BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
ROSEMARK ) Docket No. GPO BCA 30-90
Jacket No. 776-611 )
Purchase Order T-8306 )
DECISION AND ORDER DISMISSING APPEAL
By letter dated August 24, 1990, Rosemark (Appellant or
Contractor), 111 W. 12th Street, Oak Grove, Missouri 64075,
filed an appeal with the Board from the July 23, 1990, final
decision of an unnamed Contracting Officer of the U.S.
Government Printing Office's (Respondent or GPO), Denver
Regional Printing Procurement Office, Building 53, Room
D-1010, Denver Federal Center, Denver, Colorado 80225-0347,
partially terminating its contract, identified as Jacket No.
776-611, Purchase Order M-9379. GPO Instruction 110;12,
Subject: Board of Contract Appeals Rules of Practice and
Procedure, dated September 17, 1984, Rules 1(a), 2 (Board
Rules). The Board received and docketed the appeal on August
30, 1990. Board Rules, Rule 3. However, the Board was unable
to issue its customary docketing letter because the Appellant
had referenced the wrong Jacket Number and GPO Regional
facility in its appeal letter.
On September 6, 1990, Counsel for GPO informed the Contractor
of its error. As a consequence, by letter dated September 6,
1990, the Appellant asked the Board to disregard its earlier
appeal letter, and changed its challenge instead to the
default termination decision of July 23, 1990, issued by an
unnamed Contracting Officer in the Respondent's Charleston
Satellite Printing Procurement Office, 334 Meeting Street, L.
Mendel Rivers Federal Building, Room 122, Charleston, South
Carolina 29403-6417, for Jacket No. 776-611, Purchase Order
T-8306. However, because the Contractor still referred to the
incorrect Jacket Number-Jacket No. 776-611-this second letter
also failed to meet the requirements of a proper notice of
appeal under the Board Rules.1 Board Rules, Rule 2.
Accordingly, on September 18, 1990, Counsel for GPO telephoned
the Appellant once again and advised it that its appeal
continued to cite the wrong Jacket Number.
The Contractor has never responded to the Respondent's second
telephone call, and has not corrected the misinformation in
its appeal letter. Furthermore, there is no indication in the
record that the Appellant has furnished a copy of its appeal
letter to the Contracting Officer who terminated the contract.
Therefore, as of this date, the Appellant has not filed a
proper notice of appeal under the Board Rules. Board Rules,
Rules 1(a) and 2.
On August 3, 1992, after nearly two years had elapsed without
a response from the Contractor, Counsel for GPO filed
Respondent's Motion to Dismiss (Motion) with Board seeking
dismissal of this case on the ground that the Appellant had
abandoned its appeal. A copy of the Motion was also served on
the Contractor by regular mail that same day. Board Rules, Rule
16. Therefore, on September 2, 1992, the Board, exercising its
authority under Rule 31 of the Board Rules, issued a Rule To Show
Cause Why Appeal Should Not Be Dismissed For Failure To Prosecute
(Rule to Show Cause).2 Board Rules, Rule 31. The Rule to Show
Cause was sent by certified mailed to the Appellant at its
address of record:
Mr. Mark E. Hall
Rosemark
111 W. 12th Street
Oak Grove, Missouri 64075
However, the Rule to Show Cause was returned to the Board by the
United States Postal Service (USPS) as unclaimed. The Board's
subsequent attempt to ascertain a correct address from the
Appellant by calling the two telephone numbers on its
letterhead-(816) 625-4433 and 1-800-248-9388 (toll free)-was
equally unsuccessful, because they were no longer in service.
Subsequently, Counsel for GPO informed the Board that the last
known address for the Appellant indicated in his records was:
Rosemark
601 James Rocco Court
Grain Valley, Missouri 64029
Accordingly, the Board sent the Rule to Show Cause by certified
mailed to the Appellant at that address, but it, too, was
returned to the Board by the USPS as unclaimed.
The Board has indicated that Rule 31 allows it to dismiss an
appeal whenever the record discloses, inter alia, that a party
has: (1) failed to file documents required by the rules; (2)
respond to the Board's notices or correspondence; or (3)
otherwise indicates an intention not to continue the orderly
prosecution or defense of an appeal.3 Board Rules, Rule 31.
Based on the foregoing facts, it is clear to the Board that
dismissal is justified in this case on one or more of those
grounds. That is, the Board believes that the record in this
appeal amply demonstrates that the Appellant, has disregarded
the Board's rules and directives, and has indicated an
intention not to continue the orderly prosecution of its
appeal; i.e., simply stated, the Appellant has made no
meaningful effort to prosecute the case. Bedrock Printing
Company, GPO BCA 05-91 (April 10, 1992), Sl. op. at 5-6
(citing, David M. Noe, AGBCA No. 88-155-1, 89-1 BCA � 21,560;
Leonard V. West, PSBCA No. 1443, 86-3 BCA � 19,060).4 Indeed,
the Board finds the Appellant's failure to advise the Board of
its current address particularly persuasive in reaching the
conclusion that the Appellant has abandoned its appeal.
Bedrock Printing Company, supra, Sl. op. at 6 (citing, Rodger
Roose, AGBCA No. 85-231-1, 86-1 BCA � 18,566; Leonard V. West,
supra, 86-3 BCA � 19,060). As the Board explained in Bedrock
Printing Company:
Inherent in the Appellant's responsibilities under the
Board Rules, was the simple duty to keep the Board apprised
of any new address so that the Board can contact it. The
Board had no obligation under its rules to undertake
extensive efforts to trace and locate the Appellant in
order to communicate with it.
Id., Sl. op. at 6.
The Appellant's last contact with the Board was nearly a four
years ago; i.e., its letter dated September 6, 1990. Since
then, the Board has made two attempts to serve the Rule to
Show Cause on the Contractor by certified mail, sent first to
the address of record and next to the address in Counsel for
GPO's files. In each instance, the Board was unsuccessful and
the Rule to Show Cause was returned to the Board by the USPS,
as unclaimed. As the Board made clear under similar
circumstances in Bedrock Printing Company, any contractor who
is interested in pursuing an appeal would, at a minimum, keep
the Board apprised of any new address, instead of leaving it
in the dark concerning his/her whereabouts. Id., Sl. op. at
7, fn. 6. The Appellant has not done so, and the Board's
attempts to locate it by means of the USPS mail system have
been unavailing because no delivery could be made. On these
facts, it is clear to the Board that the Appellant has
frustrated the orderly prosecution of its own appeal.
The Board has an ever-increasing work load. Consequently, it
is not in a position, and is unwilling any longer, to expend
its limited resources on continued efforts to locate the
Appellant, particularly since it has no assurance that the
contractor remains interested in the outcome of the appeal.
Under Rule 31 of the Board Rules, an appellant who has
disregarded the Board's rules and directives, and otherwise
indicates an intention not to continue the orderly prosecution
or defense of its appeal, is subject to having the Board
dismiss the case for failure to prosecute after the appellant
is given an opportunity to show cause why the appeal should
not be dismissed. Here, the Appellant's failure to notify the
Board of its current address is clear evidence of its
"intention not to continue the orderly prosecution . . . of
[its] appeal." Bedrock Printing Company, supra, Sl. op. at 7.
The Board has attempted to give the Appellant an opportunity
under Rule 31 of the Board Rules to show cause why its appeal
should not be dismissed for failure to prosecute. Through no
fault of the Board's, the Appellant has not responded to the
Rule to Show Cause in this case. Consequently, the Appellant
has not made a showing that the appeal should not be dismissed
for failure to prosecute. THEREFORE, the Respondent's Motion
is GRANTED, the appeal is DISMISSED with prejudice for failure
to prosecute, and the case is closed. Bedrock Printing
Company, supra, Sl. op. at 8.
It is so Ordered.
April 22, 1994 STUART M. FOSS
Administrative Judge
_______________
1 Rule 2 states, in pertinent part: "A notice of appeal
should indicate that an appeal is being taken, and should
identify the contract (by number), the decision from which
the appeal is taken, and the amount in dispute, if known. . .
". [Emphasis added.]
2 Rule 31 states, in pertinent part, that the Board may
dismiss an appeal: "[w]henever a record discloses the failure
of either party to file documents required by these rules,
respond to notices or correspondence from the Board, comply
with an order of the Board, or otherwise indicated an
intention not to continue the orderly prosecution or defense
of an appeal, . . .".
3 Note 2 supra.
4 In Leonard V. West the USPS Board of Contract Appeals
(PSBCA) dismissed a contractor's appeal with prejudice for
failure to prosecute under facts similar to this case,
including the failure of the appellant to provide the PSBCA
with a current address. 86-3 BCA � 19,060, at 96,264.