Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________________________ MOTION TO DISMISS DENIED: April 30, 1999 ________________________________________________ GSBCA 14211 ROWE INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stanley V. Campbell, Jr., President of Rowe Inc., Fairfax Station, VA, appearing for Appellant. Robert T. Hoff, Office of General Counsel, General Services Administration, Washington, D.C., counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and HYATT. HYATT, Board Judge. Respondent, the General Services Administration (GSA), has filed a motion to dismiss this appeal for failure to prosecute. In the alternative, respondent requests the Board to impose sanctions for appellant's failure to provide discovery in response to the Board's order compelling responses to discovery requests. For the reasons stated below, we deny the motion, suspend proceedings until August 30, 1999, and order appellant to produce responses to GSA's discovery requests no later than September 30, 1999. Background On February 29, 1996, the General Services Administration (GSA) awarded a contract to Rowe Inc. Under the terms of the contract, Rowe was to deliver four light trucks with special equipment (line items 2, 3, and 4) within 180 calendar days of the receipt of orders from GSA. On March 13, 1996, GSA issued an order for the delivery of two vehicles under contract line item 4. After Rowe failed to meet the first due date for delivery, GSA granted Rowe two extensions of time in which to deliver the vehicles. Rowe failed to deliver the vehicles by either of the extended dates. On May 15, 1997, GSA terminated for default Rowe's right to proceed with contract line item 4. On May 29, 1997, Rowe filed this appeal challenging the termination. On September 15, 1997, the Board authorized the parties to begin discovery. Due to a disagreement between Rowe and GSA over the appropriate date for the close of discovery no completion date was established. On October 31, 1997, the Board ruled that discovery would not be delayed pending the resolution of a separate appeal Rowe had pending before the Board.[foot #] 1 On December 3, 1997, GSA deposed Stanley V. Campbell, Jr., Rowe's president and representative in this appeal. On December 10, 1997, GSA served Rowe with a written request for the production of documents and responses to interrogatories based on answers received from Mr. Campbell in the deposition[foot #] 2. Rowe did not comply, nor did it file written objections to any of GSA's requests. On February 19, 1998, after receiving no response from Rowe, GSA filed a motion to compel the production of the documents requested. After several extensions of time were permitted by the Board for Rowe to file a response, on May 15, 1998, Rowe responded to the motion to compel. In its response, Rowe contended that timely objections to the requested documents were made by Mr. Campbell during his deposition. On June 11, 1998, GSA filed a reply to Rowe's response to the motion. GSA asked the Board to grant the motion to compel or, in the event that Rowe failed to provide answers to the outstanding discovery matters, to either dismiss the appeal for failure to prosecute or to order sanctions for Rowe's failure to respond to GSA's discovery request. The Board granted the motion to compel but held that the request to dismiss or impose sanctions was premature. Rowe Inc. v. General Services Administration, GSBCA 14211 (July 20, 1998). When Rowe failed timely to provide the discovery information required to be produced under the Board's order, GSA renewed its motion, asserting that as a consequence of appellant's failure to cooperate in discovery, either appellant's appeal should be dismissed for failure to prosecute or appropriate sanctions ----------- FOOTNOTE BEGINS --------- [foot #] 1 At that time, Rowe was represented by counsel in the earlier-filed appeal. [foot #] 2 The discovery request asked, among other things, for full names, addresses, and telephone numbers of individuals mentioned by Mr. Campbell in his deposition, for the same information for points of contact in companies referred to in the depositions, and for Rowe's documentation concerning contract specifications (which Rowe has alleged were inaccurate), Rowe's contacts with suppliers and their engineers, and copies of letters Rowe claims to have sent to GSA and of which GSA has no record. ----------- FOOTNOTE ENDS ----------- should be imposed under the Board's rules. Appellant responded to the motion by filing a counter-motion, explaining that Mr. Campbell, appellant's representative, was fully extended in litigating the earlier-filed appeal arising out of a similar contract that was also terminated for default,[foot #] 3 and asking the Board to revisit its earlier denial of a suspension of proceedings in this case to enable him to handle both cases effectively and efficiently. Discussion Respondent argues that the Board should now dismiss this appeal for failure to prosecute or, alternatively, as a sanction for failure to cooperate in discovery. In support of its motion it cites Bartron Technologies Corp. v. General Services Administration, GSBCA 10161 et al., 92-3 BCA 25,183. In Bartron, the appellant had, like Rowe, appealed default termination actions. After pursuing discovery for some time, the parties apparently discussed settlement and respondent informed the Board that it expected to request a stipulated judgment. When no such request was forthcoming the Board issued an order requiring the parties to submit, either jointly or separately, proposed schedules for completion of proceedings. Bartron did not respond to this order. Subsequently, respondent served a second round of written discovery requests, to which Bartron did not respond. Respondent filed a motion to compel; Bartron did not respond to the motion. The Board then issued an order directing Bartron to show cause why the motion to compel should not be granted. Bartron did not respond to this show cause order, either. Thereafter, the Board granted the motion to compel and ordered production of meaningful responses within thirty-five days. When Bartron failed to comply with this order, the Government moved for dismissal of the appeals for failure to respond to the discovery requests or to the Board's orders. After receiving the Government's motion, the Board ordered Bartron "to show cause why the appeals should not be dismissed for failure to prosecute, comply with Board rules, and comply with Board orders." When Bartron failed to file a timely response to the show cause order, respondent moved again for dismissal of the appeals. The Board granted the Government's motion, recognizing that not only had appellant demonstrated flagrant disregard for the Board's rules and orders, most notably by failing to respond to four separate orders, but also, by its conduct, Bartron had effectively admitted that the appeals would not be further pursued. Under the facts of this case, Bartron's failures to respond to orders and comply with Board rules were ----------- FOOTNOTE BEGINS --------- [foot #] 3 After issuance of the Board's order declining to suspend discovery in this case to accommodate the earlier-filed case, counsel in that case withdrew their appearances. Mr. Campbell is now acting pro se in both cases. Since Rowe has now gone out of business, Mr. Campbell is also employed full-time at another job. ----------- FOOTNOTE ENDS ----------- part and parcel of its clear intent to abandon its appeals. Thus, while the Board dismissed the appeals for failure to prosecute and for failure to comply with Board orders, the overriding conduct leading to the dismissal was Bartron's abandonment of its appeals. The subject appeal is not on all fours with Bartron. Although Rowe has failed to comply in a timely manner with the Board's order compelling production of documents and answers to interrogatories in response to GSA's discovery request, unlike the appellant in Bartron, this appellant has by no means engaged in a course of conduct that would lead to the conclusion that it intends to abandon its appeal. Appellant responded to both of GSA's motions (the motion to compel and the motion to dismiss). In response to respondent's renewed motion to dismiss or to impose sanctions, appellant's representative has explained that he believes extenuating circumstances exist that make it impossible for him to pursue both cases at once. Because he is "overwhelmed" with litigation, both at this Board and in other fora, arising out of the termination of the two contracts, he has asked the Board to suspend proceedings in this one until he has completed his efforts in the earlier-filed appeal. Under the circumstances, it is clear that Rowe wishes to pursue this matter, but cannot do so diligently at this time. As the Board has already recognized in the companion case in this matter (hereafter referred to as docket 14136), dismissal for failure to prosecute is resorted to "sparingly and when the evidence presented in support of the motion is especially convincing." Rowe Inc. v. General Services Administration, GSBCA 14136 , 98-2 BCA 29,951 at 148,183. Appellant is not neglecting its appeals. It would not be appropriate to dismiss this case at this juncture. The crux of the problem here is Rowe's failure to respond timely and appropriately to discovery requests after the Board overruled its objections to the requests and ordered compliance. In addressing a similar situation in docket 14136, the Board decided that a limited sanction -- that of imposing a hearing schedule designed to permit GSA to learn the facts supporting appellant's case and also giving GSA ample time to review and analyze those facts prior to presenting its own case -- would be appropriate. Here, while he might have presented his explanation earlier, prior to the expiration of the deadline established in the Board's order, Mr. Campbell has established extenuating circumstances for his failure to respond diligently to the Board's order to provide discovery to GSA. Thus, we are not quite yet disposed to impose sanctions. In recent months he has in fact proceeded to litigate the companion case, and that case has now proceeded to briefing. Once he has completed litigating that case, Mr. Campbell should be in a position to proceed diligently with this one. Accordingly, we suspend proceedings in this case until August 30, 1999, when briefing in docket 14136 will be completed. Rowe will produce the documents and information required by respondent's discovery request no later than September 30, 1999. Although the extenuating circumstances described by appellant have sufficed to persuade us to accommodate his request for a suspension of proceedings and additional time to proceed with this appeal, we are nonetheless mindful that at some point a party's continued failure to cooperate in the discovery process, and to comply with Board rules and orders, requires that the Board take action to preserve the integrity and fairness of its proceedings. Accordingly, if this order is not complied with as of September 30, 1999, we will consider imposing an appropriate sanction at that time. Decision The Government's motion is DENIED. Appellant is hereby ordered to provide responses to respondent's outstanding discovery request by no later than September 30, 1999. ________________________________ CATHERINE B. HYATT Board Judge We concur: _______________________________ _________________________ ________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge