Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________________________________ MOTION FOR SUMMARY RELIEF DENIED; MOTION FOR SANCTIONS GRANTED: August 19, 1998 _________________________________________________ GSBCA 14136 ROWE INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stanley V. Campbell, Jr., President of Rowe Inc., Fairfax Station, VA, appearing for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and DeGRAFF. DeGRAFF, Board Judge. Pending is respondent's motion to dismiss the appeal for failure to prosecute or, in the alternative, motion for sanctions. For the reasons set out below, we deny the motion to dismiss and grant the motion for sanctions. Also as set out below, we schedule this case for a hearing. Background On April 19, 1996, the General Services Administration (GSA) awarded a contract to Rowe Inc. (Rowe). According to the terms of the contract, Rowe was supposed to deliver 219 passenger vans within 180 days after receipt of orders from GSA. On December 20, 1996, GSA terminated Rowe's right to perform the contract, because Rowe did not deliver the vans within the required time. On March 19, 1997, Rowe filed this appeal challenging the termination. At that time, Rowe was represented by counsel. The Board authorized the parties to begin discovery and to complete their discovery by March 30, 1998, the date requested by Rowe. GSA served Rowe with a set of discovery requests (interrogatories, requests for admission, and requests for production) in June 1997. Rowe served its responses to those requests in August 1997. In February 1998, Rowe's counsel withdrew from the case and informed us that Mr. Stanley Campbell, Rowe's president, would be appearing for Rowe. We sent Mr. Campbell a copy of our order that established March 30, 1998, as the date for completing discovery. On March 26, GSA filed a motion to compel responses to certain of the interrogatories that it had served upon Rowe in June 1997. Rowe did not respond to the motion to compel within the time permitted by the Board's rules. GSA also served Rowe with a second set of discovery requests (interrogatories, requests for admission, and requests for production) in February 1998. On April 13, 1998, having received no responses from Rowe, GSA filed a motion to compel responses to its second set of discovery requests. On April 17, 1998, the Board ordered Rowe to respond to both of GSA's motions to compel by May 4, 1998. On May 4, 1998, Rowe provided what it said were amended responses to GSA's discovery requests. On June 16, 1998, GSA filed a reply to Rowe's May 4 response to the motions to compel. In its reply, GSA contended that Rowe did not provide adequate responses either to GSA's first set of interrogatories or to GSA's second set of requests for admission. GSA asked that the Board either grant the motions to compel or impose appropriate sanctions for Rowe's failure to respond to GSA's discovery requests. On June 19, 1998, the Board granted GSA's March 26 and April 13, 1998 motions to compel and denied GSA's motion for sanctions. In ruling on the motions to compel, we reviewed in detail each of GSA's discovery requests and Rowe's responses to each request, and we explained why the responses were deficient. For example, Rowe alleges that GSA made several oral modifications to the contract, delayed Rowe's progress, issued stop work orders, accelerated Rowe's performance, made changes to the contract's requirements, and gave inconsistent directions to Rowe. GSA's discovery requests asked Rowe to provide information concerning each of these allegations, such as the contents of any oral contract modification and the name of the person who made the modification. In our June 19 ruling, we explained that Rowe's response provided sparse information concerning the contents of any oral modification and gave only a vague idea of the subject of the modification. In addition, Rowe's response provided some information concerning some of the people who made some of the modifications. Rowe's responses to GSA's discovery requests concerning delays, stop work orders, acceleration, changes, and inconsistent directions were even less complete than its response to the request concerning oral contract modifications. We said in the June 19 ruling, "By granting GSA's motions to compel and allowing Rowe to provide amended responses, the Board is giving Rowe one final opportunity to comply with the Board's discovery rules and to provide appropriate responses to GSA's discovery requests." We stated that, if the amended responses were deficient, GSA could renew its motion for sanctions and we listed the types of sanctions available under Rule 118. We also stated, "If Rowe wants to avoid sanctions that could seriously impair its ability to pursue its case, then it must provide complete, clear, good faith responses to GSA's discovery requests." We allowed Rowe until July 20, 1998, to provide amended responses to GSA's discovery requests, and we told Rowe that if it needed additional time to provide responses, it should request that the Board extend that date. Rowe did not provide amended discovery responses by July 20, 1998, and did not ask for any additional time to provide responses. On July 22, GSA filed a motion to dismiss the appeal for failure to prosecute or, in the alternative, motion for sanctions. On July 23, we directed Rowe to respond to GSA's motion by August 11, 1998. Rowe filed its response to GSA's motion on August 11, 1998. Rowe points out that it submitted responses to GSA's discovery requests. Regarding those responses, Rowe says that the Board "confirm[ed] that a majority of the information had been provided, however lacking in form or broadened explanation." Rowe goes on to say that the only information GSA lacks is the complete name and address of one individual and some unidentified documents. Appellant's Response at 2. Rowe says that the Board has previously acknowledged that GSA's discovery requests were unduly burdensome and so has granted Rowe enlargements of time to respond to the requests. Appellant's Response at 1, 3, 4. Rowe says that most of the information requested by GSA is already in GSA's possession. Appellant's Response at 2, 3. Rowe also says that GSA "has not made one timely submission in this case." Appellant's Response at 1. Rowe also suggests that, if a sanction is warranted, an appropriate sanction would be to suspend proceedings in this appeal until discovery is completed. Rowe suggests that it be given an additional thirty days to respond to GSA's discovery requests. Appellant's Response at 2, 3. Finally, Rowe asks that it be given thirty days to serve GSA with additional discovery requests. Appellant's Response at 5. Discussion We agree with Rowe concerning the propriety of dismissing this appeal. Dismissal for failure to prosecute is one of the harshest actions we can take and, as a result, it is an option we use sparingly and only when the evidence presented in support of the motion is especially convincing. Property Maintenance Corp. v. Department of the Treasury, GSBCA 12445-TD, 94-2 BCA 26,675. Rowe has not neglected this appeal. It filed a complaint, a supplemental appeal file, a required status report concerning the discovery schedule, and objections to some of GSA's discovery requests. It also served GSA with discovery requests and made some attempt to respond to GSA's discovery requests. Rowe's actions do not merit dismissal for failure to prosecute, and so we deny GSA's motion to dismiss for failure to prosecute. We agree with GSA concerning the imposition of sanctions. Contrary to Rowe's statements, we never confirmed that Rowe provided GSA with the information that it requested. Further, as our June 19, 1998 ruling upon GSA's motion to compel makes clear, it is simply not true that the only information GSA lacks is the complete name and address of one individual and some unidentified documents, that the Board has acknowledged that GSA's discovery requests were unduly burdensome, or that most of the information requested by GSA is already in GSA's possession. It is also untrue that GSA has failed to make any timely submissions in this case. We see nothing to be gained by giving Rowe yet another opportunity to respond to GSA's discovery requests. Rowe's initial response was insufficient, as was its supplemental response, and Rowe did not take advantage of the opportunity -- which the Board's June 19, 1998 ruling called Rowe's "final" opportunity -- to provide a second supplemental response by July 20, 1998. Rowe has given us no reason for its continued failure to provide adequate responses and we have no reason to believe that either suspending proceedings or giving Rowe another thirty days to provide another response would serve any useful purpose. We also see no reason to grant Rowe's request to conduct additional discovery. The parties had one year after this case was filed to complete their discovery. Rowe served discovery requests and GSA responded to those requests. The time for completing service of discovery requests expired more than five months ago. Rowe provides no justification for re-opening discovery at this time and we will not do so. We grant GSA's motion for sanctions. Rowe did not respond to GSA's February 13, 1998 discovery requests. Rowe did not respond to GSA's March 26, 1998 motion to compel within the time permitted by the Board's rules. The Board's April 17, 1998 order told Rowe to respond to the motion to compel. Rowe responded by supplying amended discovery responses that were clearly insufficient, and so the Board granted GSA's motion to compel on June 19, 1998. The June 19 ruling ordered Rowe to respond to GSA's discovery requests by July 20, 1998, and to request additional time if more time was needed to prepare a response. The June 19 ruling also explained the range of sanctions available to the Board and stated that the Board was providing Rowe with one final opportunity to comply with the Board's discovery rules and to provide appropriate responses to GSA's discovery requests. Rowe did not respond to GSA's discovery requests and did not request any additional time to prepare a response until August 11, 1998 -- three weeks after the response was due and, even then, only in response to GSA's motion to dismiss. Such a persistent failure to cooperate in discovery, to comply with the rules of the Board, and to comply with the Board's orders constitutes conduct that warrants the imposition of sanctions. Rules 115(g), 118. GSA suggests three types of sanctions. First, GSA suggests that we prohibit Rowe from introducing any evidence of oral modifications, delay, stop work orders, acceleration, changes, and inconsistent directions. We will not impose this sanction because it would be difficult to enforce, and would most likely cause numerous, time-consuming arguments concerning each sentence of testimony that Rowe might seek to introduce at a hearing and each document that Rowe might seek to place in the appeal file. The second type of sanction suggested by GSA is that we deem Rowe to have admitted certain facts, based upon Rowe's lack of a response to some of GSA's interrogatories. For example, one of GSA's interrogatories asked Rowe to identify the number of employees that Rowe had working on the GSA contract. As a sanction for failing to provide an adequate response to this question, GSA asks that we deem Rowe to have admitted that its failure to perform was due to inadequate staffing. Rowe's deficient responses do not inevitably lead to the conclusions that GSA asks us to reach, and so we will not impose a sanction that requires us to use such conclusions as part of the basis for our decision on the merits. Third, GSA suggests that we deem that Rowe has admitted certain facts, based upon Rowe's lack of a response to GSA's requests for admission. GSA's first request for admission reads: "The GSA contract awarded to Rowe, GS-30F-96150, was awarded following Rowe's offer in response to Solicitation No. FCAP-G5- 38096-SN." Even though, according to Rowe's complaint, it was awarded this contract, Rowe responded to GSA's request as follows: "Objection. The statement is ambiguous, vague, and unintelligible. Notwithstanding the objection, statement is Denied. Rowe submits numerous offers to the government. Many offers are rejected by the agency following submission, as was this one by the General Services Administration." Rowe's response to GSA's first request for admission is typical of its response to all of GSA's requests for admission. In ruling upon GSA's motion to compel, the Board told Rowe that its responses were inadequate. As permitted by Federal Rule of Civil Procedure 36(a), the Board will dispose of the requests for admission at the pre-hearing conference. The appropriate sanction in this appeal is one that will permit GSA to determine what facts support Rowe's position. GSA has the burden of proof and, before it is required to put forward its proof, it is entitled to know what facts support Rowe's contention that its default was excusable. Our sanction is the imposition of the following schedule, which will enable GSA to obtain the facts that it needs and which will also give GSA the opportunity to review those facts before it presents its case: No later than September 8, 1998, the parties will supplement the appeal file with any additional exhibits they wish to have included in the record of this case. The parties must comply with the requirements of Rule 104 (numbering, indexing, etc.) when they submit supplemental exhibits. Except for good cause, the parties will not be permitted to introduce exhibits at the hearing. The parties are reminded that the record does not include documents produced during discovery unless those documents are made a part of the appeal file. No later than September 22, 1998, the parties will file and serve any objections to appeal file and supplemental appeal file exhibits. No later than October 6, 1998, Rowe will file and serve its witness list. The list shall identify proposed witnesses by name and business address and shall include a statement of all material points which Rowe proposes to establish by the testimony of each witness. The Board expects each party to cooperate by making available, without issuance of a subpoena, witnesses under its control whom either party wishes to call. When practicable, the Board expects each party to secure voluntary attendance of witnesses. The party at whose instance a subpoena is issued shall arrange for its service and shall bear all of the expense, including fees and mileage. Each party shall ensure that whomever it wishes to call is available at the hearing. If Rowe wants to elicit direct testimony from GSA's witnesses, Rowe must list those witnesses on its witness list. On October 20, 1998, the Board will convene a pre-hearing conference in Courtroom 2, General Services Building, 1800 F Street, N.W., 7th Floor, Washington, D.C., beginning at 9:30 a.m. The purpose of the conference is to dispose of GSA's requests for admission and to resolve objections to appeal file exhibits. The hearing in this case will begin at 9:00 a.m. on October 27, 1998, Courtroom 2, General Services Building, 1800 F Street, N.W., 7th Floor, Washington, D.C. Rowe will be given four days (October 27-30) to present its case, including a reasonable amount of time for cross-examination. After Rowe presents its case, the hearing will be recessed. No later than January 26, 1999, GSA will supplement the appeal file with any exhibits it needs to respond to Rowe's testimony. Also, no later than January 26, 1999, GSA will file and serve its witness list. The list shall identify proposed witnesses by name and business address and shall include a statement of all material points which GSA proposes to establish by the testimony of each witness. The Board expects each party to cooperate by making available, without issuance of a subpoena, witnesses under its control whom either party wishes to call. When practicable, the Board expects each party to secure voluntary attendance of witnesses. The party at whose instance a subpoena is issued shall arrange for its service and shall bear all of the expense, including fees and mileage. Each party shall ensure that whomever it wishes to call is available at the hearing. If GSA wants to elicit direct testimony from Rowe's witnesses, GSA must list those witnesses on its witness list. The hearing will reconvene at 9:00 a.m. on February 8, 1999, Courtroom 2, General Services Building, 1800 F Street, N.W., 7th Floor, Washington, D.C. GSA will be given four days (February 8- 11) to present its case, including a reasonable amount of time for cross-examination. Rowe will be given one-half day, immediately following the conclusion of GSA's case, to present any rebuttal evidence. If either party needs to change these dates, it must file with the Board and serve on the opposing party a request which explains the need for the change. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: _________________________________ ___________________________________ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge