               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
GSC Construction, Inc.                        )      ASBCA No. 59402
                                              )
Under Contract No. W9126G-11-D-0061           )

APPEARANCES FOR THE APPELLANT:                       Karl Dix, Jr., Esq.
                                                     Douglas L. Tabeling, Esq.
                                                     Lochlin B. Samples, Esq.
                                                      Smith Currie & Hancock LLP
                                                      Atlanta, GA

APPEARANCES FOR THE GOVERNMENT:                      Thomas H. Gourlay, Jr., Esq.
                                                      Engineer Chief Trial Attorney
                                                     Stephanie R. Darr, Esq.
                                                     Keith J. Klein, Esq.
                                                     Alexandria P. Tramel, Esq
                                                     Lauren M. Williams, Esq.
                                                      Engineer Trial Attorneys
                                                      U.S. Army Engineer District, Tulsa

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

       The government moves for summary judgment in ASBCA No. 59402 that its
termination of Task Order No. DSOl of Contract No. W9126G-11-D-0061 for default
was justified, contending that appellant violated the contract's labor standards
provisions, specifically, Federal Acquisition Regulation (FAR) 52.222-4, CONTRACT
WORK HOURS AND SAFETY STANDARDS ACT- OVERTIME COMPENSATION (CWHSSA)
(JULY 2005)," and FAR 52.222-6, DA VIS-BACON ACT (DBA) (JULY 2005). The motion
is denied.

        Summary judgment shall be granted if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter oflaw. Avant Assessment, LLC, ASBCA No. 58867, 15-1BCA,-r36,067 at
 176,129 (citing FED. R. CIV. P. 56(a)). Although the Board does not possess
jurisdiction to determine whether a contractor has violated labor laws, it possesses
jurisdiction, for purposes of determining whether a contract default termination is
justified, to determine whether the U.S. Department of Labor (DOL) has found under
its established procedures that the contractor has committed such a violation; in other
words, whether DOL's finding of a violation is final. See Herman B. Taylor
Construction Co. v. Barram, 203 F.3d 808, 811-12 (Fed. Cir. 2000); see also Puget
Sound Environmental Corp., ASBCA Nos. 58827, 58828, 14-1BCA~35,585 at
174,370, 174,372 (finding no final DOL ruling and dismissing appeal); Hunt Building
Co., ASBCA No. 55157, 06-1BCA~33,213 at 164,597-98 (same). If a contractor
accepts DOL' s investigative findings and does not request a hearing, or if a DOL
administrative law judge finds that the contractor has violated a contract's labor
standards, those findings are final. Id. at 813-14. However, ifthe contractor and DOL
settle a labor standards dispute without either the contractor admitting liability or an
adjudicative finding that the contractor violated labor standards, then there is no final
determination by DOL that the contractor violated a contract's labor provisions. Id.

        Here, there is no dispute that the contract incorporated FAR clauses 52.222-4
and 52.222-6 (R4, tab 28n at 1896), or that a DOL investigation found that appellant
violated those provisions (mot. ex. 4). However, there is no evidence that DOL
adjudicated whether appellant violated those provisions. Therefore, resolution turns on
the issue of material fact whether appellant ever accepted DO L's investigative findings,
making them final. That issue is in genuine dispute. Although there is no evidence that
DOL and appellant entered into a written settlement agreement, appellant points to its
1 October 2014 letter to DOL stating that payments that it made to employees as a
result ofDOL's investigation "represent[] a compromise and not an admission of
liability" (opp. at 24, ex. 5), as well as the affidavit of its owner in which he states that
he "negotiated a settlement [with DOL] for a fraction of the DOL's demand that was
conditioned on the investigation being closed without any finding of fault or liability"
(opp. ex. 6 ~ 8). For its part, the government points to a 2 March 2016, DOL letter
addressed to appellant stating that "DOL's findings regarding [appellant's] DBA and
CWHSSA violations are final" (gov't 4 March 2016 filing, ex. A). Because resolution
of this issue would require us to find whether, as a matter of fact, DOL's investigative
findings are final, the issue is not amenable to summary judgment.

       Dated: 5 May 2016




(Signatures continued)




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 I concur                                             I concur


~./~···-~---
'MARKN. STEMPL~                                --._   RICHARD SHACKLEFORD
 Administrative Judge                                 Administrative Judge
 Acting Chairman                                      Vice Chairman
 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. 59402, Appeal of GSC
Construction, Inc., rendered in conformance with the Board's Charter.

      Dated:



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




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