News & Events

RJO Employment Attorneys Recover Fees for Employer in
Wage and Hour Action

Attorneys from RJO’s employment group successfully obtain an attorney’s fee award against a class member who attempted to get around a wage and hour class settlement by bringing an independent wage claim with the labor commissioner. The labor commissioner originally dismissed the wage claim as it was barred by the class settlement. The class member appealed the labor commissioner’s dismissal resulting in trial de novo proceedings in Superior Court. After RJO attorneys successfully moved to enjoin the appeal, the Court granted RJO’s motion for attorney’s fees. The clients were represented by RJO attorneys Sharon Rossi, Aaron Scolari and Dennis Huie.

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Metzger White Paper on Cloud Security Released

Robert Metzger, head of RJO's Washington, D.C. office, has released a new "White Paper" on Security as a Service. Sponsored by Exostar, a cloud-based solution provider that assists companies in aerospace and defense, life sciences, and healthcare, the paper advocates new initiatives to enable defense contractors and other federal suppliers to utilize commercial cloud services to secure "Covered Defense Information" and other "Controlled Unclassified Information." Bob was recognized with a "Federal 100" award in 2016 by Federal Computer Week for his contributions to government and industry policy on cyber and supply chain security.

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Two RJO Attorneys Ranked in Who’sWhoLegal
Government Contracts 2016

Who’sWhoLegal, published by Law Business Research Ltd, in the UK, has just named two Rogers Joseph O'Donnell attorneys in its published ratings of government contracts practitioners in 2016. RJO founder Neil O'Donnell is listed for California and Robert Metzger is listed for the District of Columbia. Neil and Bob were among the 398 “leaders in the field” worldwide and 49 leaders in the United States. (Who'sWhoLegal)

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RJO Succeeds In Disrupting Army’s Planned Sole Source Helicopter Purchase

A lawsuit brought by RJO on behalf of helicopter company AgustaWestland North America, a subsidiary of Italian defense company Leonardo-Finmeccanica, has at least slowed, and perhaps halted, Army plans to undertake further sole source purchases of light utility helicopters from Airbus Helicopter, Inc. In a ruling on August 15, 2016, the Court of Federal Claims issued a preliminary injunction prohibiting the Army from further helicopter purchases at this time. The Court firmly rejected the Army’s attempt to justify an immediate sole source purchase of 16 helicopters for initial pilot training and suggested concern about the Army’s apparent standardization decision that could lead to its buying 97 more of the Airbus helicopters for training and light utility purposes. The Court gave the Army three choices: hold a competitive procurement; try again to justify a sole source purchase; or cancel the procurement. Several elements in the Court’s opinion suggest that the Army may have significant hurdles to overcome if it tries again to justify a sole source buy from AgustaWestland’s competitor. The RJO lawyers on this matter were Neil O'Donnell, Jeff Chiow , Dennis Callahan and Lucas Hanback.

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RJO Construction Attorney Obtains 11-1 Jury Verdict in Dispute Over Re-Paving of Highway 128 in Napa

Tyson Arbuthnot recently obtained an 11 to 1 jury verdict on behalf of client Chester Bross Construction in Napa County Superior Court. Chester Bross is a heavy civil construction company that works on numerous Caltrans projects. This case involved a $3 Million Caltrans re-paving project on Highway 128, one of the main thoroughfares for California’s wine country. Mr. Arbuthnot defeated a material supplier’s payment claim for highway paving emulsion it provided to the project. Mr. Arbuthnot proved that the emulsion was defective and caused the asphalt paving to fail on portions of the highway. Accordingly, the jury found that the supplier did not meet its contract obligations, so no payments were due for the defective emulsion. The jury deliberated for only 45 minutes after a week-long trial. Alan Wilhelmy served as co-counsel, and provided critical guidance throughout the trial.

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Three RJO Attorneys Ranked in Who’sWhoLegal Construction 2016

Who’sWhoLegal, published by Law Business Research Ltd in the UK, has just named three Rogers Joseph O'Donnell attorneys in its published ratings of construction law practitioners in 2016. RJO founder Neil O'Donnell, Aaron Silberman, and Roland Nikles were among the 686 “leaders in the field” worldwide and 40 leaders in California (tied for the most among San Francisco law offices). (Who'sWhoLegal)

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RJO Attorneys Appointed to New Leadership Positions in the ABA’s Public Contract Law Section and Other Sections

Aaron Silberman has been elevated to Chair Elect of the Public Contract Law Section of the American Bar Association. He completed his terms as Secretary (2014-15) and Vice Chair (2015-16) and will serve as Chair in 2017-18. Mr. Silberman also was appointed as Chair of the Section’s Publications Board.

Patricia Meagher, former Chair of the Section, will serve as an honorary member of the Section Council and as Fellow. She also will continue to serve as Section Liaison to the ABA Commission on Women in the Profession. Jeffery Chiow was appointed as a Co-Chair of the Cybersecurity, Privacy & Data Protection Committee. Mr. Chiow was also reappointed as Co-Chair of the Section’s Battlespace & Contingency Procurements Committee and a Vice Chair of the Section’s Acquisition Reform & Emerging Issues Committee and its Counterfeit Parts Task Force. Robert Metzger was appointed as a Vice Chair of the Section’s Commercial Products and Services Committee and will continue to serve as Vice Chair of the Section’s State & Local Model Procurement Code Committee and on its Counterfeit Parts Task Force. Mr. Metzger was also appointed to serve as a Vice Chair of the ABA Section of International Law’s International Procurement Committee.

Brian D. Miller was appointed as a Vice Chair of the Section’s Debarment and Suspension Committee) and will continue to serve on its Procurement Fraud and other committees.

