DISMISSED FOR FAILURE TO PROSECUTE:  February 16, 2022
CBCA 5272
UNITED FACILITY SERVICES CORPORATION
dba EASTCO BUILDING SERVICES,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
William Weisberg of Law Offices of William Weisberg PLLC, McLean, VA, counsel
for Appellant.
Brett A. Pisciotta and Kristi Singleton, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.
Before Board Judges LESTER, SHERIDAN, and ZISCHKAU.
LESTER, Board Judge.
Pending before the Board is respondent’s motion to dismiss this appeal for failure to
prosecute, filed December 21, 2021.  Despite several extensions of time, appellant, United
Facilities Services Corporation, doing business as Eastco Building Services (Eastco), has yet
to respond to a set of written interrogatories that the General Services Administration (GSA)
served on May 6, 2021.  The Board issued orders notifying Eastco that no further
enlargements to respond would be granted, and a show cause order that required either a
response or delivery of the interrogatory responses by December 17, 2021, went unanswered. 
Although Eastco recently requested yet another enlargement of time, it has made no

CBCA 5272 2
noticeable effort in the month since that request to respond to GSA’s interrogatories.  We
grant GSA’s motion to dismiss.
Background
I. Early Development of the Appeal
This appeal was filed on April 8, 2016, by Eastco’s president.  Eastco alleged that,
when soliciting the contract at issue for operations and maintenance services at three federal
buildings in Miami, Florida, GSA provided what was supposed to be a comprehensive list
of equipment to be maintained.  That list, Eastco alleged, failed to identify much of the
equipment in the buildings that had to be maintained.  Although the solicitation contained
a site visit requirement and a disclaimer about the accuracy of the equipment or inventory
list, Eastco alleged that some of the unlisted equipment was hidden above ceilings and in
parts of the buildings that were difficult to access.  Eastco claimed that all work it had to
perform under the contract on equipment that was not listed constituted a constructive
change, but it did not specifically identify the extra equipment that created extra work.
Soon thereafter, Eastco hired counsel to represent it in the appeal.  Over the course
of the next two years, the Board denied a motion from GSA to dismiss the appeal for lack
of jurisdiction, the parties engaged in discovery, and the parties briefed cross-motions for
summary judgment through which they sought, in part, the Board’s view of the methodology
that Eastco planned to use to prove entitlement and quantum.  By decision dated July 2,
2018, the Board denied the cross-motions but indicated in its decision that, to prove its
entitlement to damages, Eastco would have to produce certain information that was not
currently in the record.  United Facility Services Corp. v. General Services Administration,
CBCA 5272, 18-1 BCA ¶ 37,086.  Specifically, we held that, because of the combination of
the site visit requirement in the solicitation and GSA’s representation in the solicitation that
the equipment list might contain errors, Eastco would have to show the extent to which it
would not have discovered unlisted equipment, and what equipment it would not reasonably
have been expected to discover, had it conducted a reasonable site visit.  Id.
At the parties’ request, the Board soon thereafter suspended proceedings to allow the
parties to engage in settlement negotiations.  After almost a year of negotiations, Eastco filed
another motion for summary judgment, this one focused exclusively on the adequacy of the
cost estimates upon which it planned to rely to support its claimed damages, the resolution
of which Eastco asserted would help with settlement negotiations.  Ultimately, by decision
dated January 30, 2020, the Board denied Eastco’s summary judgment motion and held that,
to prove quantum, Eastco would have to produce direct, actual cost support to establish the
costs that it incurred as a result of alleged changes, rather than the cost estimates upon which
Eastco had planned to rely.  United Facility Services Corp. v. General Services

CBCA 5272 3
Administration, CBCA 5272, slip op. at 9-11 (Jan. 30, 2020).  The Board noted that Eastco’s
proposed cost estimates appeared untethered from, and in conflict with, available labor and
cost records and that the record lacked evidence accurately comparing the amount of work
that Eastco originally anticipated with what it actually performed.  Id.
Development of this case stagnated after the Board’s January 30, 2020, summary
judgment decision.  Soon after that decision was issued, Eastco changed counsel.  GSA and
the Board agreed to allow new counsel to become familiar with the case before Eastco had
to continue with the discovery process.  Subsequently, however, the Board was notified that
both Eastco and its new counsel were unable to access their respective workplaces because
of restrictions relating to the COVID-19 pandemic, a problem that the Board was informed
continued for almost a year.  Finally, on February 1, 2021, the parties jointly proposed a
schedule of further proceedings in which fact discovery would conclude on April 30, 2021. 
The Board adopted that proposed schedule by order dated February 11, 2021.  In response
to a follow-on motion from Eastco, the Board issued orders on May 3 and 4, 2021, enlarging
the time for the completion of fact discovery to June 29, 2021.
II. Developments Involving the Interrogatories Underlying GSA’s Motion
On May 6, 2021, GSA served its second set of written interrogatories upon Eastco. 
In those interrogatories, GSA requested that Eastco provide an itemization and description
of Eastco’s alleged damages by date incurred, dollar amount, and category and the identities
of the people or entities who provided the services, materials, or labor for which damages are
claimed (interrogatory no. 6); information related to Eastco’s efforts to mitigate damages
(interrogatory no. 7); a description of how Eastco prepared its quote in response to GSA’s
solicitation, including the number of labor hours that Eastco anticipated for the contract work
(interrogatory no. 8); information about the daily labor force at the contract sites, as well as
comparisons, summaries, tabulations, and analyses comparing actual labor hours expended
with labor hours originally anticipated (interrogatory no. 9); an identification of the
equipment that Eastco contends was missing from the equipment inventory lists
accompanying the solicitation by building name, room number, and location (interrogatory
no. 10); an identification of all work that Eastco performed servicing or providing
maintenance for that extra or unlisted equipment, as well as the costs incurred and labor
hours expended in performing that work (interrogatory no. 11); an identification of any
contemporaneous records showing time and cost for operating and maintaining the unlisted
equipment and, if no such records were kept, an explanation of why they were not
(interrogatory no. 12); and an itemization of all actual costs incurred to operate and maintain
the unlisted equipment (interrogatory no. 13).  Pursuant to Rule 14(b) of the Board’s Rules
(48 CFR 6101.14(b) (2020)), Eastco’s response to those interrogatories was due by June 7,
2021, and, as noted above, discovery was scheduled to conclude on June 29, 2021.

CBCA 5272 4
In mid-May 2021, Eastco again changed the counsel representing it in this appeal.  In
its May 14, 2021, order granting Eastco’s counsel substitution request, the Board specifically
noted that, “[n]otwithstanding the substitution in counsel, the deadlines established in the
Board’s orders dated May 3 and 4, 2021, remain in effect.”
By motion dated May 20, 2021, Eastco requested that the Board again enlarge the
deadline for the conclusion of fact discovery, this time by an additional thirty days, to and
including July 29, 2021, and the Board granted that unopposed request.  Apparently, as part
of that enlargement of the discovery deadline, Eastco and GSA agreed between themselves
to extend the deadline for Eastco’s responses to the May 6 interrogatories, as permitted by
Board Rule 14(e).
Subsequently, by motion dated June 14, 2021, Eastco requested another sixty-day
enlargement of the deadline for the conclusion of fact discovery in this appeal, to and
including September 27, 2021.  Although the Board granted that request, it noted that, in
light of the lengthy history of this appeal, it did not anticipate granting any further
enlargements of time:
Although the Board is granting this enlargement request, the Board does not
anticipate granting any further enlargements of time in this appeal.  It appears
that, for a significant period of time, there has been little, if any, case
development.  Eastco has changed counsel several times and, each time, seeks
enlargements to allow its new counsel to become familiar with the case. 
Although the Board appreciates the difficulties that new counsel must have in
learning about the dispute at issue here and the history of the litigation, the
Board cannot simply continue to delay the resolution of this appeal because of
choices that are wholly within Eastco’s control.  Accordingly, the parties
should plan for this case to proceed to a hearing in early 2022. . . . The parties
should plan accordingly.
Order (June 15, 2021) at 2.  It appears that, with the extension of the discovery deadline, the
parties again agreed between themselves to extend Eastco’s deadline for serving its written
interrogatory responses.
Despite the Board’s warning, Eastco filed another enlargement request on
September 28, 2021, after which the Board conducted a status conference, at GSA’s request,
on November 2, 2021, to discuss the status of discovery.  At that conference, the parties
explained that GSA has already completed its fact discovery production obligations, that
Eastco will not depose any GSA employees, and that GSA is waiting for Eastco to complete
its responses to GSA’s second set of interrogatories (as well as potentially to produce some
additional documents) before taking the deposition of Eastco’s representative.  Following

CBCA 5272 5
that conference, the Board set a deadline of November 16, 2021 – a deadline that Eastco
indicated during the conference it could meet – for Eastco to respond to GSA’s second set
of written interrogatories and a November 30 discovery deadline.
Eastco neither met the November 16 deadline nor requested a further enlargement. 
When Eastco did not serve any interrogatory responses by that deadline, GSA told Eastco
that it would forego complaining to the Board if Eastco could provide responses by
November 23, 2021.  Even then, responses were not forthcoming.
On November 29, 2021, at GSA’s request, the Board conducted another status
conference with the parties during which GSA complained about Eastco’s continuing failure
to respond to the second set of written interrogatories.  GSA represented that, without
complete discovery responses, GSA was not in a position to depose Eastco witnesses by the
November 30, 2021, deadline set forth in the Board’s November 2 order.
The Board issued a show cause order on December 1, 2021 (and a corrected order on
December 2, 2021), directing Eastco to show cause no later than December 17, 2021, as to
why the Board should not dismiss this action for failure to prosecute the appeal or to render
adverse inferences against Eastco based upon its failure to respond to GSA’s discovery.  The
Board directed that any such response detail the efforts that Eastco had made to respond to
GSA’s second set of interrogatories and explain why it had been unable to complete them. 
As an alternative, the Board indicated that, rather than filing a show cause response, Eastco
could respond to GSA’s second set of interrogatories by December 17, 2021, but would have
to notify the Board that it had responded to the interrogatories in lieu of filing a show cause
response.  The Board represented in the order that no further enlargements of the deadline
for responding to the second set of interrogatories would be entertained.
December 17 came and went without any response from Eastco.  It neither filed a
response to the Board’s show cause order, nor served responses to GSA’s second set of
interrogatories.
On December 21, 2021, GSA filed its motion to dismiss this appeal for failure to
prosecute, citing to Eastco’s history of ignoring deadlines set by order of the Board and
Eastco’s failure to respond to GSA’s second set of interrogatories.  Eastco filed a response
to the motion to dismiss on January 7, 2022, in which it “request[ed] (another) opportunity”
to meet its obligations to prosecute its claim in “the form of a final resetting of the deadlines
in this case.”  It asserted that “Eastco, a small business, has found it difficult to muster the
internal resources to meet the various deadlines in the case,” a difficulty “magnified by the
ongoing impact of COVID-19, which has presented significant staffing and other operational
issues for the company,” as its staff of three people has “been focused on the existential
issues of trying to keep the company in business during an extraordinarily difficult time.” 

CBCA 5272 6
Eastco requested that, if a further enlargement request was not granted, the Board select an
alternative remedy to dismissal by “draw[ing] inferences from the specific discovery requests
Eastco has not fulfilled, but not dismiss the case.”  Eastco asserted that “[a] significant
amount of information has been provided, and Eastco believes that the parties can brief and
argue from that, and the Board still render a decision.”  In its reply, GSA argues that, because
of the breadth of the interrogatories that Eastco has failed to answer, any sanction limited to
factual inferences against Eastco arising out of the unanswered written discovery requests
would effectively require judgment in GSA’s favor, making that option infeasible and
warranting dismissal as a sanction.
Despite Eastco’s request on January 7, 2022, for another chance to respond to the
interrogatories, it has taken no noticeable action since that date to respond.
Discussion
I. The Merits of GSA’s Motion to Dismiss
An appellant seeking to obtain monetary relief from the Government in an appeal
before the Board “has an obligation to pursue the prosecution of its appeal in a timely,
responsible manner or to bear the risk of having its case dismissed.”  Pacific Wildfire, LLC
v. Department of Agriculture, CBCA 664, 08-2 BCA ¶ 33,954.  If the Government submits
a written discovery request, the appellant must either respond to the request or, if the request
is objectionable, seek relief from the Board.  The appellant may not simply fail to respond. 
Board Rule 14(b), (e); see 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice & Procedure § 2291, at 638 (3d ed. 2010) (“[F]ailure to respond ‘is not
excused on the ground that the discovery sought was objectionable, unless the party failing
to act has a pending motion for a protective order.’” (quoting Fed. R. Civ. P. 37(d)(2))). 
