. 

     
  
4 CBCA 104 
Decision 
After numerous attempts to formally and informally contact appellant as to its 
intentions as to pursuing its appeals, the Board on November 21, 2007, issued a formal order 
to show cause notifying appellant that it had fifteen days to show cause why the appeals 
should not be dismissed.  Appellant failed to respond, continuing a practice of not 
communicating with the Board.  Accordingly, the appeals are DISMISSED WITH 
PREJUDICE FOR FAILURE TO PROSECUTE. 
______________________________ 
HOWARD A. POLLACK 
Board Judge 
We concur: 
_______________________________ ______________________________ 
ROBERT W. PARKER PATRICIA J. SHERIDAN 
Board Judge Board Judge