ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Al Nawars Company ) 

) 

Under Contract No. W917BE-06-C-0052 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59044 

Mr. Buraier Yassen 

Owner 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

James D. Stephens, Esq. 

Robert J. McKenney, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

OPINION BY ADMINISTRATIVE 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 of Engineers contracting officer for the paving of a section of road in the Iraqi 

Governorate of Nineveh (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 of 34 ). 1 As discussed in our earlier decision denying the 

government's motion to dismiss the appeal for lack of jurisdiction pursuant to the 

Contract Disputes Act (CDA) six-year statute of limitations, the government terminated 

the contract for default; appellant subsequently submitted a monetary claim; and, upon 

denial of the claim, appellant timely appealed to the Board. See Al Nawars 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 

1 The 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 of receipt of a 

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, if any, of the Board's opinion in Latifi Shagiwall 

Constr. Co., ASBCA No. 58872, 15-1BCA,35,937, on the Board's jurisdiction to 

adjudicate the appeal. In Latifi, the Board held that it lacked jurisdiction over an appeal 

involving a CERP contract without any provision authorizing an appeal to the Board. 

The government responded to the Board's 9 April 2015 Order and took the position that 

the contract was a procurement contract and that the Board therefore had jurisdiction 

under the 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 may provide an independent basis 

for our jurisdiction under the Board's Charter. See, e.g., Latifi, 15-1 BCA, 35,937 at 

175,634; Patriot Pride Jewelry, LLC, ASBCA No. 58953, 14-1BCA,35,624 at 174,478 

(clause granted the Board authority to adjudicate "all disputes arising under or relating 

to" the parties' agreement). For purposes of this decision, it is unnecessary for us to 

determine whether our jurisdiction to adjudicate the appeal derives from the CDA or the 

Board's Charter. 

Despite numerous attempts to elicit responses from appellant, the Board has 

received no correspondence from appellant in this appeal since 21April2015. By 

motion dated 9 November 2015, the government requested the Board to issue an order 

directing appellant to show cause why this appeal should not be dismissed with prejudice 

for failure to prosecute pursuant to Board Rule 17. In support of its motion, the 

government alleged that appellant had not responded to the government's communication 

attempts since 20 April 2015. By Order dated 17 November 2015, appellant was ordered 

to show cause no later than 17 December 2015 why the appeal should not be dismissed 

with prejudice for failure to prosecute. The Board's 17 November 2015 Show Cause 

Order was transmitted to two email addresses, both of which 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 

of Contract Appeals 
I concur 

MIOO<N.STEMPLE~ ~*---- Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Order of Dismissal of the Armed 

Services Board of Contract Appeals in ASBCA No. 59044, Appeal of Al Nawars 

Company, rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals