DSME Construction Co., Ltd.
Docket: ASBCA 62591, ASBCA 62873
Decision date: 2026-03-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
DSME Construction Co., Ltd. ) ASBCA No. 63878 
 )  
Under Contract No. W91QVN-23-D-0038 )  
   
APPEARANCE FOR THE APPELLANT: Yong Eui Song, Esq. 
    Central IP & Law 
    Seoul, Korea 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 MAJ Bruce A. Nessler, JA 
CPT Natalie W. McKiernan, JA 
MAJ Katharine M. Calderon, JA 
    Trial Attorneys 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON GOVERNMENT’S MOTION TO DISMISS APPEAL 
 
 This appeal challenges the government’s default termination of a contract for 
preventative maintenance services at facilities at Camps Humphreys and Yongin, in 
the Republic of Korea.
1  DSME Constr. Co., ASBCA No. 63878, 24-1 BCA ¶ 38,642 
at 187,849 (finding jurisdiction).  The parties have chosen to proceed under Board 
Rule 11, which provides for a decision on the briefs, with no live hearing.  The 
government moves for dismissal of the appeal as a sanction for what it charges is 
appellant’s misuse or careless use of generative artificial intelligence (AI) in providing 
case citations to the Board. 
 
FINDINGS OF FACT 
 
 After filing their Rule 11 opening briefs on July 31, 2025, the parties filed their 
responsive briefs on September 29, 2025; each styled its responsive brief as a reply 
brief.  The parties then filed what they styled as their surreplies on December 1, 2025.  
On December 19, 2025, the government moved that the Board strike appellant’s 
surreply because, the government said, the surreply “contains 27 false or misleading 
citations . . . including 16 discrete citations to cases that do not appear to exist,” which, 
 
1 Compl. at 41; see R4, tab 1 at 1-3. 

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the government says, are “the hallmarks of generative artificial intelligence (AI) 
hallucinations.” 2 
 
On December 24, 2025, without addressing the government’s motion to strike 
the surreply, and without even addressing whether it used AI, appellant moved for 
leave to file an amended surreply (which appellant included in its December 24, 2025 
filing), apologizing for what it characterized as “the significant technical inaccuracies 
and citation errors contained in [its] original Surreply,” which, appellant said, “resulted 
from a fundamental breakdown in the appellant’s citation-verification and 
proofreading process.”3  On January 23, 2026, the government responded to the 
motion to amend by requesting that the Board deny that motion, and treat the 
government’s motion to strike the surreply as a motion to sanction appellant by 
dismissing the appeal with prejudice.4  The government added that it had reviewed the 
citations contained in appellant’s opening brief and found five case citations that also 
“appear to cite to fictitious cases or misrepresent the holdings of cases cited.”5  The 
government concluded by requesting denial of the motion to amend and dismissal of 
the appeal, pointing to what it said was the “fictitious case law” cited in appellant’s 
surreply.
6 
 
On January 27, 2026, appellant replied to the government’s January 23, 2026 
brief by requesting “that the Board deny the motion to dismiss . . . and permit the 
appellant to proceed with its corrected filings,” and that, “[i]f the Board finds that 
sanctions are warranted . . . the Board impose a lesser sanction . . . such as striking the 
defective surreply.”7  The government replied to appellant’s January 27, 2026 response 
on February 25, 2026, saying that:  
 
appellant concedes that four of the eight citations in its 
Rule 11 Opening Brief were to cases that do not exist. 
Likewise, appellant admits that it cited to another fictitious 
case in its January 9, 2026 brief on the vitiation issue.8  
 
2 Gov’t Dec. 19, 2025 br. at 1, 15.  Although in the conclusion to its motion to strike, 
the government requests that the Board “deny this appeal in its entirety,” we 
interpret that as a reference to the government’s preferred disposition if the 
appeal is decided on its merits. 
3 App. Dec. 24, 2025 br. at 1-2. 
4 Gov’t Jan. 23, 2026 br. at 9-10. 
5 Gov’t Jan. 23, 2026 br. at 2 ¶ 1. 
6 Gov’t Jan. 23, 2026 br. at 9-10. 
7 App. Jan. 27, 2026 br. at 12. 
8 On December 17, 2025, the Board requested briefing upon whether a January 22, 
2024 final decision by the contracting officer had vitiated the finality of the 
contracting officer’s October 17, 2023 termination of the contract for default. 

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Adding these concededly erroneous case citations to the 
30 false case citations and four fictitious [Federal 
Acquisition Regulation] cites that appellant included in its 
Rule 11 Surreply, to date appellant has admitted to 
including 39 total cites across these three briefs that cite to 
cases that do not exist.9 
 
In response, on March 5, 2026, appellant denied that its briefing cites 39 non-existent 
cases, but admitted that appellant “made references to ten (10) non-existing cases; one 
(1) in the Opening Brief, one (1) in its January 9, 2026 brief on the vitiation issue, and 
eight (8) in its Rule 11 Surreply.”
10  Appellant’s March 5, 2026 brief states further that 
those ten citations of non-existent cases “represent an unintentional lapse in providing 
inaccurate citation rather than a fraud upon the Board.”11  That brief does not mention 
AI, or otherwise explain with any specificity how it happened that appellant cited ten 
cases that do not exist. 
 
DECISION 
 
Filing briefs without taking the necessary care in their preparation, including 
reliance upon fictitious opinions or incorrect citations (whether AI-generated or not) 
risks sanctions; we have recently sanctioned a party for such behavior by striking an 
offending brief, guided by Rule 11 of the Federal Rules of Civil Procedure.  See 
Huffman Constr., LLC, ASBCA Nos. 62591, 62873, 25-1 BCA ¶ 38,932 at 189,484-86.  
Without addressing whether it used AI to prepare its surreply, appellant admits that its 
original surreply includes “incorrect case names, erroneous reporter citations, and the 
misapplication of certain regulatory provisions.”12  Having originally requested only that 
we strike that surreply, the government now requests (and not in the alternative) that we 
dismiss the appeal altogether, with prejudice.13  We decline to do so.  The government 
fails even to address whether appellant’s behavior is the kind of contumacious or 
contemptuous conduct sufficient to justify the drastic sanction of dismissal, “the severest 
sanction the Board can issue.”  See Utility Constr. Co., ASBCA No. 57224, 12-2 BCA 
¶ 35,128 at 172,467; Sykes Commc’ns, Inc., ASBCA Nos. 53842, 54077, 04-2 BCA 
¶ 32,743 at 161,936.  Nevertheless, in view of appellant’s admission that its December 1, 
2025 surreply cites eight non-existing cases,14 we accept appellant’s suggestion that we 
 
9 Gov’t Feb. 25, 2026 br. at 1. 
10 App. Mar. 5, 2026 br. at 4. 
11 App. Mar. 5, 2026 br. at 6. 
12 App. Dec. 24, 2025 br. at 1. 
13 Gov’t Jan. 23, 2026 br. at 1, 10. 
14 App. Mar. 5, 2026 br. at 4. 

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strike that brief.15  In addition, in view of appellant’s admission that three of its briefs in 
this appeal (including the surreply) together cite ten non-existing cases, combined with 
what we view as appellant’s lack of candor regarding how those non-existing cases 
found their way into its briefing, and to deter repetition of future such conduct —AI-
related or not—we deny appellant’s motion for leave to file an amended surreply.  See 
Huffman Constr., 25-1 BCA ¶ 38,932 at 189,487. 
 
CONCLUSION 
 
The government’s motion to dismiss the appeal with prejudice is denied.  
Appellant’s December 1, 2025 surreply is stricken; appellant’s December 24, 2025 
motion for leave to file an amended surreply is denied. 
 
Dated:  March 13, 2026 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
J. REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  
 
15 As an aside, the government suggests that the Board strike appellant’s opening brief.  
Gov’t Jan. 23, 2026 br. at 9.  We decline:  the government does not address 
whether, under the circumstances, leaving appellant with only its “reply” brief 
responding to the government’s opening brief would unduly prejudice 
appellant.  See Huffman Constr., 25-1 BCA ¶ 38,932 at 189,485-87; SmithKline 
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).   

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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. 63878, Appeal of DSME 
Construction Co., Ltd., rendered in conformance with the Board’s Charter. 
 
Dated:  March 13, 2026 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals