CBCA 2882

DENIED: August 26, 2016 CBCA 2882 BRYAN CONCRETE & EXCAVATION, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Bradley W. Andersen and Timothy J. Calderbank of Landerholm, P.S., Vancouver, WA, counsel for Appellant. Brian R. Reed, Kristin Langwell, Glenn Sebesta, and Brent Pope, Office of Regional Counsel, Department of Veterans Affairs, Chicago, IL, counsel for Respondent. Before Board Judges SOMERS, DRUMMOND, and ZISCHKAU. SOMERS, Board Judge. Bryan Concrete & Excavation, Inc. (BCE) appealed a contracting officer’s decision to terminate a contract with BCE for default for failure to make progress. The contract required BCE to upgrade chiller and air handling equipment at a Department of Veterans Affairs (VA or the Government) medical facility in Danville, Illinois. Pending before us is the VA’s motion for summary relief. The VA asserts that the contract, which was set aside CBCA 2882 2 100% for eligible Service Disabled Veteran Owned Small Businesses (SDVOSB),1 was void ab initio because BCE falsely certified that it was an eligible SDVOSB and the Government relied upon that misrepresentation in making the decision to award the contract. For the reasons explained below, we grant the VA’s motion and find that the contract is void ab initio. Background In 1999, Jerry D. Bryan, a veteran of the United States Marine Corps with a 100% disability rating, started BCE. Mr. Bryan, together with his wife, Sherry Bryan, have always been the sole owners and managers of the company. Mr. Bryan is the president and the chair of the board of directors. Mrs. Bryan is the vice-president, secretary, and treasurer. Mr. Bryan met Wayne Singleton in 2006, when Mr. Singleton hired BCE as a subcontractor on a federal fish hatchery project in White Salmon, Washington, where BCE performed some excavation and construction work for him. Apparently satisfied with the work, Mr. Singleton used BCE as a subcontractor in two other federal projects. During one of these projects, Mr. Singleton became aware that Mr. Bryan was a disabled veteran. Mr. Singleton told Mr. Bryan about various opportunities for disabled veterans to bid on federal projects that had been set aside for eligible SDVOSBs. In 2008, Mr. Singleton offered to help BCE get qualified as a SDVOSB, to bid on federal contracts, and to manage those projects. Mr. Singleton volunteered to assist BCE in obtaining the required bonding, insurance, and subcontractors necessary to fulfill contract requirements. Mr. Singleton, doing business as Singleton Enterprises, a Georgia sole proprietorship, entered into a teaming agreement with BCE on January 20, 2009. Under the teaming agreement, BCE agreed to do several things, including (1) open a business checking 1 Eligible SDVOSBs are defined as: “[A] business not less than 51 percent of which is owned by one or more service-disabled veterans, or in the case of any publicly owned business, not less than 51 percent of the stock of which is controlled by one or more service disabled veterans, or in the case of a veteran with a permanent and severe disability, a spouse or permanent caregiver of such veteran.” 38 CFR 74.1. The VA’s Center for Veterans Enterprise (CVE) (now known as the Center for Verification and Evaluation) requires that the business must be directly owned by one or more veterans or service-disabled veterans, that the ownership be unconditional, and that the veterans or service-disabled veterans exercise control of “both the day-to-day management and long term decision- making authority of the business.” Id. 74.3, 74.4. CBCA 2882 3 account in Georgia for the purpose of receiving electronic wire transfer payments on contracts, with Mr.