Tkacz Engineering, LLC
Docket: ASBCA 60358

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Tkacz Engineering, LLC 
Under Contract No. W91JA4-11-P-4078 
APPEARANCE FOR THE APPELLANT: 
) 
) 
) 
) 
) 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60358 
James Y. Boland, Esq. 
Venable LLP 
Tysons Comer, VA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
ChristinaLynn E. McCoy, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE MELNICK 
ON APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 
Tkacz Engineering, LLC (Tkacz) seeks partial summary judgment upon 
entitlement in ASBCA No. 60358. 1 In that docket number it contends that the 
government constructively changed or breached the contract identified above. The 
contract sought four primary capabilities for the Armed Contractor Oversight Directorate 
supporting United States Forces-Afghanistan. It described the duties of a database 
designer, a webmaster, an information assurance engineer, and a training and 
documentation specialist. Among other things, the contract incorporated by reference 
FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010). 
(R4, tab 1 at 3) 
After reciting 271 proposed undisputed facts, Tkacz maintains that the government 
required it to develop comprehensive custom case management software, known as the 
Armed Civilian Web-enabled Accountability & Reporting System (ACWARS), which 
was beyond the contract's requirements. The government then allegedly ordered changes 
to that software, resulting in the conversion of this fixed-price contract to an open-ended 
software development contract. The government inconsistently responds that the scope 
of Tkacz's contract is in dispute, while also saying that all of the extra work alleged was 
within the contract's plain language. 
1 This decision pertains only to ASBCA No. 60358 which is consolidated with ASBCA 
No. 59919. 

Summary judgment should be denied when there are "disputes over facts that 
might affect the outcome of the suit under the governing law." Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 248 (1986). A constructive change arises from the 
contractor's performance of work "beyond the contract requirements without a formal 
order, either by an informal order or due to the fault of the Government." Agility Pub. 
Warehousing Co. KSCP v. Mattis, 852 F.3d 1370, 1385 (Fed. Cir. 2017) (quoting Int'! 
Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007)). The doctrine 
arises from standard "Changes" clauses authorizing the contracting officer to 
"unilaterally ... alter the contractor's duties under the agreement." Len Co. and Assocs. v. 
United States, 385 F.2d 438, 441-43 (Ct. Cl. 1967). lfa contract's Changes clause does 
not authorize unilateral action by the contracting officer, then an erroneous contract 
interpretation by the government is not a constructive change. It might generate a breach 
of contract. Id. at 443-4 7. 
This contract does not contain a standard "Changes" clause. Instead, it 
incorporates the Commercial Items Changes clause contained in FAR 52.212-4(c), 
CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010). That clause 
dictates that "[ c ]hanges in the terms and conditions of this contract may be made only by 
written agreement of the parties." There is no provision for unilateral action by the 
contracting officer. Tkacz has not cited a decision of this Board applying the 
constructive change doctrine to a Commercial Items contract. See Hawaii CyberSpace, 
ASBCA No. 54065, 04-2 BCA ~ 32,744 at 161,946 n.1 (declining to decide whether the 
constructive change doctrine applies to a contract containing the FAR 52.212-4( c) 
Changes clause given the absence of unilateral change authority by the contracting 
officer), appeal dismissed sub nom. Blackman v. Roche, 133 F. App'x 743 (Fed. Cir. 
2005); but cf Agility Pub. Warehousing Co., 852 F.3d at 1385-86 (remanding to the 
Board initial consideration of a constructive change claim made with respect to a 
Commercial Items contract); see also JOHN CIBINIC, JR., ET AL., ADMINISTRATION OF 
GOVERNMENT CONTRACTS, 379-80 (4th ed. 2006) (suggesting the Commercial Items 
Changes clause severely limits the government's powers when acquiring such items). 2 
Regardless of whether this appeal is viewed through the lens of a constructive 
change or a breach, summary judgment is denied. The general elements of a constructive 
change are (1) compelled performance by the contracting officer of work beyond the 
contact terms; (2) the change was directed by someone with contractual authority to 
unilaterally alter the contractor's duties; (3) the contractor's performance requirements 
were enlarged; and (4) the added work was not volunteered. See Innoventor, Inc., 
ASBCA No. 59903, 17-1BCA~36,798 at 179,353. Also, "[f]ailure by the promisor to 
perform at the time indicated for performance in the contract establishes an immediate 
breach." Franconia Assocs. v. United States, 536 U.S. 129 (2002) (citing RESTATEMENT 
2 In future proceedings, both parties should establish positions regarding the applicability 
of the constructive changes doctrine. 
2 

(SECOND) OF CONTRACTS § 235(2)). Among other things, in the context of a constructive 
change, genuine issues of material fact exist as to the lengthy events alleged to constitute 
changed performance, and whether they were compelled by someone possessing 
unilateral authority to do so. Furthermore, Tkacz has not shown how the government 
failed to perform at the required time. 
Resolving either the constructive change or breach claim requires settling upon the 
meaning and application of the contract terms. The government relies upon very broad 
contract language to justify Tkacz' s creation of ACW ARS, such as the requirement to 
"develop, produce, and maintain structural design of various systems, applications, and 
databases, including back-end databases for [a] database-driven Web site." It also points to 
language seeking the design, monitoring, improvement, and updating of a website. 
Unambiguous contract language requires no extrinsic evidence to interpret. See Agility 
Pub. Warehousing Co., 852 F.3d at 1381. This contract's requirements are facially vague 
and their intended application is hotly contested. The extent of their obligation upon Tkacz 
is not clear. "When the meaning of a contract and the parties' intentions are both relevant 
and in dispute, there are mixed questions of fact and law that pose triable issues precluding 
summary judgment." Hanley Indus., Inc., ASBCA No. 58198, 16-1 BCA ~ 36,244 at 
176,833 (quoting AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA ~ 34,300 at 
169,434); see also Delfasco LLC, ASBCA No. 59153, 15-1BCA~35,853 (denying 
summary judgment after identifying at least one disputed issue for trial). 
CONCLUSION 
Accordingly, Tkacz's motion for summary judgment is denied. 
Dated: 7 December 201 7 
I concur 
RI CHA SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
3 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
') 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 60358, Appeal of Tkacz 
Engineering, LLC, rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals