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  Baker, Cronogue, Tolle & Werfel, LLP

John R. Tolle

Managing Partner


Admitted in: Virginia
                       District of Columbia


Voice: 703.448.1810, ext. 17
Facsimile: 703.448.3336

jtolle@bbttlaw.com

Practice Areas:


Attorney Profile:


John R. Tolle is the managing partner of the McLean, Virginia, law firm of Baker, Cronogue, Tolle & Werfel (formerly Barton, Baker, Thomas & Tolle) where he specializes in all aspects of Government contracts. Prior to practicing with bct&w, he was a partner at a large firm for several years, and on that firm's management committee one year. Before entering private practice, he began his career as an attorney with the Office of General Counsel, Department of the Navy.

Mr. Tolle does work in all areas of Government contracts, including intellectual property rights, bid protests, claims preparation and litigation, small business and 8(a) procurements, audits, cost issues, teaming agreements and subcontracts, FOIA, export of software, Buy American Act issues and compliance and ethics counseling in areas such as defective pricing, false claims, Procurement Integrity, and debarment and suspension actions. In addition, he advises closely held businesses on a variety legal issues, ranging from start-up issues, mergers and acquisitions, shareholder matters, employment-related matters, including various employment agreements.
 
Mr. Tolle represents clients throughout the United States. Many of them are federal information processing companies that perform computer related services and develop software and/or other computer related products.

Mr. Tolle has written and spoken extensively on a wide range of topics, including Rights in Technical Data and Computer Software, Bid Protests, Software Licensing, and Teaming Agreements and Subcontracts. For ten years (1989-1999) he was an adjunct professor at the
University of Virginia, where he developed and taught a course entitled Government Contracts Computer Law. He is a member of the Government Contracts Section of the Federal Bar Association, where is a past Chair of the Small Business and Socioeconomic Affairs and Bid Protest Committees, and current Chair of the Intellectual Property Rights Committee. He is also founded the New Government Contractor Forum in 2004.

Small Business Work

Mr. Tolle represents quite a few companies that are small, small disadvantaged, women-owned, and service-disabled veteran-owned, many of whom are or have been on the Washington Fast 50. Consequently, he is very familiar with the regulations, rules, statutes and case law that govern the applicable programs for these groups. Work for these companies involves helping them comply with the various program rules, such as assisting them get into the programs and then devising a strategy to keep them in the programs. He is a former chair person of the Federal Bar Association's Government Contracts Section's Small Business and Socioeconomic Matters Committee, and has co-authored several lengthy articles for Federal Publications on small business issues. In the past year he has been a co-presenter with Ralph Thomas of NASA in several programs on teaming agreements and subcontracts in conjunction with several organizations, including the Federal Bar Association, IAC, and AFCEA.

Intellectual Property Rights in the Public and Private Sectors

Mr. Tolle regularly advises clients on issues that arise in the rights in technical data and computer software area, such as software licensing, protection and assertion of technical data and computer software rights, and issues arising from the intersection of federal procurement and patent, copyright, and trade secret law. As part of this work, he has also performed data rights audits for companies and advised them on how to best commercialize technical data and computer software that was developed with government funds. He also taught a one semester course for ten years at the University of Virginia that he developed entitled "Government Contract Computer Law." This course was been condensed into a two day seminar which has been put on in California and Tysons Corner several times. He has given joint presentations with Eleanor Spector, former DoD Director of Defense Procurement on the current DoD data rights rules (District of Columbia Bar, 1995), participated in seminars on "Contracting for Information Technology" (NCMA, February 1996), discussed how the new DoD data rules apply to computer software (Chesapeake Bay Chapter of NCMA, April 1996), and discussed government contract software rights (Public Contract Law Section's program on "Information Technology Procurement for the New Millennium" in Phoenix, Arizona, November 15, 1996). He has given numerous in-house seminars to companies on rights in technical data and computer software and is the founder and current chair person of the Federal Bar Association's Government Contracts Section's Intellectual Property Rights Committee. Presently he is an expert witness on data rights issues in a large federal court case in Texas.

Mr. Tolle has also assisted companies that were being investigated by the Software Publishers Association ("SPA"). This entailed assisting them in auditing their software, reviewing their licenses, and then preparing a report and negotiating a settlement with the SPA.


Finally, he developed and taught a two day seminar for the NCMA entitled Commercial Software Licenses, and regularly advise clients on software licensing issues.


Counseling of Technology Companies

Mr. Tolle counsels technology companies, many of whom are in the computer field (hardware, software, and services), concerning the entire range of activities and legal problems that may occur in the formation, operation and transaction of business. This includes incorporation, financing, licensing and distribution agreements, intellectual property, technology transfer, employment matters, joint ventures, and mergers and acquisition.

Buy-Sell Agreements

Mr. Tolle has been involved in numerous asset or stock purchase transactions. All of the companies in these transactions have been privately held government contractors. His work has involved giving advice on how to structure the transaction, drafting the purchase agreement, performing due diligence, and then assisting in the negotiations to close the deal. The transactions have involved both the sale and purchase of assets and stock, and ranged in size from several hundred thousand dollars to the tens of millions.

Bid Protests

Mr. Tolle's work in the bid protest area has involved successfully prosecuting and defending bid protests at the General Accounting Office, General Services Board of Contract Appeals, U.S. Court of Federal Claims, U.S. District Courts, Federal Aviation Administration, and even Small Business Administration. In addition, he has taught multiple seminars on bid protests. He developed a one day seminar on bid protests for the University of Virginia which he has been taught several times in California and Northern Virginia. Most recently he has taught a half-day seminar in conjunction with Set-Aside Alert on bid protests. Finally, he is a former chair person of the Federal Bar Association's Government Contracts Section's Bid Protest Committee.

 

Recently at the U.S. Court of Claims he represented one of the winning parties in Insight Systems Corp., and CenterScope Technologies, Inc. v. The United States, COFC Nos. 12-863C and 12-883C, May 06, 2013. In that case, the Court held that proposals received by government mail server, but not forwarded to the next server in the government mail system, were covered by the Government Control exception to the “late is late” rule found in 48 C.F.R. § 52.212-1(f)(2)(i)(B). The case is very important because it specifically rejects the harsh and draconian case law set forth in GAO decisions, and in doing both makes some new law and brings the late proposal law into the electronic age.

 

Other representative cases in which he was involved are:


CenterScope Technologies, Inc., B-407426, in which he represented the protester. On September 26, 2012, CenterScope protested an award. By letter dated October 15, 2012, the agency advised GAO that it had decided to take corrective action in response to the protests, by reopening discussions with those offerors that were in a competitive range and by inviting the submission of “revised final quotes.” Consequently, on October 24, 2012, the GAO dismissed the protest.

 

NuAxis, LLC, B-406088.2, where, following a debriefing, NuAxis filed its initial protest with GAO on October 31, 2011. After the Agency filed an Agency Report on November 30, 2011, NuAxis filed Comments on the Agency Report on December 12, 2011, and  on December 20, 2011, announced its decision to take corrective action as a result of the protest.

 

Mission Critical Solutions v. United States, 91 Fed.Cl. 386, 412 (2010), where the court held that “[t]he Army's award of the support services contract on a sole-source basis without first determining whether it should set aside the contract for restricted competition among qualified HUBZone small business concerns was not in accordance with law.”The court “enjoin[ed] the United States from awarding the IT support services contract at issue in a manner that is not in compliance with the Small Business Act as the court here interprets it.”

 

Mission Critical Solutions, B-401057, 2009 CPD P 93, 2009 WL 1231855, May 04, 2009, where he represented the prevailing party in a protest that was sustained where the contracting agency did not consider whether two or more qualified Historically Underutilized Business Zone (HUBZone) small businesses could be expected to submit offers and whether award could be made at a fair market price, as required by the HUBZone statute, 15 U.S.C. sect. 657a, prior to deciding to award contract to an Alaska Native Corporation on a sole-source basis.


Anteon Corporation, B-293523, B-293523.2, March 29, in which he represented the prevailing party in the protest that a task order request for electronic passport covers was found to be outside the scope of General Services Administration's (GSA) indefinite delivery/indefinite quantity, multiple-award contract for "Smart Identification Cards."


Government Contracts Litigation

Mr. Tolle's government contracts litigation involves successfully representing contractors before various boards of contract appeals and the U.S. Court of Federal Claims. While many of these cases were successfully settled before trial, the trials in those that did not have ranged in length from several days to five months.

Civil Litigation

Mr. Tolle has a considerable amount of civil litigation experience. He has tried cases in local and federal courts throughout the country, as well as handled numerous arbitrations. This experience includes a one week jury trial in federal district court involving three parties and complicated computer-related issues in which I represented the prevailing party. In 2002, he won a judgment of approximately $8 million in a commercial arbitration and then successfully argued an appeal of the arbitration award at both the Fairfax County Circuit Court and Virginia Supreme Court.

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Publications:


Intellectual Property

  • Rights in Computer Software in Government Contracts, April 2004
  • Basic Intellectual Property Rights, April 2004
  • Copyright under the FAR and DFARS, January 2004
  • Recent Developments in Rights in Technical Data and Computer Software, January 2004
  • Trade Secrets, Copyright and Patents, August 2001
  • Rights in Technical Data and Computer Software in Government Contracts, February 2001
  • Rights in Technical Data and Computer Software in Government Contracts, August 2000
  • Rights in Technical Data and Computer Software in Government Contracts, Sept. 1999
  • "Rights in Computer Software," October 1992
  • "Challenges to Restrictive Markings of Technical Data and Computer Software," March 1992
  • "An Overview of Rights in Technical Data and Computer Software," October, 1991
  • "Rights in Technical Data and Computer software Policies as Governed by Department of Defense Regulations, " Barton, Mountain & Tolle Newsletter, Spring-Summer 1990
  • "Technical Data Rights - How Do I Protect My Company's Future?" Grant Thornton Government Contractors Roundtable Whitepaper, June 1990

Government Contracts
  • Construction Briefings, "Buy American Act In Construction Contracting: Basic Principles and Guidelines/Edition II", March 2003
  • Construction Briefings, "Small Business Set-Aside Articles and Principles of Affiliation", May 2000
  • Contract Management, "How to Maximize Your Rights in Computer Software", April 2000
  • "Equal Access To Justice Act," 43rd Eastern Briefing Conference on Government Contracts, November 9-10, 1995
  • Federal Marketing Folio of Terry Kelly Associates, "Past Performance Is Not New" John R. Tolle, 1995
  • "Understanding and Managing Bid Protests," (John R. Tolle and Alexander D. Tomaszczuk) University of Virginia; November 4, 1993 and October 1994
  • "Bid Protests at the GAO, GSBCA and SBA," April 1994
  • "Indirect Cost, Dealing with DCAA and Present Cost Cases," Grant Thornton Government Contractors Roundtable White Paper, Law Firm of Barton, Mountain & Tolle, April 28, 1994
  • "Rights and Remedies in Dealing with the Contracting Officer and DCAA," Grant Thornton Government Contractors Roundtable White Paper, April 1993
  • Federal Marketing Folio, "What, When, Where, and How to Protest at the GAO," April 1993
  • "Dealing with DCAA - Common Questions," Grant Thornton Government Contractors Roundtable White Paper, October 1992
  • "Vendors Jump Through Hoops on GSA Schedule," Government Computer News, June 8, 1992
  • "Intellectual Property Law, Rights in Technical Data and Computer Software in Government Contracts," May 1992
  • Federal Marketing Folio of Terry Kelly Associates, "What, When, Where, and How to Protest at the GAO" - John R. Tolle, Spring 1992
  • "How to Deal with DCAA - Some Practical Considerations, the Disappearance of M Account Funds - How this Will Impact Contractors, and Uncompensated Overtime - Is it Still a Viable Practice?" June 19, 1991
  • Federal Acquisition Report, "Current Restrictions on Consultants, Lobbyists and Employees," May 1991
  • "Bid Protests - Strategies Defenses and New GAO Rules,
  • Grant Thornton Government Contractors Roundtable White Paper; May 1991
  • "Bid Protests at the GAO, GSBCA and SBA," April 17, 1991
  • "Bid Protests at the GAO, GSBCA and SBA," 1991
  • "Use of Consultants, Lobbyists and Employees in the Byrd Amendment Era," 1990
  • Briefing Papers #87-4, "GSBCA Bid Protests"
  • "A Review of the First Year of ADP Bid Protests at the GSBCA," 17 Public Contract Law Journal 120 (August, 1986), republished in the 1987 Yearbook of Procurement Articles

Small Business
  • Briefing Papers #99-11, "Small Business Contracting - Part I", October 1999
  • Briefing Papers #99-12, "Small Business Contracting - Part II", November 1999
  • Federal Bar Association's Government Contracts Section's Newsletter, October 1999, "Recent Developments in Bid Protests at the U.S. Court of Federal Claims"
  • Construction Briefings #99-6,"Small Business Contracting/Edition II - Part II", May 1999
  • Construction Briefings #99-5,"Small Business Contracting/Edition II - Part I", April 1999

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