ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Tele-Consultants, Inc. 

Under Contract No. 000000-00-0-0000 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58129 

Thomas 0. Mason, Esq. 

Francis E. Purcell, Jr., Esq. 

Cooley LLP 

Washington, DC 

Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Ellen M. Evans, Esq. 

Senior Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE MELNICK 

ON APPELLANT'S MOTION TO DISMISS 

Tele-Consultants, Inc., (TCI) seeks dismissal of its appeal without prejudice under 

Board Rule 30, claiming it lacks the resources to pursue the appeal and wishes to seek 

relief from Congress. The government opposes dismissal. We deny the motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

On 15 June 2010, the Department of the Navy awarded to Advanced Solutions for 

Tomorrow, Inc., (ASFT) Contract No. N00178-04-D-4003-N408 for various technical 

tasks (compl., preamble, ii 4). On 1 October 2010, ASFT awarded a subcontract to TCI 

(comp I. ii 7). ASFT subsequently directed TCI to stop work after the Navy suspended 

ASFT's performance (compl. ii 8). TCI ultimately submitted a certified claim to the 

contracting officer on 19 December 2011 for $282,302, which was denied on 15 February 

2012 (compl. ii 17). TCI appealed to the Board on 11 May 2012. Originally, TCI's 

complaint contended that ASFT acted as a purchasing agent to bind the government to 

TCI. Later, TCI argued it had entered its own implied-in-fact contract with the 

government. 

In response to TCI' s appeal, the government moved to dismiss for lack of 

jurisdiction, contending that to establish jurisdiction TCI had to prove it had entered into an 

implied-in-fact contract with the government. Our 4 February 2013 decision denied the 

government's motion. Tele-Consultants, Inc. , ASBCA No. 58129, 13 BCA ii 35,234. We 

held that, under Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353-55 (Fed. Cir. 2011), 
a claimant only needs to allege the existence of a contract with the government to establish 

jurisdiction; it need not prove it. Proof of the contract's formation and breach relates to the 

merits of the appeal. 

Recently, the government has moved for summary judgment, or in the alternative, 

to dismiss for failure to state a claim upon which relief can be granted. TCI has 

responded to that motion with one to dismiss without prejudice under Board Rule 30. It 

maintains it has insufficient resources to continue with the appeal, which it says is now 

made worse by the need to respond to the government's motion for summary judgment, 

and therefore is petitioning Congress for relief. It contends its resources are most 

efficiently directed right now outside this forum. 

The government opposes TCI's motion. It claims it is entitled to "clarification" or 

"modification" of our earlier decision denying its motion to dismiss the appeal for lack of 

jurisdiction. (Gov't opp'n at 1) It also complains that it should not be subjected to 

potentially three years of pre-judgment interest due to delays caused entirely by TCI 

(gov't opp'n at 5, 6). Finally, it stresses that it is ready and able to defend the appeal now 

and that it should not have to face the risks associated with the passage of time that is 

sought by TCI. 1 

DECISION 

Board Rule 30 addresses the suspension and dismissal of appeals without 

prejudice. "Where the suspension has continued, or may continue, for an inordinate 

length of time, the Board may, in its discretion, dismiss such appeals from its docket 

without prejudice to their restoration when the cause of suspension has been removed." 

If the appeal is not reinstated within three years, the dismissal is deemed with prejudice. 

Here, TCI seeks a Board Rule 30 dismissal because it claims to lack the financial 

resources to continue litigating the appeal and wishes instead to pursue a petition for 

relief in Congress. A Board Rule 30 dismissal is discretionary upon the Board. 

Gov't Technical Servs., LLC, ASBCA No. 57744, 13 BCA if 35,345. TCI has not 

presented any evidence showing that its efforts at obtaining relief from Congress have 

progressed in any way or have any chance at success. Thus, it has failed to provide any 

1 The government's opposition requests the Chairman of the Board to "deny appellant's 

request to withdraw this appeal without prejudice and refer this case for a decision 

on its pending dispositive motions by the Senior Deciding Group" (gov't opp'n 

at 2). Nothing in the Board's rules contemplates the Chairman acting personally 

on an appellant's Board Rule 30 motion to dismiss. Accordingly, it is being 

decided by this panel. The government's request that its dispositive motions be 

ruled upon by the Senior Deciding Group will receive consideration upon 

completion of their briefing. 

2 
reason to conclude that if the appeal is dismissed now TCI will not seek to reinstate it 

later, assuming TCI is financially able to do so. The government persuasively observes 

that the passage of time exposes it to more potential pre-judgment interest, risks dulling 

the memories of its witnesses, and increases the chances they will become unavailable. 

TCI chose to file this appeal and must either timely litigate it or become subject to 

dismissal for failure to prosecute. It does not have the right to require the government to 

wait while it pursues other avenues of relief. Nor is the fact that the appeal presents a 

litigation expense a basis for a Board Rule 30 dismissal. E. Huttenbauer & Son, Inc., 

ASBCA No. 48290 et al. , 97-2 BCA ~ 29,104. 

CONCLUSION 

TCI's motion to dismiss without prejudice under Board Rule 30 is denied. 

TCI has 30 days to respond to the government's motion for summary judgment or 

to dismiss for failure to state a claim. 

Dated: 9 June 2014 

I concur 

~~L_ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

3 

MARK A. MELNICK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

Administrative 

RJC~EFORD 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. 58129, Appeal of Tele-Consultants, Inc., 

rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals