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Image of Dustin R. Jones, a partner and construction law attorney at Finch, Thornton & Baird, LLP.

Dustin R. Jones

Partner

There’s no room for passive lawyers in this business. Either actively drive the matter to a cost-effective resolution, or get out of the way.

(858) 737-3100, Ext. 3105

(858) 737-3101

Dustin Jones is a tenacious litigator and trusted business advisor.  He works with owners, officers, and in-house counsel for prime contractors and subcontractors, focusing on large-scale private work and public infrastructure projects.  He represents domestic and international companies prior to bid on award and procurement disputes, including bid protests.  During construction, Dustin is project counsel, working to avoid disputes before they occur and resolve them before they expand.  Post-construction, Dustin represents those companies as litigator and trial attorney.

Dustin’s approach is simple: “There’s no room for passive lawyers in this business.  Either actively drive the matter to a cost-effective resolution, or get out of the way.”  His expertise covers change orders, scope disputes, pricing disputes, and delay, disruption, lost productivity, and acceleration claims.

Dustin’s experience is exclusive to the construction industry — a lawyer who knows the business of construction.

GOVERNMENT CONTRACT PROCUREMENT

Company livelihood and employee security depend on backlog — getting that next job.  Dustin understands this and seizes every opportunity to help his clients land that job — even when it requires one to drop everything minutes after bid-day opening to get the protest on file.  Whether it’s protests among competitors or challenges to owner bid evaluations, Dustin knows the law, the angles, and, when necessary, the politics.

In areas such as subcontractor and supplier participation, public bidding is getting more complicated, not less.

  • Is the participation goal mandatory or optional?
  • What constitutes a Good Faith Effort?
  • Is that supplier a Regular Dealer?
  • Is this subcontractor performing a Commercially Useful Function?
  • How does the subcontractor listing law apply?
  • Can my bid defect be waived?
  • Is there an issue of bid responsiveness or bidder responsibility?
  • I made a mistake . . . is my bid bond at risk?

These questions require answers from lawyers like Dustin, who thrives in this area.  Dustin sees procurement disputes as his opportunity to be a part of the estimating/business development team, to build the backlog, keep workers in the field, and expand his clients’ businesses.

PROJECT COUNSEL

“By failing to prepare, you are preparing to fail,” is a maxim Dustin preaches.  Contractors get this, and increasingly turn to Finch, Thornton & Baird for project counsel.

  • How should we word this RFI?
  • What type of notice is contemplated in the contract documents?
  • What type of scheduling analysis will achieve the sought-after time extension?
  • Do public works statutes impose requirements that aren’t in the contract?
  • What do I need to do to build my case now rather than during discovery?
  • Is there a chance this issue could be covered by insurance?
  • Should we accelerate in response to a threat of liquidated damages?

Questions like these are best answered during construction by experienced project counsel like Dustin.  Negotiated bilateral change orders beat going to trial ten times out of ten.

LARGE-SCALE CLAIMS

Not every construction lawyer knows how to handle large-scale delay and disruption claims.  These claims are overwhelming by nature.  Quarterbacking large-scale claims requires a lawyer with experience, a willingness and the know-how to dig into the details, and the ability to deal with dozens — sometimes hundreds — of witnesses, participants, lawyers, experts, and insurers.  The lawyer needs to bring order to chaos, to narrow disputes instead of expanding them, and to focus on the signal rather than the noise.  Dustin has these skills, having resolved claims on billion-dollar-plus projects such as the San Francisco Transbay Transit Center.  There’s no substitute for that type of experience.

A DIFFERENT APPROACH TO MEDIATION

Trial is expensive — financially, emotionally, physically.  Achieving positive resolutions to their claims or disputes — without going to trial — is what clients really want.  We understand.  So when Dustin — or any of our attorneys for that matter — prepares for mediation, he does so with the same conviction and thoroughness as he would if preparing for trial.  Too many lawyers expect the mediator to settle the case for them.  Dustin doesn’t delegate that responsibility.  Your lawyer should extract the resolution you need; the mediator is there to facilitate.  As such, Dustin makes sure the mediator has every ounce of leverage available to facilitate the desired result.  This approach to mediation may be the single biggest reason why Dustin and our firm have so consistently delivered significant net monetary benefits to our clients.

  • Business and commercial litigation and construction law for domestic and international companies
  • Federal claims and procurement disputes including Miller Act claims, Contract Disputes Act Claims, and GAO protests
  • Mechanic’s liens, stop payment notices, and payment bond claims
  • Owner versus general contractor disputes
  • General contractor versus subcontractor disputes
  • Joint venture disputes
  • Transactional matters specializing in the drafting, reviewing, and negotiating of construction agreements
  • General business disruption claims and disputes
  • Unfair business practices
  • False Claims Act litigation
  • qui tam/Whistleblower claims
  • Caltrans/Office of Administrative Hearings arbitrations
  • Public bidding and bid protests, writs, subcontractor substitutions, “or equal” product substitutions
General Contractor v. California Department of Corrections and Rehabilitation

The Firm represented a general contractor in a bid protest for award of a $100mm project.  The Firm’s client protested the low bid based on subcontractor percentage irregularities, and alleged the low bidder had an unfair competitive advantage.  The California Department of Corrections and Rehabilitation essentially ignored the protest resulting in the Firm filing a lawsuit for writ of mandate, injunction, and promissory estoppel.

After three separate hearings and a trial, the Superior Court issued a writ of mandate declaring the award to the low bidder illegal, issued a permanent injunction requiring the work on the project to stop, and awarding the Firm’s client nearly $300,000.00 in bid preparation costs, court costs, and interest.

The trial decision was upheld on appeal in a published decision addressing the promissory estoppel issue.

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and Dustin R. Jones

ENR Top 20 Engineering Contractor v. Caltrans, District 7, OAH Arbitration

The firm represented an ENR Top 20 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims through the Office of Administrative Hearing Arbitration process.  The firm recovered payment to its client of $8.79 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

Engineering Contractor v. Caltrans

The firm represented an ENR Top 20 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims.  The firm recovered payment to its client of $11.6 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

ENR Top 30 Engineering Contractor v. Caltrans

The firm represented an ENR Top 30 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims through the Office of Administrative Hearings Arbitration process.  The firm recovered payment to its client of $9.2 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

Engineering Contractor v. City of Los Angeles

The firm represented the general contractor as project counsel with regard to a bridge replacement job in the City of Los Angeles.  The project was plagued with differing site conditions, environmental restrictions, extra work, and related issues.  The firm’s efforts over a three-year period, included managing consultants to assist with time impact analyses, impact pricing and presentations, and resulted in an increase to the contract price of $6.1 million and amicable closeout of the project.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

David Bahena v. KTA Construction, Inc.

A bicyclist sued the firm’s client for personal injuries from a bicycle accident that occurred in an alley near an open meter box maintained by the City of San Diego. During discovery, it was confirmed that the accident did not implicate the client or its work for the City. After presenting plaintiff’s counsel with overwhelming evidence that the accident did not occur anywhere near the client’s work area, plaintiff dismissed his lawsuit with prejudice for a waiver of costs.

Counsel: Dustin R. Jones, David W. Smiley, and Kelly A. Floyd

Bid Protest From Second Position – Interstate 5 Rehabilitation

The firm’s client was the second-low bidder on an Interstate 5 rehabilitation project (Engineer’s Estimate $38 million).  The firm identified defects in the low bidder’s subcontractor listing and prepared a protest to the California Department of Transportation (Caltrans) seeking award of the project to the firm’s client.  The low bidder disputed its subcontractor listing contained a defect and requested Caltrans waive the defect if it concluded otherwise.  The firm responded, detailing for Caltrans how California law and Caltrans’ precedent precluded a waiver.  Caltrans agreed, rejecting the low bid and awarding the I-5 rehabilitation to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Local Agency Public Work – Prime Contractor v. Water District

The firm’s client experienced cost overruns and changed conditions on a northern California waste water treatment plant project.  The firm was engaged to summarize the claim components, marshall evidence, and prepare a comprehensive presentation for a DRB.  The DRB ruled in favor of the firm’s client and it was paid nearly in full for the claim items.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Defense Of Qui Tam False Claims Act Lawsuit On Light Rail Project

The firm’s client was the prime contractor on a regional light rail modernization project. A qui tam plaintiff filed a lawsuit in the name of the public entity owner, alleging the contractor had falsely substituted materials and cut corners on the project in violation of the California False Claims Act. The firm persuaded the owner to grant the firm the opportunity to rebut the plaintiff’s allegations prior to the owner’s intervention in the case.
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The firm investigated each of the dozens of allegations and refuted them in a comprehensive presentation to the owner and the qui tam plaintiff. After the presentation, the owner concurrently filed an intervention and motion to dismiss the case. The qui tam plaintiff opposed the request for dismissal, but the court agreed with the firm and the owner that the firm’s client did not violate the California False Claims Act. The court entered judgment for the firm’s client and against the qui tam plaintiff.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor v. General Contractor and Project Owner

The firm represented a national electrical subcontractor in a claim for recovery of delay and disruption damages.  The firm was brought in after completion of construction to price and pursue the claim.  The matter settled after mediation for a seven figure payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Differing Site Condition, Cardinal Change, Liquidated Damages, Subcontractor Substitution Penalty Assessment – California Central Coast

The firm’s client was the prime contractor on a flood control construction project involving the widening of a creek that flowed into a slough connected to the Pacific Ocean.  Shortly into construction, endangered fish species were spotted in the slough, which caused the federal government to forbid maintaining the slough—keeping it open.  When the slough mouth closed, slough waters rose into the creek and the construction project, resulting in flooded work areas and impossible dewatering.

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Construction was delayed and inhibited, and the firm’s client sought compensation from the municipal owner of the project.  The municipality responded by withholding potential liquidated damages for late delivery of the project.  The municipality also threatened penalties under the California Subletting and Subcontracting Fair Practices Act, contending an equipment supplier used by the firm’s client had been, in fact, a subcontractor added post-bid.

The firm was retained long after construction was complete to review and formalize claims and respond to each claim of the municipality.  This included preparing the Response To Proposed Final Estimate and providing a Critical Path schedule analysis to rebut the municipality’s liquidated damages assessment.  Via Public Records Act requests and Freedom of Information Act requests to federal agencies with overlapping jurisdiction, the firm obtained proof of a differing site condition/cardinal change—the slough mouth closing—and presented the proof to the municipality in a lengthy time lapse evidentiary presentation documenting cost impacts and entitlement to $12mm.  Thereafter, and prior to litigation, the firm obtained a settlement with payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Bid Protest From Fourth Position – Water District

The firm’s client submitted the fourth lowest bid to construct water treatment facilities for a municipal water district. After the low bidder pulled its bid based on an a bid error, the firm requested copies of the second and third-low bids to determine whether they complied with the bidding requirements. The firm discovered several defects in the bids that could have resulted in competitive advantages to the second and third-low bidders (e.g., inadequate bid bond, use of unapproved manufacturers). The firm protested and the municipality rejected the second and third-low bids, adopting the firm’s legal analysis. The water District awarded the project to the firm’s client.

Counsel: Dustin R. Jones

Subcontractor Claims And Product Substitution: Federal Military Installation

The firm’s client was a prime contractor on a federal military base construction project. As the project came to completion, the flooring subcontractor submitted numerous claims for alleged time and materials work authorized by the prime contractor’s onsite management. The firm’s client disputed a large portion of the claims and also discovered a tile substitution made by the subcontractor. In order to protect the prime contractor, the firm acted promptly to ensure the federal government became aware of, and accepted, the tile substitution. The firm then investigated the claims of the subcontractor, which had filed a Miller Act suit against the prime contractor and its surety. Prior to service of the lawsuit on the firm’s client, and before incurring litigation costs, the firm negotiated a settlement for payment of a fraction of the subcontractor’s claims.

Counsel: Dustin R. Jones

Responsibility Challenge – Multi-Prime Public University Construction In Northern California

The firm’s client was the low bidder for the largest bid package on a public university construction project.  Another bidder and a union organization protested award of the bid package to the firm’s client, claiming the firm’s client was not a “responsible contractor” under California law.  The protester and union organization accused the firm’s client of being unsafe and failing to pay prevailing wage.  The firm’s response rebutted all of the allegations, and resulted in the awarding body voting to award to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Sole-Sourcing / Brand Name / “Or-Equal” Dispute – Public Procurement

The firm’s client was a prime contractor on a water treatment facility.  During the submittal stage of the project, the owner rejected the contractor’s valve submittal, claiming the proposed product was not “equal” to the product called for by brand name.  The firm’s client disagreed but was forced to provide the more expensive brand-name valves.  The firm prepared a claim for additional costs of the brand-name valves, contesting the sole-sourcing by the owner and rejection of the contractor’s proposed valves violated state law.  After evaluating the claim, the owner issued a change order compensating the firm’s client for supplying the brand-name valves.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Response To Bid Protest – West Coast Port Rehabilitation

The firm’s client was the low bidder on a $75 million port facility rehabilitation on one of the largest marine ports on the West Coast.  The second low bidder protested, contending the firm’s client submitted an inadequate Small Business Enterprise (SBE) outreach and commitment plan.  The firm responded to the protest and represented the low bidder at the award hearing before the port commissioners.  Based on the firm’s arguments, the commissioners rejected the protest and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Bid Protest Defense (24-Hour Subcontractor Listing) – Caltrans

The firm’s client was the low bidder on a $9 million Caltrans infrastructure rehabilitation project. The second low bidder protested, contending the firm’s client—in its post-bid 24-hour detailed subcontractor list—wrongly added traffic control to the scope of work for its striping subcontractor. Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent. The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing. Caltrans agreed, and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Appeal Of Good Faith Effort Determination (Disadvantaged Business Enterprises) – Caltrans

The firm’s client submitted the low bid for a $105 million Caltrans highway project.  Caltrans rejected the bid, concluding the bidder failed to use sufficient good faith efforts to identify and involve Disadvantaged Business Enterprises (DBEs).  The firm filed an appeal, detailing the extensive DBE outreach efforts by the bidder and how those efforts met the standards set forth by the Code of Federal Regulations, 49 C.F.R. 26, Appendix A.  The firm lead a hearing at Caltrans headquarters in Sacramento, after which Caltrans reversed its initial rejection of the bid.  Caltrans awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Job Order Contract Protest From Second Position – California Municipality

The firm’s client was the second low bidder for a municipal job order contract. The low bidder had included a miscalculation on one of its bid forms. The firm protested the low bid based on California law that precludes acceptance of bids containing arithmetical errors—errors that would allow the bidder to pull its bid without forfeiting its bond, under Public Contract Code section 5103. The municipality initially responded to the protest by stating it intended to waive the deviation and award to the low bidder. The firm met with municipality representatives and its lawyer to explain why the deviation could not be waived. After the meeting, the municipality rejected the low bid and awarded the contract to the firm’s client.

Counsel: Dustin R. Jones

False Claim Act Defense – Multiple Municipal Rail Projects, Western United States

Finch, Thornton & Baird represented two prime contractors that performed large-scale municipal rail projects for the same owner.  Both primes were sued for False Claims Act violations by a purported “whistleblower” plaintiff.  The plaintiff alleged the contractors had fraudulently substituted cheaper materials and construction methods. 

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The plaintiff sought damages and penalties in excess of $10 million.  The firm promptly investigated and refuted the claims—seeking both to win the case and to maintain the contractors’ reputations and relationships with their public entity clients.  The firm obtained a court-ordered dismissal of the case without the public entity owner joining the plaintiff’s allegations or the plaintiff having the opportunity to conduct any discovery.  The whistleblower plaintiff recovered nothing.  The firm also recouped litigation fees and costs from subcontractor insurers, so as to minimize out-of-pocket expense by its prime contractor clients.
Differing Site Condition – U.S. Military Design-Build Project, Island In Pacific Ocean

The Firm’s client, a federal design-build contractor, encountered a differing site condition (hard rock) while constructing a Navy Seal training facility located on an island in the Pacific Ocean. Due to the logistical challenges of the island project, construction largely halted while large equipment was shipped in. The Navy contended the hard rock was disclosed in geotechnical reports issued prior to bid, such that the contractor had to bear 100 percent the direct costs to remove the rock and the associated delay and disruptions costs. The Firm negotiated directly with the Navy and achieved a total reversal of the Navy’s position – an agreement to fully compensate the contractor for the additional costs and delays.

Counsel: Dustin R. Jones

Light Rail Construction – Western United States

The firm’s client performed an urban light rail project as a subcontractor.  The project suffered substantial design revisions, delays and impacts, with total claims in excess of $100 million.  Construction concluded with numerous subcontract, pass-through and prime contract claims.  After multiple years of project-level negotiation ending in stalemate, the firm was retained to prosecute $6.5 million in subcontract and pass-through claims (discrete changed work/extra costs, delay/extended general conditions, inefficiency/lost-productivity, etc.).  The firm’s client recovered on its claims and preserved its client’s relationship with the project owner.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Defense Of Federal Miller Act Claim – Naval Base Fire Station

The firm’s client was the prime contractor on a federal design-build construction project—a new fire station on a United States Naval Base.  A site work subcontractor submitted inflated time and materials billings for substantial work on the project.  The design-builder denied the billings and the subcontractor filed a Miller Act lawsuit in federal court.  The firm represented the design-builder and forced the case into arbitration pursuant to the subcontract. 

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After a four-day arbitration, the arbitrator agreed with the firm that the subcontractor’s claims were substantially inflated, awarded the subcontractor only a fraction of what it sought and denied the subcontractor’s claim to recover attorneys’ fees.  The subcontractor recovered less than the design-builder offered to pay to settle, and, after fees and costs, the subcontractor netted a negative return for its efforts.  Not satisfied with the result, the subcontractor petitioned the federal court to overturn the award—the firm opposed.  The federal court agreed with the firm that the arbitration award was proper and denied the subcontractor’s petition, vindicating the design-builder.
Bid Protest Defense (24-Hour Subcontractor Listing) – Caltrans

The firm’s client was the low bidder on a $47 million Caltrans infrastructure rehabilitation project.  The second low bidder protested, contending the firm’s client — in its post-bid 24-hour detailed subcontractor list — wrongly expanded the scope of work allocated to a listed Cold Planing subcontractor. 

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Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent.  The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing.  Caltrans agreed, and awarded the project to the firm’s client.
Government Relations – Prevention Of Mental Health Facility Consolidation

The firm’s client operated a retail facility within a Southern California shopping center. Days before the issue was to be voted on by the local County Board of Supervisors, the retailer learned of the County’s plan to consolidate several health and human services facilities into a single facility within the shopping center. The proposed facility would house drug treatment and mental health facilities. Days before the vote, the firm mobilized a public opposition that included the principal of a nearby elementary school. The firm also reached out to its government contacts and appeared before the County Supervisors to seek a delay, in part because of procedural irregularities the firm identified in the facility selection process. The Supervisors granted the firm’s request to delay approval of the plan, which allowed for further negotiations and community involvement. Ultimately, the retailer, community members and the County negotiated a modified plan that did not include consolidation of mental health and drug abuse facilities into the retail area or near the elementary school.

Counsel: Dustin R. Jones

Project Counsel: California Pedestrian Bridge Project

The firm’s contractor client encountered differing site conditions (hard rock) during construction of a pedestrian bridge for a California municipality. The contractor brought in the firm to assure compliance with notice and claim requirements of the public contract and respond to defenses asserted by the municipalities. Resolution was achieved at the project level prior to formal dispute resolution becoming necessary.

Counsel: Dustin R. Jones

Protest of International Airport Electrical Upgrade Project

The firm’s client was the second low bidder on a $17 million electrical upgrade project at San Diego International Airport.  The firm evaluated the low bid and identified multiple bases for protest.  Although the airport had already deemed the low bid responsive, the firm filed a comprehensive bid protest detailing the deficiencies.  The Airport reversed its finding of responsiveness and elected to rebid the project.  The firm’s client won the job on rebid.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest Of Light Rail Transit Upgrade Project

The firm’s client submitted the low bid for a major Southern California light rail transit project valued in excess of $55 million.  The second low bidder protested award to the firm’s client, alleging the client lacked the required operating joint-use system (freight and passenger) rail experience to be awarded the project.  The firm responded to the protest, detailing the low bidder’s experience, and represented the client at a responsibility hearing before a multi-agency panel.  Based on the firm’s response and the responsibility hearing, the owner rejected the protest.  The second-low bidder appealed the initial rejection and the firm again responded.  Ultimately, the owner rejected the appeal and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest Of Municipal Project

The firm represented the low bidder on a street and bicycle path improvement project for a large California city. The city rejected the low bid on its assertion the bid was non-responsive and the bidder was non-responsible, due in large part to a subcontractor listing error. The firm filed a comprehensive protest of the rejection and represented the client in a bidder responsibility hearing before the City Attorney. After the hearing, the city reversed its initial bid rejection and awarded the project to the firm’s client.

Counsel: Jason R. Thornton and Dustin R. Jones

Declaration of Bid Non-Responsiveness

The firm’s general contractor client submitted a prime bid for a $9.3 million City of Riverside fire station project.  The City rejected the bid as non-responsive, contending the bidder failed to complete the City’s bid form.  Hours before the City Council was scheduled to award the project to a higher bidder, the firm convinced the City to rescind their bid rejection and recommend that the City Council award the project to the firm’s client.  The firm’s client was awarded the project.

City of Riverside Fire Station Project

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor Default – Caltrans Highway Facility Rehabilitation

The firms’ client was the prime contractor on a highway facility rehabilitation project for the California Department of Transportation.  The plumbing subcontractor on the project defaulted after performing layout and initial rough-in, resulting in rework, takeover and delay costs to the prime contractor.  Notwithstanding the default, the subcontractor sought additional payment from the prime contractor, alleging it was constructively terminated and that the prime contractor violated Caltrans’ Buy America requirements.

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The firm promptly investigated and refuted the Buy America allegations, preserving the prime contractor’s relationship with Caltrans.  The firm also tendered the prime contractor’s costs (including time-related overhead) to the subcontractor’s general liability insurance carrier, based on property damage/rework arising out of improper rough-in by the subcontractor.  The insurer agreed to participate in an early mediation and, notwithstanding the subcontractor’s inability to pay, the firm obtained an insurance-funded recovery for the prime contractor without litigation.
Protest Of Airport Upgrade Project – Ensley Electric, Inc.

The firm’s client submitted the second-low bid for a municipal airport upgrade project. The low bidder submitted documentation of its “good faith effort” to reach out to Disabled Veteran Business Enterprises (DVBEs), but failed to fully comply with the DVBE requirements of the bid documents. The firm prepared a successful protest of the low bid which resulted in award of the project to the firm’s client.

County Of San Diego (Borrego Valley Airport)

Counsel: Dustin R. Jones

Protest Of School Modernization Bid – West Coast Air Conditioning, Inc.

The firm’s client submitted the low bid for a multi-school modernization and technology upgrade project, but was protested by the second low bidder which had been higher by only a few thousand dollars on bid day. The protester alleged the low bid offered to install unapproved and unequal products in violation of the bid documents. The firm responded to the protest and convinced the school district to reject the protest and award to the firm’s client.

Cajon Valley Union School District

Counsel: Dustin R. Jones

Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation

The firm represented the general contractor in recovery of damages for inefficiency claims relating to methacrylate application and for return of wrongfully-assessed lane closure reopening delay penalties arising out of bridge rehabilitation work on the Los Angeles Interchange.  The firm recovered payment to the contractor through mediation.

Office of Administrative Hearings Case No. A-0020-2011

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Qui Tam Plaintiff v. Design Builder

The firm represented the design builder and general contractor against allegations of violations of the California False Claims Act and for Breach of Contract.  The plaintiffs sought damages of over $25 million.  After several years of litigation which culminated in a presentation by the firm of significant exonerating evidence, and insurance coverage claims by the firm against its clients’ insurers, the breach of contract case was resolved, and the false claims cause of action dismissed, for a cost of defense payment primarily by the insurer.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation

The firm represented the general contractor in pursuit of damages for delay, disruption and inefficiencies arising out of a bridge widening/modification project on Highway 101 in Corte Madera.  After a several hour presentation of evidence by the firm of the client’s entitlement and damages, the case was resolved for payment of $975,000.00 to the firm’s client.

Office of Administrative Hearings Case No. A-0011-09

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Community College Construction Delay Claim – Southwest United States

The firm represented the prime contractor on a hard-bid new construction of a nine-building adult learning center on a community college campus.  The project ran 233 days beyond scheduled completion and the owner assessed liquidated damages against the firm’s client, citing delays caused by a defaulting steel subcontractor.  The firm sued to recover the contract balance and extended general conditions.  Prior to significant discovery, the firm steered the case into mediation.  The firm’s presentation first negated the liquidated damage claim by showing the numerous design changes and 174 Requests For Information that occurred during the liquidated damages period.  The firm then detailed the prime contractor’s entitlement to a compensable time extension using a contemporaneous schedule analysis to identify the critical path impacts.  The case settled at mediation with significant payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor Default And Miller Act Claim – Department Of Army Project

The firm represented the prime contractor on a federal drainage channel project administered by the Army Corps of Engineers.  One-third of the way into the project, the landscape/drainage subcontractor defaulted and was replaced.  The subcontractor ultimately filed for bankruptcy.  A supplier to the defaulted subcontractor sued the firm’s client on its Miller Act payment bond.  The firm cross-complained against the subcontractor and, navigating around the automatic stay resulting from its bankruptcy filing, pressured the subcontractor into mediation.  The firm was able to obtain a settlement from the subcontractor, notwithstanding the bankruptcy, that compensated the supplier and the prime contractor for its completion costs.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Claim For Extra Work – International Airport Cogeneration Plant

The firm represented the prime contractor on a design-build cogeneration plant project at John Wayne International Airport in Orange County, California.  The prime contractor suffered substantial extra costs due to omissions in the owner-supplied turbine engine systems and additional noise testing and suppression demanded by the owner.  The firm submitted formal claims seeking the additional costs and obtained internal owner documents to support the claims using the Public Records Act.  The firm then forced the owner to discuss settlement of the claims under a statutory meet and confer process, and obtained a settlement compensating the design builder without having to file a lawsuit.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Good Faith Efforts – Caltrans Southern California

The firm’s client was low bidder for the $56 million Caltrans project to construct portions of California Route 76.  Caltrans rejected the bid based on the notion that the bid lacked sufficient documentation of Good Faith Efforts to reach out to Disadvantaged Business Enterprises (DBEs).  The firm prepared a comprehensive response to the rejection detailing how the Good Faith Effort documentation submitted by the firm’s client exceeded the legal minimum.  Following a hearing, Caltrans changed its position and accepted the bid of the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Claims of High-Light Electric, Inc. – Southern California

The firm represented the prime contractor on a more than $100 million freeway expansion project in southern California. The electrical subcontractor on the project submitted extensive delay and disruption claims and subsequently filed a lawsuit. The firm responded to the lawsuit and forced the case to mediation prior to expending significant resources on discovery. After the firm’s comprehensive mediation presentation attacking the basis for the subcontractor’s claims, the subcontractor settled for a fraction of its initial demand.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

Bid Protest – Palomar Pomerado West Hospital

The firm represented a bidder on the $1 billion hospital project in southern California.  The bid resulted in multiple protests which the firm filed and responded to on behalf of the bidder.  The firm prevailed and the client was awarded the bid package.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Jaynes Corporation of California v. Encina Wastewater Authority

The firm represented the general contractor in pursuit of delay and disruption claims arising out of construction of a wastewater treatment facility. The firm managed project closeout and submission of Government Code claims and, ultimately, filed suit against the owner. The firm then performed critical discovery and pushed the case to mediation. The case was settled with payment to the firm’s client after the firm presented a comprehensive critical path schedule and cause-effect disruption analysis to the owner and mediator.

San Diego Superior Court Case No. 37-2008-00102134-CU-BC-NC

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

Jaynes Corporation of California v. Pro-Tech Fire Protection Systems Corporation

The firm’s client was the prime contractor on a large-scale water treatment plant project.  The fire protection subcontractor on the project defectively installed its fire suppression system, resulting in damage to the work of other subcontractors.  The firm filed suit and collected from the fire suppression subcontractor and its insurer despite an initial denial of coverage.

San Diego Superior Court Case No. 37-2008-00051630-CU-BC-NC

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

West Coast Air Conditioning Co., Inc. v. Fountain Valley School District

Prime contractor on a $12.8 million four school modernization project suffered delay, disruption, and inefficiency damages as a result of unclear plans and specifications, and late completion of predecessor activities by other contractors to the District.  The firm prepared the claim and filed suit to collect the damages.  Following over a year of litigation and cordial meetings with the District, its counsel, and its experts to explain the claim, the case was mediated to a settlement with the firm’s client being paid $1.2 million for delay and disruption damages, and receiving a thank you letter from the District for building a quality construction project.

Orange County Superior Court Case No. 07CC05300

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest of Award to W.E. O’Neil Construction Co. by Jaynes Corporation of California

The firm protested the award of a $19 million office building project by the Eastern Municipal Water District based on inconsistencies in the low bidder’s subcontractor listing.  The Water District responded by rejecting all bids.  On rebid, the Water District revised its bidding instructions to eliminate ambiguities pointed out by the firm.  The firm’s client was the low bidder and awarded the contract following the rebid.

Eastern Municipal Water District Administrative Office Building Expansion

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Dustin Jones is a tenacious litigator and trusted business advisor.  He works with owners, officers, and in-house counsel for prime contractors and subcontractors, focusing on large-scale private work and public infrastructure projects.  He represents domestic and international companies prior to bid on award and procurement disputes, including bid protests.  During construction, Dustin is project counsel, working to avoid disputes before they occur and resolve them before they expand.  Post-construction, Dustin represents those companies as litigator and trial attorney.

Dustin’s approach is simple: “There’s no room for passive lawyers in this business.  Either actively drive the matter to a cost-effective resolution, or get out of the way.”  His expertise covers change orders, scope disputes, pricing disputes, and delay, disruption, lost productivity, and acceleration claims.

Dustin’s experience is exclusive to the construction industry — a lawyer who knows the business of construction.

GOVERNMENT CONTRACT PROCUREMENT

Company livelihood and employee security depend on backlog — getting that next job.  Dustin understands this and seizes every opportunity to help his clients land that job — even when it requires one to drop everything minutes after bid-day opening to get the protest on file.  Whether it’s protests among competitors or challenges to owner bid evaluations, Dustin knows the law, the angles, and, when necessary, the politics.

In areas such as subcontractor and supplier participation, public bidding is getting more complicated, not less.

  • Is the participation goal mandatory or optional?
  • What constitutes a Good Faith Effort?
  • Is that supplier a Regular Dealer?
  • Is this subcontractor performing a Commercially Useful Function?
  • How does the subcontractor listing law apply?
  • Can my bid defect be waived?
  • Is there an issue of bid responsiveness or bidder responsibility?
  • I made a mistake . . . is my bid bond at risk?

These questions require answers from lawyers like Dustin, who thrives in this area.  Dustin sees procurement disputes as his opportunity to be a part of the estimating/business development team, to build the backlog, keep workers in the field, and expand his clients’ businesses.

PROJECT COUNSEL

“By failing to prepare, you are preparing to fail,” is a maxim Dustin preaches.  Contractors get this, and increasingly turn to Finch, Thornton & Baird for project counsel.

  • How should we word this RFI?
  • What type of notice is contemplated in the contract documents?
  • What type of scheduling analysis will achieve the sought-after time extension?
  • Do public works statutes impose requirements that aren’t in the contract?
  • What do I need to do to build my case now rather than during discovery?
  • Is there a chance this issue could be covered by insurance?
  • Should we accelerate in response to a threat of liquidated damages?

Questions like these are best answered during construction by experienced project counsel like Dustin.  Negotiated bilateral change orders beat going to trial ten times out of ten.

LARGE-SCALE CLAIMS

Not every construction lawyer knows how to handle large-scale delay and disruption claims.  These claims are overwhelming by nature.  Quarterbacking large-scale claims requires a lawyer with experience, a willingness and the know-how to dig into the details, and the ability to deal with dozens — sometimes hundreds — of witnesses, participants, lawyers, experts, and insurers.  The lawyer needs to bring order to chaos, to narrow disputes instead of expanding them, and to focus on the signal rather than the noise.  Dustin has these skills, having resolved claims on billion-dollar-plus projects such as the San Francisco Transbay Transit Center.  There’s no substitute for that type of experience.

A DIFFERENT APPROACH TO MEDIATION

Trial is expensive — financially, emotionally, physically.  Achieving positive resolutions to their claims or disputes — without going to trial — is what clients really want.  We understand.  So when Dustin — or any of our attorneys for that matter — prepares for mediation, he does so with the same conviction and thoroughness as he would if preparing for trial.  Too many lawyers expect the mediator to settle the case for them.  Dustin doesn’t delegate that responsibility.  Your lawyer should extract the resolution you need; the mediator is there to facilitate.  As such, Dustin makes sure the mediator has every ounce of leverage available to facilitate the desired result.  This approach to mediation may be the single biggest reason why Dustin and our firm have so consistently delivered significant net monetary benefits to our clients.

  • Business and commercial litigation and construction law for domestic and international companies
  • Federal claims and procurement disputes including Miller Act claims, Contract Disputes Act Claims, and GAO protests
  • Mechanic’s liens, stop payment notices, and payment bond claims
  • Owner versus general contractor disputes
  • General contractor versus subcontractor disputes
  • Joint venture disputes
  • Transactional matters specializing in the drafting, reviewing, and negotiating of construction agreements
  • General business disruption claims and disputes
  • Unfair business practices
  • False Claims Act litigation
  • qui tam/Whistleblower claims
  • Caltrans/Office of Administrative Hearings arbitrations
  • Public bidding and bid protests, writs, subcontractor substitutions, “or equal” product substitutions
General Contractor v. California Department of Corrections and Rehabilitation

The Firm represented a general contractor in a bid protest for award of a $100mm project.  The Firm’s client protested the low bid based on subcontractor percentage irregularities, and alleged the low bidder had an unfair competitive advantage.  The California Department of Corrections and Rehabilitation essentially ignored the protest resulting in the Firm filing a lawsuit for writ of mandate, injunction, and promissory estoppel.

After three separate hearings and a trial, the Superior Court issued a writ of mandate declaring the award to the low bidder illegal, issued a permanent injunction requiring the work on the project to stop, and awarding the Firm’s client nearly $300,000.00 in bid preparation costs, court costs, and interest.

The trial decision was upheld on appeal in a published decision addressing the promissory estoppel issue.

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and Dustin R. Jones

ENR Top 20 Engineering Contractor v. Caltrans, District 7, OAH Arbitration

The firm represented an ENR Top 20 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims through the Office of Administrative Hearing Arbitration process.  The firm recovered payment to its client of $8.79 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

Engineering Contractor v. Caltrans

The firm represented an ENR Top 20 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims.  The firm recovered payment to its client of $11.6 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

ENR Top 30 Engineering Contractor v. Caltrans

The firm represented an ENR Top 30 engineering contractor in recovery against Caltrans for delay, disruption, differing site conditions, and quantity adjustment claims through the Office of Administrative Hearings Arbitration process.  The firm recovered payment to its client of $9.2 million.

Counsel: P. Randolph Finch Jr., Dustin R. Jones, and Thomas F. Feerick Jr.

Engineering Contractor v. City of Los Angeles

The firm represented the general contractor as project counsel with regard to a bridge replacement job in the City of Los Angeles.  The project was plagued with differing site conditions, environmental restrictions, extra work, and related issues.  The firm’s efforts over a three-year period, included managing consultants to assist with time impact analyses, impact pricing and presentations, and resulted in an increase to the contract price of $6.1 million and amicable closeout of the project.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

David Bahena v. KTA Construction, Inc.

A bicyclist sued the firm’s client for personal injuries from a bicycle accident that occurred in an alley near an open meter box maintained by the City of San Diego. During discovery, it was confirmed that the accident did not implicate the client or its work for the City. After presenting plaintiff’s counsel with overwhelming evidence that the accident did not occur anywhere near the client’s work area, plaintiff dismissed his lawsuit with prejudice for a waiver of costs.

Counsel: Dustin R. Jones, David W. Smiley, and Kelly A. Floyd

Bid Protest From Second Position – Interstate 5 Rehabilitation

The firm’s client was the second-low bidder on an Interstate 5 rehabilitation project (Engineer’s Estimate $38 million).  The firm identified defects in the low bidder’s subcontractor listing and prepared a protest to the California Department of Transportation (Caltrans) seeking award of the project to the firm’s client.  The low bidder disputed its subcontractor listing contained a defect and requested Caltrans waive the defect if it concluded otherwise.  The firm responded, detailing for Caltrans how California law and Caltrans’ precedent precluded a waiver.  Caltrans agreed, rejecting the low bid and awarding the I-5 rehabilitation to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Local Agency Public Work – Prime Contractor v. Water District

The firm’s client experienced cost overruns and changed conditions on a northern California waste water treatment plant project.  The firm was engaged to summarize the claim components, marshall evidence, and prepare a comprehensive presentation for a DRB.  The DRB ruled in favor of the firm’s client and it was paid nearly in full for the claim items.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Defense Of Qui Tam False Claims Act Lawsuit On Light Rail Project

The firm’s client was the prime contractor on a regional light rail modernization project. A qui tam plaintiff filed a lawsuit in the name of the public entity owner, alleging the contractor had falsely substituted materials and cut corners on the project in violation of the California False Claims Act. The firm persuaded the owner to grant the firm the opportunity to rebut the plaintiff’s allegations prior to the owner’s intervention in the case.
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The firm investigated each of the dozens of allegations and refuted them in a comprehensive presentation to the owner and the qui tam plaintiff. After the presentation, the owner concurrently filed an intervention and motion to dismiss the case. The qui tam plaintiff opposed the request for dismissal, but the court agreed with the firm and the owner that the firm’s client did not violate the California False Claims Act. The court entered judgment for the firm’s client and against the qui tam plaintiff.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor v. General Contractor and Project Owner

The firm represented a national electrical subcontractor in a claim for recovery of delay and disruption damages.  The firm was brought in after completion of construction to price and pursue the claim.  The matter settled after mediation for a seven figure payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Differing Site Condition, Cardinal Change, Liquidated Damages, Subcontractor Substitution Penalty Assessment – California Central Coast

The firm’s client was the prime contractor on a flood control construction project involving the widening of a creek that flowed into a slough connected to the Pacific Ocean.  Shortly into construction, endangered fish species were spotted in the slough, which caused the federal government to forbid maintaining the slough—keeping it open.  When the slough mouth closed, slough waters rose into the creek and the construction project, resulting in flooded work areas and impossible dewatering.

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Construction was delayed and inhibited, and the firm’s client sought compensation from the municipal owner of the project.  The municipality responded by withholding potential liquidated damages for late delivery of the project.  The municipality also threatened penalties under the California Subletting and Subcontracting Fair Practices Act, contending an equipment supplier used by the firm’s client had been, in fact, a subcontractor added post-bid.

The firm was retained long after construction was complete to review and formalize claims and respond to each claim of the municipality.  This included preparing the Response To Proposed Final Estimate and providing a Critical Path schedule analysis to rebut the municipality’s liquidated damages assessment.  Via Public Records Act requests and Freedom of Information Act requests to federal agencies with overlapping jurisdiction, the firm obtained proof of a differing site condition/cardinal change—the slough mouth closing—and presented the proof to the municipality in a lengthy time lapse evidentiary presentation documenting cost impacts and entitlement to $12mm.  Thereafter, and prior to litigation, the firm obtained a settlement with payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Bid Protest From Fourth Position – Water District

The firm’s client submitted the fourth lowest bid to construct water treatment facilities for a municipal water district. After the low bidder pulled its bid based on an a bid error, the firm requested copies of the second and third-low bids to determine whether they complied with the bidding requirements. The firm discovered several defects in the bids that could have resulted in competitive advantages to the second and third-low bidders (e.g., inadequate bid bond, use of unapproved manufacturers). The firm protested and the municipality rejected the second and third-low bids, adopting the firm’s legal analysis. The water District awarded the project to the firm’s client.

Counsel: Dustin R. Jones

Subcontractor Claims And Product Substitution: Federal Military Installation

The firm’s client was a prime contractor on a federal military base construction project. As the project came to completion, the flooring subcontractor submitted numerous claims for alleged time and materials work authorized by the prime contractor’s onsite management. The firm’s client disputed a large portion of the claims and also discovered a tile substitution made by the subcontractor. In order to protect the prime contractor, the firm acted promptly to ensure the federal government became aware of, and accepted, the tile substitution. The firm then investigated the claims of the subcontractor, which had filed a Miller Act suit against the prime contractor and its surety. Prior to service of the lawsuit on the firm’s client, and before incurring litigation costs, the firm negotiated a settlement for payment of a fraction of the subcontractor’s claims.

Counsel: Dustin R. Jones

Responsibility Challenge – Multi-Prime Public University Construction In Northern California

The firm’s client was the low bidder for the largest bid package on a public university construction project.  Another bidder and a union organization protested award of the bid package to the firm’s client, claiming the firm’s client was not a “responsible contractor” under California law.  The protester and union organization accused the firm’s client of being unsafe and failing to pay prevailing wage.  The firm’s response rebutted all of the allegations, and resulted in the awarding body voting to award to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Sole-Sourcing / Brand Name / “Or-Equal” Dispute – Public Procurement

The firm’s client was a prime contractor on a water treatment facility.  During the submittal stage of the project, the owner rejected the contractor’s valve submittal, claiming the proposed product was not “equal” to the product called for by brand name.  The firm’s client disagreed but was forced to provide the more expensive brand-name valves.  The firm prepared a claim for additional costs of the brand-name valves, contesting the sole-sourcing by the owner and rejection of the contractor’s proposed valves violated state law.  After evaluating the claim, the owner issued a change order compensating the firm’s client for supplying the brand-name valves.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Response To Bid Protest – West Coast Port Rehabilitation

The firm’s client was the low bidder on a $75 million port facility rehabilitation on one of the largest marine ports on the West Coast.  The second low bidder protested, contending the firm’s client submitted an inadequate Small Business Enterprise (SBE) outreach and commitment plan.  The firm responded to the protest and represented the low bidder at the award hearing before the port commissioners.  Based on the firm’s arguments, the commissioners rejected the protest and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Bid Protest Defense (24-Hour Subcontractor Listing) – Caltrans

The firm’s client was the low bidder on a $9 million Caltrans infrastructure rehabilitation project. The second low bidder protested, contending the firm’s client—in its post-bid 24-hour detailed subcontractor list—wrongly added traffic control to the scope of work for its striping subcontractor. Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent. The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing. Caltrans agreed, and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Appeal Of Good Faith Effort Determination (Disadvantaged Business Enterprises) – Caltrans

The firm’s client submitted the low bid for a $105 million Caltrans highway project.  Caltrans rejected the bid, concluding the bidder failed to use sufficient good faith efforts to identify and involve Disadvantaged Business Enterprises (DBEs).  The firm filed an appeal, detailing the extensive DBE outreach efforts by the bidder and how those efforts met the standards set forth by the Code of Federal Regulations, 49 C.F.R. 26, Appendix A.  The firm lead a hearing at Caltrans headquarters in Sacramento, after which Caltrans reversed its initial rejection of the bid.  Caltrans awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Job Order Contract Protest From Second Position – California Municipality

The firm’s client was the second low bidder for a municipal job order contract. The low bidder had included a miscalculation on one of its bid forms. The firm protested the low bid based on California law that precludes acceptance of bids containing arithmetical errors—errors that would allow the bidder to pull its bid without forfeiting its bond, under Public Contract Code section 5103. The municipality initially responded to the protest by stating it intended to waive the deviation and award to the low bidder. The firm met with municipality representatives and its lawyer to explain why the deviation could not be waived. After the meeting, the municipality rejected the low bid and awarded the contract to the firm’s client.

Counsel: Dustin R. Jones

False Claim Act Defense – Multiple Municipal Rail Projects, Western United States

Finch, Thornton & Baird represented two prime contractors that performed large-scale municipal rail projects for the same owner.  Both primes were sued for False Claims Act violations by a purported “whistleblower” plaintiff.  The plaintiff alleged the contractors had fraudulently substituted cheaper materials and construction methods. 

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The plaintiff sought damages and penalties in excess of $10 million.  The firm promptly investigated and refuted the claims—seeking both to win the case and to maintain the contractors’ reputations and relationships with their public entity clients.  The firm obtained a court-ordered dismissal of the case without the public entity owner joining the plaintiff’s allegations or the plaintiff having the opportunity to conduct any discovery.  The whistleblower plaintiff recovered nothing.  The firm also recouped litigation fees and costs from subcontractor insurers, so as to minimize out-of-pocket expense by its prime contractor clients.
Differing Site Condition – U.S. Military Design-Build Project, Island In Pacific Ocean

The Firm’s client, a federal design-build contractor, encountered a differing site condition (hard rock) while constructing a Navy Seal training facility located on an island in the Pacific Ocean. Due to the logistical challenges of the island project, construction largely halted while large equipment was shipped in. The Navy contended the hard rock was disclosed in geotechnical reports issued prior to bid, such that the contractor had to bear 100 percent the direct costs to remove the rock and the associated delay and disruptions costs. The Firm negotiated directly with the Navy and achieved a total reversal of the Navy’s position – an agreement to fully compensate the contractor for the additional costs and delays.

Counsel: Dustin R. Jones

Light Rail Construction – Western United States

The firm’s client performed an urban light rail project as a subcontractor.  The project suffered substantial design revisions, delays and impacts, with total claims in excess of $100 million.  Construction concluded with numerous subcontract, pass-through and prime contract claims.  After multiple years of project-level negotiation ending in stalemate, the firm was retained to prosecute $6.5 million in subcontract and pass-through claims (discrete changed work/extra costs, delay/extended general conditions, inefficiency/lost-productivity, etc.).  The firm’s client recovered on its claims and preserved its client’s relationship with the project owner.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Defense Of Federal Miller Act Claim – Naval Base Fire Station

The firm’s client was the prime contractor on a federal design-build construction project—a new fire station on a United States Naval Base.  A site work subcontractor submitted inflated time and materials billings for substantial work on the project.  The design-builder denied the billings and the subcontractor filed a Miller Act lawsuit in federal court.  The firm represented the design-builder and forced the case into arbitration pursuant to the subcontract. 

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After a four-day arbitration, the arbitrator agreed with the firm that the subcontractor’s claims were substantially inflated, awarded the subcontractor only a fraction of what it sought and denied the subcontractor’s claim to recover attorneys’ fees.  The subcontractor recovered less than the design-builder offered to pay to settle, and, after fees and costs, the subcontractor netted a negative return for its efforts.  Not satisfied with the result, the subcontractor petitioned the federal court to overturn the award—the firm opposed.  The federal court agreed with the firm that the arbitration award was proper and denied the subcontractor’s petition, vindicating the design-builder.
Bid Protest Defense (24-Hour Subcontractor Listing) – Caltrans

The firm’s client was the low bidder on a $47 million Caltrans infrastructure rehabilitation project.  The second low bidder protested, contending the firm’s client — in its post-bid 24-hour detailed subcontractor list — wrongly expanded the scope of work allocated to a listed Cold Planing subcontractor. 

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Beginning 2014, Caltrans had repeatedly rejected bids based on similar claims, and the protester in this instance cited specific cases as precedent.  The firm responded to the protest, distinguishing Caltrans’ past decisions and outlining how there was no unacceptable expansion of subcontractor scope in the post-bid subcontractor listing.  Caltrans agreed, and awarded the project to the firm’s client.
Government Relations – Prevention Of Mental Health Facility Consolidation

The firm’s client operated a retail facility within a Southern California shopping center. Days before the issue was to be voted on by the local County Board of Supervisors, the retailer learned of the County’s plan to consolidate several health and human services facilities into a single facility within the shopping center. The proposed facility would house drug treatment and mental health facilities. Days before the vote, the firm mobilized a public opposition that included the principal of a nearby elementary school. The firm also reached out to its government contacts and appeared before the County Supervisors to seek a delay, in part because of procedural irregularities the firm identified in the facility selection process. The Supervisors granted the firm’s request to delay approval of the plan, which allowed for further negotiations and community involvement. Ultimately, the retailer, community members and the County negotiated a modified plan that did not include consolidation of mental health and drug abuse facilities into the retail area or near the elementary school.

Counsel: Dustin R. Jones

Project Counsel: California Pedestrian Bridge Project

The firm’s contractor client encountered differing site conditions (hard rock) during construction of a pedestrian bridge for a California municipality. The contractor brought in the firm to assure compliance with notice and claim requirements of the public contract and respond to defenses asserted by the municipalities. Resolution was achieved at the project level prior to formal dispute resolution becoming necessary.

Counsel: Dustin R. Jones

Protest of International Airport Electrical Upgrade Project

The firm’s client was the second low bidder on a $17 million electrical upgrade project at San Diego International Airport.  The firm evaluated the low bid and identified multiple bases for protest.  Although the airport had already deemed the low bid responsive, the firm filed a comprehensive bid protest detailing the deficiencies.  The Airport reversed its finding of responsiveness and elected to rebid the project.  The firm’s client won the job on rebid.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest Of Light Rail Transit Upgrade Project

The firm’s client submitted the low bid for a major Southern California light rail transit project valued in excess of $55 million.  The second low bidder protested award to the firm’s client, alleging the client lacked the required operating joint-use system (freight and passenger) rail experience to be awarded the project.  The firm responded to the protest, detailing the low bidder’s experience, and represented the client at a responsibility hearing before a multi-agency panel.  Based on the firm’s response and the responsibility hearing, the owner rejected the protest.  The second-low bidder appealed the initial rejection and the firm again responded.  Ultimately, the owner rejected the appeal and awarded the project to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest Of Municipal Project

The firm represented the low bidder on a street and bicycle path improvement project for a large California city. The city rejected the low bid on its assertion the bid was non-responsive and the bidder was non-responsible, due in large part to a subcontractor listing error. The firm filed a comprehensive protest of the rejection and represented the client in a bidder responsibility hearing before the City Attorney. After the hearing, the city reversed its initial bid rejection and awarded the project to the firm’s client.

Counsel: Jason R. Thornton and Dustin R. Jones

Declaration of Bid Non-Responsiveness

The firm’s general contractor client submitted a prime bid for a $9.3 million City of Riverside fire station project.  The City rejected the bid as non-responsive, contending the bidder failed to complete the City’s bid form.  Hours before the City Council was scheduled to award the project to a higher bidder, the firm convinced the City to rescind their bid rejection and recommend that the City Council award the project to the firm’s client.  The firm’s client was awarded the project.

City of Riverside Fire Station Project

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor Default – Caltrans Highway Facility Rehabilitation

The firms’ client was the prime contractor on a highway facility rehabilitation project for the California Department of Transportation.  The plumbing subcontractor on the project defaulted after performing layout and initial rough-in, resulting in rework, takeover and delay costs to the prime contractor.  Notwithstanding the default, the subcontractor sought additional payment from the prime contractor, alleging it was constructively terminated and that the prime contractor violated Caltrans’ Buy America requirements.

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The firm promptly investigated and refuted the Buy America allegations, preserving the prime contractor’s relationship with Caltrans.  The firm also tendered the prime contractor’s costs (including time-related overhead) to the subcontractor’s general liability insurance carrier, based on property damage/rework arising out of improper rough-in by the subcontractor.  The insurer agreed to participate in an early mediation and, notwithstanding the subcontractor’s inability to pay, the firm obtained an insurance-funded recovery for the prime contractor without litigation.
Protest Of Airport Upgrade Project – Ensley Electric, Inc.

The firm’s client submitted the second-low bid for a municipal airport upgrade project. The low bidder submitted documentation of its “good faith effort” to reach out to Disabled Veteran Business Enterprises (DVBEs), but failed to fully comply with the DVBE requirements of the bid documents. The firm prepared a successful protest of the low bid which resulted in award of the project to the firm’s client.

County Of San Diego (Borrego Valley Airport)

Counsel: Dustin R. Jones

Protest Of School Modernization Bid – West Coast Air Conditioning, Inc.

The firm’s client submitted the low bid for a multi-school modernization and technology upgrade project, but was protested by the second low bidder which had been higher by only a few thousand dollars on bid day. The protester alleged the low bid offered to install unapproved and unequal products in violation of the bid documents. The firm responded to the protest and convinced the school district to reject the protest and award to the firm’s client.

Cajon Valley Union School District

Counsel: Dustin R. Jones

Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation

The firm represented the general contractor in recovery of damages for inefficiency claims relating to methacrylate application and for return of wrongfully-assessed lane closure reopening delay penalties arising out of bridge rehabilitation work on the Los Angeles Interchange.  The firm recovered payment to the contractor through mediation.

Office of Administrative Hearings Case No. A-0020-2011

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Qui Tam Plaintiff v. Design Builder

The firm represented the design builder and general contractor against allegations of violations of the California False Claims Act and for Breach of Contract.  The plaintiffs sought damages of over $25 million.  After several years of litigation which culminated in a presentation by the firm of significant exonerating evidence, and insurance coverage claims by the firm against its clients’ insurers, the breach of contract case was resolved, and the false claims cause of action dismissed, for a cost of defense payment primarily by the insurer.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Balfour Beatty Infrastructure, Inc. v. State of California, Department of Transportation

The firm represented the general contractor in pursuit of damages for delay, disruption and inefficiencies arising out of a bridge widening/modification project on Highway 101 in Corte Madera.  After a several hour presentation of evidence by the firm of the client’s entitlement and damages, the case was resolved for payment of $975,000.00 to the firm’s client.

Office of Administrative Hearings Case No. A-0011-09

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Community College Construction Delay Claim – Southwest United States

The firm represented the prime contractor on a hard-bid new construction of a nine-building adult learning center on a community college campus.  The project ran 233 days beyond scheduled completion and the owner assessed liquidated damages against the firm’s client, citing delays caused by a defaulting steel subcontractor.  The firm sued to recover the contract balance and extended general conditions.  Prior to significant discovery, the firm steered the case into mediation.  The firm’s presentation first negated the liquidated damage claim by showing the numerous design changes and 174 Requests For Information that occurred during the liquidated damages period.  The firm then detailed the prime contractor’s entitlement to a compensable time extension using a contemporaneous schedule analysis to identify the critical path impacts.  The case settled at mediation with significant payment to the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Subcontractor Default And Miller Act Claim – Department Of Army Project

The firm represented the prime contractor on a federal drainage channel project administered by the Army Corps of Engineers.  One-third of the way into the project, the landscape/drainage subcontractor defaulted and was replaced.  The subcontractor ultimately filed for bankruptcy.  A supplier to the defaulted subcontractor sued the firm’s client on its Miller Act payment bond.  The firm cross-complained against the subcontractor and, navigating around the automatic stay resulting from its bankruptcy filing, pressured the subcontractor into mediation.  The firm was able to obtain a settlement from the subcontractor, notwithstanding the bankruptcy, that compensated the supplier and the prime contractor for its completion costs.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Claim For Extra Work – International Airport Cogeneration Plant

The firm represented the prime contractor on a design-build cogeneration plant project at John Wayne International Airport in Orange County, California.  The prime contractor suffered substantial extra costs due to omissions in the owner-supplied turbine engine systems and additional noise testing and suppression demanded by the owner.  The firm submitted formal claims seeking the additional costs and obtained internal owner documents to support the claims using the Public Records Act.  The firm then forced the owner to discuss settlement of the claims under a statutory meet and confer process, and obtained a settlement compensating the design builder without having to file a lawsuit.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Good Faith Efforts – Caltrans Southern California

The firm’s client was low bidder for the $56 million Caltrans project to construct portions of California Route 76.  Caltrans rejected the bid based on the notion that the bid lacked sufficient documentation of Good Faith Efforts to reach out to Disadvantaged Business Enterprises (DBEs).  The firm prepared a comprehensive response to the rejection detailing how the Good Faith Effort documentation submitted by the firm’s client exceeded the legal minimum.  Following a hearing, Caltrans changed its position and accepted the bid of the firm’s client.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Claims of High-Light Electric, Inc. – Southern California

The firm represented the prime contractor on a more than $100 million freeway expansion project in southern California. The electrical subcontractor on the project submitted extensive delay and disruption claims and subsequently filed a lawsuit. The firm responded to the lawsuit and forced the case to mediation prior to expending significant resources on discovery. After the firm’s comprehensive mediation presentation attacking the basis for the subcontractor’s claims, the subcontractor settled for a fraction of its initial demand.

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

Bid Protest – Palomar Pomerado West Hospital

The firm represented a bidder on the $1 billion hospital project in southern California.  The bid resulted in multiple protests which the firm filed and responded to on behalf of the bidder.  The firm prevailed and the client was awarded the bid package.

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Jaynes Corporation of California v. Encina Wastewater Authority

The firm represented the general contractor in pursuit of delay and disruption claims arising out of construction of a wastewater treatment facility. The firm managed project closeout and submission of Government Code claims and, ultimately, filed suit against the owner. The firm then performed critical discovery and pushed the case to mediation. The case was settled with payment to the firm’s client after the firm presented a comprehensive critical path schedule and cause-effect disruption analysis to the owner and mediator.

San Diego Superior Court Case No. 37-2008-00102134-CU-BC-NC

Counsel: P. Randolph Finch Jr., Andrea L. Petray, and Dustin R. Jones

Jaynes Corporation of California v. Pro-Tech Fire Protection Systems Corporation

The firm’s client was the prime contractor on a large-scale water treatment plant project.  The fire protection subcontractor on the project defectively installed its fire suppression system, resulting in damage to the work of other subcontractors.  The firm filed suit and collected from the fire suppression subcontractor and its insurer despite an initial denial of coverage.

San Diego Superior Court Case No. 37-2008-00051630-CU-BC-NC

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

West Coast Air Conditioning Co., Inc. v. Fountain Valley School District

Prime contractor on a $12.8 million four school modernization project suffered delay, disruption, and inefficiency damages as a result of unclear plans and specifications, and late completion of predecessor activities by other contractors to the District.  The firm prepared the claim and filed suit to collect the damages.  Following over a year of litigation and cordial meetings with the District, its counsel, and its experts to explain the claim, the case was mediated to a settlement with the firm’s client being paid $1.2 million for delay and disruption damages, and receiving a thank you letter from the District for building a quality construction project.

Orange County Superior Court Case No. 07CC05300

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

Protest of Award to W.E. O’Neil Construction Co. by Jaynes Corporation of California

The firm protested the award of a $19 million office building project by the Eastern Municipal Water District based on inconsistencies in the low bidder’s subcontractor listing.  The Water District responded by rejecting all bids.  On rebid, the Water District revised its bidding instructions to eliminate ambiguities pointed out by the firm.  The firm’s client was the low bidder and awarded the contract following the rebid.

Eastern Municipal Water District Administrative Office Building Expansion

Counsel: P. Randolph Finch Jr. and Dustin R. Jones

There’s no room for passive lawyers in this business. Either actively drive the matter to a cost-effective resolution, or get out of the way.

(858) 737-3100, Ext. 3105

(858) 737-3101

  • Construction Law
    • Claims & Disputes
    • Local Agency, Municipal & State Contracts
    • Federal Procurement & Claims
    • Project Counsel
    • Prime Contracts & Subcontracts
    • Collections
  • Business & Commercial Litigation
  • California: State Courts
  • U.S. District Courts of California: Central, Eastern, Northern, Southern
  • University of San Diego School of Law, J.D., magna cum laude
    • Order of the Coif
  • University of California, Berkeley, B.S., Economics and Legal Studies
  • State Bar of California
  • San Diego County Bar Association, Appellate Court Committee
  • The Lincoln Club of San Diego
    • Serving the Board of Directors, Executive Committee, and Judicial Nominations Committee
  • Associated General Contractors, San Diego Division
    • Serving the Public Building Liaison, Trends in Technology, and Events Committees
  • San Diego Rising Star 2019 by Super Lawyers Magazine
  • Best of the Bar 2016 by San Diego Business Journal
  • Volunteer, California Labradors, Retrievers & More Rescue

Mr. Jones is an accomplished public speaker and regularly addresses the construction community on a range of training and educational topics, including:

Bullet Proof Your Bid: Avoiding Protests On State And Local Jobs

Participation Goals And Good Faith Efforts

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