GSC Construction, Inc.

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 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