CBCA 7573

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON JULY 31, 2024 DENIED: July 25, 2024 CBCA 7573 FRAMACO INTERNATIONAL INC., Appellant, v. DEPARTMENT OF STATE, Respondent. Douglas L. Patin, Erik M. Coon, and Jennifer M. Ersin 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. 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 7573 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)) and certain claims in four of its consolidated appeals not based on Government-caused delay. See Rule 53 (governing accelerated procedures available at an appellant’s election, though limited to appeals involving disputes 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 using Framaco’s prevailing damages in the Selected Appeals. In this appeal, Framaco requests damages in the amount of $99,999 for having to use fire-retardant-treated plywood (FRTP), also referred to as fire-rated plywood or fire-treated plywood, for partition walls and ceilings in areas purportedly not specified in the contract for its use. See Appellant’s Opening Brief at 1-2. State counters that the contract unambiguously required use of fire-rated materials in the areas at issue. Respondent’s Initial Brief at 1. For reasons stated below, we deny the appeal. Background The Project 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 Unless otherwise noted, all exhibits referenced in this decision are contained in the appeal file. CBCA 7573 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.