ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

GSC Construction, Inc. ) 

) 

Under Contract No. W9126G-11-D-0061 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE 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 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) 

2 
I concur I concur 

'MARKN. 

~./~···-~--- STEMPL~ --._ RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

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. 59402, Appeal of GSC 

Construction, Inc., rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals