ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of

-- ) ) GSC Construction, Inc. ) ) Under Contract No. W9126G-11-D-0061 )

APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59402

Karl Dix, Jr., Esq. Douglas L. Tabeling, Esq. Lochlin B. Samples, Esq.

Smith Currie & Hancock LLP Atlanta, GA

Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney Stephanie R. Darr, Esq. Keith J. Klein, Esq. Alexandria P. Tramel, Esq Lauren M. Williams, Esq.

EngineerTrial Attorneys U.S. Army EngineerDistrict, Tulsa

OPINION BYADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT'S MOTION FOR SUMMARYJUDGMENT

The government moves for summaryjudgment in ASBCANo. 59402 that its termination ofTask OrderNo. DSOl ofContractNo. W9126G-11-D-0061 for default

wasjustified, contendingthat appellant violated the contract's labor standards provisions, specifically, Federal Acquisition Regulation (FAR) 52.222-4, CONTRACT WORKHOURS AND SAFETY STANDARDS ACT- OVERTIME COMPENSATION (CWHSSA) (JULY 2005)," and FAR 52.222-6, DAVIS-BACON ACT (DBA) (JULY 2005). The motion is denied.

Summaryjudgment shall be granted ifthe movant shows that there is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw. AvantAssessment, LLC, ASBCA No. 58867, 15-1BCA,-r36,067 at 176,129 (citing FED. R. CIV. P. 56(a)). Although the Board does not possess jurisdictionto determine whether a contractor has violated labor laws, it possesses jurisdiction, for purposes ofdetermining whether a contract defaulttermination is justified, to determine whetherthe U.S. Department ofLabor (DOL) has found under its establishedprocedures that the contractor has committed such a violation; in other words, whether DOL's finding ofa violation is final. See Herman B. TaylorConstruction Co. v. Barram, 203 F.3d 808, 811-12 (Fed. Cir. 2000); see also Puget SoundEnvironmental Corp., ASBCA Nos. 58827, 58828,**14-1BCA~35,585** at 174,370, 174,372 (finding no final DOL ruling and dismissing appeal); HuntBuilding Co., ASBCA No. 55157,**06-1BCA~33,213** at 164,597-98 (same). Ifa contractor accepts DOL's investigative findings and does not request a hearing, or ifa DOL administrative lawjudge 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 eitherthe contractor admitting liability or an adjudicative finding that the contractor violated labor standards, then there is no final determination by DOL that the contractorviolated a contract's labor provisions. Id.

Here, there is no dispute that the contract incorporated FARclauses 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 ofmaterial fact whether appellant ever accepted DOL'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, appellantpoints to its 1October 2014 letterto 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 ofits owner in which he states that he "negotiated a settlement [with DOL] for a fraction ofthe DOL's demand that was conditioned on the investigation being closed without any finding offault 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 CWHSSAviolations are final" (gov't4 March 2016 filing, ex. A). Because resolution ofthis issue would require us to find whether, as a matter offact, DOL's investigative findings are final, the issue is not amenable to summaryjudgment.

Dated: 5 May 2016

(Signatures continued)

2I concur I concur

# ~./~···-~--- 'MARKN.

## STEMPL~ --._ RICHARD SHACKLEFORD

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 59402, Appeal ofGSC Construction, Inc., rendered in conformance with the Board's Charter.

Dated:

3 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals