David S. Demian, Partner at Finch, Thornton & Baird

David S. Demian, Partner

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David S. Demian is a partner in the firm. Mr. Demian practices in the areas of construction, real estate and corporate law. Mr. Demian has handled a wide array of issues for construction and real estate industry clients, from business transactions to litigation and settlement. In the construction arena, Mr. Demian has in-depth knowledge of federal contracting including the Federal Acquisition Regulations, the Contract Disputes Act, the Miller Act, and the various SBA and VA set-aside programs. He provides advice on the structuring of small businesses desiring to operate and qualify in both state and federal programs such as Women Owned Small Business, HUBZone Small Business, Veteran Owned Small Business, and 8(a) Small Business and Disadvantaged Business Enterprises. Mr. Demian also handles federal protests and size appeals before the GAO, SBA, and other public entities.

Mr. Demian’s practice includes advising clients on all aspects of corporate and real estate matters, including real estate purchase, sales, leases, corporate structuring and restructuring, asset protection, corporate finance, compliance, acquisitions, business continuity planning, executive compensation, regulatory issues, licensing, interest transfers, and operational issues.

Representative matters include:

–     Federal claims and procurement disputes including Miller Act claims and requests for equitable adjustment, GAO protests, and SBA Size and Status protests.
–     Corporate counseling including asset protection and business planning.
–     Structuring small business/set aside/big business ventures via teaming/joint venture/stock sale arrangements (SDVOSB/8A/DBE/WOSB)
–     Real estate finance transactions for both permanent and construction financing for multiple office building and housing projects.
–     Representation of both owners and tenants in leasing transactions for industrial and office properties.

Mr. Demian is a member of the San Diego County Bar Association Construction and Real Property Sections, the Construction and Real Property, Trust and Estate Law Sections of the American Bar Association and the Harvard Club of San Diego. He received his juris doctor from the University of San Diego School of Law, and his Bachelor of Arts in Government from Harvard University. While at Harvard, Mr. Demian captained the school’s basketball team.

Mr. Demian was named a San Diego Super Lawyer in 2013, 2014, 2015, 2016 and 2017; a San Diego County Top Attorney in Real Estate and Construction for 2014 as published by the San Diego Daily Transcript; a “California Top Real Estate Attorney of 2012″ as published by the Daily Journal; and awarded San Diego Business Journal’s Best of the Bar honors in 2016.

Mr. Demian serves as Chairman of the Board of the American Heart Association, San Diego Division, and in 2012 acted as a distinguished speaker for the American Heart Association’s 2012 San Diego Heart Beach Ball. A sought after speaker, Mr. Demian presents frequently on construction and real estate issues. In 2014, he put on a seminar covering the Federal, State and Local Small Business Programs at the Associated General Contractors of San Diego. He presented to the San Diego Chapter Certified Commercial Investment Member in May 2013 on “Value Add Lease Provisions” and in December 2012 he put on an advanced seminar for the National Business Institute titled “Limited Liability Companies”.

Representative Experience

Corporate Structuring, Planning And Protection Of Intellectual Property Of Premium Organic Juice Manufacturer In U.S. And International Markets

The firm structured and planned new business with placement in major national retailers. Negotiated and managed corporate transactions from formation to raising capital and debt for major equipment. Negotiated commercial lease and counseled client regarding labor and employment procedures. Successfully registered client brand name in U.S. for protection of client intellectual property from conflicting or competing uses. Evaluated, planned and managed application process for client registration of additional brands, logos, product names and label design for over 20 products in the U.S., Canada and the 27 countries comprising the European Union.

Negotiation With Workers’ Compensation Carrier

The firm successfully defended a client against a fraudulent transfer action relating to a property transfer made in 2003. The firm demurred to the plaintiff’s complaint, arguing the complaint was time-barred by the seven-year limitations period of Civil Code section 3439.09, subdivision (c). Before filing the demurrer, the firm served plaintiff with a 128.7 motion for sanctions warning that the fraudulent transfer claim was time-barred by Section 3439.09, subdivision (c), and therefore, legally frivolous. Plaintiff refused to dismiss his complaint and forced the firm to file the 128.7 motion for sanctions. The court sustained the demurrer and dismissed the complaint, with prejudice, and granted the 128.7 motion for sanctions.

Cease and Desist of Copyright Infringement

The firm represents a local ecotourism and adventure company. The firm’s client is well known in the San Diego region for its highly successful whale-watching kayak tours, led by “Big Wave Dave.” The firm’s client was therefore shocked when it received a daily deal from Groupon that offered a whale-watching kayak tour from a direct competitor and included a picture of Big Wave Dave in a kayak next to a gray whale breaching the surface off the shores of La Jolla, which was taken directly from the client’s website. The firm immediately took action against the competitor and Groupon based on the copyright infringement, and successfully obtained the removal of the infringing image and correction of the daily deal without the need of litigation.

GAO Protest of Department of the Army’s Solicitation GAO File No. B-407457

The firm successfully protested the Army’s decision to exclude the firm’s client from consideration of the award of construction of a Wing Operations and Training Facility at Beale AFB. The protest was filed with the GAO prior to the award to challenge the Army’s determination that because the proposal submitted by the firm’s client did not properly acknowledge all of the amendments, the proposal could not be evaluated. The firm presented a compelling legal and factual argument to the GAO that deficiencies in the proposal were clerical in nature, and therefore the Army had breached its duty to the firm’s client pursuant to FAR 14.407-1 to clarify its proposal. Upon being confronted with this argument, the Army took corrective action and agreed to evaluate the proposal. This result was accomplished by the firm pursuant to a flat fee arrangement with the client to assure a cost-effective result.

Groundbreaking GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-406024.4

The firm successfully protested to the GAO the VA's award of a $23 million solar project in Las Vegas to R.E.M. Construction Co. The project was to be awarded by the VA on the basis of price and technical considerations deemed most advantageous to the government. After the firm's client, SPINT, submitted the second lowest priced proposal, the VA awarded the project to R.E.M., with a higher priced proposal than SPINT, ostensibly because of R.E.M.'s superior technical rating. In the fall of 2011, the firm protested the award arguing the VA improperly evaluated SPINT's technical proposal. The VA took immediate corrective action and re-evaluated the proposals. After the VA's re-evaluation, the project was again awarded to R.E.M in March 2012. At that time, the VA failed to notify SPINT of the re-award and also did not post notice of the re-award on FedBizOpps. After SPINT received word of the re-ward to R.E.M. in May 2012, it requested a debriefing from the VA, which the VA refused to provide. The firm then protested the re-award, once again challenging the VA's evaluation of SPINT's proposal. In response, the VA filed a motion to dismiss, arguing that SPINT was notified of the re-award via e-mail in March 2012, and therefore its protest two months later was untimely. The firm defeated the motion to dismiss with a novel argument of the sufficiency of electronic notice, and then eventually supplemented its protest to challenge the VA's utter failure to conduct a tradeoff analysis of all of the responsive proposals, as is required by the Federal Acquisition Regulations. In a published decision, the GAO determined that the VA unreasonably evaluated SPINT's proposal and fundamentally failed to perform a best-value tradeoff analysis. Accordingly, the GAO recommended that the VA re-evaluate all of the proposals, properly document its evaluation, perform a proper tradeoff analysis, and reimburse SPINT for the fees it incurred pursuing the protest. A copy of the published decision can be viewed here.

GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-407092

The firm successfully protested the VA’s solicitation for the upgrade and renovations at the VA Greater Los Angeles Healthcare System before the GAO. Since early 2006, the VA has been incorporating Information Letter (IL) 049-06-4 into all of its solicitations. However, this IL conflicts with the Veterans First Contracting Program enacted in December 2006. The firm challenged the inclusion of the IL on this Los Angeles project, arguing that the IL jeopardized open and fair competition, and discouraged participation by legitimate veteran owned small businesses. Promptly following receipt of the firm’s protest, the VA took corrective action by cancelling the solicitation so that the project could be re-solicited without reference to the conflicting and superseded information letter. SDVOSB and VOSB enterprises should consult with legal counsel with any questions as to the VA’s implementation of these important programs which must be protected for the benefit of our veterans.

SBA Office of Hearings and Appeals (“OHA”) – Appeal of Size Determination

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Bid Protest – Army Corps of Engineers

The firm represented a large prime contractor specializing in Federal work in a bid protest against the Army Corps. of Engineers. The protest, on a proposal for $500 million worth of work on various Federal Installations, was based on the Army Corps’ improper rejection of a submittal in violation of its own specifications and applicable law. The firm prepared a bid protest and provided supporting cases and analysis to support the bid protest and discussions, ultimately resulting in the acceptance of the contractor’s submittal.

Medical Office Building Project

The firm represented client in structuring and implementation of every aspect of a state of the art design-build medical office building, including formation of entities, drafting ground lease, drafting design-build construction contract, drafting architect agreements, drafting office leases, drafting consulting agreement and advising on land use planning issues.

DC Painting, Inc. v. Michael S. Summers San Diego Superior Court Case No. 37-2007-00074199-CL-BC-CTL; Court of Appeal of the State of California, 4th Dist. Case No. D055330

The firm’s client was a painting contractor that was awarded a contract to repaint a commercial building. Upon completion of the work, the owner refused to pay the firm’s client based on a number of alleged defects in performance. The firm proceeded to trial and successfully obtained a verdict in favor of its client for the full value of its client’s services, as well as a substantial attorneys’ fee award. The owner appealed the attorneys’ fee award and the firm successfully briefed and argued the appeal, which resulted in the upholding of the trial court’s ruling and the subsequent granting of additional attorneys’ fees related to the appeal.

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

California Senate Bill 392, Florez: Contractors: Limited Liability Companies Enacted September 30, 2010, as amendments to California's Contractor's State License Law codified at California Business & Professions Code Section 7000 et seq. and California Corporations Code Section 17002

The firm drafted and successfully aided the passing of legislation permitting California limited liability companies to possess California contractor's licenses. Senate Bill 392 fundamentally revised California's Contractors State License Law and authorizes the California Contractors State License Board to begin issuing contractor's licenses to limited liability companies no later than January 1, 2012. Senate Bill 392 allows contractors for the first time to take advantage of the management and tax benefits of organizing as a limited liability company, an advantage advocated by the firm's transactional and estate planning practice groups for the construction industry.

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a $30,000,000 firm-fixed-price indefinite-delivery/indefinite-quantity contract before the Government Accountability Office ("GAO") for construction and repair services for facilities and structures at Fort Leavenworth, Kansas. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the $30,000,000 contract.

Acquisition Of SBA Small Business Federal Construction Contractor

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm's client.

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a GSA IDIQ contract for construction and related services. The solicitation provided for the award of multiple contracts to offerors for performance of work in multiple tiers and geographic zones. The GSA determined not to award a contract to the firm's client. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the contract.

Small Business Administration ("SBA") Size Protest

The firm advised its client as to the structuring of an 8(a) joint venture to pursue an 8(a) sole source set aside project for the United States Department of Air Force. The award was protested to the SBA by an unsuccessful offeror. The firm defended the award on behalf of its client and the protesting party voluntarily withdrew its protest.

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

Acquisition Of SBA Small Business Federal Construction Contractor

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm's client.

Expansion Of International Bar And Club Brand Into United States

Negotiated and structured alliance of client's international business with United States venture capitalists to expand operations into the United States, including formation of Nevada and California LLCs, international licensing agreements, and equity incentive planning.

DOE Aggregates, Inc.

The firm represented its client in all aspects of an aggregate material mining operation, including obtaining state and local agency approvals of Conditional Use Permit, reclamation plan, reclamation bonds and insurance, drafting and negotiation of land lease, and mining agreements for total potential mine production of 4,000,000 cubic yards of material.

California Retail And Restaurant Business Entity Formation And Real Property Acquisition

Negotiated and structured acquisition of restaurant chain serving San Diego and Riverside Counties, including structuring equity incentives for key employees.

Acquisition Of Mining Rights And Operations

Negotiated and structured acquisition of mining rights via a long term mining lease on behalf of client. The firm also advised client on the complex environmental and permitting issues related to operations, including environmental indemnity agreements and the conditional use permit required for the mine.

California Retail And Restaurant Business Entity Formation And Real Property Acquisition

Negotiated and structured acquisition of restaurant chain serving San Diego and Riverside Counties, including structuring equity incentives for key employees.

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a United States Department of Air Force $45,000,000 Indefinite Delivery, Indefinite Quantity (IDIQ), SABER, construction contract. Following submission of the firm's protest the Contracting Agency filed a motion to dismiss with GAO which was unsuccessful. The parties participated in outcome prediction ADR, after which the Contracting Agency took corrective action. Following the re-evaluation of proposals, the firm's client was awarded the $45,000,000 contract.

Seminars

Indemnity in Construction Made Simple

May 17, 2017: Presented by David S. Demian and Christopher R. Sillari.

Federal/State Small Business Programs and Teaming To Win Projects

April 8, 2015: Presented by David S. Demian and Kelly A. Floyd. This course will provide an overview of all the small business programs and latest trends in enforcement and avoiding false claims liability. Attendees will have an understanding of the small and disadvantaged business designations in use for local, state and federal projects, have an understanding of "affiliation", and the use of a checklist of issues and pitfalls when working for and teaming with small and disadvantaged businesses.

Federal/State Small Business Programs and Teaming to Win Projects

August 26, 2014: Presented by David S. Demian and Kelly A. Floyd. This course will provide an overview of all the small business programs and latest trends in enforcement and avoiding false claims liability.

SBA/SDVOSB/VOSB/SDBE/WBE

January 30, 2014: This course will provide an overview of all the small business programs and latest trends in enforcement and avoiding false claims liability. Attendees will have an understanding of the small and disadvantaged business designations in use for local, state, and federal projects, have an understanding of "affiliation," and the use of a checklist of issues and pitfalls when working for and teaming with small and disadvantaged businesses. Presented by David S. Demian.

Value Add Lease Provisions – Maximize Economics And Increase Flexibility In Commercial Leases

May 15, 2013: Presented by David S. Demian for the CCIM San Diego Chapter. Read more here.

What the Heck is an LLC, and Why Should I Care?

September 10, 2012: Presented by David S. Demian. Find out more here.

Construction Lien Law

January 25, 2012: Presented by David S. Demian, Jon F. Gauthier, and David W. Smiley for Lorman. Find out more here.

Construction Lien Law

May 9, 2010: Presented by David S. Demian for Lorman Education Services

Construction Lien Law in California

November 5, 2009: Presented by David S. Demian, Jon F. Gauthier and David W. Smiley for Lorman Education Services

Construction Lien Law In California

May 9, 2008: Presented by Jon F. Gauthier and David S. Demian for Lorman Education Services.

Construction Lien Law In California

May 9, 2007: Presented by Jon F. Gauthier and David S. Demian for Lorman Education Services.