CBCA 7572

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON APRIL 17, 2024 GRANTED IN PART: April 9, 2024 CBCA 7572 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. 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 129 appeals 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 7572 2 This decision is being issued under the Board’s order on further proceedings of October 19, 2023 (Order), largely adopting 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 a subsequent joint response docketed with the Board on March 19, 2024, the parties confirmed their agreement that the Order applies to the appeals described above. This appeal (CBCA 7572) arises from State’s final decision denying Framaco’s claim ($80,319) for work on the embassy construction contract due to State’s alleged constructive changes. The alleged changes concern: the placement of a chlorine analyzer, signboard, and fence at the embassy site; the grade elevation of a wastewater treatment plant; repair of bollards; and replacement of a chain-link fence with an anti-climb fence. For reasons stated below, we deny the appeal except for Framaco’s claim related to replacement of the chain- link fence. Background I. The Project State awarded the embassy construction project to Framaco on July 6, 2015. 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. Appeal File, Exhibit 2 at DOS-PTMO-00982414.1 Construction of the 1 All exhibits are found in the appeal file of CBCA 7572, unless otherwise noted. CBCA 7572 3 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 New Embassy Compound (NEC), incorporating the completed portions of the SSmC project as well as surplus equipment and materials, as appropriate. Id.