David S. Demian

The firm successfully protested to the GAO the VA’s award of a $23 million solar project in Las Vegas to R.E.M. Construction Co. The project was to be awarded by the VA on the basis of price and technical considerations deemed most advantageous to the government. After the firm’s client, SPINT, submitted the second lowest priced proposal, the VA awarded the project to R.E.M., with a higher priced proposal than SPINT, ostensibly because of R.E.M.’s superior technical rating.

In the fall of 2011, the firm protested the award arguing the VA improperly evaluated SPINT’s technical proposal. The VA took immediate corrective action and re-evaluated the proposals. After the VA’s re-evaluation, the project was again awarded to R.E.M in March 2012. At that time, the VA failed to notify SPINT of the re-award and also did not post notice of the re-award on FedBizOpps. After SPINT received word of the re-ward to R.E.M. in May 2012, it requested a debriefing from the VA, which the VA refused to provide. The firm then protested the re-award, once again challenging the VA’s evaluation of SPINT’s proposal. In response, the VA filed a motion to dismiss, arguing that SPINT was notified of the re-award via e-mail in March 2012, and therefore its protest two months later was untimely. The firm defeated the motion to dismiss with a novel argument of the sufficiency of electronic notice, and then eventually supplemented its protest to challenge the VA’s utter failure to conduct a tradeoff analysis of all of the responsive proposals, as is required by the Federal Acquisition Regulations.

In a published decision, the GAO determined that the VA unreasonably evaluated SPINT’s proposal and fundamentally failed to perform a best-value tradeoff analysis. Accordingly, the GAO recommended that the VA re-evaluate all of the proposals, properly document its evaluation, perform a proper tradeoff analysis, and reimburse SPINT for the fees it incurred pursuing the protest.

A copy of the published decision can be viewed here.

GAO File No. B-406024.4

Counsel: David S. Demian and Christopher R. Sillari

The firm successfully protested the award of a United States Department of Air Force $45,000,000 Indefinite Delivery, Indefinite Quantity (IDIQ), SABER, construction contract. Following submission of the firm’s protest the Contracting Agency filed a motion to dismiss with GAO which was unsuccessful. The parties participated in outcome prediction ADR, after which the Contracting Agency took corrective action. Following the re-evaluation of proposals, the firm’s client was awarded the $45,000,000 contract.

Counsel: David S. Demian

The firm structured and planned new business with placement in major national retailers. Negotiated and managed corporate transactions from formation to raising capital and debt for major equipment. Negotiated commercial lease and counseled client regarding labor and employment procedures. Successfully registered client brand name in U.S. for protection of client intellectual property from conflicting or competing uses. Evaluated, planned and managed application process for client registration of additional brands, logos, product names and label design for over 30 products in the U.S., Canada, the European Union, and various other countries.

Counsel: David S. Demian, Chad T. Wishchuk, Kelly A. Floyd, and Allison N. Lantz

The firm successfully defended a client against a fraudulent transfer action relating to a property transfer made in 2003. The firm demurred to the plaintiff’s complaint, arguing the complaint was time-barred by the seven-year limitations period of Civil Code section 3439.09, subdivision (c). Before filing the demurrer, the firm served plaintiff with a 128.7 motion for sanctions warning that the fraudulent transfer claim was time-barred by Section 3439.09, subdivision (c), and therefore, legally frivolous. Plaintiff refused to dismiss his complaint and forced the firm to file the 128.7 motion for sanctions. The court sustained the demurrer and dismissed the complaint, with prejudice, and granted the 128.7 motion for sanctions.

San Diego Superior Court Case No. 37-2012-00096990-CU-CL-CTLL

Counsel: David S. Demian

The firm represents a local ecotourism and adventure company. The firm’s client is well known in the San Diego region for its highly successful whale-watching kayak tours, led by “Big Wave Dave.” The firm’s client was therefore shocked when it received a daily deal from Groupon that offered a whale-watching kayak tour from a direct competitor and included a picture of Big Wave Dave in a kayak next to a gray whale breaching the surface off the shores of La Jolla, which was taken directly from the client’s website. The firm immediately took action against the competitor and Groupon based on the copyright infringement, and successfully obtained the removal of the infringing image and correction of the daily deal without the need of litigation.

Counsel: David S. Demian and Christopher R. Sillari

The firm successfully protested the VA’s solicitation for the upgrade and renovations at the VA Greater Los Angeles Healthcare System before the GAO. Since early 2006, the VA has been incorporating Information Letter (IL) 049-06-4 into all of its solicitations. However, this IL conflicts with the Veterans First Contracting Program enacted in December 2006. The firm challenged the inclusion of the IL on this Los Angeles project, arguing that the IL jeopardized open and fair competition, and discouraged participation by legitimate veteran owned small businesses. Promptly following receipt of the firm’s protest, the VA took corrective action by cancelling the solicitation so that the project could be re-solicited without reference to the conflicting and superseded information letter. SDVOSB and VOSB enterprises should consult with legal counsel with any questions as to the VA’s implementation of these important programs which must be protected for the benefit of our veterans.