Further, to the extent that the Board issues orders affecting the appellant’s response
obligations, the appellant has “a duty to comply with the orders of the Board or to request
appropriate, timely relief from those orders with which [it] cannot comply.”  Pacific Wildfire.
Eastco has had more than nine months to respond to GSA’s second set of
interrogatories.  It has never asserted that the interrogatories are objectionable or unduly
burdensome.  The Board, after granting several enlargement requests, ultimately set a
deadline of November 16, 2021, for Eastco’s responses.  Eastco neither responded to the
interrogatories by that deadline nor filed a motion identifying good cause for yet another
extension of the response deadline.  The Board then set a deadline of December 17, 2021,
for Eastco to respond to a show cause order while offering Eastco the option of responding
to the interrogatories instead but indicating that there would be no further enlargements of
Eastco’s time to respond to the interrogatories.  Eastco did not respond.

CBCA 5272 7
Under Board Rule 35(b), the Board “may make such orders as are just, including the
imposition of appropriate sanctions,” if “a party or its representative . . . fails to comply with
any direction or order of the Board (including an order to provide or permit discovery) or
engages in misconduct affecting the Board, its process, or its proceedings.”  Sanctions
available to the Board include “[t]aking the facts pertaining to the matter in dispute to be
established for the purpose of the case in accordance with the contention of the party who is
not at fault,” “[f]orbidding the challenge of the accuracy of any evidence,” “[r]efusing to
allow the party to support or oppose designated claims or defenses,” “[p]rohibiting the party
from introducing into evidence designated claims or defenses,” “[d]rawing evidentiary
inferences adverse to the party,” and “[d]ismissing the case or any part thereof.”  Id.
Rule 37(d)(1)(A)(ii) of the Federal Rules of Civil Procedure (FRCP) directly
addresses a party’s obligation to respond to written interrogatories and expressly allows a
tribunal to order sanctions if “a party, after being properly served with interrogatories . . . ,
fails to serve its answers, objections, or written response.”1  Sanctions available under FRCP
37(d)(1)(A)(ii) for a complete failure to respond are consistent with those that Board Rule
35(b) identifies.  The purpose of such sanctions is “to allow [tribunals] to punish a full and
wilful noncompliance with the federal rules on discovery, and to deter such conduct in the
future.”  Minnesota Mining & Manufacturing Co. v. Eco Chem, Inc., 757 F.2d 1256, 1260
(Fed. Cir. 1985).  While the Board might have to issue an order compelling corrections
before sanctioning a party for providing deficient responses, imposition of sanctions under
FRCP 37(d) in response to an appellant’s complete failure to respond to interrogatories does
not require a prior order from the Board compelling production.  Id.; see 8B Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, supra, § 2291, at 635-36 (“Only if a party
wholly fails to respond to an entire set of interrogatories are sanctions under this rule
appropriate.”).
Although the boards of contract appeals “should employ severe sanctions, such as
dismissal, with great circumspection and extreme care,” Griffin & Dickson v. United States,
16 Cl. Ct. 347, 351 (1989), “[a] tribunal is afforded considerable discretion in determining
whether sanctions are appropriate, and if so, what particular sanctions are appropriate under
the circumstances of each case.”  General Dynamics Ordnance & Tactical Systems, Inc.,
ASBCA 56870, 12-1 BCA ¶ 34,944.  “The discovery provisions of the Federal Rules of Civil
Procedure are designed to achieve disclosure of all the evidence relevant to the merits of a
controversy.”  Rates Technology, Inc. v. Mediatrix Telecom, Inc., 688 F.3d 742, 747 (Fed.
1 “When we are confronted with a matter about which our rules are silent, we
look to the Federal Rules of Civil Procedure for guidance.”  Chester B. Giffin, GSBCA 7160,
84-2 BCA ¶ 17,449.  We can look to FRCP 37(d) to determine the extent to which the Board
can sanction a party for failing to provide any response to written interrogatories.

CBCA 5272 8
Cir. 2012) (quoting Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.
1991)).  “When a party seeks to frustrate this design by disobeying discovery orders” or the
discovery rules, “thereby preventing disclosure of facts essential to an adjudication on the
merits, severe sanctions are appropriate.”  Id. (quoting Daval Steel, 951 F.2d at 1365).  The
most severe sanction, dismissal, may be warranted where “the failure of [the contractor]
timely to respond to the interrogatories is patently willful and . . . no mitigating
circumstances have been shown to justify any further extension of time for answers.”  Allen
v. United States, 208 Ct. Cl. 958, 959 (1976); see John P. Sanderson, III v. General Services
Administration, GSBCA 7958, 92-2 BCA ¶ 24,854 (applying FRCP 37(d) to dismiss appeal
for failure to prosecute after appellant failed to respond to interrogatories).
Eastco failed to respond to GSA’s interrogatories by the extended November 16,
2021, deadline and did not at that time seek an additional enlargement of time.  Eastco then
neither responded to the Board’s subsequent show cause order by the December 17, 2021,
deadline nor provided interrogatory responses by what the Board had indicated was a firm
and final deadline.  In such circumstances, Eastco has made clear that it will not prosecute
this appeal.  Accordingly, dismissal is warranted.
II. Eastco’s Requests for Alternative Relief
On January 7, 2022, Eastco requested that the Board give it another chance and allow
it, at some undefined date in the future, to respond to the interrogatories.  Although we can
sympathize with Eastco’s assertion that the COVID-19 pandemic has been difficult for the
company and has made it hard to muster resources to respond to GSA’s interrogatories,
Eastco does not explain in its last-minute request why it simply ignored the Board’s prior
orders requiring it to provide interrogatory responses by November 16 and to show cause by
December 17, 2021.  Its latest request is unsupported by any declarations from Eastco
employees or by any explanation of what efforts, if any, Eastco has made to attempt to
respond to the interrogatories.  Given the history of Eastco’s failed promises to respond to
the interrogatories and the fact that, in the month since its most recent request for more time,
Eastco has taken no noticeable action to respond, Eastco’s empty assertion that COVID-19
has made it impossible for Eastco to develop even partial responses to the interrogatories for
more than nine months (or to develop this litigation for almost two years) and that it might
do better later rings hollow.
Eastco suggests that, as an alternative to dismissal, the Board could impose
evidentiary sanctions by “draw[ing] inferences from the specific discovery requests Eastco
has not fulfilled.”  The result would effectively be the same as a dismissal.  GSA’s
interrogatories cover a broad spectrum of the causation and quantum aspects of Eastco’s
case.  They are designed to identify Eastco’s evidence and test Eastco’s grounds in support
of its claim.  By completely failing to respond to the interrogatories, Eastco is precluding

CBCA 5272 9
GSA from developing defenses to Eastco’s claim.  Rebuttable inferences against Eastco in
response to that failure are not enough.  An appropriate evidentiary sanction for that failure
would be to deem as admitted that, for unanswered interrogatories seeking the factual basis
of specific arguments, there is no basis, and, for interrogatories seeking identification of
documents and evidence, there are none.  Writing Co. v. Department of the Treasury,
GSBCA 15634-TD, 03-1 BCA ¶ 32,107 (2002).  Here, that would mean that Eastco would
be barred from detailing its alleged damages by date incurred, dollar amount, and category
(interrogatory no. 6); from showing that it made any attempts to mitigate damages
(interrogatory no. 7); from identifying the number of labor hours that Eastco originally
anticipated for the contract work and how that compares to what it actually experienced
(interrogatory no. 8); and from identifying the equipment that Eastco contends was missing
from the equipment inventory lists and that it believes constitutes extra work (interrogatory
no. 10).  Eastco would also be barred from relying on contemporaneous time and cost records
for operating and maintaining any unlisted equipment (interrogatory no. 12) and could not
itemize actual costs incurred to operate and maintain that equipment (interrogatory no. 13). 
For the reasons that we explained in our prior summary judgment decisions, the absence of
any such evidence would preclude Eastco from prevailing in this appeal.  Accordingly, even
if we were to allow this appeal to proceed while barring introduction of evidence responsive
to GSA’s interrogatories, Eastco, without any evidence of actual damages, could not prevail. 
In light of those circumstances, there is no point in continuing with this litigation.
Discussion
For the foregoing reasons, GSA’s motion to dismiss is granted.  This appeal is
DISMISSED FOR FAILURE TO PROSECUTE.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
     Patricia J. Sheridan       Jonathan D. Zischkau    
PATRICIA J. SHERIDAN JONATHAN D. ZISCHKAU
Board Judge Board Judge