Joseph R. Berger

Highlights in Bid Protest and False Claims Act Cases

• Won sustained decision in Wyle Laboratories, Inc., B-408112.2 (Dec. 27, 2013): Represented Wyle in successful sustained protest on $1.7 billion, 10-year NASA program for biomedical services supporting human spaceflight. Handled all protest issues relating to the SAIC corporate split and developed and wrote the arguments that formed the basis for GAO’s sustained decision. Upon NASA’s request for reconsideration, wrote the brief in opposition, resulting in GAO’s second decision in May 2014 affirming GAO’s decision to sustain.
• Won sustained decision in Computer Sciences Corp.; HP Enterprise Services; Harris IT Services Corp.; Booz Allen Hamilton, B-408694.7 et al. (Nov. 3, 2014): Represented HPES in successful sustained protest concerning Air Force awards for network operations at locations worldwide (Network Centric Solutions--2) (ID/IQ awards with maximum value of $960 million). Handled issues relating to past performance and developed and wrote arguments sustained by GAO.
• Represented a major consulting firm in multiyear FCA investigation and high-profile litigation concerning teaming and subcontractor arrangements in dozens of government contracts with the Department of Defense (DoD), the GSA Schedule program and multiple civilian agencies, resulting in successful settlement. Supervised the majority of offensive discovery and handled all issues relating to the Defense Logistics Agency at the core of the case.
• Represented a major government contractor in DoJ investigations arising from performance in foreign nations and war zones during the Iraq war.

Corrective Actions in Bid Protest Litigation

• Represented a major consulting firm challenging technical evaluations in a DoD competition for intelligence analysis services to the many agencies in the intelligence community, and caused the agency to make an additional award to the firm for a contract with a $5.6 billion contract ceiling.
• Represented a major IT hardware company challenging its exclusion from the competitive range, causing the U.S. Army to restore the company to the competitive range and initiate new discussions in the Army’s ITES-3 competition with $5 billion contract ceiling.
• Represented a software company challenging requirements restricting competition in an IT procurement by the U.S. Navy’s Space and Naval Warfare Systems Command, leading the command to reassess and make fundamental changes to the underlying requirements.
• Represented a major military base logistics provider, challenging technical and cost realism evaluations for management of a U.S. Army garrison, leading the Army to cancel the award and hold new discussions with offerors in the competitive range.
• Represented an international consulting firm challenging cost and technical evaluations in a USAID competition for development services in Afghanistan, leading the agency to request revised proposals and hold new discussions with offerors in the competitive range.
• Represented an international engineering joint venture bidding on a power generation contract for a U.S. Army base in Kuwait, leading to provision of historical data to bidders.

Additional Sustained Decisions in Bid Protest Litigation

• Secured GAO decision sustaining the protest for a major IT solutions company, challenging the evaluation of its technical demonstration by the Defense Information Systems Agency.
• Secured GAO decision sustaining the protest for a major helicopter flight services company, challenging the technical qualifications of an awardee’s proposal.
• Secured GAO decision sustaining the protest for a small scientific consulting business, challenging a sole source award by the Department of Energy.

Decisions in Favor of Awardees in Bid Protest Litigation

• Secured favorable CoFC decision for a GSA Schedule holder, in court to defend software orders from the Navy in support of the Navy/Marine Corps Intranet.
• Secured favorable agency decision for a leading manufacturer of U.S. military ordnance, competing for continued production at government-owned facilities after its proprietary information was released to competitors by the procuring agency.
• Secured favorable GAO decision for a major space systems company, defending an award by NASA in support of an Earth-observing satellite program.
• Secured favorable CoFC procedural decision for a systems engineering company, in court to defend an Air Force decision taking corrective action following a GAO protest.

Additional Litigation Experience

• Represented a major metal manufacturer (the primary defendant among dozens of responsible parties) in district court Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) litigation over World War II-era contracts and a historical tungsten processing site in New York, leading to successful settlement.
• Represented a major shipbuilder in state court litigation with the City of New York.
• Represented a major energy company with spent nuclear fuel claims against the government.
• Represented major telecommunications company in successful defense against Defense Contract Audit Agency (DCAA) audits.
• Represented union members affected by an outsourcing competition for Air Traffic Control services in proceedings before the Federal Aviation Administration.
• Represented a developer in state court litigation over a major city’s convention center hotel and real estate companies in litigation over municipal contracts and corporate securities.
• Represented an amicus party in a successful outcome before the U.S. Supreme Court, which expanded the contribution rights of potentially responsible parties in CERCLA litigation.
• Represented the National Veterans Legal Services Program with an amicus brief supporting a Navy veteran forced to retire prematurely, leading to correction of records by the CoFC.

Joe writes frequently on government contract issues and has been quoted by West, Law360 and Bloomberg/BNA publications. His academic articles and commentaries have been cited in law review articles, books, treatises, a decision of the U.S. Court of Federal Claims, and a brief to the U.S. Supreme Court.

• “Preparing for a DoD OIG Audit: DoD’s Focus on Small Business Set-Aside Contracts and Certifications,” Pratt’s Government Contracting Law Report, July 2019
• “DOJ Guidelines for Disclosure, Cooperation and Remediation in FCA Matters,” Thompson Hine Government Contracts Update, June 2019
• “Developments Affecting DOD Bid Protests,” The Government Contractor, April 2019
• “DOJ Recovers $2.8 Billion in False Claims Act Cases in FY 2018,” Thompson Hine Government Contracts Update, January 2019
• “Threat of Another Government Shutdown: What Contractors Need to Know and Do Now,” Thompson Hine Construction & Government Contracts Update, December 20, 2018
• “GAO Releases Bid Protest Annual Report for FY 2018; Effectiveness Rate Is 44 Percent,” Thompson Hine Government Contracts Update, December 2018
• “What Government Contractors Need to Know and Do After Hurricane Florence,” Thompson Hine Government Contracts Update, September 2018
• “Ninth Circuit Rules Escobar Two-Part Falsity Test Is Mandatory for Implied Certification Liability Under the False Claims Act,” Thompson Hine Government Contracts Update, August 2018
• “Annual Procurement Law Reforms in the FY 2019 National Defense Authorization Act,” Thompson Hine Government Contracts Update, August 2018
• “Bayh-Dole Act Amendments Governing Ownership of Government-Funded Inventions Take Effect Next Week,” Thompson Hine Government Contracts Update, May 2018
• “GAO Issues Final Regulations Implementing Electronic Protest Docketing System,” Thompson Hine Government Contracts Update, April 2018
• “DoD Implementing Enhanced Postaward Debriefing Rights via Class Deviation,” Thompson Hine Government Contracts Update, March 2018
• “GSA Releases Initial E-Commerce Portal Implementation Plan,” Thompson Hine Government Contracts Update, March 2018
• “Enhanced Debriefings and Bid Protest Pilot Program Included in FY 2018 NDAA,” Pratt’s Government Contracting Law Report, March 2018
• “GAO Issues Annual Bid Protest Report To Congress for FY 2017,” Pratt’s Government Contracting Law Report, March 2018
• “10 Government Contracting Trends to Watch This Year,” Law30, February 20, 2018
• “DOJ Policy Memos Signal Greater Checks and Balances for FCA Enforcement,” Thompson Hine Government Contracts Update, February 2018
• “Government Shutdown Threatened (Again): What Contractors Need to Know and Do Now,” Thompson Hine Construction & Government Contracts Update, January 18, 2018
• “RAND Corp. Report’s Recommendations to Defense Department on the Bid Protest System,” Thompson Hine Government Contracts Update, January 5, 2018
• “RAND Corp. Submits Report to Congress on Bid Protest Impacts to DoD Procurements,” Thompson Hine Government Contracts Update, January 3, 2018
• “DOJ Recovers $3.7 Billion in False Claims Act Cases in FY 2017; Total Recoveries Exceed $3 Billion Each Year Since 2010,” Thompson Hine Government Contracts Update, December 2017
• “GSA Issues Notice Regarding Commercial e-Commerce Portals Under NDAA Section 846,” Thompson Hine Government Contracts Update, December 2017
• “GAO Issues Annual Bid Protest Report to Congress for FY 2017,” Thompson Hine Government Contracts Update, November 2017
• “Enhanced Debriefings and Bid Protest Pilot Program Included in FY 2018 NDAA,” Thompson Hine Government Contracts Update, November 2017
• “Senate Passes $700 Billion 2018 National Defense Authorization Act, Including Procurement Reforms,” Thompson Hine Government Contracts Update, September 2017
• “Trump Administration Steps Up Buy American Enforcement,” Thompson Hine Government Contracts Update, July 2017
• “Government Contracts Under The Trump Administration,” Law360, January 2017
• “GAO’s Bid Protest Annual Report Shows Record High Effectiveness Rate While NDAA Calls for New Comprehensive Study of the Bid Protest System,” Thompson Hine Government Contracts Update, January 2017
• “Implied Certification Theory Under the False Claims Act – Approved by the Supreme Court,” Thompson Hine Business Law Update, Fall 2016
• “Texas Court Issues Nationwide Injunction Against Fair Pay and Safe Workplaces Final Rule,” Thompson Hine Government Contracts Update, October 2016
• “Effective Dates Approaching for Fair Pay and Safe Workplaces Final Rule Implementation,” Thompson Hine Government Contracts Update, October 2016
• “Supreme Court Decision Highlights Risks Related to Federal Programs, Contracts and Grants,” Thompson Hine Construction & Government Contracts Update, August 2016
• “The Most Prevalent Reason Why GAO Sustained Bid Protests In FY 2013,” The Government Contractor, July 16, 2014
• “Supreme Court Grants Petition for Review in Carter; Will Address FCA First-to-File Bar and Wartime Suspension of Limitations Act,” Lexology, July 2, 2014
• “Circuit Splits Surrounding FCA Endure Post-Takeda,” Law360, May 2, 2014
• “Keep An Eye On High Court’s Two Potential FCA Cases,” Law360, October 18, 2013
• “Petitions to Supreme Court Shine Light on FCA Circuit Rulings, Fourth Circuit Case Law,” Bloomberg BNA Federal Contracts Report, September 24, 2013
• “Fourth Circuit Decision On WSLA Paves Way For FCA Forum Shopping And More Stale Claims,” The Government Contractor, June 5, 2013
• “2012 Trends In Government Contracts Likely To Continue,” Law360, January 31, 2013
• “Cautionary Tales In Recent FCA Decisions,” Law360, October 16, 2012
• “Implied Certification Strikes Back: Expanding Precedent on Legal Falsity Under the False Claims Act,” Westlaw Journal Government Contract, May 14, 2012
• “Supreme Court Denies Blackstone’s Petition on Legal Falsity Under the False Claims Act,” Bloomberg BNA Federal Contracts Report, January 17, 2012
• “Recent Rulings on Implied Certification Under the False Claims Act: Limitations on a Common-Law Theory,” Westlaw Journal Government Contract, November 1, 2010
• “False Claims Act Returns to the Supreme Court,” The Government Contractor, Nov. 18, 2009
• “Judging The Common Law--Judge Sotomayor And The Government Contractor Defense,” The Government Contractor, July 22, 2009
• “Government Contracting Developments in President Obama's First 100 Days – ‘No Little Plans,’” The Government Contractor, April 29, 2009
• “President Obama Heralds Change For Gov. Contracting,” The Government Contractor, Jan. 21, 2009
• “Believe That Change Has Come for Contractors,” Legal Times, November 5, 2008
• “The Year in Sustained Bid Protests at the U.S. Government Accountability Office and the U.S. Court of Federal Claims,” Public Contract Law Journal, Summer 2008
• “OFPP Evaluating Proposed Policy on Procurement of ‘Green’ Products and Services,” The Government Contractor, June 11, 2008
• “Affirmative Action for Veterans,” The Procurement Lawyer, Winter 2008
• “Subpoena Power at the Civilian Board of Contract Appeals—GSA Should Reconsider its Position and Reverse Course,” The Government Contractor, September 19, 2007
• “Supreme Court to Decide Boundaries of Government Liability Under CERCLA,” The Procurement Lawyer, Spring 2007
• “DHS Issues Final Rule Governing SAFETY Act,” The Government Contractor, June 14, 2006
• “The African Elephant, Human Economies, and International Law: Bridging a Great Rift for East and Southern Africa,” Georgetown International Environmental Law Review, 2001
• “Unilateral Trade Measures to Conserve the World’s Living Resources: An Environmental Breakthrough … the WTO Sea Turtle Case,” Columbia Journal of Environmental Law, 1999

• Listed in Legal 500, 2019