________________________________________________ MOTION TO DISMISS DENIED: November 22, 1994 ________________________________________________ GSBCA 12974 OLD DOMINION SECURITY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Judy Mashburn, Contracts Specialist, Old Dominion Security, Inc., Hampton, VA, appearing for Appellant. Kenneth E. Kendell, Office of the Regional Counsel, General Services Administration, Philadelphia, PA, counsel for Respondent. Before Board Judges HYATT, DeGRAFF, and GOODMAN. HYATT, Board Judge. On September 14, 1994, Old Dominion Security, Inc. filed an appeal of a contracting officer's decision denying Old Dominion's claim under a contract for the provision of guard services in Norfolk, Virginia. On October 28, 1994, respondent filed a motion to dismiss the appeal, citing the fact that appellant had not complied with the Board's order requiring the filing of a complaint by October 17, 1994. For the reasons stated, the motion is denied. Background 1. On September 16, 1994, the Board issued an order on proceedings directing, inter alia, that: Appellant shall, on or before October 17, 1994, file with the Board its complaint, as required by Rule 7(b). The complaint shall set forth appellant's claim or claims in simple, concise, and direct terms. Appellant may ask to designate its notice of appeal or any other documents as the complaint but it must notify the Board of that decision by October 17, 1994. 2. As of October 26, 1994, respondent had not received a copy of any complaint or documents designated to serve as the complaint for appellant. Nor had appellant filed any complaint with the Board. 3. On October 26, 1994, counsel for respondent contacted appellant's president to request the name and address of appellant's counsel. Respondent's counsel was told to send all motions to appellant's president, Mr. Ronald W. Maust. 4. Respondent filed its motion to dismiss for failure to file a complaint on October 28, 1994. On October 31, 1994, the Board issued an order directing appellant to file a complaint no later than November 15, 1994, or show cause why its appeal should not be dismissed. 5. On November 16, 1994, appellant filed a complaint and a letter explaining that its failure to comply with the Board's earlier deadline was an oversight.[foot #] 1 Appellant is a small business, with limited staffing. An unusually large press of business in October caused the company's contract specialist to overlook the initial deadline established of October 17. Discussion Respondent's motion urges that the Board dismiss Old Dominion's appeal for three reasons. Respondent claims, without explanation, that the appeal is "of a frivolous nature wherein [Old] Dominion seeks to avoid its expressed obligations under its contract with GSA." In addition, respondent asserts that Old Dominion's failure to comply with the Board's order constitutes a "de facto abandonment" of its claim and, finally, argues that the failure to file a complaint is a violation of a Board order that prejudices respondent. Starting with respondent's second and third arguments, we note that appellant did indeed fail to file its complaint on the date established by the Board's order. The only prejudice cited ----------- FOOTNOTE BEGINS --------- [foot #] 1 Appellant's complaint and response to the show cause order were actually sent by telefacsimile transmission to the Board on November 15, but were not received until after the Board's close of business at 4:30 p.m. EST. Accordingly, under Board Rule 2, the filings were not stamped as received, or filed, until November 16. ----------- FOOTNOTE ENDS ----------- by respondent, however, was its inability to file an answer on the date specified in that order because of the lack of a complaint to respond to. As a rule, the Board does not favor dismissals of appeals for purely procedural grounds. Freeway Ford Truck Sales, Inc. v. General Services Administration, GSBCA 10662, et al., 92-2 BCA 25,003, at 124,621 (citing Monitor Northwest Co., GSBCA 7028, 85-2 BCA 18,065, at 90,674). Dismissal for failure to prosecute is a harsh sanction that is to be used sparingly. Property Maintenance Corp. v. General Services Administration, GSBCA 12445-TD, 94-2 BCA 26,675, at 132,694. Although appellant missed the Board's deadline, this delinquency is not, by itself, sufficient to warrant dismissal of the appeal for failure to prosecute. See Compuline International, Inc. v. Department of Justice, GSBCA 12941-P (Sept. 23, 1994). Freeway Ford is directly on point. It holds that an appellant's tardiness in filing complaints, when rectified by an appropriate response to the Board's show cause order, does not justify dismissal of the appeal. Here, upon issuance of the Board's order to show cause, appellant filed both its complaint and an explanation of its failure to file the complaint on time. The prejudice to respondent is readily remedied by an extension of the time in which to file an answer to the complaint.[foot #] 2 Appellant's letter explaining the failure to file on time makes clear that appellant has not abandoned this claim. Finally, we address respondent's contention that Old Dominion's claim is "of a frivolous nature" whereby Old Dominion seeks to avoid its expressed obligations under its contract with GSA. Respondent does not explain the basis for this assertion. At a minimum, to support such a contention we would expect respondent to submit a statement of material facts and relevant law demonstrating that the matter is indeed frivolous. At this point, prior even to joinder of issue, it is premature to entertain a motion to dismiss on this basis. Decision Respondent's motion to dismiss this appeal is DENIED. _____________________________ CATHERINE B. HYATT Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 An order modifying the date for filing an answer to the complaint is issued separately. ----------- FOOTNOTE ENDS ----------- We concur: _______________________________ ______________________________ MARTHA H. DeGRAFF ALLAN H. GOODMAN Board Judge Board Judge