ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Al Nawars Company ) ) Under ContractNo. W917BE-06-C-0052 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FOR THE GOVERNMENT: ASBCA No. 59044



### Mr. Buraier Yassen

Owner
Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney James D. Stephens, Esq. Robert J. McKenney, Esq.

Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA

OPINION BYADMINISTRATIVE JUDGE O'SULLIVAN DISMISSING WITH PREJUDICE FOR FAILURE TO PROSECUTE

This appeal arises from a contract awarded to appellant by a United States Army Corps ofEngineers contracting officer for the paving ofa section ofroad in the Iraqi Governorate ofNineveh (R4, tab 3 at 1-5of34). The contract incorporated by reference the standard Disputes clause, FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNATE I (DEC 1991) (R4, tab 3 at 8 of34). 1 As discussed in our earlier decision denying the government's motion to dismiss the appeal for lack of jurisdictionpursuant to the Contract Disputes Act (CDA) six-year statute oflimitations, the government terminated the contract for default; appellant subsequently submitted a monetary claim; and, upon denial ofthe claim, appellant timely appealed to the Board. 

### See AlNawars Co., ASBCA Nos. 59043, 59044, 15-1BCAil35,955. By Order dated 29 January 2015, the Board directed the government to state its views as to whether the contract had been issued pursuant to the Commanders' Emergency Response Program (CERP), or was a procurement contract under the CDA. The government responded, by letter dated 27 March 2015, with its view that the contract was a CERP agreement. By Order dated 9 April 2015, the Board then directed the parties

1The Disputes clause states that a "Contracting Officer's decision shall be final unless the Contractor appeals

...as provided in the [CDA]." FAR 52.233-l(f). The CDA provides that "[a] contractor, within 90 days from the date ofreceipt ofa contracting officer's decision

...may appeal the decision to an agency board." 41 U.S.C. § 7104(a).

### to provide their views on the impact, ifany, ofthe Board's opinion in

### Latifi Shagiwall Constr. Co., ASBCA No. 58872, 15-1BCA,35,937, on the Board'sjurisdiction to adjudicate the appeal. In

### Latifi, the Boardheld that itlackedjurisdiction over an appeal involving a CERP contract without anyprovision authorizing an appeal to the Board. The government responded to the Board's 9 April 2015 Order and tookthe position that the contract was a procurement contract and that the Boardtherefore hadjurisdiction underthe CDA. Appellant did not respond to the Order.
The contract in this appeal has a Disputes clause that contemplates an appeal to the Board. We have previously found that such a clause mayprovide an independent basis for ourjurisdiction under the Board's Charter. 

### See, e.g., Latifi, 15-1 BCA,35,937 at 175,634; 

### PatriotPride Jewelry, LLC, ASBCA No. 58953, 14-1BCA,35,624 at 174,478 (clause granted the Board authority to adjudicate "all disputes arising under orrelating to" the parties' agreement). Forpurposes ofthis decision, it is unnecessary for us to determine whether ourjurisdictionto adjudicate the appeal derives from the CDA orthe Board's Charter. Despite numerous attempts to elicitresponses from appellant, the Boardhas received no correspondence from appellant in this appeal since 21April2015. By motion dated 9 November 2015, the government requested the Boardto issue an order directing appellant to show cause whythis appeal should notbe dismissed with prejudice for failure to prosecute pursuant to Board Rule 17. In support ofits motion, the government alleged that appellant had not responded to the government's communication attempts since 20 April 2015. ByOrder dated 17 November 2015, appellant was ordered to show cause no laterthan 17 December2015 whythe appeal should not be dismissed with prejudice for failure to prosecute. The Board's 17 November2015 Show Cause Order was transmitted to two email addresses, both ofwhich appellant had used previously to communicate with the Board. The Board has received no response from appellant. Accordingly, this appeal is dismissed with prejudice under Board Rule 17.
Dated: 19 January 2016

(Signatures continued)

2 

### Administrative Judge Armed Services Board ofContract AppealsI concur

# ~*----**MIOO<N.STEMPLE~** Administrative Judge Acting Chairman Armed Services Board ofContract Appeals I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Order ofDismissal ofthe Armed Services Board ofContract Appeals in ASBCA No. 59044, Appeal ofAl Nawars Company, rendered in conformance with the Board's Charter.

Dated:

3 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals