ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of

-- ) ) Al Nawars Company ) ) Under Contract No. W9l7BE-06-C-OO18 )

APPEARANCE FOR THE APPELLANT:

APPEARANCES FOR THE GOVERNMENT: ASBCA No. 59043

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 a series ofvalve/pipe hardening projects inthe Iraqi Govemorate ofNineveh (R4, tab 4 at 1-4). The contract incorporatedbyreference the standard Disputes clause, FAR 52.233-1, DISPUTES {JUL 2002)-ALTERNATE I (DEC 1991) (R4, tab 4 at 10). 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. SeeAlNawars Co., ASBCA Nos. 59043, 59044, 15-1BCAif35,955.

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, byletter 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 ofreceipt ofa contracting officer's decision

...may appeal the decision to an agencyboard." 41 U.S.C. 

### § 7104(a).to provide their views on the impact, ifany, ofthe Board's opinion inLatifi Shagiwall Constr. Co., ASBCA No. 58872,**15-1BCA~35,937,** onthe Board'sjurisdiction to adjudicate the appeal. InLatifi, the Boardheld that it lackedjurisdiction 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 tookthe position that the contract was a procurement contract and that the Boardtherefore hadjurisdiction under the CDA. Appellant did notrespond 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 ourjurisdictionunderthe Board's Charter. See, e.g., Latiji,**15-1BCA~35,937** at 175,634; PatriotPride Jewelry, LLC, ASBCA No. 58953, 14-1 BCA**~** 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 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 whythis appeal should notbe dismissed withprejudice 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 later than 17 December 2015 whythe 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 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

# ~~--- MARK N. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContract Appeals RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certifythat the foregoing is a true copy ofthe OrderofDismissal ofthe Armed Services Board ofContract Appeals inASBCA No. 59043, Appeal ofAl Nawars Company, rendered in conformance with the Board's Charter.

Dated:



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