CBCA 7625

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON AUGUST 30, 2024 GRANTED: August 22, 2024 CBCA 7625 FRAMACO INTERNATIONAL INC., Appellant, v. DEPARTMENT OF STATE, Respondent. Douglas L. Patin and Erik M. Coon of Bradley Arant Boult Cummings LLP, Washington, DC; Sam Z. Gdanski and Abraham S. Gdanski of Gdanski Law PC, Teaneck, NJ, counsel for Appellant. Thomas D. Dinackus, Matthew S. Tilghman, 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 7625 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 and are limited to appeals in which there is a monetary amount 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. In this appeal, Framaco challenges the contracting officer’s deductive change to the contract that removed the requirement for Framaco to submit an updated basis of design and issued State a credit of $35,918.23. While the Board agrees with State’s interpretation of key contract provisions, we nevertheless find that State’s deduction was improper. The applicable specification on which State relied for the deduction required Framaco to produce many final record documents during project closeout. State does not allege that these tasks were not completed. Further, we cannot be sure how Framaco allocated its cost for this work given that the contract was firm-fixed-price and the amount used by State for its deduction for the work was based on a payment estimate provided by Framaco that, per the contract, was not conclusive proof of the value of the work. Therefore, we grant the appeal. 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 CBCA 7625 3 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) with a scope that included 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. Id.