Conrad Shipyard, LLC
Docket: ASBCA 63869
Decision date: 2020-03-24

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT’S 
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND ON 
APPELLANT’S PARTIAL CROSS-MOTION FOR SUMMARY JUDGMENT 
 
 Conrad Shipyard, LLC (Conrad), contends the Army Corps of Engineers 
(government) breached an implied-in-fact contract to pay it a $1,000,000 stipend to 
compete for a contract to design and construct a new dredging vessel.  In the first 
count of its complaint, Conrad essentially argues that it performed the contract and the 
government refused to pay.  In the second count, it maintains the government 
interfered with its performance, breaching the implied duty of good faith and fair 
dealing.  After considering dispositive motions by the parties, we conclude Conrad did 
not complete performance so is not entitled to recover under Count I.  Also, Conrad 
did not submit a claim to the contracting officer for breach of the duty of good faith 
and fair dealing.  Count II is therefore dismissed for lack of jurisdiction. 
 
STATEMENT OF THE FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
 
1.  On December 18, 2020, the government issued a solicitation to procure the 
design and construction of a dredging vessel.  Nobody submitted a proposal.  (Compl. 
¶ 5; gov’t mot. at 3)  The government inquired of the industry and discovered that the 
Appeal of - )  
 )  
Conrad Shipyard, LLC ) ASBCA No. 63869 
 )  
Under Contract No. 000000-00-0-0000 )  
   
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq  
    Cohen Seglias Pallas Greenhall & Furman, PC 
    Philadelphia, PA 
 
Casey J. McKinnon, Esq. 
  Cohen Seglias Pallas Greenhall & Furman, PC 
  Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Scott C. Seufert, Esq. 
Jacqueline Kelly, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Philadelphia 

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engineering and related supplier consultations required to properly develop a proposal 
cost an estimated $600,000, with no guarantee of a return for offerors.  The 
government officially determined that it was necessary to pay a stipend to cover those 
associated costs to make the procurement more attractive, generate adequate 
competition, and provide a level of engineering and pricing that would reduce the 
government’s risk of unsuccessful contract performance.  (R4, tab 20) 
 
2.  On May 26, 2022, the government issued another solicitation for design and 
construction of the dredge (R4, tab 4).  This time the solicitation included provision for 
a stipend.  It stated the following: 
 
PURPOSE:  The purpose of authorizing a Stipend in 
Medium Class Hopper Dredge (MCHD) procurement is to 
stimulate competition and innovation within the dredging 
shipyard industry.  Each Offer, except the contract 
awardee, who meets the conditions listed below is eligible 
for an award of a firm fixed price stipend. 
 
1. The Offeror competed in the MCHD solicitation 
evaluation process and was unsuccessful in receiving the 
contract award. 
 
2. The Offeror’s proposal is otherwise rated acceptable 
in the source selection process.  To receive consideration 
for a stipend, a rating of no less than “Acceptable” must be 
achieved for all non-price factors except past performance 
which must be rated other than “No Confidence.”   
 
3. The amount authorized for each stipend award is a 
firm fixed price of less than or equal to $1,000,000.00.   
 
4. Unsuccessful Offerors eligible to receive the stipend, 
shall be notified within 30 calendar days of contract award 
to invoice for stipend. 
 
5. Only one stipend will be provided to each offeror 
regardless if the offeror submitted more than one proposal 
for evaluation.   
  

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6. Maximum stipend pool is $3 Million to allow for up to 
3 potential $1,000,000.00 stipends.  In the unlikely event 
more than 4 acceptable proposals are received (1-Contract 
Awardee, 3-Acceptable Proposals), each eligible offeror 
shall receive an equal per capita share of the stipend pool 
($3 Million).   
 
(R4, Tab 4 at 426)  Essentially, the solicitation offered to pay a stipend to all offerors 
competing in the solicitation process whose proposals were acceptable but who did not 
receive the award.   
 
3.  Offers were due January 5, 2023 (R4, tab 15 at 1-2, 12).  The solicitation 
also contained FAR 52.212-1, INSTRUCTIONS TO OFFERORS—COMMERCIAL 
PRODUCTS AND COMMERCIAL SERVICES (NOV 2021) (R4, tab 4 at 437).  As 
amended, subsection (c) of that clause identified the “[p]eriod for acceptance of 
offers.”  It dictated that “[t]he offeror agrees to hold the prices firm for 120 calendar 
days from the date specified for receipt, unless another time period is specified in an 
addendum to the solicitation” (R4, tab 4 at 438, 440). 
 
4.  On January 5, 2023, Conrad submitted a proposal (gov’t mot. at 4; app. opp’n  
& mot. at 23).  Accordingly, its price was to remain firm for 120 days, until May 5, 
2023.   
 
5.  On March 2, 2023, the government informed Conrad its proposal was in the 
competitive range and the government was prepared to enter discussions.  During 
discussions, all offerors would be allowed to revise their pricing.  (R4, tab 1 at 13)  
Conrad submitted an updated proposal on March 15, 2023.  There is no indication it 
altered its price.  After the government reviewed the second submission, it reported on 
April 7, 2023, that Conrad remained in the competitive range, it had no further 
questions, and discussions could continue.  Again, the government granted Conrad the 
opportunity to revise its prices, but it required the final pricing to remain valid through 
August 1, 2023, beyond the initial 120-day mandate.  (R4, tab 33)  By letter dated 
April 21, 2023, Conrad forwarded revised prices and expressly agreed they would 
remain valid until August 1, 2023 (R4, tab 34; gov’t mot. at 4; app. opp’n & mot.  
at 5-6).  The government concedes Conrad’s proposal was acceptable for establishing 
the competitive range (gov’t reply at 6). 
 
6.  On June 22, 2023, Conrad withdrew its consent to extend the validity of its 
proposal, which it acknowledges constituted a withdrawal of the proposal (R4, tab 36 
at5; app. opp’n & mot. at 6).  Conrad explained that inflationary impacts, supply chain 
issues, other commitments, and, perhaps most significantly, the refusal of its surety to 
issue performance and payment bonds, caused it to withdraw (R4, tab 38 at 3).  On 

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July 24, 2023, the government issued the award to another contractor (gov’t mot at 5; 
app. opp’n & mot. at 6). 
 
7.  On August 3, 2023, Conrad inquired into the process for payment of the 
stipend.  The contracting officer responded on September 15, 2023, that Conrad was 
ineligible because it had withdrawn from the competition prior to contract award (R4, 
tabs 39-40). 
 
8.  On September 28, 2023, Conrad submitted a certified claim to the 
contracting officer demanding the $1,000,000 stipend.  Conrad characterized the 
solicitation provisions as a contract and contended it had complied with its terms.  (R4, 
tab 1 at 29-30).  The government denied the claim on January 3, 2024 (R4, tab 3).  
Conrad now appeals.   
 
9.  Count I of Conrad’s complaint alleges that the parties formed an implied-in-
fact contract where Conrad would compete for the procurement and be eligible for the 
stipend.  It contends Conrad performed as specified and the government breached by 
failing to pay.  It seeks the $1,000,000 stipend and an additional recovery on a 
quantum meruit theory for the value it bestowed on the government for participating in 
the competition.  (Compl. ¶¶ 31-43)   
 
10.  Count II alleges breach of the implied duty of good faith and fair dealing.  
The purported support for that assertion is that the government unreasonably delayed 
contract award by 200 days from the date offers were due, unreasonably required 
offerors to extend their offers an additional 88 days, and failed to inform Conrad, after 
Conrad stated its offer could no longer be extended, the award was imminent.  These 
acts allegedly “interfered with Conrad’s ability to continue to extend its offer through 
August 1, 2023,” entitling Conrad to $1,000,000 in damages.  (Compl. ¶¶ 44-48)   
 
11.  The government moves to dismiss Count I’s quantum meruit component for 
lack of jurisdiction and failure to state a sum certain.  It seeks dismissal of Count II for 
lack of jurisdiction because it was not submitted as a claim to the contracting officer.  
The government also asks for summary judgment on the merits.  Conrad cross moves 
for a partial summary judgment finding that its proposal was rated “Acceptable.” 
 
DECISION 
 
I. Count I 
 
“Summary judgment should be granted when there are no genuine issues of 
material fact and the moving party is entitled to judgment as a matter of law.”  
Goodloe Marine, Inc., ASBCA No. 62106, 22-1 BCA ¶ 38,053 at 184,774 (citing 
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).  The undisputed facts and law 

5 
 
dictate that Conrad did not earn the stipend and so the government has not breached a 
contract by declining to pay it. 
 
The parties argue over whether they formed an implied-in-fact contract.  That 
kind of arrangement is founded upon a meeting of the minds not embodied in an 
express contract.  City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 
1998).  Here, the commitments are express.  After recognizing the benefit of receiving 
competitive proposals for the dredge, the government’s solicitation expressly promised 
that it would pay up to a $1,000,000 stipend to all offerors who competed in the 
solicitation with an acceptable proposal but did not receive the award (SOF ¶¶ 1-2).  To 
compete in the solicitation, an offeror’s proposal prices were to remain firm for the 
120-day period for acceptance of offers unless otherwise provided by addendum (SOF 
¶ 3).  These terms amount initially to an express offer by the government to enter a 
unilateral contract to pay up to $1,000,000 in return for specified performance by 
Conrad.
1  A unilateral contract is formed by performing the terms of an offer that 
invites acceptance by performance rather than a return promise.  See Klass Eng., Inc., 
ASBCA No. 22052, 78-2 BCA ¶ 13,236 at 64,716-17.  “[T]he essence of a unilateral 
contract is that one party’s promise is conditional upon the other party’s performance of 
certain acts and when the other party performs, the first party is bound.”  Wells Fargo 
Bank., N.A. v. United States, 88 F.3d 1012, 1019 (Fed. Cir. 1996). 
 
Once Conrad commenced performance by submitting a proposal for the dredge 
contract, the government’s unilateral offer to pay the stipend became an irrevocable 
option contract.  See Comptech Corp., ASBCA No. 55526, 08-2 BCA ¶ 33,982 
at 168,082-083; Klass Eng., 78-2 BCA ¶ 13,236 at 64,717; R
ESTATEMENT (SECOND) 
OF CONTRACTS ¶¶ 45, 62 cmt. b (1981).  The government was bound to pay the stipend 
upon Conrad’s full satisfaction of the government’s terms, but not if Conrad 
 
1 We possess jurisdiction to entertain an appeal upon this contract.  The Board’s 
jurisdiction is primarily governed by the Contract Disputes Act, 41 U.S.C.  
§ 7101-09 (CDA).  Kellogg Brown & Root Servs., Inc., ASBCA Nos. 59385, 
59744, 20-1 BCA ¶ 37,656 at 182,825.  Among other things, the CDA applies 
to express or implied contracts for the procurement of services.  41 U.S.C.  
§ 7102(a)(2).  In this context, “procurement” is “the acquisition by purchase, 
lease or barter, of . . . services for the direct benefit . . . of the Federal 
Government.”  Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 2006) 
(quoting New Era Constr. v. United States, 890 F.2d 1152, 1157 (1989)) 
(emphasis in original).  The government unilaterally offered to contract with 
offerors to obtain proposals for the dredge after determining it would directly 
benefit from the competition generated, providing it with more accurate 
engineering and pricing to reduce the government’s risk of unsuccessful 
contract performance (SOF ¶ 1).  It was willing to pay all qualified offerors to 
procure this service.  We find this contract falls within the scope of the CDA. 

6 
 
abandoned performance before completion.  See Klass Eng., 78-2 BCA ¶ 13,236 
at 64,717; RESTATEMENT (SECOND) OF CONTRACTS ¶ 45 cmt. e (1981).  As already 
observed, to compete in the solicitation Conrad’s proposal price initially had to remain 
firm for 120 days (SOF ¶ 3).  But that changed.  After the government granted Conrad 
one chance to revise its price prior to the elapse of 120 days, which Conrad does not 
appear to have exploited, on April 7, 2023, the government allowed it to do so again.  
However, this opportunity was accompanied by a requirement that the price remain 
valid for an extended period, until August 1, 2023.  On April 21, 2023, Conrad revised 
its price and agreed to the government’s demand, expressly committing that the price 
would remain valid until August 1.
2  (SOF ¶ 5)  Through these acts, the parties 
modified the option contract.  Instead of qualifying for a stipend if it submitted an 
acceptable but unsuccessful dredge proposal remaining firm 120 days until May 5, 
2023, Conrad’s proposal had to remain valid until August 1.  When, on June 22, 2023, 
Conrad withdrew its proposal because of inflation, supply chain issues, other 
commitments, and inability to secure bonding (SOF ¶ 6), it abandoned performance 
before completion of the option contract’s terms and before any determination was 
made whether Conrad’s proposal was successful.   
 
Contrary to Conrad’s suggestions, it was not entitled to as much as $1,000,000 
for simply submitting an acceptable proposal that it could withdraw at a time of its 
choosing before the government made an award decision, assuring the government 
could not bind it to its proposal’s terms.  Only offerors competing in the solicitation 
qualified for a stipend and to do so prices had to remain firm during the period for 
acceptance of offers, as extended by the parties’ agreement (SOF ¶¶ 2-3).  Given 
Conrad’s abandonment of performance before completion, the government never 
became obligated to pay the stipend.  Consequently, Count I is rejected.
3  
 
II. Count II 
 
In Count II, Conrad complains that, aside from refusing to perform by paying 
the stipend, the government also breached the contract’s implied duty of good faith and 
fair dealing by unreasonably delaying contract award by 200 days from the date offers 
were due, unreasonably requiring offerors to extend their offers an additional 88 days, 
and failing to inform Conrad, after Conrad stated its offer could no longer be extended, 
 
2 Had Conrad declined to alter its price and extend the validity period then the 
government’s unilateral attempt to enlarge that period quite plausibly would not 
have been enforceable.  Assuming no award to it, Conrad might have been able 
to claim its stipend upon expiration of the 120 days.  However, we need not 
decide that here. 
3 Because we reject Count I on its merits, we need not address the government’s 
challenge to Conrad’s demand, in addition to the stipend, for a quantum meruit 
remedy. 

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the award was imminent.  It says these delays and actions interfered with Conrad’s 
ability to extend its offer through August 1, 2023, entitling Conrad to damages.  
(Compl. ¶¶ 44-48)  “The duty of good faith and fair dealing prohibits ‘interference 
with or failure to cooperate in the other party’s performance.’”  Ace Elecs. Def. Sys, 
ASBCA No. 63224, 22-1 BCA ¶ 38,213 at 185,569 (quoting LaBatte v. United States, 
899 F.3d 1373, 1379 (Fed. Cir. 2018)).  A breach of it does not arise from a party’s 
failure to perform its express promise.  Instead, it is an implied duty not to interfere 
with the other party’s performance or destroy its reasonable expectations regarding the 
fruits of the contract.  See Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. 
Cir. 2005).  The government contends we lack jurisdiction over this count because 
Conrad did not pursue it as a certified claim.  We agree.   
 
