DISMISSED FOR LACK OF PROSECUTION: November 29, 1993 GSBCA 11908 NOTTER, FINEGOLD & ALEXANDER, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Frank Eisenhart, Deckert Price & Rhoads, Washington, DC, counsel for Appellant Finegold, Alexander & Associates, Inc.[foot #] 1 Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and WILLIAMS. WILLIAMS, Board Judge. On June 29, 1992, appellant filed this appeal of a contracting officer's final decision denying its claim for $683,499.10 for additional work. Respondent has moved to dismiss this appeal with prejudice for lack of prosecution. For the reasons stated below, we grant the motion. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Notter, Finegold & Alexander, Inc. changed its name to Finegold, Alexander & Associates, Inc. after filing this appeal. Jim Donald, Esq., Washington, DC, represented Setty & Associates, Ltd., appellant's subcontractor. ----------- FOOTNOTE ENDS ----------- Background The General Services Administration (GSA) awarded contract number GS11P89EGC0186 on February 28, 1990, to appellant Notter, Finegold & Alexander, Inc. (NFA) for architectural and engineering services for the renovation of the Veterans Affairs Building at 810 Vermont Avenue, N.W., Washington, DC. Appeal File, Exhibit 1. By letter dated November 17, 1991, appellant's subcontractor, Setty & Associates, Ltd. (Setty), through appellant, submitted its claim of $683,499.10 to the GSA contracting officer for an increase in the contract price resulting from alleged Government-directed changes to the scope of work. Appeal File, Exhibit 27. By letter dated March 31, 1992, the GSA contracting officer issued a final decision denying appellant's claim. Appeal File, Exhibit 28. By letter dated June 29, 1992, appellant filed with the Board its notice of appeal of the contracting officer's final decision. Appeal File, Exhibit 29. The Board docketed appellant's notice of appeal as GSBCA 11908 on June 30, 1992. Appeal File, Exhibit 30. On May 7, 1993, the Board orally granted a request by appellant's counsel to withdraw their appearance in this appeal. Conference Memorandum dated May 10, 1993. By order dated May 10, 1993, the Board stayed proceedings to enable appellant's subcontractor to work out representational issues. In several ensuing telephonic status conferences, the Board and the parties discussed the issue of whether prosecution of this appeal would continue. Conference Memoranda dated July 12, 1993; August 12, 1993; September 20, 1993; October 14, 1993. The named appellant Notter, Finegold & Alexander, Inc. has reorganized and changed its name to Finegold, Alexander & Associates, Inc. (Finegold/Alexander), and this entity is continuing with the contract work. Respondent's Motion to Dismiss for Lack of Prosecution, Exhibits A, B. In two of the telephonic conferences among the parties and this Board, counsel for Finegold/Alexander represented that Finegold/Alexander could not continue with this litigation. Conference Memoranda dated August 12, 1993; October 14, 1993. Finegold/Alexander indicated, however, that it was willing to allow its subcontractor, Setty, to continue with the litigation. Id. Appellant's subcontractor, Setty, indicated that it would like to continue with the prosecution of this appeal, but cannot do so because of a conflict of interest it has with appellant. Id.; Conference Memoranda dated July 12, 1993; September 20, 1993. The conflict involves an arbitration demand filed by Setty against appellant and others relating to issues in dispute in the subject appeal. Conference Memorandum dated September 20, 1993. In a telephonic conversation on November 4, 1993, between Setty's counsel and respondent's counsel, Setty agreed to consent to dismissal of the subject appeal with prejudice. Respondent's Memorandum of Points and Authorities in Support of Motion to Dismiss. The Board subsequently confirmed that Setty consents to this dismissal. Discussion Finegold/Alexander admitted in two telephonic conferences among the parties and this Board that it could not and would not continue with the prosecution of this appeal. Conference Memoranda dated August 12, 1993; October 14, 1993. Setty cannot prosecute the subject appeal because it is not a contractor under the Contract Disputes Act of 1978, 41 U.S.C. 601, 605. United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983). Even if Setty could legally prosecute this appeal for appellant, Setty decided that it would not do so due to a conflict of interest with appellant, and Setty has consented to respondent's motion to dismiss this appeal with prejudice. Conference Memoranda dated July 12, 1993; August 12, 1993; September 20, 1993; October 14, 1993. The conflict stems from Setty's arbitration demand against appellant and others relating to issues in dispute in the subject appeal. The subject appeal has been abandoned and is no longer being prosecuted by the party to the contract with GSA or by any other person or entity authorized by that party. Decision Respondent's motion to dismiss the subject appeal with prejudice for lack of prosecution is GRANTED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ _____________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge