Dongbuk R&U Engineering Co., Ltd.
Docket: ASBCA 58300
Decision date: 2008-06-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Dongbuk R&U Engineering Co., Ltd. ) 
) 
Under Contract No. W9IQVN-08-D-0037 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58300 
Min Byoung Kook, Esq. 
Song Yong Eui, Esq. 
Chung Jin Law Offices 
Seoul, Korea 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
LTC Peter H. Tran, JA 
MAJ Todd J. Hanks, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE HARTMAN 
ON GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
The government moves for summary judgment on the grounds of fraud based upon 
"Appellant's President's criminal conviction for submitting forged technicians' licenses to 
the government in order to deceptively procure the award of the contract." According to 
the government, "[g]iven this fraud ab initio, the Board lacks subject matter jurisdiction 
over the subject appeal" to recover "payment for services rendered related to the Project for 
the period from June to August 20II." (Government's Motion for Summary Judgment 
(Gov't SJM) at I; Complaint (Compl.) ~I) Appellant contends in both its response (App. 
Opp'n) and sur-reply (App. Sur-reply) to the summary judgment motion that there are 
issues of material fact in dispute between the parties precluding us from granting the 
summary judgment motion. It asserts discovery would show the same or similar HV AC 
problem arose with respect to the follow-on contractor whose contract also was terminated, 
the government relaxed the license requirement when subsequently re-competing this 
work, its contract requirements for Class I technicians were overly burdensome, and had 
the Government properly determined whether companies bidding for appellant's Contract 
could reasonably meet the requirement, the "Class I license fraud" issue would not have 
arisen. (App. Opp'n at I-4; App. Sur-reply at I-2) 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
On 25 June 2008, the U.S. Army Contracting Command Korea issued Solicitation 
No. W91QVN-08-R-0132 for Military Family 
Housing (MFH) maintenance services at 
Osan Air Base in the Republic ofKorea (ROK) (R4, tab 3 at 1, 34). The Solicitation stated 
in paragraph 30.1 of its Performance Work Statement (PWS) that a contractor "shall have 
on staff at least one employee" who has a license for civil, electrical, and mechanical 
engineering issued by the Human Resources Development Service of Korea, and in 
paragraph 30.3 of its PWS that: 
The 
contractor shall ensure employees performing the 
following types of work have the following current and valid 
professional license or will be working under the supervision of 
an employee so licensed before starting work: 
• Building Plumbing Technician: The plumber shall 
possess a technician license (Class I) issued by ROK 
Government in plumbing repair with at least three years 
of experience. 
• Heating, Ventilating and Air Conditioning Mechanic 
Technician: The Mechanic shall possess a technician 
license (Class I) issued by ROK Government in 
mechanical repair with at least three years of experience. 
• Electrician: The Electrician shall possess a technician 
license (Class I) issued by ROK Government in 
electrical repair with at least three years of experience. 
(R4, tab 3 at 44-45) The Solicitation further stated offerors were required to submit a 
technical proposal with "licenses for the staff' (referencing "Paragraph 30.1 ")and resumes 
for the plumber, mechanic, and electrician (referencing "Paragraph 30.3") "to meet the 
required experience and qualification[s]" stated in the PWS (R4, tab 3 at 89-90). 
Appellant, Dongbuk R&U Engineering Co., Ltd. (Dongbuk), submitted a revised 
and final proposal for the Solicitation on or about 28 July 2008. The revised proposal 
specifically supplemented its original proposal with a Class I HV AC Mechanical Engineer 
license and a reduced price quotation. Dongbuk stated in the revised proposal under 
"Organization and Manpower" that its: 
Maintenance and Repair Shop has 6 technicians of each 
technical area and 3 general workers to support professionals 
for performance of service requirements by service calls or 
2 

requirement orders. The required professional licenses and 
career description of employees are presented in section 
1. Licenses and 2. Personnel Qualification of IL Technical 
Proposal. [Emphasis in original] 
(R4, tab 5 at 8) In section II of its revised technical proposal under "1. Licenses," 
Dongbuk listed "1st Class" Mechanical Engineer, Plumbing Technician, HV AC 
Mechanical Engineer and Electric Engineer, and appended "[t]he copy oflicenses." In 
Section II under "2. Personal [sic] Qualification," Dongbuk proposed "qualified key 
technical personnel for the performance of this solicitation," including a "1st Class" 
Mechanical Engineer, Plumbing Technician, HV AC Mechanical Engineer and Electric 
Engineer, and appended a "Resume" for each showing they possessed "1st Class" licenses. 
The revised proposal stated the technical personnel listed "Comply" with the "Special 
Qualifications" set forth in Solicitation paragraphs 30.1 through 30.3. Similarly, the 
revised proposal further stated personnel "Comply" with the Solicitation's Personnel 
Qualification and License requirements. (R4, tab 5 at 2, 15, 16-19, 20-26, 32-33, 39) 
Dongbuk's revised proposal included an organization chart indicating its licensed 
technicians would be located at Osan Air Base (R4, tab 5 at 28-29). The proposal also 
represented that it complied with FAR 52.203-3, GRATUITIES (APR 1984), and Dongbuk 
was bound by all certifications and representations set forth (R4, tab 5 at 42, 61 ). 
In a cover letter for the revised proposal, Dongbuk's president and chief executive 
officer (CEO), Kyu-Hwan Lee, stated: 
Based on the notification after initial proposal evaluation, we 
submits [sic] this revised proposal with supplement of key 
technical personnel with right qualifications. 1st Class HV AC 
Mechanical Engineer ... which caused by miss-interpretation [sic 1 of 
requirement. And we also would likes [sic] to propose and kindly 
be accepted our revised price quotation with lower pricing as a 
result of cost reduction efforts from previous proposal. [Bold 
added] 
(R4, tab 5 at 2) 
Government contracting officials reviewed Dongbuk's revised proposal for 
conformance to the Solicitation, specifically noting it included Class I licenses issued by 
the ROK for the plumbing, HV AC, and electrician technician (R4, tab 6). Contracting 
officials thus relied on Dongbuk's inclusion of a Class I HVAC technician license and 
Dongbuk' s various representations that it possessed qualified key technical personnel and 
would utilize such personnel in the performance of contract work, including a "1st Class" 
HV AC Mechanical Engineer. 
3 

In August 2008, the U.S. Army Contracting Command Korea awarded to the 
appellant, Dongbuk, the 
requirements Contract No. W91QVN-08-D-0037 to perform 
maintenance and custodial services for MFH at Osan Air Base in the ROK for one base 
period and four option periods (R4, tab 1 at 1, 3, 36, 93). The contract's PWS was 
identical to that set forth in the Solicitation and incorporated FAR 52.203-3, GRATUITIES 
(APR 1984). (Compare R4, tab 1 at 36-48 with R4, tab 3 at 34-46, 95) 
In August of 2009, the Army exercised the first option period of the contract, 
thereby extending the contract's term (R4, tabs 7, 8). During April of2010, the contracting 
officer (CO) issued a Contract Discrepancy Report notifying Dongbuk of improper 
maintenance oftwo HVAC systems which damaged those systems and the occurrence of 
an environmental violation (R4, tab 9 at 1-2). Dongbuk denied damaging the systems but 
admitted responsibility for the environmental violation (R4, tab 10 at 2-3). 
During August of2010, the Army exercised the second option period ofthe 
contract, thereby extending the contract's term another year (R4, tabs 17, 18). In January 
of2011, the 5th Field Investigation Squadron (FIS), Air Force Office of Special 
Investigations (AFOSI) initiated an investigation ofDongbuk's contract performance as a 
result of its receipt of an anonymous letter detailing alleged fraudulent activity by Dongbuk 
under the contract. About one week later, on 11 January 2011, AFOSI learned from the 
Human Resource Development Service of Korea that none ofDongbuk's 27 employees 
listed as having worked at Osan Air Base possessed a certificate of national technical 
qualification. (R4, tab 19) Two days later, AFOSI asked the issuing authority, South 
Korea's Human Resource Development Service, to review the five certificates of technical 
qualification attached to Dongbuk's revised contract proposal and was advised two of the 
attached certificates for plumbing and electrical had been altered from 2nd Class to 1st Class 
(R4, tab 20). Contemporaneously, AFOSI queried the Defense Biometric Identification 
System (DB IDS), which controls all military facilities in South 
Korea, and found that none 
of the technician employees listed in Dongbuk's contract proposal as possessing Class I 
licenses ever accessed any U.S. Forces Korea (USFK) installation during the period of 
contract performance. The investigators further found that the HV AC Class I technician 
listed in the proposal was never issued a USFK installation pass even though non-USFK 
personnel are required to obtain such a pass prior to entering an installation. Several days 
later, AFOSI learned from a former Dongbuk electrician that he did not hold a Class I 
license while performing work under the contract and that all Dongbuk invoices for 
reimbursable material costs submitted had been inflated. (R4, tab 22 at 1) As a result of its 
investigation, AFOSI referred the matter to the local Korean prosecutor's office for 
possible prosecution and to the Secretary of the Air Force, Deputy General Counsel for 
suspension and debarment action (id. at 2). 
In April2011, the local Korean prosecutor's office questioned Mr. Kyu-Hwan Lee, 
CEO ofDongbuk. In a sworn statement to the prosecutor resembling an American legal 
4 

deposition, which was later translated by a U.S. Army private first class, Mr. Lee admitted 
to using resumes found in Dongbuk's human resources pool of files for former and 
potential employee hires to append to Dongbuk's contract proposal. He additionally stated 
that Dongbuk never hired these Class I licensed technicians because it was too expensive to 
do so, it instead hired unlicensed or Class II technicians in violation of the contract terms; 
USFK required 1st Class technicians and would not have wanted to sign the contract if it 
had known 1st Class technicians were not being employed, and there was a high possibility 
that his company would have been at a disadvantage in obtaining the contract if it had not 
supplied with its proposal the resumes identifying its employees as Class I technicians. 
(Gov't SJM, ex. Hat 2, 5, 9-12) Mr. Lee noted that CO Representative (COR) Hee-Kook 
Song was aware the technicians being used were not Class I, but he 
believes the COR did 
not tell the CO (id. at 1 0). 
In May of2011, the Korean government indicted Mr. Lee and Dongbuk's site 
manager, Mr. Kwang-Pung Noh, for giving approximately $13,000 in bribes to COR Song, 
and COR Song for receiving those bribes. Additionally, it indicted Mr. Lee for fraud, 
forging and falsifying electrician, HV AC mechanic, and plumbing licenses to appear to 
comply with the PWS of the contract at issue here. The ROK investigation found that 
Dongbuk performed substandard work under the contract and HV AC equipment was 
damaged as a result in an amount exceeding one million United States dollars. (R4, tab 30) 
On 30 June 2011, the United States Army Suspension and Debarment Official 
formally notified Dongbuk and Mr. Lee of their suspensions "from contracting USFK-wide 
with the Executive Branch of the United States Government," pending completion of an 
investigation into fraud and bribery committed by Dongbuk during performance of the 
contract (R4, tab 33). When a member of the Defense Criminal Investigative Service and 
an inspector from the Korean National Tax Service hand-delivered the suspension letter to 
Mr. Lee on 5 July 2011, Mr. Lee stated: the reason Dongbuk submitted inflated invoices 
for reimbursable material costs was to cover the losses Dongbuk incurred performing the 
contract; he knew what he did was wrong, but he needed to recover his losses; he paid 
COR Song $13,000 in bribe money; he had under-bid the contract; and providing Class I 
licensed technicians "was very expensive." (R4, tab 34) 
On 28 September 2011, 
a Korean criminal court convicted Mr. Lee of four counts of 
fraud against the U.S. government (R4, tab 49). A translation of the court documents sets 
forth the "FACTS OF THE CRIMES" as follows: 
A. Exercise of forged document: On 2008.7.28, at Dongbuk 
R&U Engineering's office located at 978-10, Bangabe-dong, 
Seocho-gu, Seoul, Lee was 
preparing bidding proposal for 
Osan Air Base officer's family quarter management contract. 
Lee found out that he could not fulfill the contract's 
requirements, to have first class technician in electricity, air 
5 

conditioning, machinery, and plumbing. So, he forged second 
class plumber Hong Woo Han's license and second class 
electricity technician Nak Seon Paek's license to first class 
license and sent copies of the licenses to contract manager of 
Osan Air Base officer's family quarter. 
B. Violation of national technician qualification law: In 
2008.8, U.S. contract manager requested additional 
documents as evidence to prove that Dongbuk R&U 
Engineering had been hiring 
first class air conditioning 
technician. Lee decided to borrow license from a technician. 
Lee borrowed first class air conditioning technician license 
from Byeong Hoon Chung and paid him money in return. 
C. Fraud: When signing contract with U.S. Air Force, it was 
confirmed that the U.S. forces pay for expenses spent for 
officer's family quarter management contract. (In case of 
purchasing light bulbs, electric appliances, and machine 
parts for this contract, the U.S. Air Force agreed to pay for 
the expenses, as requested by Dongbuk R&U Engineering.) 
However, after confirming that U.S. Air Force did not check 
the 
requested price, Lee decided to inflate the price and 
make requests. From 2009.1 to 2011.4, as shown in attached 
crime table, Lee inflated price and swindled W59,151,796 
($59,152 USD) from contract manager of U.S. Air Force, 
including the occasion of swindling W431,050 ($431 USD) 
in 2009.1. Lee used the method of falsely making receipts 
with blank receipt paper. He inflated W2,400 ($2.4 USD) 
light bulb to W4,800 ($4.8 USD) when making such 
request. 
D. Providing bribe: In 2009, at Seoulok, a restaurant located in 
Seojeong-dong, Pyeongtaek-si, Gyeonggi-do, Lee provided 
Song 
W 2,000,000 ($2,000 USD) .... In 2009, at Seoulok, 
Lee provided Song W 2,000,000 ($2,000 USD). In 2010, at 
public parking lot in front ofNew Metro Hotel located in 
Seojeong-dong, Pyeongtaek-si, Gyeonggi-do, Lee provided 
Song 
W 2,000,000 ($2,000 USD). In 2010.7, at a coffee 
shop located in New Metro Hotel, Lee provided Song two 
million KRW. Between 2009.2 and 2010.7, Lee provided 
Song 
W13,000,000 ($13,000 USD) over six 
occasions. 
6 

(R4, tab 49 at 2-3, tab 51) The Korean criminal court ordered Mr. Lee to pay the U.S. 
W59,151,796 ($59,151.79 USD) and sentenced him to one year in prison, which was 
deferred for a two-year period and would not be required if he "stays clean" during the 
period (i.e., was not in further criminal trouble) (R4, tab 49 at 2, tab 51). 
On the same date, 28 September 2011, a Korean criminal court convicted 
COR Song of receiving bribes from Dongbuk to ignore inflated costs on invoices it 
submitted under the contract (R4, tabs 49, 51). The court sentenced COR Song to pay a 
fine of about $7,000 and another fine of about $13,000, and if he did not pay the latter, he 
would be placed in jail to perform labor calculated at $50 a day (id.). 
On 12 October 2011, the Air Force Audit Agency issued a Summary of Audit 
Results finding Dongbuk overcharged the U.S. about $145,026.38 for the period of 
contract performance between October 2008 and May 2011 (R4, tab 52 at 1, tab 57). The 
Audit Agency did not include the months of June, July and August 2011 in its audit 
summary because the government withheld payment from Dongbuk for those months 
pending legal action (R4, tab 52 at 1 n.l, tab 57). 
In November of2011, based on Mr. Lee's convictions for forgery, bribery and fraud 
in connection with the contract, U.S. Air Forces Korea notified Dongbuk and Mr. Lee of 
their proposed debarment (R4, tab 55). The following month, the government issued a 
debarment decision letter to both Dongbuk and Mr. Lee debarring them from contracting 
with the Executive Branch of the United States government for five years due to 
"egregious misconduct" (R4, tab 58). 
During April of2012, Dongbuk submitted to the CO a claim for payment of 
W186,325,196 (about $159,252.00) for invoices it had submitted for performance ofthe 
contract during the months of June, July and August 2011, which was certified by Mr. Lee 
(R4, tab 59; Compl. ~ 1). On 29 August 2012, based on lack of receipt of a final CO 
decision, Dongbuk filed this appeal with the Board. Dongbuk filed its complaint in this 
appeal during September of2012 and one month later the government filed its answer 
asserting the affirmative defense of fraud. 
DECISION 
Based upon the "Appellant's President's criminal conviction for submitting forged 
technicians' licenses" to "deceptively procure the award of the Contract," the government 
moves for summary judgment upon the ground of fraud. According to the government, 
"[g]iven this fraud ab initio, the Board lacks subject matter jurisdiction over the subject 
appeal" to recover "payment for services rendered related to the Project for the period from 
June to August 2011." (Gov't SJM at 1; Compl. ~ 1) Appellant contends that there are 
issues of material fact in dispute that preclude us from granting summary judgment (App. 
Opp'n at 1-4; App. Sur-reply at 1-2). 
7 

In this appeal, the government acknowledges it solicited proposals to perform 
maintenance services at Osan Air Base and "awarded" a contract for such services to 
Dongbuk. The government, however, challenges the contract's existence based upon "fraud" 
committed by Dongbuk unknown to the government at time of the award. While the 
government contends subject matter jurisdiction is lacking before this Board because there 
was no enforceable contract, "the law is clear that, [for us] to have jurisdiction, a valid 
contract must only be pleaded, not ultimately proven." Total Medical Mgmt., Inc. v. United 
States, 104 F.3d 1314, 1319 (Fed. Cir.), cert. denied, 522 U.S. 857 (1997); accord Engage 
Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011); Lewis v. United States, 
70 F.3d 597, 602, 604 (Fed. Cir. 1995); Gould, Inc. v. United States, 67 F.3d 925, 929-30 
(Fed. Cir. 1995). Dongbuk has made a non-frivolous assertion of an express contract to 
perform services. The government's contention- that fraud by Dongbuk resulted in the 
contract being void- is a challenge to the "truth" of the allegation there was a contract 
entered into, rather than to the "sufficiency" of the allegation of a contract. Tele-Consulants, 
Inc., ASBCA No. 58129, 13 BCA ~ 35,234 at 172,993; American General Trading & 
Contracting, WLL, ASBCA No. 56758, 12-1 BCA ~ 34,905 at 171,640. Such a challenge is 
not amenable to resolution under a motion to dismiss for lack of jurisdiction. Rather, it must 
be treated as a motion for failure to "state a claim on which relief can be granted." E.g., 
Total Medical Mgmt., 104 F.3d at 1319, 1321; Gould, 67 F.3d at 929-30. Resolution ofthe 
latter requires we "assume jurisdiction" to decide whether the complaint contains allegations 
that, if proven, would be sufficient to entitle a party to relief, as well as to "determine issues 
of fact arising in the controversy." See Gould, 67 F .3d at 929-30; Spruill v. Merit Systems 
Protection Board, 978 F.2d 679, 688 (Fed. Cir. 1992); Do-Well Mach. Shop, Inc. v. United 
States, 870 F.2d 637, 639-40 (Fed. Cir. 1989). Thus, the issue presented by the 
government's motion is whether Dongbuk can prove a necessary element of the cause of 
action for which it seeks relief, i.e., the existence of a government contract. See, e.g., 
Spruill, 978 F.2d at 688; Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 
(Fed. Cir. 1993), cert. denied, 512 U.S. 1235 (1994); E.M Scott & Assocs., ASBCA 
No. 45869, 94-3 BCA ~ 27,059 at 134,837. Here, however, since the parties rely on matters 
outside the pleadings, the government's motion is properly treated as one for summary 
judgment. See, e.g., FED. R. CIV. P. 12(d). 
The standards set forth in FED. R. CIV. P. 56 guide us in resolving the motion for 
summary judgment here, which relies upon the Rule 4 file, Korean court documents, and 
other evidence. J. W. Creech, Inc., ASBCA Nos. 45317,45454,94-1 BCA ~ 26,459 
at 131,661; Allied Repair Service, Inc., ASBCA No. 26619, 82-1 BCA ~ 15,785 at 78,162-63. 
We will grant a summary judgment motion only if pleadings, depositions, interrogatory 
answers, and admissions on file, together with any affidavits or other evidence, show there is 
no genuine issue as to any material fact, and the moving party is entitled to judgment as a 
matter of law. The party seeking summary judgment has the burden of demonstrating both 
elements. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Mingus Constructors, Inc. v. 
8 

United States, 812 F.2d 1387, 1890 (Fed. Cir. 1987); Comptech Corp., ASBCA No. 55526, 
08-2 BCA ~ 33,982 at 168,082. 
The government asserts here that Dongbuk submitted forged technician licenses 
to "deceptively procure the award of the Contract" and thus the services contract awarded 
is void. It is well established that when one party to a contract it:Iduces the other party to 
enter into an agreement through fraud or misrepresentation, the contract is void ab initio. 
Long Island Savings Bank, FSB v. United States, 503 F.3d 1234, 1246 (Fed. Cir. 2007), 
cert. denied, 555 U.S. 812 (2008); J.E.T.S., Inc. v. United States, 838 F.2d 1196, 1197, 
1200 (Fed. Cir.), cert. denied, 486 U.S. 1057 (1988); Francisco Garcia Gutierrez, ASBCA 
No. 42984, 92-1 BCA ~ 24,633 at 122,919. As the Court of Appeals for the Federal Circuit 
explained in J.E. T.S.: 
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 ... (1961) and K & R 
Eng'g Co. v. United States, 616 F.2d 469, 222 Ct. Cl. 340 
(1980). 
JE.T.S., 838 F.2d at 1200; accord Long Island Savings Bank, 503 F.3d at 1246. 
To prove that a government contract is "tainted from its inception by fraud" and 
thus "void ab initio," the government must show the contractor (a) obtained the contract by 
(b) knowingly (c) making a false statement. Long Island Savings Bank, 503 F.3d at 1246; 
accord C&D Construction, Inc., ASBCA No. 38661, 90-3 BCA ~ 23,256 at 116,683. The 
government presents evidence that Dongbuk's CEO was convicted by a Korean court of 
forging Class II Plumber Hong Woo Han's license and Class II Electricity Technician Nak 
Seon Paek's license to a Class I license and sending copies of those forged licenses to the 
government's CO. It also presents evidence that Dongbuk's CEO additionally was 
convicted of "borrowing" a Class I Air Conditioning license from Byeong Hoon Chung in 
exchange for the payment of money when the government's CO advised such a license 
should be furnished with 
a revised proposal to prove the hiring of a Class I Air 
Conditioning Technician. Dongbuk does not dispute here that these acts occurred or that 
its CEO was convicted of crimes by a Korean court for having committed these acts. 
Rather, it admits appellant's "act of forging the technicians' licenses" was "improper" and 
states simply it was trying "to meet the Government's specification which was rather 
unrealistic and over-burdensome." (App. Opp'n at 1) 
9 

According to appellant, "the Government's requirement that certain technicians hold 
Class I licenses was unrealistic and over burdensome" (App. Opp'n at 3; App. Sur-reply 
at 2). While appellant appears to suggest the CO could and should have waived the Class I 
requirement, in Prestex, Inc. v. United States, 162 Ct. Cl. 620, 624, 320 F.2d 367, 371 
(1963), the Court of Claims explained the 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. Prestex, 162 Ct. Cl. at 625-26, 320 F.2d at 371-72. 
Dongbuk' s CEO acknowledges the service provided by a "real" Class I technician 
would have been ''very expensive" (R4, tab 34; accord App. Opp'n at 4). Dongbuk adds 
that, because of fierce competition, it did not have the "luxury" of submitting a contract 
price it thought was reasonable for performance of the specified work (App. Sur-reply 
at 2). In sum, the government has shown here that Dongbuk obtained the contract, through 
a knowing material misrepresentation, planning to provide Class II service cheaper than 
that advertised for, without the knowledge of other bidders, actual or potential, to the other 
bidders' unquestioned disadvantage, and to the detriment of the federal government and its 
procurement system. See, e.g., Prestex, 162 Ct. Cl. at 627, 320 F.2d at 372. 
A nonmoving party need not present its entire case in response to a summary 
judgment motion to defeat that motion, but it must present sufficient evidence to show 
evidentiary conflicts exist on the record as to "material" facts at issue. Armco, Inc. v. 
Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986); Barmag Barmer MaschinenfabrikAG 
v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984). A nonmoving party 
may not simply rest upon vague allegations of disputed facts in opposing such a motion. 
"The very mission of the summary judgment procedure is to pierce the pleadings and to 
assess the proof in order to see whether there is a genuine issue for trial." Penn Screw & 
Machine Works, Inc., ASBCA No. 32382, 89-3 BCA ~ 22,205 at 111,694. 
Dongbuk suggested after briefing of the government's motion concluded that it 
needed discovery to address disputed questions of"material" fact. It promulgated 12 
production requests, which seek documents relating to the performance of two contracts 
awarded subsequently for MFH maintenance services at Osan Air Base. (App. Request for 
Information and Production ofDocuments) It also requested by email of 14 March 2013 
that this Board defer ruling on the summary judgment motion until "the Board has been 
provided with information and documents from the Government." 
10 

A party opposing a summary judgment motion, such as Dongbuk, may request a 
tribunal delay ruling on the motion in order to obtain additional discovery without which 
"it cannot present facts essential to justify its opposition." Baron Services, Inc. v. Media 
Weather Innovations LLC, 2013 U.S. App. LEXIS 9242 (Fed. Cir. 2013). Trial courts 
should grant such requests "when the party opposing the [summary judgment] motion has 
been unable to obtain responses to his discovery requests" and the discovery sought is 
essential to opposing summary judgment and "relevant to the issues presented by the 
motion for summary judgment." !d. (citing Snook v. Trust Co. of Ga. Bank of Savannah, 
N.A., 859 F.2d 865, 870 (11th Cir. 1998)). Rule 56 ofthe Federal Rules of Civil Procedure 
(previously 56(f), now 56( d)) requires that a nonmoving party state, by affidavit, the 
reasons why discovery is needed in order to support its opposition to a summary judgment 
motion. Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 1389 (Fed. Cir. 1989); see 
Celotex, 477 U.S. at 326 (Rule 56(f) provides nonmovants with protection from being 
"railroaded" by premature summary judgment motions); Dunkin' Donuts of America, Inc. 
v. Metallurgical Exoproducts Corp., 840 F.2d 917, 919 (Fed. Cir. 1988) (premature grant 
of summary judgment contrary to Rule 56( f)). Thus, if discovery is reasonably directed to 
"facts essential to justify the party's opposition," in the words of Rule 56( f), discovery 
must be permitted or summary judgment refused. Opryland USA Inc. v. Great Am. Music 
Show, Inc., 970 F.2d 847, 852 (Fed. Cir. 1992). 
Dongbuk has not set forth here, by affidavit or otherwise, how 
documents relating to 
the performance of two subsequent service contracts are relevant to the narrow issue 
presented here - whether Dongbuk can prove existence of a government contract, a 
necessary element of the cause of action for which it seeks relief. The terms and 
administration of two subsequent contracts have no bearing upon whether the contract 
awarded to Dongbuk was void as a result of acts committed by Dongbuk in procuring 
award of the contract. In sum, the discovery sought by Dongbuk is not reasonably directed 
to any "facts essential to justify [its] opposition" to the motion here. One purpose of the 
summary judgment procedure is to save the parties and the trial tribunal the time and cost 
that may be wasted in pursuit of irrelevant facts by discovery. Having made no showing as 
to the need for the discovery, in an unpublished order dated 26 April2013, we denied 
Dongbuk's request to defer ruling upon the summary judgment motion pending its 
discovery. See, e.g., New Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1081 
(Fed. Cir. 1989); Keebler Co., 866 F.2d at 1388-90. 
Based on the evidence presented and cited in response to the government's motion, 
and drawing all reasonable inferences in favor of Dongbuk, the nonmovant, we conclude 
that the agreement which was entered into between Dongbuk and the government did not 
result in a valid contract due to Dongbuk's knowing misrepresentation of its employee 
licenses and governmental reliance on Dongbuk's misrepresentations, and was void ab 
initio. See Long Island Savings Bank, 503 F.3d at 1246; C&D Construction, 90-3 BCA 
,-r 23,256 at 116,683. Dongbuk has set forth no affirmative evidence that would allow a 
reasonable fact finder to conclude otherwise. See Anderson v. Liberty Lobby, Inc., 
11 

477 U.S. 242,248 (1986) (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, 970 F.2d at 849-50 (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, 503 F .3d at 1251. 
Citing the debarment and Korean court action, Dongbuk asserts that both it and its 
CEO have suffered and received sufficient punishment for their actions (App. Sur-reply 
at 2-3). According to Dongbuk, "[t]he Government is trying not to pay [it] for the work 
performed on the basis [it] committed fraud on the Government by failure to provide 
Class I licensed technicians" and presumably should not be allowed to avoid paying 
Dongbuk for the work it performed (id at 2). Although there is authority for compensating 
a party to a contract subsequently found illegal for work it performed based on a theory of 
unjust enrichment, e.g., United States v. Amdahl Corp., 786 F.2d 387, 395 (Fed. Cir. 1986); 
Eaton Corp., ASBCA No. 38386,91-1 BCA ~ 23,398 at 117,403, there is no indication in 
any of those decisions that the contractor engaged in bribery, fraud or other corrupt 
practices to obtain the contract at issue. K&R Eng'g Co. v. United States, 616 F.2d 469, 
475,222 Ct. Cl. at 353; Schuepferling GmbH & Co., KG, ASBCA No. 45564, 98-1 BCA 
~ 29,659 at 146,953. Here, Dongbuk engaged in fraud to obtain the award. The alleged 
rights it seeks to enforce (payment for work performed) spring directly from the contract, 
which is illegal and fraudulent. No tribunal oflaw will lend its assistance to carry out the 
terms of an illegally obtained contract. Atlantic Contracting Co. v. United States, 57 Ct. 
Cl. 185, 196 (1922). The fact that the government received some benefit does not relieve 
Dongbuk from the consequences of its fraud. When one has been guilty of fraud, one 
cannot recover in any form of action. !d. at 197 (citing Dermott v. Jones, 69 U.S. 1, 9 
(1865)); see K&R Eng'g Co., 616 F.2d at 475, 222 Ct. Cl. at 353. 
CONCLUSION 
Appellant cannot establish a necessary element of the cause of action on which it 
seeks relief, i.e., the existence of a government contract. The contract was void ab initio. 
Accordingly, we grant the government's motion for summary judgment and deny the 
appeal. 
Dated: 13 August 20 13 
(Signatures continued) 
12 
~J)~ 
TERRENCE S. HARTMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur I concur 
~~c;;~._~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Acting Vice Chairman 
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. 58300, Appeal ofDongbuk R&U 
Engineering Co., Ltd., rendered in conformance with the Board's Charter. 
Dated: 
13 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals