THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND

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. The redesigned project included the perimeter security wall and fence, the MCAP, a new

service compound entry pavilion, a new four-story office building (NOB), a marine service

guard residence, a service entry/utility building, an enlarged support annex, and a new

recreation facility. Id.

The Framaco contract included a specification regarding the installation of a Type I

kitchen exhaust hood, which is the subject of the present appeal. Exhibit 6. Section 114005

of the contract,“Food Service Equipment,” reads in relevant part at specification 2.6:

A.

Available Manufacturers: Subject to compliance with requirements,

manufacturers offering products that may be incorporated into the Work

include, but are not limited to, the following:

l.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

Aerolator Systems, Inc.

AHR Metals, Inc.; Air Saver Systems.

Air Tech; Delfield Company (The).

AyrKing Corporation.

Captive-Aire Systems.

Carroll Manufacturing International.

Duke Manufacturing Company.

Gaylord Industries, Inc.

Giles Enterprises, Inc.

Grease Master; a division of Custom Industries, Inc.

Greenheck.

Halton Company.

LCSystems, Inc.

Sturdi-Bilt Restaurant Equipment.

Vent Master; Div. of Garland Commercial Ranges, Ltd.

CBCA 7513

4

B.

General: Type I exhaust hood. Fabricate hoods indicated from

minimum 1.27-mm thick stainless steel, unless otherwise indicated.

l.

2.

Refer to Item 32 for fire-extinguishing system requirements.

Refer to Division 23 Sections for duct, fan, and damper requirements.

Id. at DOS-PTMO-00985711. The food service equipment schedule lists the exhaust hood,

which is characterized as “Item #B33,” as follows:

ITEM #B33

Quantity:

Manufacturer:

Model:

SIS No:

Features:

EXHAUST HOOD

One (l)

Halton Co.

KVE

HOP046

- See Drawing #U14-271-l

- 240/50/1, 8amp

- Shop drawing required

Id. at DOS-PTMO-00985727. Similarly, drawing NOB QF140 lists the requirements for

Item #B33, which stipulates the requirements for the hood. Exhibit 9. Specifically, State

requested one combined hood for both exhaust and supply, with a required exhaust air

volume of 936 liters per second (L/s) and a supply air volume of 562 L/s. Exhibits 7, 9, 46

at DOS-PTMO-03100163.

If a contractor could not procure the specific exhaust hood required, the contract

allowed, in section H.39.1.6, for substitutions. Exhibit 1 at DOS-PTMO-00982384. Section

H.39.1.6.1 explains that prior approval of any substitution is required, noting that:

[In order to use substitutions] the Contractor must receive approval in writing

from the Contracting Officer. Any substitution request must be accompanied

by sufficient information to permit evaluation by the Government, including

but not limited to the reasons for the proposed substitution and data concerning

the design, appearance, performance, composition, and relative cost of the

proposed substitute. . . . Requests for substitutions must be made in a timely

manner to permit adequate evaluation by the Government. If, in the

Contracting Officer’s opinion, the use of such substitute items is not in the best

interests of the Government, the Contractor must obtain the items originally

specified with no adjustment in the contract price or completion date.

CBCA 7513

5

Id. Similarly, if the contractor was unable to procure the exhaust hood requested, section

H.39.2 provided an “Or-Equal Clause,” which stipulates:

References in the Specifications/Statement of Work to materials, products or

equipment by trade name, make, or catalog number, or to specific processes,

shall be regarded as establishing a standard of quality and shall not be

construed as limiting competition. The Contractor may propose for approval

or rejection by the Contracting Officer the substitution of any material,

product, equipment or process that the Contractor believes to be equal to or

better than that named in the Specifications/Statement of Work, unless

otherwise specifically provided in this contract.

Id. at DOS-PTMO-00982384-85. Contract specification section 013305-3.08-C.1 also

provides:

Proposals for substitutions of materials or products required by the Contract

specifications and drawings shall include a specific description of each

substitution in writing and provide justification. No proposals for substitutions

of materials or products will be accepted after 90 days from the initial [notice

to proceed (NTP)]. . . . The Contractor shall identify all potential scope, cost,

time, and quality changes at the time of the submittal.

Exhibit 5 at DOS-PTMO-000984247. Specification 013305-3.10 also includes a

Material/Product Substitution Request Form as a supplement, which specifies:

Within 30 days after the construction NTP, this formal request will be

considered for substitution of products specified as minimum standard. After

the end of this period, substitution requests will be considered only if the

specified product or material is no longer available or deemed unsatisfactory

for the intended function.

Id. at DOS-PTMO-000984250. On March 27, 2017, State sent a limited notice to proceed

(LNTP), giving the completion date for all work to be performed by September 27, 2019.

Exhibit 11. On November 2, 2017, State issued a final notice to proceed. Exhibit 13.

CBCA 7513

II.

6

Framaco’s Submittals for the Kitchen Hood

Submittal 114005-02-0

On July 4, 2019, Framaco submitted Item #B33 for approval, listing the manufacturer

as K-TECH, Model PK-ND-2 Q-SB-F. Exhibit 14 at DOS-PTMO-02240191. State marked

this initial submission as “revise and resubmit,” Exhibit 15 at DOS-PTMO-03007742-43,

partly because there was “no project specific data provided.” Exhibit 16 at DOS-PTMO00943685_001. Additionally, State asked Framaco to “provide project specific shop drawing

with control panel for variable speed fan drive fan” and instructed that “[i]f resubmitted, UL

listing will prohibit proposed substitution from meeting air flow, static pressure and design

for equipment to be served,” ordering Framaco not to “resubmit this [manufacturer].” Id.

Submittal 114005-02-1

On September 19, 2019, Framaco resubmitted the previously submitted K-TECH

model with additional details. Exhibit 17 at DOS-PTMO-03007746. The documents

included in the submission displayed two hoods side by side, despite the design requiring a

single kitchen hood. Id. at DOS-PTMO-03007760. Similarly, “[t]he provided air volumes

. . . were 1804 l/s for exhaust and 1444 l/s for supply, a significant deviation from the

requirement.” Exhibit 46 at DOS-PTMO-03100163. On September 25, 2019, State rejected

this resubmission, stating that “Item # 833 is Rejected. Provide as per section 114005-3.9.A:

Halton-KVE--HOP046.” Exhibit 18 at DOS-PTMO-02042977.

On October 28, 2019, Framaco sent a letter to the project director explaining that it

believed that it was being subjected to “unreasonable review and rejection comments from

OBO as the result of the Government’s misinterpretation of the contract requirements during

the submittal reviews.” Exhibit 20 at FRAM-0438794. Framaco argued that State’s position

was improper based on the agency “not only reject[ing] the proposed brand/model but also

declar[ing] that it would not consider any of the other (14) manufacturers listed in” the

specification. Id. at FRAM-0438795. As such, Framaco asserted that State turned the

contract into a sole-source procurement. Id.

Submittal 114005-02-2

On December 26, 2019, Framaco resubmitted Item # B33 for approval, this time

proposing the Halton-KVE model. Exhibit 21. The listed air flow for the submitted model

was 1701 L/s for exhaust and 1361 L/s for supply. Exhibit 21 at DOS-PTMO-02787665.

State advised Framaco to revise and resubmit, explaining:

CBCA 7513

7

B33 Kitchen Exhaust Hood does not meet the design drawing . . . intent to be

a singular unit with one exhaust and one supply air duct collars. Halton

submittal has two hoods each with an exhaust collar with no supply air collars

[sic]. . . . Submittal states [an] air supply . . . which is not acceptable.

Exhibit 22 at DOS-PTMO-02042979.

Submittal 114005-02-3

On January 30, 2020, Framaco resubmitted the Halton-KVE exhaust hood for

consideration, attaching a letter from the manufacturer, which explained:

The Halton KVE hood model manufactured according to UL 710 standard

do[es] not have an integrated make-up air plenum. The supply air (make up)

duct shall be provided by others (MEP3 Contractor) to the area where Halton’s

KVE hood is installed. The largest stainless-steel sheets in our production

have a maximum length of 3048mm hence it is not possible to manufacture a

3700mm long hood in a single hood section. It is necessary to split the hood

into 2 hood sections of 1850mm length each.

Exhibit 23 at DOS-PTMO-02787672. Halton further provided a revised airflow, with the

manufacturer’s letter listing the exhaust flow rate as 1165 L/s and the supply flow rate as 932

L/s through an MEP diffuser. Id. In response, State rejected the submission, stating:

1. . . . Halton cannot provide a hood that meets the design intent of IFC

drawing NOB QF 140 to be a singular hood with one exhaust collar and one

supply air duct collar on the hood. Submittal has two hoods, each with an

exhaust collar and no supply air collars. 2. Please Do Not resubmit this

manufacturer unless they can comply with the basis of design intent of exhaust

and supply air from and to one singular hood. 3. Specification 114005 2.6 A.

lists 14 other hood manufacturers that can do so. Duke Manufacturing and

Greenheck Hoods have been successfully installed at Embassies in Africa and

Norway.

Exhibit 24 at DOS-PTMO-02042981.

Submittal 114005-02-4

3

Acronym believed to stand for “Mechanical, Electrical and Plumbing.”

CBCA 7513

8

On February 18, 2020, Framaco submitted a Greenheck hood model GHCWX-14500-S for approval. Exhibit 26. State explained that this submission would need additional

quality control review. Exhibit 28. The decision further stipulated that, “[a]s discussed on

06Mar2020 OBO/AE/Framaco conference call, Framaco to contact BOD exhaust hood

manufacturer Halton Co., USA (Halton-USA) to confirm one piece kitchen exhaust hood

fabrication availability.” Id. at DOS-PTMO-02551555.

On March 6, 2020, Framaco sent a letter to the project director explaining that the

continued rejections hindered the company’s ability to proceed with the procurement, leading

to a delay in the project execution. Exhibit 27.

Submittal 114005-02-5

On March 26, 2020, Framaco resubmitted a Halton-KVE exhaust hood, noting that

Halton-USA could “manufacture one piece kitchen exhaust hood fabrication.” Exhibit 29

at DOS-PTMO-03086776-77. The new submission could handle a total exhaust airflow of

936 L/s. Id. at DOS-PTMO-03086779. State returned the submission with no review

comments, requesting Framaco to upload the correct submittal for State’s review.

Exhibit 37.

Submittal 114005-02-6

Framaco resubmitted the request on April 18, 2020. Exhibit 41. In response, State

stated, “Revise and resubmit for record. The product submitted is acceptable with the

changes noted on the attached markups.” Exhibit 38 at DOS-PTMO-02042985.

Submittal 114005-02-7

On April 24, 2020, Framaco resubmitted the Halton-KVE exhaust hood for approval.

Exhibit 43. The supply fan flow rate was 536 L/s and the exhaust fan flow rate was 823 L/s,

which was under the rates set by the contract. Id. at DOS-PTMO-03084662. State accepted

the final submission. Exhibit 44.

III.

Framaco’s Claim

On July 14, 2022, Framaco submitted Claim 36, requesting a contracting officer’s

(CO’s) final decision. Exhibit 45. In its claim, Framaco sought to recover its costs incurred

due to the “Government’s directive for the sole-source procurement of the kitchen exhaust

hood, and the associated scope changes to the relevant HVAC system . . . through the

submittal and approval process.” Id. at DOS-PTMO-03087723. Framaco claimed direct

CBCA 7513

9

costs in the amount of $47,742, derived from engineering and change management, plus the

cost differential between the more expensive Halton-USA hood and the less expensive

original K-Tech hood, as well as the additional installation materials, revisions in the HVAC

system, and shipping costs. Id. at DOS-PTMO-03087723, -03087739.

On September 12, 2022, the CO rendered a final decision denying Framaco’s claim.

Exhibit 46. In the decision, the CO explained that the substitution requests were not timely

and the substitutions were not of “equal size and performance characteristics” in order to be

considered. Id. at 3-7.at DOS-PTMO-03100166-68.

This appeal followed.

Discussion

To determine whether Framaco can recover for its claimed damages, we start with a

review of the plain language of the contract. LAI Services, Inc. v. Gates, 573 F.3d 1306,

1314 (Fed. Cir. 2009) (citing M.A. Mortenson Co. v. Brownlee, 363 F.3d 1203, 1206 (Fed.

Cir. 2004)). We read the contract as a whole, giving reasonable meaning to all its parts.

Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991). If the plain language of

the contract is unambiguous on its face, the inquiry ends, and the contract’s plain language

controls. Hunt Construction Group, Inc. v. United States, 281 F.3d 1369, 1373 (Fed. Cir.

2002). “An interpretation that gives meaning to all parts of the contract is to be preferred

over one that leaves a portion of the contract useless, inexplicable, void, or superfluous.”

NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); see

Restatement (Second) of Contracts § 203(a) (1981) (contract interpretation should not leave

a part of a contract “of no effect”).

It is clear that Framaco’s submissions were not timely per the contract. As

Specification 013305-3.08-C-1 provides, “[N]o proposals for substitutions . . . will be

accepted after 90 days from the initial NTP.” Exhibit 5 at DOS-PTMO-000984247. Further,

the substitution request form stipulates that after thirty days following the construction NTP,

“substitution requests will be considered only if the specified product or material is no longer

available or deemed unsatisfactory for the intended function.” Id. at DOS-PTMO000984250.

CBCA 7513

10

The initial LNTP was issued on March 27, 2017. Exhibit 11. As a result, the ninetyday window after the initial LNTP lapsed on June 25, 2017.4 Framaco’s first submission for

substitution occurred on July 4, 2019. Exhibit 14. As such, the company submitted all of

its requests for substitution for Item #B33 after the ninety-day period had lapsed. Because

the period for submission of substitutions had elapsed, State was under no contractual

obligation to evaluate substitutions. Further, because the requested materials were available,

evidenced by the eventual procurement of the Halton-USA hood complying with the

Government’s standards, State was under no obligation to evaluate the substitution requests.

Framaco argues that its claim is timely because it “notified the CO of its reservation

of rights and proceeded to procure and install the Halton-USA hood under protest,” citing

its October 28, 2019, letter as support. Appellant’s Opening Brief at 9-10. However, the

ninety-day period in which State was obligated to review submissions had already lapsed by

July 4, 2019, when Framaco initially submitted the K-Tech hood, and October 28, 2019,

when it allegedly reserved its rights. As such, State was under no obligation to review the

substitution requests.

Additionally, Framaco claims that State “waived” the timeliness issue through its

consideration of substitutions. Framaco also argues that State engaged in a sole-source

procurement by denying Framaco’s submissions, causing a delay for which it seeks damages.

However, even if State waived the timeliness issue, to the extent there was a delay,

Framaco’s repeated submissions of noncompliant kitchen hoods was a significant cause.

Specifically, the noncompliant submissions caused a delay between July 2019, when

Framaco submitted its first noncompliant substitution, to February 2020, when Framaco

submitted the potentially compliant Greenheck hood that State did not reject.

Because State ultimately did not reject the Greenheck hood, and Framaco had

repeatedly submitted noncompliant hoods, we cannot find that State engaged in a sole-source

procurement leading to a delay. On the contrary, we find that any delays related to the

kitchen exhaust hood were due to Framaco’s repeated noncompliant submissions. And as

such, Framaco, not the agency, must bear the costs of any delays.

4

Even using the final notice to proceed date of November 2, 2017, Framaco

would not prevail, as ninety days after November 2, 2017, would produce an end date of

January 21, 2018, a year and a half prior to Framaco’s July 4, 2019, submission of its

requests for substitution.

CBCA 7513

11

Decision

The appeal is DENIED.

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

We concur:

Erica S. Beardsley

ERICA S. BEARDSLEY

Board Judge

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge