CBCA 7661

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON OCTOBER 5, 2023 RESPONDENT’S MOTION TO DISMISS GRANTED; APPELLANT’S REQUEST FOR DECLARATORY RELIEF DENIED: September 22, 2023 CBCA 7661 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, 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 119 appeals with the Board (twenty-three of which are consolidated), based on its contract with respondent, Department of State (State), Bureau of Overseas Building Operations (OBO), to construct an embassy compound in Port Moresby, Papua New Guinea. This appeal (CBCA 7661) CBCA 7661 2 results from State’s denial of Framaco’s claim that requested a contracting officer’s final decision (COFD) declaring that the agency breached the parties’ contract (1) by the contracting officer (CO) failing to issue a decision, favorable to Framaco, on one of Framaco’s claims and (2) by the CO failing to exercise personal and independent judgment in issuing decisions under the contract. Framaco asserts that a favorable decision in this appeal “will eliminate the need for the parties to litigate, and for this Board to decide, all the other . . . pending appeals given the breach of contract damages Framaco would be entitled to recover under well-established authority.” Appellant’s Reply to Respondent’s Opposition to Appellant’s Motion to Expedite CBCA 7661 and Stay Related Proceedings and Opposition to Respondent’s Motion to Dismiss (Appellant’s Reply) at 3. State has moved to dismiss this appeal, arguing that the appeal is essentially one for monetary relief for which Framaco, in its underlying claim before the agency, provided neither a sum certain nor the certification required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018). Alternatively, State moves to dismiss this appeal on prudential grounds for a number of reasons, including that the CDA would adequately provide Framaco with any relief to which it is entitled assuming a finding of liability. On September 13, 2023, the Board held a hearing on Framaco’s non-consolidated or small claims appeals. For reasons stated at that hearing and below, we decline to grant declaratory relief to Framaco and dismiss the appeal. Background A. The Contract In July 2015, State awarded Framaco a firm-fixed-price contract, initially valued at $96,875,381, to construct the New Embassy Compound (NEC) in Port Moresby, Papua New Guinea. Appeal File (CBCA 6997, et al.), Exhibit 1 at DOS-PTMO-00982321.1 The project was originally designed in 2010 as a “Standard Secure mini-Compound” (SSmC) with a scope including a lock-and-leave new office building, a perimeter security wall and fence, a main compound entry pavilion (MCAP), and a service entry/utility building and support annex. Exhibit 2 at DOS-PTMO-00982414. Construction of the 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 1 All exhibits are found in the appeal file of CBCA 6997, et al., which concerns the same contract, unless otherwise noted. CBCA 7661 3 SSmC project as well as surplus equipment and materials, where appropriate. Id. The redesigned project included the perimeter security wall and fence, the MCAP, a new service compound entry pavilion, a new four-story office building, a marine service guard residence, a service entry/utility building, an enlarged support annex, and a new recreation facility.