BOARD OF CONTRACT APPEALS
   U.S. GOVERNMENT PRINTING OFFICE
   WASHINGTON, D.C.  20401

In the Matter of                )
                                )
the Appeal of                   )
                                )
EPCO ASSOCIATES                 )        Docket Nos. GPO BCA 16-91
Programs D306-S and D306-S(R-1) )             GPO BCA 16-91A
Purchase Order 90758            )
Print Order 40001-40027         )

   DECISION AND ORDER DENYING APPELLANT'S MOTION TO
   SUSPEND FURTHER PROCEEDINGS UNDER RULE 30

   On December 29, 1992, Counsel for the Appellant filed a Motion to Suspend Proceedings (First
   Motion to Suspend) with the Board, asking that proceedings in the above-captioned appeals be
   held in abeyance while the United States Court of Federal Claims (hereinafter Claims Court)
   considered the same issues in a breach of contract action involving the same parties.1  First
   Motion to Suspend, p. 1.  See, EPCo Associates v. United States, No. 93-309C.  Thereafter, on
   May 11, 1993, the Board conducted a presubmission conference for the purpose of discussing the
   Appellant's First Motion to Suspend.  See, Report of Presubmission Conference (May 14, 1993),
   pp. 1-2 (hereinafter RPC).  Board Rules, Rule 10.  At the conclusion of the conference, the
   Board stated that it would consider the First Motion to Suspend under Rule 30 on the basis of
   the following documents: (1) the Appellant's (Plaintiff's) Claims Court Complaint, as refiled on
   May 13, 1993; (2) the Respondent's (Defendant's) Answer to the refiled Claims Count Complaint;
   and (3) a joint motion, if possible, otherwise individual motions from the parties, concerning
   the merits of suspending these proceedings under Rule 30.2  See, RPC., p. 5.
   Following the presubmission conference, on May 14, 1993, Counsel for the Appellant filed a
   Motion to Dismiss with the Board, seeking dismissal of the above-captioned appeals without
   prejudice for the same reasons expressed in its First Motion to Suspend; i.e., that its claims
   were the subject of a breach of contract suit in the Claims Court.  Motion to Dismiss, p. 1.
   After  seeking,  and  being  granted  an  extension  of  time  to  file  a  response,3  on
   September 30, 1993, Counsel for GPO filed an Opposition to Motion to Dismiss with the Board.4
   The Respondent objected to the Motion to Dismiss on two grounds: (1) neither of the conditions
   in Rule 30 warranting suspension or dismissal-the parties "are in agreement as to disposition of
   the controversy" or when appeals "are required to be placed in a suspense status and the Board
   is unable to proceed with disposition thereof for reasons not within the control of the Board"-
   was present in these appeals; and (2) suspending or dismissing the appeals would be inconsistent
   with the Claims Court's decision in EPCo Associates v. United States, No. 93-309C (August 17,
   1993).5  Opposition to Motion to Dismiss, pp. 1-2.  A copy of the Opposition to Motion to
   Dismiss was served on the Appellant by Counsel for GPO on September 30, 1993.

   On October 1, 1993, Counsel for the Appellant filed Appellant's Motion to Suspend Further
   Proceedings (Second Motion to Suspend) with the Board, in which it: (1) withdrew its Motion to
   Dismiss on the ground that it was moot;6 and (2) asked that further proceedings in these appeals
   be suspended until such time as the Board determined whether the Appellant terminated the
   contract for material breach, an allegation which was the subject of a new and separate Rule
   6(a) Complaint.7  Second Motion to Suspend, pp. 2-3.  See, Board Rules, Rule 6(a).  A copy of
   the Second Motion to Suspend was served on the Respondent by the Appellant on October 1, 1993.
   No response to the Second Motion to Suspend from the Respondent has been received by the Board.

   The Board has carefully reviewed the arguments of the parties on the procedural issues in these
   appeals, as set forth in their various pleadings.  In its view, neither the Appellant's First
   Motion to Suspend, nor its Second Motion to Suspend can be granted under the circumstances
   herein, essentially for the reasons stated by the Respondent in its Opposition to Motion to
   Dismiss; i.e., that neither of the two grounds for suspension given in Rule 30 are present here,
   and suspending the these appeals would be inconsistent with the Claims Court's decision in EPCo
   Associates v. United States, No. 93-309C.  Indeed, the Board believes that suspending these
   appeals would be tantamount to frustrating the wishes of the Claims Court, which expressly told
   the Appellant that it should:

      . . . obtain any available administrative relief under the contract before resorting to a de
      novo claim filed in this court.  EPCo's complaint is dismissed without prejudice to refile
      once the Board has resolved EPCo's contract claims.

See, EPCo Associates v. United States, No. 93-309C, Sl. op. at 1-2.  Since the Appellant's civil
suit was dismissed in order to avoid duplicative factual proceedings, id., Sl. op. at 2, the Board
also believes that the Claims Court expects it to assert its jurisdiction over the issues and
resolve this controversy.  Cf., Banta Company, GPO BCA 03-91 (November 15, 1993), Sl. op. at 24-25
(citing, Lawrence D. Krause, AGBCA No. 76-118-4, 82-2 BCA  16,129; Johnson, Drake & Piper, Inc.,
ASBCA No. 9824, 65-2 BCA  4868).

   ACCORDINGLY, the Appellant's First Motion to Suspend and Second Motion to Suspend are hereby
   DENIED.8

It is so Ordered.

November 18, 1993                  STUART M. FOSS
                                   Administrative Judge

_______________

    1 The First Motion to Suspend was filed pursuant to Rule 30 of the Board's Rules of Practice
    and Procedure, which states: "Whenever it appears that the appellant and the Government are in
    agreement as to disposition of the controversy, the Board may suspend further processing of the
    appeal; provided, however, that if the Board is advised thereafter by either party that the
    controversy has not been disposed of by agreement, the case shall be restored to the Board's
    calendar without loss of position.  In certain other cases, appeals docketed before the Board
    are required to be placed in a suspense status and the Board is unable to proceed with
    disposition thereof for reasons not within the control of the Board.  In any case where the
    suspension has continued or it appears that it will for an inordinate length of time, the Board
    may, in its discretion, dismiss such appeals from its docket without prejudice to their
    restoration when the cause of suspension had been removed.  Unless either party or the Board
    acts within three (3) years to reinstate any appeal dismissed without prejudice, the dismissal
    shall be deemed with prejudice."  GPO Instruction 110.12, Subject: Board of Contract Appeals
    Rules of Practice and Procedure, September 17, 1984, Rule 30 (hereinafter Board Rules).
    2 The Appellant complied with the Board's instruction on May 13, 1993, by furnishing a copy of
    its Claims Court Complaint, which it had refiled that day.  In addition, the Appellant send the
    Board a copy of a document entitled "Notice of Related Case Under Rule 77.(f)(2)."  Instead of
    the Answer to the refiled Complaint, the Board has received from the Respondent a copy of a
    document entitled "Defendant's Motion to Dismiss Or in the Alternative, For Summary Judgment",
    which was filed with the Claims Court on June 18, 1993.  The copy of this motion to dismiss was
    furnished to the Board on October 8, 1993.  Although neither party has complied with the third
    request of the Board, their respective positions are amply set forth in the First Motion to
    Suspend, and the other pleadings they have filed since the May 11, 1993, presubmission
    conference; i.e., the Appellant's Motion to Dismiss Under Rule 30 (Motion to Dismiss), dated
    May 14, 1993, Respondent's Opposition to Appellant's Motion to Dismiss (Opposition to Motion to
    Dismiss), dated September 30, 1993, and Appellant's Motion to Suspend Further Proceedings
    (Second Motion to Suspend), dated October 1, 1993.
    3 Board Rules, Preface to Rules,  III. C.  See, Respondent's Motion for an Enlargement of Time
    to Respond to Appellant's Motion to Dismiss Under Rule 30, dated May 26, 1993; Order Granting
    Respondent's Motion for an Enlargement of Time to Respond to Appellant's Motion to Dismiss
    Under Rule 30 (Board Order), dated July 15, 1993.  The Respondent was given 60 days from the
    date it received the Order to file a response.  See, Board Order, p. 3.

    4 Between May 14, 1993, when the Appellant filed its Motion to Dismiss, and September 30, 1993,
    when the Board received the Respondent's Opposition to Motion to Dismiss, the Claims Court
    issued its opinion in EPCo Associates v. United States, No. 93-309C (August 17, 1993).  The
    Claims Court ruled that the Appellant (Plaintiff) should exhaust its administrative remedies
    before proceeding with a judicial claim, and it dismissed the suit without prejudice.  See,
    EPCo Associates v. United States, No. 93-309C, Sl. op. at 1-2.
    5 While the Respondent opposed dismissing the appeals "without prejudice", it had no objection
    to the dismissing them "with prejudice".  Opposition to Motion to Dismiss, p. 2.
    6 The Board agrees that the Motion to Dismiss was rendered moot by the Claims Court's decision
    in EPCo Associates v. United States, No. 93-309C, and that the motion is no longer at issue in
    this proceeding.
    7 That same day, the Board received the Appellant's Notice of Appeal and Complaint, together
    with Appellant's Motion under Rule 1(c), requesting that its allegations be treated as a new
    appeal because of the alleged failure of the Contracting Officer to render a final decision in
    the contract dispute within a reasonable time.  The Board has accepted these documents as a new
    Complaint and has docketed the matter as Docket No. GPO BCA 26-93.  Board Rules, Rules 1(a) and
    6(a).
    8 In light of this Order, the parties are hereby directed to assist the continued processing of
    these appeals and comply with their responsibilities under Rules 4(a), 4(b), 6(a) and 6(b).
    Board Rules, Rules 4(a), 4(b), 6(a) and 6)b).