GAO File No. B-407092

Counsel: David S. Demian and Christopher R. Sillari

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Counsel: David S. Demian

The firm represented a large prime contractor specializing in Federal work in a bid protest against the Army Corps. of Engineers. The protest, on a proposal for $500 million worth of work on various Federal Installations, was based on the Army Corps’ improper rejection of a submittal in violation of its own specifications and applicable law. The firm prepared a bid protest and provided supporting cases and analysis to support the bid protest and discussions, ultimately resulting in the acceptance of the contractor’s submittal.

Counsel: David S. Demian and Nowell A. Lantz

The firm’s client was a painting contractor that was awarded a contract to repaint a commercial building. Upon completion of the work, the owner refused to pay the firm’s client based on a number of alleged defects in performance. The firm proceeded to trial and successfully obtained a verdict in favor of its client for the full value of its client’s services, as well as a substantial attorneys’ fee award. The owner appealed the attorneys’ fee award and the firm successfully briefed and argued the appeal, which resulted in the upholding of the trial court’s ruling and the subsequent granting of additional attorneys’ fees related to the appeal.

San Diego Superior Court Case No. 37-2007-00074199-CL-BC-CTL; Court of Appeal of the State of California, 4th Dist. Case No. D055330

Counsel: David S. Demian and Christopher R. Sillari

The firm drafted and successfully aided the passing of legislation permitting California limited liability companies to possess California contractor’s licenses. Senate Bill 392 fundamentally revised California’s Contractors State License Law and authorizes the California Contractors State License Board to begin issuing contractor’s licenses to limited liability companies no later than January 1, 2012. Senate Bill 392 allows contractors for the first time to take advantage of the management and tax benefits of organizing as a limited liability company, an advantage advocated by the firm’s transactional and estate planning practice groups for the construction industry.

Enacted September 30, 2010, as amendments to California’s Contractor’s State License Law codified at California Business & Professions Code Section 7000 et seq. and California Corporations Code Section 17002

Counsel: P. Randolph Finch Jr. and David S. Demian

The firm successfully protested the award of a $30,000,000 firm-fixed-price indefinite-delivery/indefinite-quantity contract before the Government Accountability Office (GAO) for construction and repair services for facilities and structures at Fort Leavenworth, Kansas. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm’s client was awarded the $30,000,000 contract.

Counsel: David S. Demian

The firm successfully protested the award of a GSA IDIQ contract for construction and related services. The solicitation provided for the award of multiple contracts to offerors for performance of work in multiple tiers and geographic zones. The GSA determined not to award a contract to the firm’s client. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm’s client was awarded the contract.

Counsel: David S. Demian

The firm advised its client as to the structuring of an 8(a) joint venture to pursue an 8(a) sole source set aside project for the United States Department of Air Force. The award was protested to the SBA by an unsuccessful offeror. The firm defended the award on behalf of its client and the protesting party voluntarily withdrew its protest.

Counsel: David S. Demian

Negotiated and structured alliance of client’s international business with United States venture capitalists to expand operations into the U.S., including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

Counsel:  David S. Demian

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm’s client.

Counsel: David S. Demian

The firm represented its client in all aspects of an aggregate material mining operation, including obtaining state and local agency approvals of Conditional Use Permit, reclamation plan, reclamation bonds and insurance, drafting and negotiation of land lease, and mining agreements for total potential mine production of 4,000,000 cubic yards of material.

Counsel: P. Randolph Finch Jr., David S. Demian, and Allison N. Lantz

Negotiated and structured acquisition of restaurant chain serving San Diego and Riverside Counties, including structuring equity incentives for key employees.

Counsel: P. Randolph Finch Jr. and David S. Demian

The firm drafted and successfully aided the passing of legislation permitting California limited liability companies to possess California contractor’s licenses.  Senate Bill 392 fundamentally revised California’s Contractors State License Law and authorized the California Contractors State License Board to begin issuing contractor’s licenses to limited liability companies as of January 1, 2012.  Senate Bill 392 allowed contractors for the first time to take advantage of the management and tax benefits of organizing as a limited liability company, an advantage advocated by the firm’s transactional and estate planning practice groups for the construction industry.

Enacted September 30, 2010, as amendments to California’s Contractor’s State License Law codified at California Business & Professions Code Section 7000 et seq. and California Corporations Code Section 17002

Counsel: P. Randolph Finch Jr. and David S. Demian