CBCA 7513

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON JULY 31, 2024 DENIED: July 23, 2024 CBCA 7513 FRAMACO INTERNATIONAL INC., Appellant, v. DEPARTMENT OF STATE, Respondent. Douglas L. Patin and Erik M. Coon of Bradley Arant Boult Cummings LLP, Washington, DC; and Sam Z. Gdanski and Abraham S. Gdanski of Gdanski Law PC, Teaneck, NJ, counsel for Appellant. Matthew S. Tilghman, Thomas D. Dinackus, and Alexandra N. Wilson, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), RUSSELL, and O’ROURKE. RUSSELL, Board Judge. Appellant, Framaco International Inc. (Framaco), has filed 131 cases with the Board (certain of which are consolidated) based on its contract with respondent, Department of State (State or agency), Bureau of Overseas Building Operations (OBO), to construct an embassy compound in Port Moresby, Papua New Guinea. CBCA 7513 2 This decision is being issued in accordance with the Board’s order on further proceedings of October 19, 2023 (Order), which largely adopted the parties’ proposal to resolve approximately 100 of appellant’s non-consolidated appeals brought pursuant to Board Rule 53 (48 CFR 6101.53 (2023)), along with certain claims in four of its consolidated appeals that were not based on Government-caused delay. See Rule 53 (governing accelerated procedures, which are available at an appellant’s election but limited to appeals involving amounts in dispute of $100,000 or less); see also Rule 1(a) (“The Board may alter [its] procedures on its own initiative or on request of a party to promote the just, informal, expeditious, and inexpensive resolution of a case.”). The Order states that “[t]he presiding judge with the two members of the panel . . . will decide the following appeals for which the parties will submit briefing: CBCA 7508, 7512, 7513, 7549, 7561, 7572, 7573, 7625, 7695, 7712, 7847, and 7859 (‘Selected Appeals’).” The Order additionally states, “Decisions rendered by the panel will be in summary form either in writing or orally, if a hearing is held; will be final and conclusive; will not be set aside, except for fraud; and will not be precedential.” As agreed to by the parties, quantum in the non-consolidated appeals and certain claims in four of Framaco’s consolidated appeals (to which the Order applies) will be decided based on a formula derived from any damage amounts awarded to Framaco in the Selected Appeals. In a subsequent joint response filed with the Board on March 19, 2024, the parties confirmed that the Order applies to the appeals described above. This appeal (CBCA 7513) arises from State’s denial of Framaco’s claim for increased costs ($47,742) resulting from an alleged government directive for the sole-source procurement of a kitchen exhaust hood outside the scope of the embassy construction contract. Background I. The Contract In September 2015, State awarded Framaco a firm-fixed-price contract, initially valued at approximately $97 million to construct the New Embassy Compound (NEC) in Port Moresby, Papua New Guinea.1 Appeal File, Exhibit 1 at DOS-PTMO-00982321.2 The project was originally designed in 2010 as a “Standard Secure mini-Compound” (SSmC) 1 The contract was issued on July 6, 2015, and awarded on September 30, 2015. Appeal File, Exhibit 1 at DOS-PTMO-00982303-04. 2 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7513 3 with a scope including a lock-and-leave new office building, a perimeter security wall and fence, a main compound entry pavilion (MCAP), a service entry/utility building, and a support annex. Exhibit 2 at DOS-PTMO-00982414. Construction of the SSmC facility began in 2012, but in 2013, after forty percent of the project was completed, a future marine detachment was planned for Port Moresby and the embassy staffing requirement was increased. Id. State therefore descoped the work under the 2012 contract and closed out that contract. The project was redesigned under an expanded NEC, incorporating the completed portions of the SSmC project as well as surplus equipment and materials, where appropriate. Id.