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EDITORIAL REVIEW Doke’s the dynamo for Bell Helicopter Textron, the Dallas County Hospital District, EDS, Raytheon and the U.S. Treasury Bureau of Public Debt. —2008 Lawdragon 500 Leading Lawyers in America
The nation’s top government contract lawyer has the golden touch in all he does, from representing the nation’s largest contractors to leading the effort to reform the procurement guidelines on the Acquisition Advisory Board. — Lawdragon,
January 2008
EDS, Motorola, Tyco and Dallas County Hospital District all consider him top dog in Big D. — Lawdragon,
October 2006
Submit your evaluation of this attorney. Contact Lawdragon about the information in this review. 
PARTNER, TRIAL , GOVERNMENT AFFAIRS
AREAS OF EXPERTISE CONSTRUCTION, GOVERNMENT CONTRACTS, GLOBAL PROJECTS 214-999-4733 Direct Phone • 214-999-3733 Direct Fax 1601 Elm Street • Suite 3000 Dallas, Texas 75201 • mdoke@gardere.com PRACTICE EMPHASIS Marshall Doke was named by Chambers USA (international lawyer-ranking publication) in 2006 and 2007 as one of the two "senior statesmen" of the government contracts bar (described by Chambers as the sages of their particular legal market). Another lawyer-ranking publication, Lawdragon, in 2006 and 2007 named Mr. Doke to the Lawdragon 500 Leading Lawyers in America, including all practice areas (describing him in 2007 as the Nation’s top government contract lawyer). In February 2005, Mr. Doke was appointed by the Administrator of the OMB’s Office of Federal Procurement Policy to the Acquisition Advisory Panel composed of recognized experts in government acquisition law and policy as required by Section 1423 of the Services Acquisition Reform Act (SARA). In 2007, he was re-appointed to the American Bar Association’s Standing Committee on Audit by the ABA Board of Governors. Mr. Doke also was appointed in 2007 by Chief Judge Edward Damich to a three-year term on the U.S. Court of Federal Claims Advisory Council. Mr. Doke represents clients in litigating, and counseling with respect to, all types of disputes and claims under government contracts in matters such as procurement protests, changes claims, breach of contract, suspension and debarment, contract interpretation, default terminations, fraud, defective pricing, and noncompliance with cost accounting standards as well as issues related to the Foreign Corrupt Practices Act, the Buy American Act, and the False Claims Act. CLIENTS AND MATTERS Mr. Doke has a national practice and has represented some of the leading government contractors in the country and many smaller contractors and small business concerns, as well as federal, state, and local agencies. Those clients include:
LL.B., Southern Methodist University, high honors (1959) B.A., Hardin-Simmons University, magna cum laude (1956) PROFESSIONAL AFFILIATIONS
Mr. Doke frequently writes and lectures in the field of government contracts, including: Publications
Minolta Corp., B-285010, 2000 CPD ¶ 156 (Sept. 26, 2000) Mr. Doke successfully represented the United States Department of the Treasury (DOT) in defending a protest before the Comptroller General of the United States alleging an illegal award by the DOT Bureau of Public Debt’s Franchise Business Activity for photocopiers and technical support. The issues involved the applicability of the General Services Administration’s Federal Supply Schedule contracts. The Comptroller General dismissed the protest without requiring contract cancellation but recommended the protester be paid its costs of pursuing the protest. This may be the only time (at least in many years) that a private practitioner has been employed to represent a federal agency directly in a contractual matter. Miller-Holzwarth, Inc. v. United States et al., 42 Fed. Cl. 643 (1999) Involved a post-award bid protest in the United States Court of Federal Claims in which the plaintiff contended that the $8 million contract for periscopes for the Army’s Bradley fighting vehicle was awarded improperly. Mr. Doke represented the successful contractor in the litigation, and the court upheld the contract award holding that the Government’s waiver of a first article test requirement was proper. HBS National Corp. v. General Services Administration, GSBCA No. 14302, 98-2 BCA ¶ 29,935 Mr. Doke represented HBS, whose service contract with the General Services Administration was terminated for default. The termination was based on HBS’ alleged anticipatory repudiation of its contractual obligation to perform by sending the Government a draft letter in compliance with the Federal Worker Adjustment and Retraining Notification Act (“WARN”) advising employees of their potential permanent loss of employment due to HBS’ request that the Government terminate the contract. The GSA Board of Contract Appeals granted HBS’ motion for summary judgment, holding that other HBS correspondence stating that it did not intend to leave the GSA without services or supplies made HBS’ intention to cease performance ambiguous and uncertain (which did not support a conclusion of anticipatory repudiation). The effect of the decision was to convert the termination for default into a termination for convenience of the Government allowing HBS to be compensated for the contract cancellation. LTV Aerospace & Defense Co., ASBCA No. 37571 et al., 93-3 BCA ¶26,248 Mr. Doke represented LTV in a case involving a multi-million dollar government claim for the value of an aircraft destroyed in an accident and a contractor claim for the cost of an electronic system destroyed in the accident. The Government’s claim alleged certain exemptions under the Ground and Flight Risk clause, including when a loss was covered by insurance. The Armed Services Board of Contract Appeals denied the Government’s claim. The contractor’s claim was dismissed without prejudice, but the contractor was successful in a later appeal. Fidelity & Casualty Co. v. LTV Aerospace & Defense Co. CA3-90-1096-H(N.D. Tex.) In a related case in which Mr. Doke represented LTV, the court determined the loss was not covered by insurance, which provided a successful defense against the Government’s claim. Aerojet Ordnance Tennessee, ASBCA No. 36089, 95-2 BCA ¶ 27,922 Mr. Doke represented the government contractor in this case, which involved a government claim for defective pricing in the amount of $3.2 million. The Armed Services Board of Contract Appeals held the Government could not use learning curves to compute a price adjustment for defective pricing where such use would reflect a fundamental alteration of the basis upon which the contract price was negotiated. In addition, the contractor’s internal operating control estimates were not cost or pricing data inasmuch as the parties would have relied on the contractor’s accounting system if there were variances from the management estimates. Texas Instruments Inc., ASBCA No. 18621, 79-1 BCA ¶ 13,800 This was the first case litigated under the federal Cost Accounting Standards. The Government contended that Texas Instruments had an obligation to accumulate and report costs by individual contracts. The specific dollar claim was not litigated, but an adverse decision would have resulted in the contractor’s repayment of many millions of dollars to the Government. The Board denied the Government’s claim holding that Texas Instruments’ practice of estimating firm, fixed-price contracts on a product line basis was in compliance with Cost Accounting Standard 401. Rosemount, Inc., ASBCA No. 37520, 95-2 BCA ¶ 27,770 Mr. Doke represented a Minnesota government contractor in this case, which held that the Truth in Negotiations Act did not require a contractor to create a document disclosing a downward trend in labor hours. Mr. Doke successfully defended government contractors in other cases that established significant new law and important precedent under the Truth in Negotiations Act. These include: Hughes Aircraft Co., ASBCA No. 30144, 90-2 BCA ¶ 22,847 This case involved a government claim for a $5.9 million price reduction. The Armed Services Board of Contract Appeals denied the Government’s claim and held that contractors do not have an obligation to update or revise their proposals to reflect the impact or effect of current cost or pricing data. Moreover, a contractor merely has to submit cost or pricing data to the Government and does not have to either itself use the data or analyze it for the Government. Texas Instruments, Inc., ASBCA No. 23678, 87-3 BCA ¶ 20,195 The Board held that the contractor was not required to generate an updated computer report utilizing the cost or pricing data it had submitted to the Government in microfiche format. Therefore, the Government’s $1.6 million claim for a contract price reduction was denied. Boeing Co., ASBCA No. 18,351, 85-3 BCA ¶ 18,351 Involved actual labor costs incurred by a subcontractor for two months prior to definitization of the contract price. The Armed Services Board of Contract Appeals held the actual labor costs were not cost or pricing data because, for various reasons, the cost information could not be reasonably expected to contribute to sound estimates of future costs. Texas Instruments Inc., ASBCA No. 30836, 89-1 BCA ¶ 21,489 This decision held that information of a judgmental nature was not cost or pricing data. REPRESENTATIVE CLIENTS A Adecco TAD Technical Alliant Techsystems, Inc. AOS Inc. ATC/Vancom, Inc. D Dallas Area Rapid Transit Authority Dallas County Hospital District DestinationRx, Inc. DFW Group, Inc. DRC, Inc. E Electronic Data Systems Corporation EFW, Inc. M Marlow Industries, Inc. Metcalf Ground Maintenance N New Mexico State University Northrop Grumman Corporation O Optex Systems, Inc. P Physical Science Institute, Inc. Pioneer Contract Services R Radiological Consultants Association Raytheon Company T TECFILMS, Inc. Texas Instruments, Inc. TMC Design Corporation Tyco International (US) Inc. U URS Corporation U.S. Treasury V Vought Aircraft Industries. Inc. REFERENCES Richard J. Agnich, Esquire Former General Counsel Texas Instruments Incorporated 19 Downs Lake Circle Dallas, Texas 75230 972.934.1104 (home) Raymond Marlow Former Chief Executive Officer Marlow Industries, Inc. 19 Glenmeadow Court Dallas, Texas 75225 Mr. Robert J. Isakson DRC, Inc. 740 Museum Drive Mobile, Alabama 36608 334.343.3581 Honorable Ruth C. Burg Judge (Ret.), Armed Services Board of Contract Appeals 3106 Q Street, NW Washington, D.C. 20007-3027 202.338.0254 ruth_burg@mindspring.com Allan J. Joseph, Esquire Rogers Joseph O’Donnell & Phillips 311 California Street, 10th Floor San Francisco, CA 94104-2614 415.365.5333 ajoseph@rjoq.com
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