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Joseph R.Berger

Counsel

Focus Areas

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.

  • “Government Contracts Under the Biden Administration,” Thompson Hine Webinar, March 9, 2021
  • Selected to Law360’s Government Contracts Editorial Board, 2022
  • Selected to Law360’s Aerospace & Defense Editorial Advisory Board, 2021
  • Listed in Legal 500, 2019 to 2021

Education

  • Columbia Law School, J.D., 2000,

    Harlan Fiske Stone Scholar (1999); Columbia Journal of Environmental Law, senior executive editor

  • Dartmouth College, B.A., 1996

Bar Admissions

  • District of Columbia
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