Appeal of denied claim is dismissed for failure to prosecute. The contractor appealed a claim for constructive change. As part of the appeal, the government served interrogatories on the contractor. The contractor requested multiple extensions of time to respond to the discovery requests but missed every deadline. The board had enough; it dismissed the case, finding that the contractor had more than enough time to respond to the interrogatories.
Eastco Building Services had a contract with GSA for operations and maintenance services for federal buildings. Eastco submitted a claim alleging a constructive change. Specifically, the company contended that GSA had failed to identify equipment in the building that would be maintained. GSA denied the claim. Eastco appealed to the CBCA.
As part of the appeal, GSA served written interrogatories on Eastco. The interrogatories asked Easto to, among other things, describe its damages, its mitigation efforts, and identify the equipment it claimed was missing from inventory lists.
For the next few months Eastco requested and was granted extensions to respond. The board had set a third deadline for September 2021. That deadline passed. Eastco asked for another extension, which the board granted, setting a new deadline in November 2021. Eastco failed to meet that deadline. GSA moved to dismiss for failure to prosecute.
The board granted the motion to dismiss. Eastco had nine months to respond to the discovery requests. It never claimed the interrogatories were objectionable or burdensome. The board granted multiple extensions to no avail. Indeed, other than claiming delay due to the COVID-19 pandemic, Eastco had not provided any explanation of the efforts it made to respond to the interrogatories.
As an alternative to dismissal, Eastco asked the board to impose evidentiary sanctions by drawing adverse inferences. But the board found that this wouldn’t change the outcome. If the board drew adverse inferences from the unanswered discovery requests, then there was no way Eastco could prevail in the appeal. Indeed, the company would not even be able to prove damages.
Eastco is represented by William Weisberg of the Law Office of William Weisberg PLLC. The government is represented by Brett A. Pisciotta and Kristi Singleton of GSA.
