Posts Tagged: Government Contracts

Your C|Y Government Contracts Team

Cokinos | Young started off the year strong with the strategic addition of the Bailey and Bailey team, and their deep Federal Government Contract experience, to our Government Contracts practice. The addition of Johnathan Bailey and his team, combined with our existing Governmental Contract group lead by John DiBiasi and Robbie MacPherson, further bolsters the practice’s capabilities and solidifies our position as a national leader in the Federal and Local Public Contracts space. Our attorneys bring a wealth of experience and knowledge that allow us to effectively and strategically serve our existing and prospective clients across the nation that are facing regulatory requirements in this highly competitive and specialized legal practice.

For many years, our Government Contracts team has assisted contractors large and small in every stage of the contract process from qualifying to do business with the federal and local governments, winning and keeping contracts in the bid protest process, navigating regulatory compliance during performance, and when necessary litigating in the courts and before contract dispute boards to make sure the government lives up to its contractual obligations. Our deep bench of experts have devoted their careers to staying ahead of changes and challenges that come with the extensive regulations in this unique market.

Meet the leaders of our Government Contracts practice:

Johnathan Bailey is a former name and founding partner in the firm Bailey & Bailey, P.C. where over 25 years of practice he built a reputation for knowledge and excellence in representation of construction, service, IT and manufacturing companies seeking to do business with the numerous agencies of the federal government and the State of Texas. He has litigated more than 250 bid protests involving billions of dollars in federal contracts before the US Government Accountability Office (GAO) and the United States Court of Federal Claims. Johnathan has also prepared, negotiated and litigated hundreds of Contract Disputes Act claims with dozens of federal contracting agencies and litigated before all existing (and previously existing) Boards of Contract Appeals and the FAA’s Office of Dispute Resolution.

Coming from a small firm environment, Johnathan has extensive experience in representation of small business federal contractors, including especially socio-economic programs administered by the US Small Business Administration including the 8(a) Business Development, Service-Disabled Veteran-Owned Small Business, Woman-Owned Small Business and HUBZone programs.

The wide range of challenges faced by federal contractors has also given Johnathan many years of experience in range of federal contracting matters including Department of Labor (Service Contract Act and Davis-Bacon Act) compliance, suspension and debarment proceedings, and qui tam litigation under the federal False Claims Act.

John DiBiasi focuses on assisting general contractors, subcontractors, and suppliers engaged in the design and construction of publics works projects, including bridges, tunnels, highways, water and sanitary pipelines and plant facilities, dams, levees, treatment plants, and other heavy civil infrastructure across the country. His knowledge extends to every level of government contracting, from municipal to federal projects and everything in between. John’s extensive experience in resolving these contract disputes includes navigating a wide variety of situations and requirements unique to government contracting, including bid protests, claim preservation and presentation, disadvantaged business goals, government shutdowns, statutory notice requirements, corrective action plans, defense of defective work or workmanship claims, false claims allegations, defaults and terminations, dispute resolution boards, and local, state and federal litigation nationwide.

Robbie MacPherson has been representing contractors and subcontractors with public works contracts since 1981. He has handled matters involving New York City’s Department of Design & Construction, Department of Environmental Protection, Department of Citywide Administrative Services, and the School Construction Authority among others. Has appeared before many NYC Procurement Policy Board tribunals, handling both disputes and bid protests. His New York State public contract experience includes handling matters involving the MTA, Dormitory  Authority of the State of New York, State University of New York and City University of New York, and other public authorities in New York. In New Jersey he has handled claims against Counties, Municipalities and Local Authorities. Robbie has also represented public bodies and school districts in New Jersey. The projects involved ranged from school buildings to major infrastructure, including the East Side Access Program, the Goethals Bridge Replacement Program, the Second Avenue Subway and the Canarsie  Tunnel Sandy Repair Program. The projects involve trades from jet grouting to electrical work and roofing. He has litigated public contracts disputes in courts in both New York and New Jersey. He has also mediated and arbitrated public contract disputes in both states and elsewhere.

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

Government Contracts Case Study: Type II Differing Site Condition

Differing Site Condition (DSC) claims are common in government contracting. In the typical Type I DSC claim the contractor must establish that the condition it encountered differed from what the Contract indicated. For example, rock was encountered not soil.

A Type II Differing Site Condition (DSC) is by definition “of an unusual nature, differing materially from those ordinarily encountered”. In a Type II DSC case, unlike a Type I where the Contract forms a reference point, there is no clear point of reference. Instead, the conditions encountered must be judged by what is normal for the area. A behavioral DSC is even more unique. To establish a behavioral DSC the contractor must establish that that while the ground did not appear to be unusual, the ground behaved in an unusual manner during construction.

Representing a jet grout contractor, Robbie MacPherson successfully led a team which established the existence of a Type II Behavioral DSC involving the construction of two New York City subway stations a block apart. Jet grouting is a method of insitu soil treatment that is commonly used to underpin foundations, provide excavation support, or, as in this case, to create a groundwater cut-off using a watertight base plug for excavation below the water table.

The contractor had extensive jet grout experience, including experience in New York City. It also had available to it the technical experience of its parent company, which performs jet grouting worldwide. Typically, jet grout columns are formed, and their diameter, composition and properties, such as strength, selected to match the design parameters. Column diameter is one of the most important design parameters in jet grouting, as it is fundamental to the construction of a treated zone formed from overlapping columns. Full scale field trials are first conducted to verify the selection of the jet grout parameters, based on successful prior experience. Following its established practices, the contractor devised and implemented a jet grout trial program. However, the trial results were unexpected, unpredictable, and unusual compared to past experience. After several revisions to its testing procedures, which were time consuming and costly, sufficient column diameters were formed at the first station site. The contractor then moved to the second site, a block away, but had to start the trial process all over again when the soil at that site did not react the same when the design parameters established at the first site were employed. 

Establishing the existence of the Type II DSC required proving the experience of the contractor’s staff, the company itself and its parent. Next, we needed to prove that the trial program followed both the industry and the contractor’s normal practice and procedure. Finally, we had to coordinate that evidence with the opinion testimony offered by several expert witnesses. We also worked with the client and experts to rebut the defense put on by the subway authority and its experts. 

About Cokinos | Young

Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.

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