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Seven RJO Attorneys Named "Super Lawyers" in Northern California for 2016

Rogers Joseph O'Donnell is proud to announce that seven of its attorneys have been included among Super Lawyers magazine's top attorneys for 2016 in Northern California. Merri Baldwin, Robert Goodman, John Heller, Roland Nikles, Neil O'Donnell and Aaron Silberman were named to the “Super Lawyers” list and Lauren Kramer to the “Rising Stars” list for the Northern California Region for 2016. Ms. Baldwin and Mr. Heller were each recognized for their work in both Business Litigation and Professional Liability: Defense. Mr. Goodman was honored as a top Environmental Litigation lawyer. Ms. Kramer, Mr. Nikles, Mr. O’Donnell and Mr. Silberman were recognized as top lawyers in Government Contracts and Construction Litigation. Super Lawyers names top lawyers in Northern California, chosen by their peers and through the independent research of Law & Politics. Super Lawyers selects the top 5 percent of Northern California attorneys in more than 60 practice areas. The list of Northern California Super Lawyers is published annually in the August issue of San Francisco Magazine and Northern California Super Lawyers.

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Brian D. Miller Discusses Recent Supreme Court Case on Bloomberg Radio

Shareholder Brian D. Miller discussed the recent Supreme Court case on the False Claims Act with Harvard Law Professor Noah Feldman on “Bloomberg Law: High Court Gives UHS Partial Win.” Audio

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Brian D. Miller Quoted on the Supreme Court's False Claims
Act Case

Brian D. Miller comments on the Supreme Court’s False Claims Act case. He was quoted in the BNA Federal Contracts Report article entitled, “Supreme Court Upholds False Claim Implied Certification Theory.” Article

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RJO Government Contracts Group and Lawyers Recognized
by The Legal 500 for 2016

The Legal 500 for 2016 has ranked RJO among the top six law firms and Neil O'Donnell among the top ten lawyers in the U.S. in Government Contracts. It also noted RJO’s Bob Metzger, Jeff Chiow and Brian D. Miller in our D.C. office, and Patricia Meagher and Mark Linderman in San Francisco. The Legal 500

The Legal 500 found that, in the practice areas it highlights, “[o]nly a small number of firms in the US have a truly national presence coupled with the capability to handle sophisticated and complex work.” For Government Contracts, The Legal 500 recognized only six law firms in its top two tiers. RJO is proud to have been ranked among those six firms – the only boutique law firm to have been so recognized.

The Legal 500 describes RJO’s team as “a well-established practice across a range of industries” that “regularly handles complex claims.” It describes recent RJO bid protest successes representing CGI Federal “in a bid protest against the Navy’s award of a $2.5bn IDIQ contract for the inter-ship CANES consolidated communication systems” and DRS Technologies “in challenging the award of an Army technical services contract to Lockheed Martin.”

In addition to ranking Mr. O’Donnell as a “Leading lawyer” – one of ten nationally for Government Contracts this year, The Legal 500 quoted a source saying he “has a world of experience, excellent judgment, an even temperament, and is terrific in collaborating fully with others on complex matters.” Regarding our D.C. office lawyers, it described Mr. Metzger as a “[c]yber and supply chain security expert” and noted RJO’s elevation of Mr. Chiow to partner and, in November 2015, that “it was strengthened by the addition of former managing director of Navigant Consulting Brian Miller, who handles sensitive compliance and enforcement issues.” Regarding our San Francisco office lawyers, both Ms. Meagher and Mr. Linderman are described as “standout names.”

For 28 years, The Legal 500 has been analyzing the capabilities of law firms across the world, with a comprehensive research program revised and updated every year to bring the most up-to-date vision of the global legal market. The Legal 500 rankings are based on a series of criteria; it highlights the practice area teams that are providing the most cutting edge and innovative advice to corporate counsel. Its research is conducted by a team of experienced researchers – which includes both qualified journalists and lawyers – and is based on feedback from 250,000 clients worldwide, submissions from law firms and interviews with leading private practice lawyers, and a team of researchers who have unrivalled experience in the legal market.

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Protest Wins Client Contract Under $22 Billion VA Program

RJO attorneys Neil O'Donnell, Jeff Chiow and Lucas Hanback secured a significant contract for their client after the Department of Veterans Affairs took corrective action in response to a bid protest at GAO. The protest involved contracts issued for Information Technology service solutions under the VA’s Transformation Twenty-One Total Technology Next Generation (T4NG) multiple-award contract. Failure to obtain such a contract meant that a company would be shut out of satisfying any of the VA’s IT needs for as much as 10 years. RJO challenged various aspects of the award decision, focusing principally on the Agency’s method of determining whether offeror’s prices were realistic. After RJO filed a supplemental protest responding to the Agency’s defense of its actions, GAO engaged in an outcome prediction teleconference in which it indicated that it was inclined to sustain the protest on grounds alleged by RJO. In response, the VA took corrective action and awarded the client a contract under this $22 billion program.

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Pro Bono Win for Navy Veteran

RJO won a significant pro bono victory for a former Navy Chief Petty Officer, who was discharged from the service involuntarily after 19 ½ years. Well over 11 years of his service time had been spent deployed overseas in combat tours away from his wife and children. His involuntary separation was based upon convictions in civilian court for assault and attempted malicious wounding, in an incident involving his estranged wife and her boyfriend. While in jail awaiting trial, the Navy mistakenly continued to pay him for a time. Even though he questioned the payments at the time, the Navy sought to recover nearly $80,000 in pay and over $50,000 in fees and penalties. The civilian review board with jurisdiction to ensure that service members are treated fairly looked at all available evidence, including his exemplary service record and post-separation conduct, concluding that he had suffered long enough for this one mistake. It concluded that, while not condoning his conduct, he should be credited with six months of service and retired. But the Secretary of the Navy overruled that recommendation in a half-page page decision. The Court of Federal Claims agreed with RJO that the Secretary’s decision was arbitrary, capricious, unreasonable and not supported by substantial evidence. The decision is available on the Court's website.

The court ordered that RJO’s client be retired with all pay and benefits, allowing the Navy to offset from his back pay only the $80,000 overpayment, but no fees or penalties. Lucas Hanback argued the case with Jeff Chiow on the briefs. Lucas was an artillery officer and Jeff an F/A-18D Naval Flight Officer, both serving combat tours in the U.S. Marine Corps, before they became lawyers.

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Government Contracts Group and Attorneys Recognized Again
by Chambers and Partners USA

For the twelfth consecutive year, Chambers and Partners USA has recognized Rogers Joseph O'Donnell as one of the premier government contracts law firms in the United States. RJO is proud once again to be the only boutique-sized firm to be ranked among the country's eight best government contracts firms. Chambers’ ratings, released in May 2016, rate our government contracts practice in "Band 2" and recognizes five individual RJO attorneys.

Chambers describes our firm as being known for being an “[o]utstanding boutique practice, acting for domestic and international government contractors on all stages of the procurement cycle” and for “[f]requently advis[ing] on complex regulatory issues and government acquisitions, and defend[ing] clients in a wide range of high-profile civil, administrative and criminal litigation matters." As strengths, it quotes: “They are a very high-class, traditional firm, with some excellent practitioners."

Chambers ranks founding shareholder Neil O'Donnell as one of only eleven top (“Band 1”) government contracts attorneys in the nation. Chambers describes Mr. O'Donnell as “an eminent member of the government contracts Bar” and states that peers describe him as "a tremendous individual and attorney" who "personifies the manner in which successful government contracts practitioners operate" and is "one of the best speakers I have ever heard." Bob Metzger, who heads our Washington office, and Patricia Meagher are also ranked as top government contracts attorneys in Bands 3 and 4, respectively. Chambers describes Bob’s government contracts practice as “highly regarded among the government contracts Bar for his enforcement, litigation and bid protests practice” and notes that he “represents clients in the aerospace and defense, telecom, IT, professional services and electronics sectors, among other industries.” Patricia is regarded by sources as having a "wonderful reputation" in the field of dispute resolution and government contracts claims, a "good demeanor" and "incredible intelligence" and as being well known for her Bar activities. Shareholder Aaron Silberman is also cited as an "Other Noted Practitioner." Chambers recognizes RJO shareholder Jeff Chiow as an "Associate to Watch" (Jeff was elevated to shareholder Jan. 1), describing him as “an up-and-coming associate whose practice includes counseling, bid protests and internal investigations” and quoting one source: "He has always impressed me."

We appreciate the recognition of our peers and clients. To view the Chambers and Partners USA rankings for Rogers Joseph O'Donnell, visit the Chambers and Partners USA Website.

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RJO Persuades Transit Agency That Client Has No Organizational Conflict of Interest

RJO attorney Joseph McGowan succeeded in persuading the Los Angeles Metro to state, in advance of receiving proposals, that RJO’s client, B&C Transit, Inc., had no organizational conflict of interest (“OCI”). B&C Transit had prepared design drawings for a prior LA Metro project, which had been cancelled. B&C’s drawings were subsequently repackaged by LA Metro as part of a more comprehensive solicitation for the Blue Line Signal Rehabilitation Project. B&C Transit wanted to participate as the signaling design/builder for the Blue Line Signal Rehabilitation Project, but lead proposers for the project were unwilling to include B&C Transit on their team due to concerns that the presence of B&C’s design drawings in the Blue Line solicitation would lead to the disqualification of the team on OCI grounds. The LA Metro’s initial position was that the agency does not take a position on OCI’s prior to the submission of formal proposals. Such a policy would have effectively barred B&C Transit, because no lead proposer would risk including B&C Transit, due to the possibility of being disqualified on OCI grounds. RJO persuaded the LA Metro Ethics Department and Los Angeles County Counsel to deviate from the normal policy and issue a letter finding that participation by B&C was not an OCI. The letter was issued prior to the deadline for prequalification for the project, thereby allowing B&C Transit to submit a sub-proposal for the project.

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Article Quotes Aaron Silberman re Supreme Court’s Declination to Review Portion of Circuit Court Decision re Companies’ Federal False Claims Act Liability Based on “Collective Knowledge”

RJO government contracts attorney Aaron Silberman was quoted in the Federal Contracts Report (FCR) for June 7, 2016, in an article titled “Supreme Court to Consider False Claims Issue in State Farm Katrina Billing Case” (105 FCR, 6/7/16). The article reports on the U.S. Supreme Court’s decision in State Farm Fire & Casualty v. U.S., ex rel. Rigsby, to review one part of the Fifth Circuit’s decision in that case (on the issue of whether dismissal of a qui tam lawsuit is required where a relator/whistleblower plaintiff fails to adhere to the FCA requirement that those types of lawsuits be filed under seal and not served on the defendant(s) until the trial court orders the seal lifted) but not another important part of the Circuit Court decision (on whether companies may be liable under the FCA based on their employees’ collective knowledge). In the FCR article, Mr. Silberman noted that the latter issue “is a huge practical issue for most contractors,” and he is quoted as saying that Courts have found contractors liable under the FCA ‘‘where their employees have violated the Act, even though there is no evidence that the contractor, as opposed to the employee, had the required scienter,’’ and that ‘‘Rigsby provided a clear opportunity for the Supreme Court to fix this mistake created by the lower federal courts. It is unfortunate it has declined to do so.’’ Article.

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RJO Obtains Swift Back-to-Back Wins, Preserving Major Government IT Contract

RJO recently scored back-to-back wins for client Primescape Solutions, Inc. RJO first got involved a year ago, when Jeff Chiow and Lucas Hanback successfully protested a Defense Logistics Agency (DLA) award of a 3-year contract to manage the military’s STORES system that controls ordering and receipt of food and other subsistence items. Following that victory, DLA made a new decision to award the STORES contract to RJO’s client in January 2016. RJO helped DLA successfully defend the new award; the decision was made available at GAO's Website on April 1. The protestor refiled its case at the Court of Federal Claims days later. In that action, RJO successfully defeated motions for a Temporary Restraining Order and Preliminary Injunction by demonstrating that the protestor was unlikely to succeed on the merits and that RJO’s client would be significantly harmed by the issuance of an injunction. At the conclusion of oral arguments on April 20, the Court denied the protestor’s requests for injunctive relief. Soon thereafter the protestor voluntarily dismissed its Complaint.

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Two RJO Government Contracts Attorneys Named DC Super Lawyers Rising Stars for 2016

Jeff Chiow and Lucas Hanback were both selected for the third straight year as Rising Stars among DC Government Contracts attorneys by Super Lawyers. The selection process involves peer nominations, followed by a research-based winnowing of candidates. Up to 5% of lawyers can be named Super Lawyers with another 2.5% eligible to be named Rising Stars if they are under 40 and/or have been practicing fewer than 10 years.

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RJO Helps Client Defend BART Contract Award

RJO attorneys Aaron Silberman and Lauren Kramer helped client MERMEC Inc. defend its contract award by the Bay Area Rapid Transit District (BART) to provide a track geometry car, a custom rail car outfitted with sophisticated diagnostic and measurement systems to monitor the BART commuter rail system. RJO successfully defended MERMEC in an administrative bid protest of the proposed BART award, brought by a disappointed bidder and decided by the BART Procurement Department. RJO also successfully defended MERMEC against a petition filed by another disappointed bidder with the Federal Transit Administration (FTA), part of the U.S. Department of Transportation. RJO assisted MERMEC in the FTA’s pre-award audit and in proving that the petition’s allegation – that MERMEC’s proposal did not meet Buy America requirements – was wholly without merit.

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Robert S. Metzger Recognized as 2016 “Federal 100” Awardee

Bob Metzger, head of the firm’s Washington, D.C. office, was recognized as a recipient of the 2016 "Federal 100" Award for significant contributions to federal government information technology.

On April 1, 2016, Federal Computer Week (FCW) published details about this year's recipients. About Bob Metzger, FCW said: "In addition to his legal practice, Metzger serves as vice chair of the IT Alliance for Public Sector's Cyber/Supply Chain Assurance Committee, where he helps industry respond to government guidance and regulatory actions. He brings a deep understanding of the statutes and legal underpinnings of those efforts, combined with an ability to integrate policy, regulation and technology, and he has helped industry have a voice in those deliberations. In 2015, he was at the forefront of the convergence of the supply chain and cybersecurity, and his work continues to influence the strategies of federal entities and companies alike." FCW's Comments.

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Brian D. Miller Interviewed in Federal News Radio Broadcast

On March 15, 2016, Federal News Radio broadcast an interview of RJO shareholder Brian D. Miller about how federal contractors may face more lawsuits under the civil False Claims Act for what many view as simply disputes about contract terms, conditions, and performance. The United States Supreme Court will hear oral arguments in one such case, U.S. ex rel. Escobar v. Universal Health Services, Inc. on April 19th. Brian explains what is going on with this disturbing new trend.

The last part of the interview centers on Brian’s experiences as a corporate monitor. A corporation and federal suspension/debarment official selected Brian to a monitor in a suspension and debarment matter. As a monitor, Brian serves as a “trusted objective third party” assisting the corporation and assessing its compliance programs. In the radio interview conducted by Roger Waldron of The Coalition for Government Procurement, Brian talks about many issues facing many federal contractors including new Department of Justice guidelines, referred to as the “Yates Memo.” 45-minute interview.

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RJO Welcomes David E. Aron

Rogers Joseph O’Donnell is pleased to announce that David E. Aron has joined the firm as an associate in our Construction and Labor & Employment Practice Groups. Prior to practicing law, Dave was an Engineer and Superintendent for the Kiewit Corporation, one of the largest contractors in the world. As a Kiewit Superintendent, he planned and supervised all phases of bridge and water treatment plant construction. Dave is a graduate of the University of California Hastings College of Law. At Hastings, he was an active member of the Moot Court Department, competing on and coaching moot court teams, and serving on the Moot Court Board. Dave also has experience with legal malpractice and insurance liability issues.

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RJO Fends Off Protest of Award for Jetty Rehabilitation

The GAO has ruled in favor of RJO’s client in denying a bid protest of an award by the Department of the Army, Corps of Engineers, for the rehabilitation of Jetty A on the mouth of the Columbia River. RJO lawyers, Neil O'Donnell, Jeff Chiow and Josh Deitz, helped convince GAO to deny the protest, as the Corps of Engineers’ decision to award the contract to RJO’s client was reasonable based on the awardee’s significant advantage in past performance and past experience. GAO agreed with RJO’s argument that, while the protestor disagreed with the agency’s ratings, it could not show that those ratings were unreasonable, and thus Corps acted properly in granting the contract to the awardee. The decision is available at GAO's website.

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John Heller Appointed Chair of Litigation Section Executive Committee of San Francisco Bar Association

John G. Heller, has been appointed Chair of the Executive Committee of the Litigation Section of the San Francisco Bar Association. The Executive Committee organizes presentations on trial techniques and other matters of litigation interest,  and serves as a liaison between members of the Bar and the San Francisco Superior Court.

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Merri A. Baldwin Appointed President-Elect of the Bar Association of San Francisco

Merri A. Baldwin has been appointed the President-Elect of the Bar Association of San Francisco and the Justice and Diversity Center. The Bar Association of San Francisco and the Justice and Diversity Center promotes professional development, provides free or low-cost legal services to clients in San Francisco, provides pro bono opportunities and training, and supports numerous programs aimed at increasing the diversity of the legal profession and leadership within the community. For more information, go to: The Bar Association of San Francisco.

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Jeffery M. Chiow and Sharon Ongerth Rossi are Elevated to Shareholder

RJO is pleased to announce that Jeffery M. Chiow and Sharon Ongerth Rossi have been elected shareholders of the firm.

Mr. Chiow practices Government Contracts from our D.C. office. His practice encompasses litigation, investigations and compliance for defense, space and information technology companies. He has extensive experience in federal as well as state and local bid protest cases, and in defense of actions brought under the False Claims Act. He has been recognized by Chambers USA and SuperLawyers among prominent Government Contracts attorneys. He joined the firm in 2011 as an associate and was elected shareholder effective January 1, 2016. A 2008 graduate of The George Washington University Law School, Mr. Chiow is a former U.S. Marine Corps aviation officer. He graduated from the United States Naval Academy in 1997.

Ms. Rossi is a member of our firm’s Labor & Employment, Complex Commercial Litigation and Attorney Liability & Conduct practice groups in our SF office. Ms. Rossi’s practice is focused on complex litigation in state and federal courts, with an emphasis on class action defense. She has extensive experience defending employers before federal and state administrative agencies and routinely counsels both large and small employers on a wide array of workplace issues. Ms. Rossi is a 2004 graduate of Loyola of Los Angeles Law School. She joined the firm in 2011 as an associate and was elected shareholder effective January 1, 2016. Ms. Rossi currently serves as the Contra Costa County Regional Chair for Northern California Human Resources Association (NCHRA).

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Technical Services Protest Sustained On All Grounds

RJO attorneys successfully challenged the Army’s award of a 2-year $50M contract for various services in support of the Army’s mobile, computer-based battlefield intelligence system, Distributed Common Ground System (DCGS). Neil O'Donnell, Lauren Kramer and Jeff Chiow convinced GAO to uphold all three grounds of a protest against the Army’s award resulting in a recommendation that the Army amend the solicitation, reevaluate revised proposals and perform a more complete organizational conflict of interest (OCI) investigation.

The awardee had submitted a lower price by cutting the hours its employees would work on the contract, but RJO successfully argued that the Agency had accepted that approach without any justification, thus violating the terms of the solicitation. The competing offers also differed in their approaches to transition from the incumbent contractor, an issue GAO addressed under its rarely used authority to consider otherwise untimely protest issues that are of “significant interest to the procurement community.” GAO said the Army’s evaluation approach, which effectively penalized offerors who transitioned services more rapidly, was not reasonable or rational, and failed to provide for a common apples-to-apples comparison of costs.

RJO also achieved a rare sustained OCI protest after the agency had already done an OCI investigation. The protest claimed the awardee had impaired objectivity. RJO argued that, as written, the solicitation would call upon the awardee to evaluate its own engineering work, including evaluating software documentation and inspecting software code that the awardee itself had provided under a different contract. Because the OCI Report did not discuss these potential opportunities for the awardee to be responsible for inspecting its own work, GAO sustained this aspect of the protest. The decision is available at GAO's website.

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Article Quotes Aaron Silberman re Circuit Court Split on Effect of Relator Violations of Federal False Claims Act's Seal Provision

RJO government contracts attorney Aaron Silberman was quoted in the Federal Contracts Report (FCR) for November 6, 2015, reporting on a significant split among Federal Circuit Courts on the consequences where a relator/whistleblower plaintiff fails to adhere to the federal False Claims Act (FCA) provision requiring that qui tam actions be filed under seal and not served on the defendant(s) until the trial court orders the seal lifted (typically occurring after the Government decides whether to intervene in the case). Last summer, the Fourth and Fifth circuits followed precedent from the Second and Ninth circuits, holding that seal violations should not necessarily result in dismissal of these cases. These holdings conflict with Sixth Circuit precedent, which has a rigid per se dismissal rule for relators' violations. In the FCR article, Mr. Silberman is quoted as saying that there is clearly a circuit split; that, while disputes over violations of FCA seal requirements are not that common, “the results if a district court gets it wrong, to any party’s detriment, may be significant"; and that, as a result, "Supreme Court guidance would be a welcome development.” He is also quoted as stating that, because the FCA is unclear about the consequences of a relator's failure to comply with the seal provisions, a case-by-case approach is appropriate and that “[g]uidance would be very helpful regarding how courts should weigh factors such as the kind and amount of information revealed, the relator’s culpability, the likely harm to the government’s ability to investigate, and the likely harm to the defendant’s reputation.” The article further quotes him as opining that no one factor should trump all others but that “significant impairment of the government’s ability to investigate clearly should be among the most important considerations.” Finally, he is quoted as adding that “where the combination of factors justify it, the court should dismiss the relator’s complaint even where the government does not request it, though it would certainly be appropriate for the court to take the government’s position on dismissal into account.” Article

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RJO Welcomes Brian D. Miller

Rogers Joseph O’Donnell is pleased to announce that Brian D. Miller has has joined the firm's D.C. office as a shareholder. Brian has a distinguished record of public service. As Inspector General of the GSA from 2005 until May 2014, Brian was highly regarded for his vigilance in prevention of public waste and corruption. Earlier, Brian held several notable positions at the Department of Justice, including a senior management role at the U.S. Attorney's Office for the Eastern District of Virginia, Special Counsel on Health Care Fraud/Senior Counsel to the Deputy Attorney General, and as an AUSA in the Eastern District. Most recently, Brian was a Managing Director of Navigant Consulting.

Brian brings to RJO a wealth of government experience and understanding of what motivates regulators and how officials at federal agencies think and act. Through his years of service, Brian has developed relationships with key regulators and Justice Department officials, and he has earned the respect of law enforcement officials. Brian combines expertise as a traditional government contracts lawyer with practice experience as both a federal prosecutor and a white collar defense lawyer. He has particular expertise in handling matters involving complex procurement fraud allegations, internal compliance reviews and investigations, and suspension and debarment.

To see the full press release announcing Brian’s arrival at the firm, click here.

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Aaron Silberman Quoted on Important New Fourth Circuit Decision on Federal False Claims Act

RJO government contracts attorney Aaron Silberman was quoted in the Federal Contracts Report (FCR) for October 27, 2015 (104 FCR 1081), reporting on a significant federal False Claims Act (FCA) decision in an article titled “Fourth Circuit: Student Loan Entity Can Face FCA Claims." In the article, Mr. Silberman comments on the significance of United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency (2015 BL 346130, 4th Cir., No. 15-1093, 10/21/15) on the extent to which an entity created by a State government that receives federal funds may be liable under the federal FCA or is instead immune under the Eleventh Amendment as an “arm-of-the-state.” For the third time, the Fourth Circuit reversed a district court decision dismissing the relator’s FCA claims against the Pennsylvania Higher Education Assistance Agency (PHEAA): the first two on motions to dismiss, and this time on summary judgment. While not ruling in PHEAA’s favor, the opinion is helpful to State-created entity defendants in the sense that it says the issue of whether a defendant is an arm of the state is a legal issue for the court to decide. The court applied a four factor test. It gave much greater weight to the first and second factors and construed them unfavorably to State-created entity defendants. It applied the first, threshold factor – whether the State treasury is liable for the defendant’s acts – narrowly, holding that even though a judgment against the PHEAA would be paid out of the Treasury, it did not support immunity because the State was not “functionally liable” since the funds would come from a separate PHEAA account – even though those funds were commingled and could only be withdrawn with Treasurer approval.  State-created entities will often have difficulty satisfying this, the most important arm-of-the-state factor in the Fourth Circuit and any others that choose to take its narrow view. Likewise, the court applied the second factor, the State-created entity’s degree of autonomy, unfavorably for such entities’ immunity. It held that PHEAA was sufficiently autonomous to be liable, even though it was subject to significant State control: for example, its decisions were largely subject to veto and it could only enter into contracts and enact regulations with the State’s approval. While the arm-of-the-state immunity will remain a fact dependent inquiry after Oberg, many State-created entities will be unable to prove immunity in the Fourth Circuit and other jurisdictions that choose to follow this decision. Article

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RJO Wins Bid Preparation Costs for Three Clients

The Court of Federal Claims has ruled that three RJO clients – Assisted Housing Services Corp., North Tampa Housing Development Corp., and California Affordable Housing Initiatives, Inc. – are entitled to recover the costs of preparing responses to a 2012 HUD solicitation.

In the underlying bid protest RJO contended that the NOFA improperly solicited anti-competitive grant-type agreements for services, where procurement contracts were appropriate. Despite the pending protest, HUD required prospective contractors to submit bids. RJO’s protest was sustained in the Government Accountability Office.  HUD ignored GAO’s recommendation, forcing RJO to re-litigate the protest in court. In 2014, the Federal Circuit agreed that HUD should have sought procurement contracts for the work, and the Supreme Court denied HUD’s request to hear the case.

On the case’s return to the trial court to determine remedies, HUD argued that the protesters were not entitled to recover their bid preparation costs, because the protesters’ 2012 proposals could be modified and used in response to a future solicitation for the work. In rejecting HUD’s position, the court adopted RJO’s view that its clients’ proposal efforts were wasted due to the staleness of the 2012 submissions, and due to the significant differences between the NOFA and a future solicitation for procurement contracts.

RJO attorneys Neil O'Donnell and Dennis Callahan represent the vindicated protesters.

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Merri Baldwin Appointed Chair of COPRAC for 2015-2016

Merri A. Baldwin has been appointed Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) for 2015-2016. The committee is a standing committee of the California Bar, with members appointed by the Board of Trustees. COPRAC issues ethics opinions to provide guidance for California lawyers and judges, advises the Board of Trustees on substantive issues including proposals to amend the professional rules, and participates in outreach efforts to educate California lawyers concerning their professional and ethical responsibilities. Ms. Baldwin is co-chair of the firm’s Attorney Liability and Conduct practice group, and her practices focuses on litigation and counseling concerning attorney conduct, malpractice, ethics and related matters.

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Alan Wilhelmy Appointed to California State Bar ADR Committee

Alan Wilhelmy has been appointed to serve a three year term on the State Bar of California Alternative Dispute Resolution Committee. Mr. Wilhelmy has served as an arbitrator for twenty years on panels including the AAA Construction Industry and Large and Complex Case Panels, the International Chamber of Commerce Panel and the California Public Works Contract Arbitration Panel. The ADR Committee makes recommendations to the Bar to improve mediation and arbitration in California.

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Robert Metzger Interviewed on New Federal Cyber Requirements

On September 15, 2015, Federal News Radio broadcast an interview of RJO shareholder Bob Metzger on new federal cyber requirements that now are being imposed on contractors to DoD and the civilian agencies. In the radio interview, conducted by Rogers Waldron of The Coalition for Government Procurement, Bob seeks to make sense of the many strands of new federal initiatives - the pending OMB Cyber Acquisition Guidance, NARA's proposed rule on Controlled Unclassified Information, the new NIST SP 800-171 that applies to non-federal information systems, and the just-released Interim DFARS with new cyber rules for four types of "controlled defense information." 45-minute interview

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RJO Welcomes Joshua M. Deitz

Rogers Joseph O’Donnell is pleased to announce that Joshua M. Deitz has joined the firm as an associate. Josh joins our Government Contracts Group. He graduated with distinction from U.C. Hastings College of Law. At Hastings, he excelled in moot court and also served as both a Teaching Assistant and Writing Assistant, and, since receiving his JD, Josh has worked at Hastings as a Legal Writing and Research Professor. Josh has litigation experience in both state and federal courts and has worked with a variety of clients, including companies in the technology, energy and utilities, and investment industries. He has also had significant roles in several pro bono cases.

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Robert Metzger Quoted on Newly Issued DCMA Instruction

RJO shareholder Robert Metzger, was quoted at length in the Federal Contracts Report for July 28, 2015, on a newly issued DCMA Instruction for oversight of contractor efforts to detect and avoid counterfeit parts. Bob commented that the Instruction is a “positive step,” overall, considering the serious threat of counterfeits to the defense supply chain. Bob, who is recognized as a national expert in supply chain and cyber risk management, has many publications and presentations to his credit in this area, available on our website. New FCR Article.

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Aaron Silberman Quoted on Important New Fifth Circuit Decision on Federal False Claims Act

RJO government contracts attorney Aaron Silberman, was quoted in the Federal Contracts Report (FCR) for July 14, 2015 (104 FCR 773), reporting on a significant federal False Claims Act (FCA) decision in an article titled “Fifth Circuit Affirms Flood Insurance Fraud Verdict, Allows Additional Discovery." In the article, Mr. Silberman comments on the significance of United States ex rel. Rigsby v. State Farm Fire and Cas. Co. (2015 BL 223044, 5th Cir., No. 14-60160, 7/13/15) on the consequences of a whistleblower relator’s failure to follow the FCA’s seal requirement and the scope of discovery a relator will be allowed to take in FCA cases. With regard to the relators’ violation of the FCA seal requirement, which the court held did not require dismissal of their FCA claims, Mr. Silberman noted there was “no indication in the opinion whether the government took a position on this issue. This is unfortunate since the seal provisions exist for the government’s benefit and protection.” Mr. Silberman disagreed with the court’s holding that the relators were entitled to additional limited discovery concerning further alleged misconduct: “By focusing on whether there was broader scheme evidence, without asking whether that evidence, when combined with the amended complaint, allege all the required elements of additional FCA violations, the Circuit Court’s decision has given the relators license to conduct the sort of fishing expedition that Rule 9(b) and the discovery rules were designed to prevent.” (Article)

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UPCOMING CONFERENCES
AND SEMINARS


Recent Publications

New Proposition 65 Warning Regulations Adopted, RJO Update, Retail Industry Trade Regulation, September  2016 (co-authored)

Hiring the Right Monitor to Help Your Company and Not Hurt It, Corporate Counsel Magazine, August 18, 2016, co-authored by B. Miller (pdf)

Guide to Fixed-Price Supply Subcontract Terms and Conditions, Fifth Edition, ABA Publishing, 2016, by A. Silberman, contributing author (ABA Webstore)

Client Alert: U.S. Supreme Court Adopts Implied Certification Liability for Federal Contractors under the False Claims Act and Leaves it to the Courts to Sort out the Rest , RJO Update, June 2016 (co-authored)

All Employers, Including California Employers, Should Review their Compensation Practices for White Collar Employees, RJO Update, May 2016 (co-authored)

Client Alert: U.S. Supreme Court to Rule on False Claims Act: A Lawyer’s Game?, RJO Update, May 2016 (co-authored)

New State Legislation Offers Protection to Small Businesses From Predatory Disabled Access Lawsuits, RJO Update, May 2016 (co-authored)

May 11, 2016 Deadline to Post Proposition 65 Warnings for Food and Beverage-Based BPA Exposures, RJO Update, Apr. 2016 (co-authored)

How State and Local Public Agencies May (or May Not) Terminate Construction Contracts, The Construction Lawyer, Vol. 36, No. 2, Spring  2016 (PDF) by A. Silberman

California Employers: New Harassment and Discrimination Regulations Go Into Effect April 1, 2016, RJO Update, Mar. 2016 (co-authored)

The U.S. Supreme Court Stays the Implementation of the EPA’s Clean Power Plan Pending the Completion of All Legal Challenges, RJO Update, Mar. 2016 (co-authored)

State & Local: Square Peg, Round Hole: Bid Protests in Nontraditional Construction Procurement, The Procurement Lawyer, Winter 2016 (PDF) by A. Silberman

Citizen Guide for Effective Participation in Hydropower Licensing Before the Federal Energy Regulatory Commission, Hydropower Reform Coalition, Nov. 2015, by N. Niiro (co-authored)

Cybersecurity and the Federal Supply Schedule: What to Expect, RJO Update, Nov. 2015 (co-authored)

GSA’s Class Deviation for Commercial Supplier Agreements, RJO Update, Sept. 2015 (co-authored)

New California Family Rights Act Regulations: Employers with 50 or More Employees in California Should Ensure Existing Policies, Practices, Forms and Postings Are up to Date, RJO Update, July 2015 (co-authored)

California Employers Must Provide Paid Sick Leave Benefits to Most Employees,
RJO Update, July 2015 (co-authored)

Threats to the Supply Chain: Extending Federal Cybersecurity Safeguards to the Commercial Sector, Bloomberg BNA, 14 PVLR 1010, June 8, 2015, by R. Metzger (PDF)

Litigating Bid Protests Before the New York Office of State Comptroller, The Procurement Lawyer, June 2015 (PDF) by D. Callahan

Cybersecurity and Acquisition Practices: New Initiatives to Protect Federal Information of Civilian Agencies, Bloomberg BNA, 97 DER B-1, May 20, 2015, by R. Metzger (PDF)

Mitigating the Adverse Effects of Hydropower Projects: A Comparative Review of River Restoration and Hydropower Regulation in Sweden and the United States, The Georgetown Int’l Envtl. Law Review, Vol. 27:251, Apr. 2015, by N. Niiro (PDF) (co-authored)

Cybersecurity for the Rest of Us: Protecting Federal Information of Civilian Agencies, Bloomberg BNA Federal Contracts Report, 103 FCR, Mar. 10, 2015, by R. Metzger (PDF)

Key Changes to California Employment Law in 2015, RJO Update, January 2015,
(co-authored)

Litigation Strategies for Gov. Contracts, 2015 ed.: Leading Lawyers on Understanding the False Claims Act, Filing Bid Protests, and Working with Gov. Agencies (Inside the Minds), Thompson Reuters, 2014, by A. Silberman (opening ch., titled “Gov. Contracts Litigation in 2014 and Beyond: More Protests and Enforcement Actions, Fewer but Better Claims, and ADR Early and Often”) Thompson Reuters

View From RJO: A Standards-Based Way To Avoid Counterfeit Electronic Parts, Bloomberg BNA Federal Contracts Report, 102 FCR 540, Nov. 4, 2014, by R. Metzger (PDF)

How FATCA Will Affect Brokers Dealing with Foreign Insurers and Agents, California Broker, Life Insurance, Oct. 2014, by D. Paik (PDF)

State False Claims Acts: A Practitioner's Guide to the False Claims Acts of the Various States, ABA Publishing, 2014, by A. Silberman and D. Callahan, contributing authors ABA Webstore

Termination for Convenience of the Government: Key Issues for Contractor Recovery, Briefing Papers, Thomson Reuters, Sept. 2014, by P. Meagher and O. Zamaray, contributing authors (PDF)

New Rule Addresses Supply Chain Assurance, National Defense, NDIA's Business and Technology Magazine, in which Bob Metzger has contributed a column in the "Ethics Corner" of the October 2014 issue (PDF)

View From RJO: Risk-Based Acquisition Strategies to Avoid Failed IT Projects, Bloomberg BNA Federal Contracts Report, 102 FCR, Sept. 23, 2014, by R. Metzger and M Linderman (PDF)

Indiana V. IBM: What's At Stake For IT Contractors, Law360, Sept. 15, 2014, by R. Metzger and M. Linderman (PDF)

State and Local: How Public Agencies May (or May Not) Terminate Contracts, The Procurement Lawyer, Vol. 49, No. 4, Summer 2014, by A. Silberman (PDF)

Supply Chain Security: Initiatives to Defend Against the Threats of Counterfeit Parts, IPC APEX Expo 2014, March 26, 2014, by R. Metzger, Video interview featuring Mark Northrup of IEC Electronics

Construction Subcontracting: A Comprehensive Practical and Legal Guide, ABA Publishing, 2014, by A. Silberman, lead editor and co-author; M. Linderman, R. Osier, co-authors; T. Arbuthnot, W. Chen, S Tyrell, contributors (ABA Webstore)

An Ounce of Prevention: Managing Disqualification Risks through Advance Conflict Waivers, IP Litigator, March/April 2014, by M. Baldwin (PDF)

Hoping for Summary Judgment on California False Claims? Au Contreras, AGC California Legal Brief, Mar. 2014, by A. Silberman and D. Callahan (PDF)

Convergence of Counterfeit and Cyber Threats: Understanding New Rules on Supply Chain Risk, Bloomberg BNA Federal Contracts Report, 101 FCR, Feb. 18, 2014, by R. Metzger (PDF)

Privacy vs. Security -- A zero sum game? Jan. 2014, by J. Chiow (PDF)

Challenges Facing Civil Aviation in India, Indian Defence Review, Vol. 28:4, Oct.-Dec. 2013, by R. Metzger

GSA Multiple Award Schedule Contracting: Lessons From 2013, Law360, Dec. 18, 2013, by R. Metzger, J. Chiow and O. Zamaray (PDF)

Lawyers Representing Startups: Managing Ethical Obligations and Risks, California Bar Journal,
Dec., 2013, by M. Baldwin

New DOD Cybersecurity Program Expected To Significantly Affect IT Contractors, Bloomberg BNA Federal Contracts Report, 100 FCR 472, in which Bob Metzger is quoted on supply chain rules, Nov. 19, 2013 (PDF)

Advanced regional turboprop aircraft: Solutions to India's aviation infrastructure restraints, The Economic Times, Nov. 10, 2013, by R. Metzger

The Many Challenges Facing Civil Aviation in India, India Law News, ABA Section of International Law, Vol. 4, Issue 3, Fall 2013 (PDF) by R. Metzger

The Risks of Hiding Accounts and Assets in Korea Are Going Up (in 5 parts), Korea Daily, Sept. 23-27, 2013 (in Original Korean: (PDF); (in English Translation: (PDF) by D. Paik

Offsets Loom Large As Defense Firms Sell More Abroad, Law 360, Sept. 30, 2013 (PDF) by R. Metzger

"Do defence PSU's make better joint venture partners for foreign companies?" Feature article, The Economic Times (India), in which Bob Metzger quoted extensively on challenges in forming successful joint ventures with state-owned and private sector companies in India, July 7, 2013

DoD's public meeting - discussion of the proposed DFAR rule on detection and avoidance of counterfeit electronic parts. Robert Metzger's prepared statement is posted on the DoD Defense Procurement Acquisition Policy web site, June 28, 2013

"New DOD Counterfeit Prevention Policy: Resolves Responsibilities Within DOD But Leaves Many Contractor Questions Unresolved," Federal Contracts Report, a publication of Bloomberg BNA, May 15, 2013 (PDF) by R. Metzger

"India's Defense Procurement: Responses to the New Scandal, India and the United States: The Evolving Legal Landscape," April 27, 2013 (PDF) by R. Metzger

"The Importance of Competitive Negotiations to State Information Technology Procurement," The Procurement Lawyer, Section of Public Contract Law, ABA, Vol. 48, No. 3 - Spring 2013 (PDF) by R. Metzger and L. Kramer

"Discoverability of Witness Interviews: To What Extent Do the Work Product Doctrine and/or the Attorney-Client Privilege Apply," California Bar Journal, State Bar of California, February 2013, by M. Baldwin