Vertex Construction & Engineering
Docket: ASBCA 58988
Decision date: 2014-11-07

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) 
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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 l 

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 
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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) 
in part: 
15. The CID completed its initial Report of Investigation 24 July 2013. It stated, 
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 
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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. 
The appeal is denied. 
Dated: 7 November 2014 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
OWEN C. WILSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
Administrativ 
Acting Vice C · an 
Armed Services Board 
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: 
12 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals