ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Tele-Consultants, Inc. Under ContractNo. 000000-00-0-0000
APPEARANCES FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No

. 58129

Thomas 0. Mason, Esq. Francis E. Purcell, Jr., Esq.

Cooley LLP Washington, DC Ronald J. Borro, Esq.

Navy ChiefTrial Attorney Ellen M. Evans, Esq.

Senior Trial Attorney OPINION BYADMINISTRATIVE JUDGE MELNICK ON APPELLANT'S MOTION TO DISMISS Tele-Consultants, Inc., (TCI) seeks dismissal ofits appeal without prejudice under BoardRule 30, claiming it lacks the resources to pursue the appeal and wishes to seek relieffrom Congress. The government opposes dismissal. We deny the motion. STATEMENT OF FACTS FORPURPOSES OF THE MOTION On 15 June 2010, the Department ofthe Navy awarded to Advanced Solutions for Tomorrow, Inc., (ASFT) ContractNo. N00178-04-D-4003-N408 for various technical tasks (compl., preamble, 

### ii 4). On 1October 2010, ASFT awarded a subcontract to TCI (compI. 

### ii 7). ASFT subsequently directed TCI to stop work afterthe 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 establishjurisdictionTCI had to prove ithad entered into an implied-in-fact contract with the government. Our4 February 2013 decision denied the government's motion. Tele-Consultants, Inc. , ASBCA No. 58129, 13 BCA

### ii 35,234. We held that, underEngage Learning , Inc. v. Salazar, 660 F.3d 1346, 1353-55 (Fed. Cir. 2011),a claimant only needs to allege the existence ofa contractwith the government to establish jurisdiction; it need not prove it. Proofofthe contract's formation and breach relates to the merits ofthe appeal. Recently, the government has moved for summaryjudgment, or in the alternative, to dismiss for failure to state a claim upon which reliefcan 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 summaryjudgment, and therefore is petitioning Congress for relief. Itcontends 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" ofour earlier decision denying its motion to dismiss the appeal for lack of jurisdiction. (Gov't opp'n at 1) Italso complains that it should notbe subjected to potentially three years ofpre-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 oftime that is sought by TCI. 1
DECISION Board Rule 30 addresses the suspension and dismissal ofappeals without prejudice. "Where the suspension has continued, or may continue, for an inordinate length oftime, the Board may, in its discretion, dismiss such appeals from its docket withoutprejudice to their restoration when the cause ofsuspension has been removed." Ifthe appeal is not reinstated within three years, the dismissal is deemed with prejudice. Here, TCI seeks a BoardRule 30 dismissal because it claims to lack the financial resources to continue litigating the appeal and wishes instead to pursue apetition for reliefin Congress. A BoardRule 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 obtainingrelieffrom Congress have progressed in any way orhave any chance at success. Thus, ithas failed to provide any

1The government's oppositionrequests the Chairman ofthe Board to "deny appellant's requestto withdraw this appeal withoutprejudice 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 SeniorDeciding Group will receive consideration upon completion oftheir briefing.

2reason to conclude that ifthe appeal is dismissed now TCI will not seek to reinstate it later, assuming TCI is financially able to do so. The governmentpersuasively observes that the passage oftime exposes it to more potential pre-judgment interest, risks dulling the memories ofits 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 ofrelief. 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 etal. , 97-2 BCA**~** 29, 104.
CONCLUSION
TCI's motion to dismiss without prejudice under BoardRule 30 is denied.
TCI has 30 days to respond to the government's motion for summaryjudgment or to dismiss for failure to state a claim.
Dated: 9 June 2014

I concur

# ~~**L_** Administrative Judge Acting Chairman Armed Services Board ofContract Appeals

3 MARK A. MELNICK Administrative Judge Armed Services Board ofContractAppeals
I concur

# RJC~EFORD Administrative Judge Vice Chairman Armed Services Board ofContract AppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 58129, Appeal ofTele-Consultants, Inc., rendered in conformance with the Board's Charter.
Dated:

4 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals