WASHINGTON, DC  20401

In the Matter of            )
the Appeal of               )
   THE AMERICAS, INC.       )
Jacket No. 685-562          )
Purchase Order P-3756       )


   On September 23, 1994, pursuant to Rule 31 of the Board's
   rules of practice and procedure, the Board issued a Rule to
   Show Cause Why Appeal Should Not be Dismissed For Failure to
   Prosecute (Rule to Show Cause), directing Printing Corporation
   of the Americas, Inc. (Appellant or Contractor), to state its
   reasons for not complying with the requirements of the rules
   or face dismissal of its appeal.  GPO Instruction 110.12,
   Subject: Board of Contract Appeals Rules of Practice and
   Procedure, dated September 17, 1984, Rule 31 (Board Rules).
   Specifically, the Appellant was asked to explain why it had
   not filed its Rule 6(a) Complaint, although 28 months had
   elapsed since it received the Board's docketing notice on
   March 23, 1992.1  Board Rules, Rules 3 and 6(a).
   On October 10, 1994, Counsel for the Appellant submitted a
   document entitled "Response to Rule to Show Cause"
   (Appellant's Response), to the Board together with its Rule
   6(a) Complaint.  In essence, the Appellant's Response argues
   that the appeal should not be dismissed because the
   Contractor's failure to prepare a timely Rule 6(a) Complaint
   was not its fault.  In that regard, the Appellant states,
   inter alia, that: (1) its appeal challenges, as excessive, the
   costs assessed by the U.S. Government Printing Office (GPO or
   Respondent or Government) against the Contractor for
   replacement of Government-furnished materials (GFM) which were
   lost by its (the Appellant's) pickup and delivery service; (2)
   because the customer-agency-the National Aeronautics and Space
   Administration (NASA)-never furnished GPO with certain
   information that the Respondent requested, the parties have
   been unable to discuss "the background or methodology" for the
   Government's cost computations; and (3) without that
   methodology or background data from NASA, the Appellant was
   unable to draft a Complaint detailing the reasons it believed
   the claimed replacement costs were unreasonable and/or
   excessive.2  See, Appellant's Response, p. 1,  1, 3, and 5.
   Consequently, according to Counsel for the Appellant, the
   Complaint which he filed with the Appellant's Response relies
   on the best information available to him for that purpose, and
   he asks the Board to proceed with the matter on that basis.
   See, Appellant's Response, p. 2,  8 and 9.

   On October 14, 1994, Counsel for GPO filed a document entitled
   "Respondent's Reply to Appellant's Response to Rule to Show
   Cause" (Respondent's Reply), contending that the Appellant's
   Response was insufficient to show cause why the appeal should
   not be dismissed.  See, Respondent's Reply, p. 1.  The crux of
   the Government's argument is that the information which the
   Appellant claims was required to prepare a detailed Complaint,
   is ordinarily available through discovery, see Board Rules,
   Rules 14 and 15, and moreover, is unnecessary for that purpose
   under the "notice pleading" practices of the Federal Rules of
   Civil Procedure and the  Board Rules.3  Id.  See, Board Rules,
   Rules 6(a) and 6(b).  Therefore, the Respondent believes that
   the Board should dismiss this appeal.  See, Respondent's
   Reply, p. 2.

   The Board has carefully considered both the Appellant's
   Response and the Respondent's Reply, and has concluded that
   the appeal should go forward on an expedited basis.4  Although
   the Appellant clearly failed to file a timely Complaint,5  and
   thus technically violated the Board's rules of practice, it
   has now submitted, albeit more than two years late, the
   necessary pleading which meets all of the requirements of Rule
   6(a).  Board Rules, Rule 6(a).  Accordingly, the Board
   believes that a proper and just interpretation of its rules in
   this case warrants a continuation of the appeal.  Board Rules,
   Preface to Rules,  VI.D.

   The Board's ruling in this matter will perhaps be better
   understood by a brief explanation of the principles, policies
   and circumstances which apply when the sanction of dismissal
   is under consideration.  Under Rule 31, the Board may dismiss
   an appeal "whenever a record discloses the failure of either
   party to file documents required by these rules, respond to
   notices or correspondence from the Board, comply with an order
   of the Board, or otherwise indicates an intention not to
   continue the orderly prosecution or defense of an appeal. . .
   .".  Board Rules, Rule 31.  As suggested by Counsel for GPO,
   Board Rule 31 is analogous to, and serves the same purpose as,
   Rule 41(b) Federal Rules of Civil Procedure.6  FED.R.CIV.P.
   41(b).  Consequently, like a similar judicial action under
   Rule 41(b), dismissal with prejudice under Rule 31 is
   considered a sanction of last resort, applicable only in
   extreme circumstances, and generally proper only where less
   drastic sanctions are unavailable.  See, e.g., West Coast
   Theater Corporation v. City of Portland, 897 F.2d 1519, 1523
   (9th Cir. 1990) (dismissal for lack of prosecution is "drastic
   step"); Ali A.  Tamini v. M/V Jewon, 808 F.2d 978 (2d Cir.
   1987) (dismissal of an action for failure to prosecute is a
   harsh remedy); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th
   Cir. 1986) (dismissal is a harsh penalty and is to be imposed
   only in extreme circumstances).  See also, Enlace Mercantil
   Internacional, Inc. v. Senior Industries, Inc., 848 F.2d 315
   (1st Cir. 1988); McKelvey v. AT & T Technologies, Inc., 789
   F.2d 1518 (11th Cir. 1986).  Indeed, dismissals with prejudice
   for failure to prosecute are not undertaken lightly as the
   effect of such orders is to forever deny a plaintiff access to
   the courts.  See, Darms v. McCulloch Oil Corporation, 720 F.2d
   490 (8th Cir. 1983).  Likewise, the General Services Board of
   Contract Appeals (GSBCA) recently observed that dismissal of
   appeals on purely procedural grounds are disfavored, and that
   it will apply such sanctions only when a party "grossly fails"
   to comply with its orders.  See, Freeway Ford Truck Sales,
   Inc., GSBCA Nos. 10662, 10663, 92-2 BCA  25,003, at 124,621
   (citing, Monitor Northwest Company, GSBCA No. 7028, 85-2 BCA 
   18,065; VIP Services Of Kansas, GSBCA No. 6188, 81-2 BCA 
   15,353).  Accord, Tisdale By and Through Tisdale v. Darkis,
   101 F.R.D. 307 (D.C. Kan. 1981) ("gross negligence"); Thomas
   v. Gerber Productions, 703 F.2d 353 (9th Cir. 1983) ("bad

   No exact rule can be laid down as to when dismissal for
   failure to prosecute is justified; rather, each case must be
   looked at in light of its own history.  See, Washington v.
   Walker, 734 F.2d 1237 (7th Cir. 1984); Navarro v. Chief of
   Police, Des Moines, Iowa, 523 F.2d 214 (8th Cir. 1975).  It is
   clear, however, that the age of a case, in and of itself, is
   not dispositive of the issue.  See, Titus v. Mercedes Benz of
   North America, 695 F.2d 746 (3rd Cir. 1982), on remand, 96
   F.R.D. 404, aff'd, 723 F.2d 898 (3rd Cir. 1983).  The Board's
   research discloses at least two distinct approaches followed
   by the courts in measuring whether or not a particular case is
   ripe for dismissal for lack of prosecution.  Some courts will
   only involuntarily dismiss a case with prejudice for failure
   to prosecute under Federal Civil Procedure Rule 41(b) where
   there is clear record of willful delay or contumacious conduct
   by a plaintiff and lesser sanctions would not serve best
   interests of justice.7  See, e.g., Penny Theater Corporation
   v. Plitt Theaters, 812 F.2d 337 (7th Cir. 1987); Ford v.
   Sharp, 758 F.2d 1018 (5th Cir. 1985); Jones v. Graham, 709
   F.2d 1457 (11th Cir. 1983).  Other courts look to see whether
   the plaintiff has prosecuted the action diligently and to what
   extent any delay has prejudiced the defendant.8  See, e.g.,
   Olympic Sports Products, Inc. v. Universal Athletic Sales
   Company, 760 F.2d 910 (9th Cir. 1985); Bomate v. Ford Motor
   Company, 761 F.2d 713 (D.C. Cir. 1985).  Regardless of which
   approach is followed, however, the courts are required to
   weigh several factors in determining whether to dismiss this
   case for lack of prosecution, namely: (1) the public's
   interest in expeditious resolution of litigation; (2) the
   court's need to manage its docket; (3) the risk of prejudice
   to the defendants; (4) the public policy favoring disposition
   of cases on their merits; and (5) the availability of less
   drastic sanctions.  See, Henderson v. Duncan, supra; 779 F.2d
   at 1423 (citing, Ash v. Cvetkov, supra, 739 F.2d at 496; Mir
   v. Fosburg, supra, 706 F.2d  at 918; Alvarez v. Simmons Market
   Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)
   (quoting Harding v. Federal Reserve Bank of New  York, 707
   F.2d 46, 50 (2d Cir. 1983).  See also, Romandette v. Weetabix
   Company, 807 F.2d 309 (2d Cir. 1986).  As the U.S. Court of
   Appeals for the Ninth Circuit explained:

      Rule 41(b) is based on four "conflicting policies: on the
      one hand, the court's need to manage its docket, the public
      interest in expeditious resolution of litigation, and the
      risk of prejudice to defendants from delay; on the other
      hand, the policy favoring disposition of cases of their
      merits."  Citizens Utilities Co. v. AT & T, 595 F.2d 1171,
      1174 (9th Cir. 1978), cert. denied, 444 U.S. 931, 100 S.Ct.
      273, 62 L.Ed.2d 188 (1979).  This court has previously
      inferred from the first policies that rule 41(b) is "in
      large part a housekeeping measure."  Nealey, 662 F.2d at
      1279.  The other two policies reflect an interest in
      fairness to the litigants, and thus in considering
      dismissal under the rule the courts will consider whether
      the plaintiff has prosecuted the action diligently and to
      what extent any delay has prejudiced the defendant.  See
      id. at 1279-81.
See, Olympic Sports Products, Inc. v. Universal Athletic Sales
Company, supra, 760 F.2d at 915.  See also, Lukensow v. Harley
Cars, supra.

   Like the GSBCA, this Board also disfavors dismissal of appeals
   on purely procedural grounds, and will apply Rule 31 sanctions
   only when a party "grossly fails" to comply with its orders;
   e.g., by refusing to accept certified mail or by failing to
   inform the Board of address and telephone number changes.
   See, Rosemark, supra, Sl. op. at 5; Bedrock Printing Company,
   supra, Sl. op. at 6.  See also, Graphic Image, Inc., GPO BCA
   42-92 (April 22, 1994) (contractor received show cause order
   but failed to respond).  But cf., K.C. Printing Company, GPO
   BCA 02-91, Order Granting Respondent's Second Motion for
   Enlargement of Time to File Additional Documentation and
   Establishing a Revised Briefing Schedule (November 25, 1994)
   (although the Board was tempted to exercise its authority
   under Rule 31 to dismiss the appeal for failure to prosecute
   because the contractor had moved and neglected to keep the
   Board apprised of its current address and telephone number, it
   noted that the crucial issue in the case involved the
   Government's outstanding claim for recovery of excess
   reprocurement costs, and in its opinion GPO was entitled to a
   ruling on the merits of the claim; hence, the Board decided to
   proceed with the case, particularly since GPO had already
   briefed the question).  In this case, while the Appellant took
   nearly two years to file its Rule 6(a) Complaint with the
   Board once it was made aware by the Board that the pleading
   was required, there is no evidence that the delay was willful
   or was the product of the Contractor's contumacious conduct or
   gross negligence.  Furthermore, the Board finds the basic
   reason proffered by the Appellant for the delay-i.e., without
   the methodology or background information requested from NASA,
   which the customer-agency failed to provide, the Contractor
   was unable to draft a Complaint explaining why it believed the
   replacement costs claimed by the Government were unreasonable
   and/or excessive-is not so unbelievable as to be frivolous,
   and thus the mere lapse of time does not render the delay
   unreasonable under the circumstances.  See, Nealey v.
   Transportacion Maritima Mexicana, S.A., supra; Henderson v.
   Duncan, supra; Larios v. Victory Carriers, Inc., supra.
   Moreover, the Respondent has presented no proof that it was
   actually prejudiced by the Appellant's delay in filing the
   Complaint, and thus it has failed to support its argument that
   the Board should dismiss this appeal for want of prosecution.
   See, Nealey v. Transportacion Maritima Mexicana, S.A., supra.
   Indeed, the only contention raised in opposition to continuing
   this matter by GPO is that the background or methodology data
   which the Appellant says was necessary to prepare a detailed
   Complaint was not necessary for that purpose under the Board
   Rules, and besides the information could have acquired through
   discovery after the Complaint was filed.  However, as the
   cases indicate, the Respondent's argument is contrary to
   principles of fundamental fairness because it would, in
   essence, require the Appellant to draft a Complaint "in the
   dark"-i.e., by having the Contractor allege facts peculiarly
   within the knowledge of the Government-and hence is without
   merit.  See, Campbell v. United States, supra; Gomez v.
   Toledo, supra.  Also cf., Calloway v. Westinghouse Electric
   Corporation, 642 F.Supp. 663 (M.D. Ga. 1986), mod. denied, 115
   F.R.D. 73, appeal dismissed, 831 F.2d 1069 (11th Cir. 1987)
   (an 8 year delay which occurred while discovery was dormant
   was not willful and thus would not result in dismissal for
   failure to prosecute.)  In addition, going forward with this
   appeal would not, in the Board's judgment, place an undue
   burden its docket, certainly not to the extent necessary to
   overcome the public policy favoring disposition of cases on
   their merits.  Therefore, for these reasons, the Board
   believes that imposing Rule 31 sanctions in this appeal is


   In the Board's view, now that the Appellant has filed its
   Complaint, the interests of justice are best served by
   proceeding with the case on an expedite basis, rather than by
   an outright dismissal with prejudice.  See, Mir v. Fosburg,
   supra, 706 F.2d at 918 (citing, Nevijel v. North Coast Life
   Insurance Company, 651 F.2d 671, 674 (9th Cir. 1981)).
   Accordingly, the Board has established the following schedule,
   which makes allowance for the upcoming Christmas and New
   Year's holidays, as the next steps in processing this appeal:

             ACTION REQUIRED                   DATE
      1. Respondent to file its Answer
          pursuant to Rule 6(b).            January 3, 1995

      2. Receipt of Appellant's Hearing
          Election pursuant to Rule 8.         January 10, 1995

      3. Prehearing or presubmission
          conference pursuant to Rule 10.         February 7,

The time required for discovery and the date of a hearing, if one
is necessary, will be discussed at the conference on February 7,
1995, which will be held at 10:00 a.m. (EST) in the Board's
Conference Room (Room A-651), at the U.S. Government Printing
Office, 732 North Capitol Street NW., Washington, DC 20401.
Board Rules, Rules 10, 14, 15 and 17 through 25.  Finally, the
Board cautions the parties that they are expected to adhere to
the above schedule, and that any future delays without its
approval may be grounds for the imposition of Rule 31 sanctions.
Board Rules, Preface to Rules,  III.C, Rule 31.

It is so Ordered.

November 30, 1994                                   STUART M.
                                        Administrative Judge

1 Because the Contractor selected the Small Claims (Expedited)
Procedure, see Board Rules, Rules 12.1(a) and 12.2, there was
some confusion over the Board's pleading requirements at the
outset of this appeal.  In that regard, Counsel for the Appellant
explained, in pertinent part, in his letter of December 1, 1992,
to the Board's Special Assistant that: "My reading of Rule
12.2(b) is that pleadings will only be allowed by the Board when
necessary to conduct a hearing or to close the record in order to
allow a decision to be made within the required time limit.
`Pleadings' are defined by Rule 6 to include both the complaint
and answer. . . . In light of my reading of the rules, and not
having received any direction to prepare any pleadings, including
a complaint, no complaint was filed.  [] However, after our
conversation on November 30, 1992, it became clear to me that the
Board's current position is that it desires a complaint filed in
every matter, despite whether or not an election to utilize the
small claims procedure has been filed.  I am therefore enclosing
herewith, [a Complaint] . . . ".  See, Letter dated December 1,
1992, from Frederic G. Antoun, Jr., Attorney At Law, to Mr. Ved
P. Gulati, Board of Contract Appeals, U.S. Government Printing
Office.  Although Counsel for the Appellant indicated that he was
including a Rule 6(a) Complaint with his letter, the Board's
records show that the pleading was, in fact, missing when the
letter was received on December 3, 1992.
    2 The Appellant also contends that its legitimate claim is
    buttressed by the fact that the contract specifications gave
    no indication that any of the prints included in the GFM were
    the only copies NASA had, or were otherwise extremely
    valuable or different than the standard prints which
    accompany any contract.  See, Appellant's Response, p. 2, 
    3 As explained by Counsel for GPO: "Under modern notice
    pleading, all that is normally required is that the opposing
    party be given fair notice of the nature and basis of the
    claim, while the discovery process bears the burden of
    filling in the details".  See, Respondent's Reply, pp. 1-2
    (citing, Seville Industrial Machinery Corporation v.
    Southmost Machinery Corporation, 742 F.2d 786 (3rd Cir.
    1983), cert. denied, 469 U.S. 1211 (1984); Ross Island Sand &
    Gravel Company v. General Insurance Company of America, 474
    F.2d 750 (9th Cir. 1973)).
    4 Although the Contractor initially selected the optional
    Small Claims (Expedited) Procedure of Rules 12.1(a) and 12.2
    for this appeal, see note 1 supra, that election was rendered
    moot by the Appellant's subsequent delay in filing its Rule
    6(a) Complaint.  Accordingly, notwithstanding the Appellant's
    election of the optional Small Claims (Expedited) Procedure,
    this matter, for all practical purposes, must and will be
    processed under the Board's regular procedures.  See,
    Universal Printing Company, GPO BCA 09-90 (June 22, 1994),
    Sl. op. at 2, fn. 3 (optional Accelerated Procedure);
    McDonald & Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994),
    Sl. op. at 1, fn. 2 (optional Accelerated Procedure).
    5 The appeal record contains no explanation for the loss of
    the Complaint that was supposed to accompany the Appellant's
    letter of December 1, 1992, see note 1 supra, nor for the
    Contractor's failure to furnish an extra copy of the missing
    pleading soon thereafter, as requested by the Board on
    December 15, 1992.
    6 Rule 41(b) provides, in pertinent part, that: "For failure
    of the plaintiff to prosecute or comply with these rules or
    any order of the court, a defendant may move for dismissal of
    an action or any claim against him. . . ".   Although the
    rule is phrased in terms of the dismissal sanction being
    triggered by a motion from the defendant, it has been
    uniformly interpreted to mean that courts may also sua sponte
    dismiss an action for lack of prosecution without abusing
    their discretion.  See, Link v. Wabash Railroad Company, 370
    U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).  See also,
    Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168 (D.C.
    Cir. 1981); Saylor v. Bastedo, 623 F.2d 230 (2d Cir. 1980);
    Lukensow v. Harley Cars of New York, 124 F.R.D. 64 (S.D.N.Y.
    1989); Prudential Lines, Inc. v. Marine Repair Services,
    Inc., 94 F.R.D. 325 (S.D.N.Y. 1982).  Boards of contract
    appeals, including this Board, also have the discretion to
    sua sponte dismiss appeals for want of prosecution, and
    indeed, the Board has done so in the past.  See, e.g,
    Rosemark, GPO BCA 30-90 (April 22, 1994); Bedrock Printing
    Company, GPO BCA 05-91 (April 10, 1992).  Accord, The Work
    Force Reforestation, Inc., AGBCA No. 88-215-1, 89-1 BCA 
    7 In these jurisdictions, simple negligence will not warrant
    dismissal-at a minimum there must be a finding of a willful
    delay.  See, McKelvey v. AT & T Technologies, Inc., supra,
    789 F.2d at 1520 (citing, Searock v. Stripling, 736 F.2d 650,
    653 (11th Cir. 1984); E.E.O.C. v. Troy State University, 693
    F.2d 1353, 1354, 1357 (11th Cir. 1982, cert. denied, 463 U.S.
    1207, 103 S.Ct. 3538, 77 L.Ed.2d 1388 (1983)); Martin-Trigona
    v. Morris, 627 F.2d 680, 682 (5th Cir. 1980).  See also, Ames
    v. Standard Oil Company (Indiana), 108 F.R.D. 299 (D.C.D.C.
    1985) (a single act of misconduct does not usually justify
    dismissal of case for failure to prosecute).
    8 Generally, prejudice to a defendant may be presumed from
    the length of a plaintiff's delay because the primary
    rationale underlying Rule 41(b) is the failure of the
    plaintiff in its duty to process its case diligently,
    contrary to the strong policy favoring prompt disposition of
    cases.  See, United Merchants and Manufacturers, Inc. v.
    Spare Parts, 86 B.R. 764 (S.D.N.Y. 1988); Lyell Theatre
    Corporation v. Loews Corporation, 682 F.2d 37, 43 (2d Cir.
    1982).  However, the pertinent question asked by the courts
    in determining whether to dismiss an action under Rule 41(b)
    is not simply whether there has been any, but rather whether
    there has been sufficient delay or prejudice to justify
    dismissal of the plaintiff's case.  See, Mir v. Fosburg, 706
    F.2d 916 (9th Cir. 1983); Nealey v. Transportacion Maritima
    Mexicana, S.A., 662 F.2d 1275 (9th Cir. 1980).  In that
    regard, neither delay nor prejudice can be viewed in
    isolation; only an unreasonable delay will support dismissal
    for lack of prosecution, and unreasonableness is not inherent
    in a lapse of time.  See,  Henderson v. Duncan, supra; Larios
    v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir. 1963).
    Furthermore, while the law creates a presumption that some
    injury attaches to an unreasonable delay in prosecution of
    action, that presumption is rebuttable, see,  Ash v. Cvetkov,
    739 F.2d 493, 496 (9th Cir. 1984); Lyell Theatre Corporation
    v. Loews Corporation, supra, and will not stand in the face
    of a showing of no actual prejudice to the defendant, see,
    Ford v. Sharp, supra; Anderson v. Air West, Inc., 542 F.2d
    522 (9th Cir. 1976); Larios v. Victory Carriers, Inc., supra.
    See also, Thompson v. Housing Authority of City of Los
    Angeles, 782 F.2d 829 (9th Cir. 1986), cert. denied, 479 U.S.
    829, 107 S.Ct. 112, 93 L.Ed.ed 60 (1987).  The plaintiff, of
    course, "has the ultimate burden of persuasion both as to the
    excuse for its own delay and as to lack of prejudice to the
    defendant."  See, Nealey v. Transportacion Maritima Mexicana,
    S.A., supra, 662 F.2d at 1280 (citing, Larios v. Victory
    Carriers, Inc., supra, 316 F.2d at 67).  On the other hand,
    it is clear that a plaintiff who has introduced evidence
    excusing his own delay, is not also required to present
    anticipatory proof negating prejudice on the part of the
    defendant, on an issue as to which the defendant, with his
    greater knowledge, ought to be required to come forward.
    See, Larios v. Victory Carriers, Inc., supra, 316 F.2d at 66.
    Instead, where the plaintiff presents a nonfrivolous excuse
    for the delay, the burden of proof shifts to the defendant to
    show at least some actual prejudice warranting dismissal for
    failure to prosecute.  See, Nealey v. Transportacion Maritima
    Mexicana, S.A., supra, 662 F.2d at 1281.  This approach is
    consonant with the ordinary rule based on considerations of
    fairness, which does not place the burden upon a litigant of
    establishing facts peculiarly within the knowledge of his
    adversary.  Campbell v. United States, 365 U.S. 85, 96, 81
    S.Ct. 421, 427, 5 L.Ed.2d 428 (1961) (citing, United States
    v. New York, N.H. & H. R.R., 355 U.S.  253, 256, n. 5, 78
    S.Ct. 212, 214, 2 L.Ed.2d 247 (1957)).  See also, Gomez v.
    Toledo, 466 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d
    572 (1980).