Under the CDA, our jurisdiction is dependent upon whether Conrad submitted a 
written claim to the contracting officer for a decision.  41 U.S.C. § 7103-05; Taj Al 
Safa Co., ASBCA No. 58394, 13 BCA ¶ 35,278 at 173,157; see also Tolliver Grp., 
Inc. v. United States, 20 F.4th 771, 775-76 (Fed. Cir. 2021) (explaining the CDA’s 
jurisdictional claim submittal requirements).  We cannot exercise jurisdiction over new 
claims asserted here that were not previously presented to the contracting officer.  
Wilwood Eng. Inc., ASBCA No. 62773, 22-1 BCA ¶ 38,116 at 185,144.  Claims are 
separate from one another when they assert grounds that are materially different from 
each other factually or legally.  K-Con Bld. Sys., Inc. v. United States, 778 F.3d 1000, 
1005-06 (Fed. Cir. 2015); Tolliver Grp., 20 F.4th at 777 (finding claims separate when 
legal theories are materially different); see also Wilwood, 22-1 BCA ¶ 38,116 
at 185,144-45 (explaining the action before the Board must arise from the same 
operative facts as the claim submitted to the contracting officer, seek essentially the 
same relief, and not advance a materially different legal theory).  Also, a key to 
determining whether matters advanced before the Board are part of the same claim, 
or two different ones, is whether the same or related evidence will determine the 
outcome.  See Red Bobtail Trans, ASBCA Nos. 63783, 63784 24-1 BCA ¶ 38,598 
at 187,639-40 (citing Placeway Constr. Corp. v. United States, 920 F.2d 903,  
907 (Fed. Cir. 1990)).  We consider more than just the claims but the totality of 
circumstances.  Id. at 187,640. 
 
Conrad’s claim recited that it submitted a proposal within the competitive 
range, explaining that it expected to either receive the award or a stipend.  It described 
the requirements for entitlement to a stipend, arguing it met them.  It therefore 
purported to be a claim “under the plain language of the contract for the million-dollar 
stipend.”  (R4, tab 1 at 29-30)  The thrust of the claim was that Conrad performed the 
contract and earned the stipend, but the government failed to perform its promise to 
pay it.  As described above, the evidence relevant to that inquiry goes to the nature of 
the arrangement between the parties and whether it was performed by Conrad.  In 
contrast, in Count II Conrad complains that the government delayed awarding the 
contract, unreasonably extended the period prices were to remain valid, and failed to 

8 
 
inform Conrad that award was imminent, entitling Conrad to damages for breach.  
These allegations that the government interfered with or neglected to cooperate with 
Conrad’s performance advance a materially different theory of recovery than the 
claim’s contention that Conrad performed sufficiently to earn the stipend under the 
plain language of the contract.  They would turn upon different operative facts and 
evidence relating to how the government conducted itself toward Conrad. 4  It cannot 
reasonably be concluded that the contracting officer should have recognized the claim 
encompassed these issues.  See Tolliver Grp., 20 F.4th at 777 (declining to consider 
two claims the same when it could not “reasonably be demanded that the contracting 
officer have recognized that [the contractor] was seeking a determination of the issues 
raised by” the second theory).  Given the totality of the circumstances, Conrad’s good 
faith and fair dealing allegations are not within the scope of the claim it submitted to 
the contracting officer, and we lack jurisdiction to consider them. 
 
CONCLUSION 
 
The government’s motion for summary judgment upon Count I is granted.  The 
government’s motion to dismiss Count II for lack of jurisdiction is granted.  Because 
Conrad abandoned performance prior to earning the stipend, its motion for partial 
summary judgment finding its proposal acceptable is irrelevant and denied.  The 
appeal is dismissed. 
 
 Dated:  March 24, 20205 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
4 The claim does refer to the government’s request that Conrad extend its pricing 
“unreasonably and into an escalating price environment,” at which point it lost 
its bonding and had to withdraw its proposal (R4, tab 1 at 30).  But this 
reference is made in the broader context of explaining that Conrad performed 
sufficiently to earn the stipend.  It is not put forth itself as a breach of good faith 
and fair dealing, entitling Conrad to damages. 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

9 
 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
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. 63869,
 Appeal of Conrad 
Shipyard, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  March 24, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals