The contractor in this case missed deadlines, failed to respond to an order to show cause, and didn’t respond to the government’s brief. The government argued the board should dismiss for failure to prosecute. But the board declined to dismiss, essentially finding that the contractor had been the victim of an extraordinary run of bad luck.
Appeal of Forney Enterprises, Inc., ASBCA No. 62005
Forney Enterprises filed an appeal of a contracting officer’s decision with the ASBCA. Over the next year, Forney didn’t comply with order to confer on scheduling, failed to respond to an order to show cause, failed to respond to the government’s brief, and failed to maintain adequate representation through the appeal. As a result, the government moved to dismiss Forney’s appeal for failure to prosecute.
After missing in action for over a year, Foreny reappeared in the case with new counsel, opposing dismissal. Forney alleged that it had encountered a “perfect storm” of obstacles that had prevented it from prosecuting the case. Amonther other things, Forney had financial problems, had been abandoned by its counsel, its principal was incarcerated and also became ill with COVID-19.
The board, reasoning that dismissal was a harsh remedy, accepted Foreny’s excuses. It appeared to the board that the failure to prosecute was not due to bad faith or contumaciousness, Rather, it was due to a myriad of factors outside of the contractor’s control.
Forney is represented by Daryle A. Jordan of Jordan Guydon LLP. The government is represented by John S. Albanese, Elizabeth E. Urrutia, Stephen Piel, and Michael G. Anderson of the Department of Defense.
