                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Vertex Construction & Engineering              )      ASBCA No. 58988
                                               )
Under Contract No. W56SGK-13-C-7048            )

APPEARANCE FOR THE APPELLANT:                         Mr. Hedayatullah Zaheb
                                                       CEO/President

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      MAJ Cameron R. Edlefsen, JA
                                                       Trial Attorney

              OPINION BY ADMINISTRATIVE JUDGE WILSON
        ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

        This matter arises from the contracting officer's (CO's) decision to terminate
Vertex Construction & Engineering (VCE or appellant) for default due to appellant's
submission of a fraudulent master electrician certificate in order to secure the contract.
Appellant admits the allegation but blames the subcontractor from which it purchased the
certificate, the difficulty it had as a foreign company in verifying U.S. certifications, and
the government's own failure to verify the certificate and disqualify appellant from
consideration. The government moves for summary judgment on the grounds of fraud in
the inducement, asserting the misrepresentation rendered the contract void ab initio. For
the reasons stated below, the government's motion is granted.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

         1. On 1January2013, the U.S. Army's Phoenix Regional Contracting Center at Camp
Phoenix, Kabul, Afghanistan, issued Solicitation No. W56SGK-13-R-7024 (solicitation), to
disassemble and reassemble 44 re-locatable buildings (RLBs) (gov't mot., ex. 1 at 1, ex. 2,
if 1.1).
      2. The solicitation contained the following provisions in Section L, Instruction to
Offerors:

               1v. Proof of Electrican [sic] Certification: The contractor
                   shall submit a current and active U.S. State Certified
                   Electrician License for their proposed certified
                   electrician. The offeror shall also provide the email and
                   phone number of the licensed electrician with their
                   proposal. The proposed electrician's license will be
                   reviewed and verified to ensure validity during proposal
                   evaluations, as well as at the construction site. Failure to
                   provide an electrician certificate as outlined above
                   could result in your proposal being found technically
                   unacceptable and eliminate your proposal from contract
                   award consideration.

(Gov't mot., ex. 1 at 55-56)

       3. The Evaluation Factors in Section M of the solicitation, in discussing the
acceptability of the electrician license, state:

               The acceptability of [the] electrician[']s license will be based
               upon whether the proposed electrician has an active license
               and the proposed employment by the offeror has been verified
               and reasonably demonstrates to the Government that quality
               requirements will be effectively met, in providing an
               acceptable level of electrical work under the contract. As the
               Government intends to award a contract without discussions,
               offerors that do not provide certified electricians in meeting
               the requirements of the Statement of Work, may result in an
               unacceptable rating for this Technical Capability sub-factor,
               and therefore, such offerors may be removed from
               consideration for award.

(Gov't mot., ex. 1 at 59)

        4. The Statement of Work (SOW) in the solicitation called for a master
electrician:

              All Electrical components shall be re-installed by a Master
              Electrician; electrical licensing and certification shall be
              presented to the Contracting Officer prior to work beginning.
              All electrical shall be install[ ed] in accordance with Standard
              Specifications Attachment Division 16 Electrical.

(Gov't mot., ex. 2, ii 2.8.1)




                                              2
        5. VCE submitted its proposal on 20 February 2013 1, stating that the company
had electrical designers familiar with the National Electrical Code (NEC) and an NEC
certified electrician (gov't mot., ex. 3 at 1, 4). Appellant included, as proof of electrical
certification, a license for a Mr. Donnie Frank (Mr. Frank) of Albuquerque, New Mexico,
issued by the New Mexico Regulation and Licensing Department. The license indicated
it was for a classification EE98-J, with certificate number 13653, and would expire
30 November 2013. (Gov't mot., ex. 3 at 17) There is no evidence in the record that
appellant indicated when it submitted its bid, that it did not have computer access to
license verification sites in the United States, nor is there evidence that appellant
complained of not having enough time to properly prepare its bid. We find that
classification EE98-J is for a journeyman electrician, not a master electrician as required
by the solicitation (see SOF ~ 14).

       6. The government evaluated four offerors for the solicitation, finding two of the
four offers technically acceptable. One of the offers provided no electrical certification
and was deemed unacceptable. (Gov't mot., ex. 7 at 2)

       7. On 23 February 2013, the government awarded Contract No. W56SGK-13-C-7048
(contract) to VCE (gov't mot., ex. 8; compl. ~ 1).

       8. On or about 14 June 2013, problems arose concerning the electrical work on
the contract. On 14 June 2013, CO Mark Penwell (CO Penwell) notified VCE that the
wire installed on the L Row is "NOT approved," and directed VCE to remove the wire
and install UL approved wire. (Gov't mot., ex. 9)

        9. On 16 July 2013, CO Penwell informed appellant he wanted to meet with
Mr. Frank, VCE's certified electrician, the next day and that VCE and the government
needed to come to an agreement to change the electrical wires. By email dated 17 July
2013, VCE's CEO, Mr. Hedayatullah Zaheb (Mr. Zaheb), emailed Mr. Frank, "As per
our agreement. I will be needing you to visit our construction site, can you please let me
know when you are available." CO Penwell was copied on the email. (Gov't mot.,
ex. 10)

       10. By email dated 17 July 2013, U.S. Army Criminal Investigative Division
(CID) Special Agent (SA) Due Nguyen (CID SA Nguyen) contacted CO Penwell,
expressing interest "in the RLB electrical issue regarding VCE," and requested a meeting
(gov't mot., ex. 11 at 3).



1
    Since the solicitation was dated 1January2013, the "2012" date on VCE's proposal
         was evidently mistaken. Subsequent pages in the proposal were dated "2/20/13"
         (R4, tab 3 at 11-12, 25-36).

                                             3                                                  I
       11. In emails dated 21 July 2013, VCE's CEO, Mr. Zaheb, was reminded by the
government that the SOW required a U.S. licensed master electrician. Mr. Zaheb
responded, "The qoute [sic] is not for master electrician to change the wires. If you insist
on his presense [sic] we have to add 23000 in our quote. The electrician we had will not
be present for couple of months." By email that same day, CO Penwell responded, "I
remind you again. All work must be accomplished by a Licensed Master electrician."
He went on to say that ifVCE did not have one, he would have to terminate the contract.
(Gov't mot., ex. 12 at 1-2)

       12. By email the same day, Mr. Zaheb replied:

              I will find you the master electrician! Some of them will send
              you their certificates. Please give me a week of time and I
              will get you the final answer.

              NOTE: THE QOUTATION [sic] FOR WIRING CHANGE
              IS NO LONGER VALID UNTIL THEN AND I WILL
              SEND YOU THE FINAL QOUTE [sic] RIGHT AFTER
              THE CONTRACT WITH MASTER ELECTRICIAN.

(Gov't mot., ex. 12 at 1)

       13. Immediately following Mr. Zaheb's email, CO Penwell received an email
signed by Mr. Claude Watson, Jr., regarding electrical work:

              ... I was asked by Vertex Construction to send you a copy of
              my Electrical License. I am only a Journeyman Electrician
              with about 40 years experience, but agreed to send it to you.
              He tells me you require a Masters License and I only have
              Masters Experience.
                      I have worked all over Afghanistan and just finished a
              contract one year ago August 16th. I do wish you can use me
              on this project instead of a Master. I need the work and want
              to work. It would be almost impossible to get a Master there
              for a one to two month project, as you know.

(Gov't mot., ex. 13)

        14. On or about 23 July 2013, CID SA Nguyen tried to verify the electrician's license
VCE had submitted, and informed the CO that in searching the New Mexico E-services for
contractor licensing, discovered that the VCE certificate had expired 30 November 2006, and
the status was listed as cancelled. "Furthermore, the classification EE-98J on the proposal's
certification is for a Journeyman Residential and Commercial Electrician, not a Master


                                             4
Electrician." He also informed the CO he was checking the government's personnel system
to determine ifthe referenced individual, Mr. Frank, had ever been at Camp Phoenix or even
in Afghanistan. (Gov't mot., ex. 4 at 1, 5)

           15. The CID completed its initial Report of Investigation 24 July 2013. It stated,
in part:

                 FURTHER INVESTIGATION REVEALED THE PERSON
                 NAMED ON THE CERTIFICATE SUBMITTED BY
                 MR. ZAHEB HAD NEVER BEEN ON SITE. ACCORDING
                 TO THE SYNCHRONIZED PRE-DEPLOYMENT
                 OPERATIONAL TRACKER-ENTERPRISE SUITE,
                 THIS INDIVIDUAL HAS NEVER SET FOOT IN
                 AFGHANISTAN. AS THE CERTIFICATE WAS GIVEN IN
                 THE STATE OF NEW MEXICO, A CHECK OF THE
                 STATE'S CONTRACTOR WEBSITE REVEALED THE
                 CERTIFICATE HAD BEEN EXPIRED SINCE 30 NOV 06,
                 AND WAS IN A CANCELLED STATUS.

(Gov't mot., ex. 14 at 3)

       16. CO Penwell issued his CO's final decision 13 August 2013, informing VCE
the contract was terminated for default on the grounds the electrician's license provided
in VCE's offer to the solicitation was not one of a United States certified electrician as
required by Section L of the Request for Proposal (RFP) (gov't mot., ex. 18).

        17. On 17 August 2013, CID SA Nick Saunders interviewed Mr. Fawad Sakhi
(Mr. Sakhi), VCE's vice president, regarding his knowledge of the electrician's
certificate submitted in VCE's proposal. Mr. Sakhi stated he was familiar with the
specifications of the contract, specifically that a master electrician with proper
documentation was required in order to receive consideration for award. Mr. Sakhi said
that VCE did not employ a master electrician and it solicited Kabul area companies for a
qualified electrician to fulfill the contract requirements. The report went on:

                         Sakhi stated VCE forwarded the Scope of Work for the
                 contract to a Kabul area company identified as Kabul Global
                 Construction Company (KGCC) (NFI). Sakhi stated KGCC
                 provided VCE with a certificate identifying an electrician
                 named Donnie Frank as a qualified electrician that would be
                 sufficient for VCE to submit with their proposal to the
                 Government. Sakhi stated no one at VCE knew anything
                 about Donnie Frank or if anyone named Donnie Frank was
                 even in Afghanistan. Sakhi stated VCE paid KGCC an


                                                5
              unknown amount of money for the certificate only. Sakhi
              stated officials at VCE were unaware the certificate KGCC
              provided had been altered or that the certification number on
              the certificate identified [F]rank as a Journeyman Electrician
              and not a Master Electrician. Sakhi stated VCE did nothing
              to verify the information on the certificate KGCC provided
              was accurate and to ensure a master electrician was on-site to
              verify the work being done at Camp Phoenix was properly
              done.

(Gov't mot., ex. 20)

      18. Appellant filed a timely notice of appeal with the Board by email dated
1 November 2013, contesting the termination for default.

       19. The government filed a motion for summary judgment on the grounds that the
contract awarded to VCE was procured through fraud in the inducement, and thus the
contract was void ab initio. Both parties have filed reply briefs.

                           CONTENTIONS OF THE PARTIES

       According to the government, the admission by appellant's vice president that
VCE paid another company to provide a master electrician's certificate in order to
include it with its bid, knowing without the certificate it would not be considered for
award, established that the contract award was procured through misrepresentation, thus
tainting the entire contract with fraud, rendering it void ab initio (gov't mot. at 1, 10).

        Appellant responded that it did not knowingly misrepresent the validity of the
certificate at issue. It "subcontracted the master electrician to Kabul Global Construction
Company (KGCC) and the contract stated that KGCC will provide the master electrician
certificate and ... within 30 days of Notice to Proceed KGCC will bring the Master
Electrician to the JOB site." Appellant agreed with Mr. Sakhi's statement that VCE paid
"for a certificate only ... but, we would have given him more money ifhe would have
come to the job site according to contract." (App. resp. at 2)

        VCE admitted it had done nothing to determine the authenticity of the certificate
but justified not doing so because it was a local company and did not have access to "US
certificate issuing authorities." Further, the solicitation required the government to
review and verify the proposed electrician's license during proposal evaluations.
According to appellant, since the government would evaluate the license "and if the
license is not. .. valid they will not award the project," it would not make sense for VCE




                                             6
to "go for a long term process of verifying the license because maybe during this
evaluation I would not meet the deadline of proposal submission." (App. resp. at 2)

       Appellant also argued it should not be "blamed for writing a falsified proposal"
regarding its master electrician because it "had an agreement with legal entity in
Afghanistan about the electrician I could easily state that I have and anybody instead of
me would have done the same" (app. resp. at 3). Appellant admitted in its complaint that
"fraud happened" (compl. if 12), but declared, "we trusted the KGCC and there is no fault
ofVCE in this case" (app. resp. at 4). Appellant, however, did not submit a copy of its
subcontract with KGCC. Nor did appellant's response include any information about
Mr. Frank or the presence of any master electrician on-site. There were no affidavits
from VCE's CEO or vice president substantiating their assertions about appellant's
subcontract with KGCC or dealings with Mr. Frank.

        The government's reply took exception to VCE's assertions that it subcontracted
with KGCC for a master electrician, not just a certificate, pointing out those statements
are inconsistent with its answers in an interview with the CID that it paid for a certificate
only. The government noted VCE has not offered any evidence of a subcontract with
KGCC. (Gov't reply br. at 1-2) The government also disagrees with VCE's argument
that VCE is absolved from the consequences of its conduct by the government's failure to
verify the certificate presented in the bid, arguing a government failure to verify does not
negate appellant's misrepresentation in its proposal (id. at 3).

                                        DECISION

       Summary judgment is appropriate when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. Mingus Constructors, Inc. v.
United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Lockheed Martin Aircraft
Center, ASBCA No. 55164, 08-1BCAif33,832 at 167,445. The moving party bears the
burden of proof and all significant doubt over factual issues must be resolved in favor of
the nonmoving party. Lockheed, 08-1 BCA if 33,832 at 167,445. There is a genuine
issue of material fact ifthe evidence is such that a reasonable fact finder could find in
favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

       A nonmoving party may not simply rest upon vague allegations of disputed facts
in opposing such a motion; it must present sufficient evidence to show evidentiary
conflicts exist on the record as to "material fact[ s]" at issue. Armco, Inc. v. Cyclops
Corp., 791F.2d147, 149 (Fed. Cir. 1986); Barmag Barmer MaschinenfabrikAG v.
Murata Machinery, Ltd., 731F.2d831, 835-36 (Fed. Cir. 1984).

       Generally, "a Government contract tainted by fraud or wrongdoing is void ab initio."
Godley v. United States, 5 F.3d 1473, 1476 (Fed. Cir. 1993) (citing United States v.
Mississippi Valley Generating Co., 364 U.S. 520, 564 (1961)); JE.TS., Inc. v. United


                                              7
States, 838 F.2d 1196, 1200 (Fed. Cir. 1988). In holding a contractor's false small business
certification barred its subsequent claim, the Federal Circuit explained:

              The contract ... was procured by and therefore permeated with
              fraud .... J.E.T.S. obtained this contract by knowingly falsely
              stating that it was a small business. Had it stated the truth ... it
              would not have received the contract. A government contract
              thus tainted from its inception by fraud is void ab initio, like
              the government contracts held void because similarly tainted
              by a prohibited conflict of interest in United States v.
              Mississippi Valley Generating Co., 364 U.S. 520, 5 L. Ed. 2d
              268, 81 S. Ct. 294 (1961) and K & R Eng 'g Co. v. United
              States, 222 Ct. Cl. 340, 616 F.2d 469 (1980).

J.E.TS., 838 F.2d at 1200.

        Holding a contract void is a harsh penalty, but as the Supreme Court has said, the
primary purpose of holding a contract tainted by fraud void ab initio is to "guarantee the
integrity of the federal contracting process and to protect the public from the corruption
which might lie undetectable beneath the surface of a contract conceived in a tainted
transaction." Mississippi Valley, 364 U.S. at 564-65; see also Godley, 5 F.3d at 1475
(citing Mississippi Valley in stating that "general rule [of a government contract tainted
by fraud or wrong-doing is void ab initio] protects the integrity of the federal contracting
process and safeguards the public from undetectable threats to the public fisc").

        Use of this remedy is not limited to "situations where the contractor has been
convicted in a criminal action stemming from the misrepresentation." Servicios y Obras
Isetan S.L., ASBCA No. 57584, 13 BCA ii 35,279 at 173, 162. In Servicios, a
contractor's material misrepresentations in its bid for a construction project at Moran Air
Base in Spain, upon which the government had justifiably relied, met the standard for
holding the contract void ab initio. The contractor had forged both a subcontractor
agreement with another company that possessed most of the specialized certifications
required to be possessed by the successful contractor's team and the required bank
guarantees. The contractor did not possess the requisite certifications on its own, and had
it not misrepresented itself to the government, it would not have been considered for
award. We concluded the contract was void ab initio and the contractor's appeal of its
termination for default was denied. Id. at 173,162-63.

       The government presented evidence that VCE's vice president told an investigator
appellant paid only for a master electrician certificate to submit with its bid (SOF ii 17).
VCE does not dispute that it did so. Rather, it admits the statement is true but that "we
would have given him more money ifhe would have come to the job site according to
contract" (app. resp. at 2). Appellant also acknowledges that it knew if it did not include


                                               8
evidence of a master electrician certificate in its bid, it would not have been considered
for award (SOF ~ 17). VCE admitted it did nothing to verify the certificate it submitted
with its bid, as required by the solicitation, or ensure the presence of a master electrician
on site during performance of the contract (id.). According to appellant, it trusted KGCC
and "there is no fault ofVCE in the case" (app. resp. at 4).

        Appellant's primary defense is that that the government had an obligation to verify
the certificate and had it done so, appellant's misrepresentation would have been
discovered, and the government could have disqualified VCE from the bidding process
(app. resp. at 2). The argument that bids can present misinformation, and the burden is
on the government to ferret it out, is not persuasive. The government analogizes the
effects of its failure to verify the master electrician certificate to those situations in which
the government's right to revoke acceptance under the Inspection of Construction clause
is not barred by government inspection failures as in Chi/stead Building Company,
ASBCA No. 49548, 00-2 BCA ~ 31,097 (gov't reply br. at 3). In Chi/stead, a roofing
contractor's representations that it was proceeding in accordance with the drawings
followed shortly thereafter by installation of deviant trusses was a gross mistake
amounting to fraud in spite of the government inspector's failure to measure or inspect.
Id. at 153,575-76. We reached the same conclusion in Z.A.N. Company, ASBCA
No. 25488, 86-1 BCA ~ 18,612 at 93,489 (holding that delivery of improperly marked
watches was a gross mistake amounting to fraud despite the fact that government
representatives may not have acted "with a maximum of circumspection") and in Jo-Bar
Mfg. Corporation, ASBCA No. 17774, 73-2 BCA ~ 10,311 at 48,684-85 (finding a
contractor's decision that aircraft bolts did not have to be heat treated and failure to treat
them, along with the misrepresentation to the government inspector that it had been
advised heat treatment was not required was a gross mistake amounting to fraud despite
possible lack of in-process inspection by the government).

       However, more fundamental is that the requirement for the government to verify
the certificate submitted by VCE was for the benefit of the government, not for VCE.
The law is clear that when contractors try to shift responsibility for their deficiencies not
discovered when the government has conducted a pre-award survey, a contractor's
obligation to verify information submitted in its bid remains. We have repeatedly held
pre-award surveys are conducted for the government's benefit and even if they are
inadequately performed, they do not confer rights upon contractors. Laumann
Manufacturing Corporation, ASBCA No. 51249, 01-2 BCA ~ 31,517; T.M Industries,
ASBCA No. 19090, 75-1BCA~11,075. It is the contractor's responsibility, not the
government's, to determine its own capability to perform a contract and, thus, even if a
government pre-award survey is conducted negligently, "that circumstance can be of no
consequence or benefit to the contractor." Venice Maid Company, ASBCA Nos. 20546,
20792, 76-2 BCA ~ 12,045 at 57,810 (citing Aerospace Support Equipment, Inc.,
ASBCA No. 13579, 71-1 BCA ~ 8904). In Venice Maid, the Board applied the same
principles to the government's failure to perform an adequate post-award orientation


                                               9
conference in upholding a termination for default wherein appellant complained the
mistake it made which rendered it unable to perform would have been discovered by the
government if an adequate pre-award survey or post-award orientation conference had
been conducted. Venice Maid, 76-2 BCA ii 12,045 at 57,810.

       The same result was reached in Tri-States Service Company, ASBCA No. 31139,
90-3 BCA ii 23,059, when a contractor sought reformation of a contract due to a mistake
it made which would have been discovered had the government conducted a required
pre-award survey. The Board found the argument without merit, stating:

              Pre-award surveys are for the benefit of the Government and
              not for the benefit of the contractor. Appellant has no
              standing to require the conduct of such survey. Accordingly,
              there is no basis for charging the Government with
              constructive notice of something that might have been found
              in the course thereof.

Id. at 115,773.

       The solicitation in the present appeal did state that the government would review
and verify the proposed electrician's license during proposal evaluations and at the
construction site (SOF ii 2). This did not make the government the guarantor of
appellant's bid, however, or free VCE from the requirements of the solicitation.
Appellant's misconduct is not absolved by any government failure.

        In the present case, appellant has presented no evidence contradicting the
government's facts, only unsupported arguments as to why its misrepresentations should
be excused. In addition to blaming the government for not discovering VCE's fraud by
verifying the master electrician's certification as discussed above, appellant justifies its
failures by pointing to its small size, its status as a local company, and its lack of
computer capability (app. resp. at 2). However, even if these assertions were relevant, no
evidence is presented upon which these statements rest (SOF ii 5).

        Nor can solicitation requirements be ignored because compliance would be
difficult, take time, or be expensive. Similar arguments were made by a contractor trying
to justify overstating the credentials of its personnel in its bid because the requirements
that certain technicians hold Class I licenses was "unrealistic and over burdensome." The
contractor also complained providing such a technician would have been ''very
expensive." Dongbuk R&U Engineering Co., ASBCA No. 58300, 13 BCA ii 35,389
at 173,638. VCE's justifications imply essentially the same - because it was too hard to
find a certified master electrician in Afghanistan and would have cost more money - the
requirement should be excused. This we cannot do. As we said in Dongbuk, relying on



                                             10
the Court of Claims explanation in Prestex Inc. v. United States, 320 F.2d 367, 371-72
(Ct. Cl. 1963):

              [T]he Comptroller General repeatedly has held that a
              specification deviation in a contractor's proposal affecting
              price, quality or quantity offered is a major deviation which
              cannot be waived. 39 Comp. Gen. 570 (1960); 36 Comp.
              Gen. 251 (1956); 30 Comp. Gen. 179 (1950). The effect of
              statutes and regulations pertaining to the letting of public
              contracts is that the contract awarded must be the contract
              advertised and, if not, the government is not bound because
              its contracting agent cannot bind the government beyond his
              or her actual authority. The rejection of nonresponsive bids is
              necessary if the purposes of the competitive procurement are
              to be attained, that is, to give everyone an equal right to
              compete for Government business, to secure fair prices, and
              to prevent fraud.

Dongbuk, 13 BCA, 35,389 at 173,638.

        The solicitation was clear that without submission of a master electrician
certification a bid would not be considered (SOF ,, 2, 3). This in fact was the case, as
another bid, which did not include a master electrician certification, was disqualified
from consideration of award (SOF , 6). Therefore, it is clear that VCE obtained the
contract through a material misrepresentation, providing only a certificate (that itself
proved to be fraudulent), with no realistic intention of employing a master electrician, to
the other bidders "disadvantage, and to the detriment of the federal government and its
procurement system." Dongbuk, 13 BCA, 35,389 at 173,638.

       It appears there are no material facts in dispute. VCE has set forth no evidence
that would allow a reasonable fact finder to conclude otherwise. See Liberty Lobby,
477 U.S. at 248 (issues of fact are genuine for summary judgment purposes only "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party");
Opryland USA Inc. v. The Great Am. Music Show, 970 F.2d 847, 849-50 (Fed. Cir. 1992)
(a fact is "material" if it may affect the outcome, i.e., the finding of that fact is relevant
and necessary to the proceeding); see also Long Island Savings Bank v. United States,
503 F.3d 1234, 1251 (Fed. Cir. 2007).

       Based on the uncontested evidence presented by the government, drawing all
reasonable inferences in favor ofVCE, and accepting as true the statement in the
complaint wherein appellant has admitted "fraud happened," we have to conclude that the
contract which was entered into between VCE and the government is void ab initio. See



                                              11
Long Island Savings Bank, 503 F.3d at 1246; C&D Construction, 90-3 BCA ~ 23,256
at 116,683. Accordingly, the government's motion for summary judgment is granted.

                                    CONCLUSION

      The appeal is denied.

      Dated: 7 November 2014



                                                OWEN C. WILSON
                                                Administrative Judge
                                                Armed Services Board
                                                of Contract Appeals


I concur                                        I concur




Administrative Judge                            Administrativ
Acting Chairman                                 Acting Vice C · an
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58988, Appeal of Vertex
Construction & Engineering, rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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