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).