Phoenix Hawk Construction Company

• Court: Armed Services Board of Contract Appeals
• Decided: December 10, 2020
• Docket: ASBCA No. 60987
• Status: Published

Opinion

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- ) ) Phoenix Hawk Construction Company ) ASBCA No. 60987 ) Under Contract No. W56JSL-12-P-2162 )

APPEARANCE FOR THE APPELLANT: Mr. Aghasherin Ahmady President and CEO

APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney Dana J. Chase, Esq. Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE TIMOTHY P. MCILMAIL

On June 4, 2020, the government filed a notice of its affirmative defenses in this appeal, in which it included that the appeal was untimely under 41 U.S.C. § 7104(a), which requires that a contractor must file a notice of appeal with the Board within 90 days from the receipt of a contracting officer’s final decision. On June 8, 2020, the Board ordered that, no later than June 26, 2020, appellant respond to the government’s June 4, 2020 suggestion of no jurisdiction. Appellant never filed any such response. On July 27, 2020, the government requested that the Board dismiss the appeal for failure to prosecute. On July 29, 2020, the Board ordered that, no later than August 7, 2020, appellant (1) respond to the government’s June 4, 2020 suggestion of no jurisdiction; (2) respond to the government’s July 27, 2020 motion to dismiss for failure to prosecute; and (3) show cause why the appeal should not be dismissed for failure to comply with the Board’s June 8, 2020 order. Again, appellant never responded. Appellant has deliberately ignored the Board’s orders, and has given no consideration to the Board’s attempts to efficiently process the appeal. Accordingly, the appeal is dismissed with prejudice for failure to prosecute the appeal or comply with Board orders under Board Rule 17. See Courtney Ake, ASBCA No. 61610, 2018 WL 6578658 (Nov. 26, 2018) (citing cases).

Dated: December 10, 2020

TIMOTHY P. MCILMAIL Administrative Judge Armed Services Board of Contract Appeals (Signatures continued) I concur I concur

RICHARD SHACKLEFORD OWEN C. WILSON Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 60987, Appeal of Phoenix Hawk Construction Company, rendered in conformance with the Board’s Charter.

PAULLA K. GATES-LEWIS Recorder, Armed Services Board of Contract Appeals