Daniel E. Toomey
Partner
Duane Morris LLP
505 9th Street, N.W., Suite 1000
Washington, DC 20004-2166
USA
Phone: +1 202 776 5291
Fax: +1 202 478 2873
Email: detoomey@duanemorris.com

Daniel E. Toomey is a trial lawyer with a particular focus on construction and government contract litigation. Mr. Toomey has been representing owners, general contractors, subcontractors, suppliers, design professionals and sureties for almost 30 years in state and federal courts in at least 23 states, from coast to coast and in Alaska and Florida, before arbitration panels nationwide as well as internationally. He has also handled matters before the U.S. Court of Federal Claims and numerous Boards of Contract Appeals. Mr. Toomey has arbitrated construction disputes and is a trained mediator with more than 20 years' experience in alternative dispute resolution, both as a mediator and as counsel. He has been regularly appointed by the U.S. District Court for the District of Columbia to mediate construction and other disputes. In addition, since 2009, he has been a mediator with the Mid-Atlantic ADR organization, The McCammon Group.

A former Assistant U.S. Attorney for the District of Columbia, he has handled and tried numerous white-collar criminal matters. For more than 33 years, he has been involved in the teaching of trial advocacy, both as the founder and team leader of the Georgetown/NITA Trial Advocacy Program and currently as the Program Director of the DC NITA Advanced Trial Advocacy Program.

Since 2009, Chambers USA: America's Leading Lawyers for Business has included Mr. Toomey in its listing of leading construction lawyers in the District of Columbia.

In November 2012, Mr. Toomey concluded his eighth stint as Program Director of the National Institute of Trial Advocacy's D.C. Advanced Trial Advocacy Program, held at the U.S. District Court for the District of Columbia.

A Fellow of the American College of Trial Lawyers since 2000 (limited to one-percent of the D.C. Bar), Mr. Toomey is admitted to practice in the District of Columbia, Virginia and Maryland and numerous federal districts and courts of appeal. He is a graduate of Georgetown University Law Center, where he was an adjunct professor, teaching Construction Law and Criminal Trial Practice for almost 20 years. In 2007, he was honored by the Law Center with the Dean Paul R. Dean award for his numerous contributions to his alma mater.

Areas of Practice

• Commercial Litigation
• Alternative Dispute Resolution/Mediation
• White-Collar Criminal Law
• Government Contract Litigation
• Construction and Surety Law

Representative Matters

Construction/Surety/Government Contracts/Commercial

• Retained as expert on reasonableness and necessity of legal fees in dispute relating asserted to U.S. Navy constructive debarment.
• Mediated dispute between Prime Contractor, Subcontractor and Surety relating to U.S. Coast Guard Project, resulting in settlement of three separate law suits.
• Representing an insurance agent licensed by the Export-Import Bank (Ex-Im Bank) who was suspended and threatened with debarment. After receiving an extensive investigative report, the Ex-Im Bank withdrew its threat of debarment and the insurance agent was restored to full status shortly thereafter.
• Represented West Coast local church in arbitration proceeding before Institute for Christian Conciliation in its efforts to withdraw from a denomination in conformity with denomination's governing documents. Blocked effort by denomination to have local pastor removed.
• Defended breakaway church against denomination's claims for millions of dollars in loss-of-use damages relating to real properties held in trust by church for denomination.
• Co-counsel in arbitrated dispute between a large church and a contractor that resulted in a $130,000 verdict for the church and the denial of all the contractor's wrongful termination claims. In per curiam order, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's confirmation of the arbitration award.
• Mediated multimillion-dollar claim by Prime Contractor against Virginia Department of Transportation resulting in settlement in two days.
• Assisted trial counsel from another firm in effort to obtain a new trial and/or a judgment notwithstanding the verdict in a California multimillion jury verdict against a national construction contractor by a defaulted subcontractor and its surety, resulting in reduction of verdict by over $1 million.
• Negotiated a reduction of more than fifty percent of contingency fee in suit against a client who objected to fairness and reasonableness of fee, resulting in savings of almost $200,000.
• Co-lead counsel before the Government Accountability Office ("GAO") in upholding the award of a "best value" procurement of a multimillion dollar landscaping contract on a major Federal national cemetery.
• Participated in a GAO proceeding opposing an "earmarked" sole-source procurement by the Army resulting in the Army's voluntary withdrawal of the award.
• Mediated remaining secondary dispute in almost 20-year litigation relating to construction of Washington Metro Stations, resulting in settlement in two hours.
• Lead counsel for national religious non-profit in drafting and negotiations of design services, construction manager at risk and general conditions contracts with major national design firm and construction manager related to construction of largest Maryland state-guaranteed bond financed construction project-a retirement/assisted living facility in Montgomery County,Maryland. Continue to assist non-profit in ensuring that project substantial completion date will be met.
• Lead counsel for an international building systems manufacturer and contractor in successful defense against bid protest of award of multimillion-dollar energy savings performance contract in Massachusetts.
• Lead counsel for major surety company defending against claims of $1.7 million in completion costs by Fortune 500 energy savings performance prime contractor on federal project that defaulted its mechanical subcontractor, resulting in an arbitrator's determination that default was wrongful and that prime contractor had violated covenant of good faith and fair dealing against both subcontractor and surety. The arbitrator awarded 93% of the requested costs and attorney fees to surety and subcontractor, in excess of $1.2 million.
• Lead counsel for a prime contractor on the Kennedy Center site improvement project and assist in the preparation of a multimillion dollar request for equitable adjustment, negotiating standstill agreements with major subs, resulting in favorable settlement of REA in excess of $7 Million and avoidance of litigation with subs.
• Lead counsel for a first-tier subcontractor on the Kennedy Center Opera House renovation, resulting in successful settlement of claim after mediation.
• Lead counsel for a major Canadian surety sued by an owner claiming under its bankrupt major prime contractor's performance bond for in excess of $1 million related to a defaulted curtain wall subcontractor, resulting in a dismissal and summary judgment of all claims against the surety in the District of Columbia. Representation of this surety in ancillary proceeding brought by Trustee of bankrupt prime contractor in Federal Bankruptcy court in North Carolina seeking to enforce performance bond resulting in nuisance settlement of claim with prejudice.
• Party appointed arbitrator, by major international engineering and construction firm, in 53-day arbitration involving construction of diesel-powered power plant in El Salvador, resulting in multimillion dollar arbitration award for engineering/construction firm against Finnish diesel manufacturer after its consultant/project manager was determined to have false credentials, leading to his conviction for perjury.
• Lead counsel for defaulted principal and its surety in the resolution of numerous payment and performance disputes both public and private, in Maryland and the District of Columbia, including two separate arbitrations and a federal court trial, resolving over twenty separate matters, resulting in a net savings to both parties of millions of dollars.
• Lead counsel in construction dispute involving construction of Texas VA hospital before U.S. Court of Federal Claims, resulting in that Court's first mediated settlement for over three million dollars using the Court's voluntary mediator panel.
• Lead counsel in jury trial in Maryland against national developer charged with racial discrimination, resulting in jury verdict for developer in less than half an hour, summary affirmance on appeal and denial of writ of certiorari before state supreme court.
• Lead counsel for French company in bid protest of Naval "best value" procurement of state-of-the-art centrifuge, resulting in federal appeals court reversal of two GAO decisions and Florida U.S. District Court dismissal of action and later payment by Navy of bid and proposal costs as well as attorneys' fees.
• Lead counsel for Fortune 500 company's joint venture with Malaysian Company in Kansas City, Mo. Federal suit against national design construction firm relating to design and construction of Malaysian process plant, resulting in multimillion-dollar recovery in mediation.
• Lead counsel in over $30 million suit by prime contractor on Wisconsin public works claim against national design firm, resulting in mediated settlement of case for less than ten percent of claim.
• Lead counsel for Wisconsin county in state court litigation against design firm for indemnification against damages relating to abandoned dam renovation project resulting in substantial settlement by design firm and E&O insurance carrier.
• Lead counsel for Alaskan municipality in Federal Court litigation against design firms and prime contractor connection with failed waste water treatment project resulting in ultimate multimillion dollar settlement and reimbursement by EPA of client's attorneys' fees and costs.
• Lead counsel for Florida public water and sewer authority in Miami Federal District Court in suit by prime contractor for damages resulting from alleged differing site conditions, resulting in jury verdict against client but later Court award for complete indemnification from client's designers.
• Lead counsel for major electrical specialty contractor in two related matters in Louisiana Federal District Courts, initially for multimillion dollar delay and associated damages claims against owner of public utility in which jury found for public utility and in contemporaneous legal malpractice action against law firm advising contractor, resulting is settlement with law firm and E&O insurance carrier.
• Lead counsel for surety in joint suit with defaulted principal on Colorado water distribution project, against Bureau of Reclamation in U.S. Court of Federal Claims for wrongful termination and recovery of reprocurement costs, resulting in favorable entitlement decision finding that Bureau had not "dealt fairly" with contractor, conversion of default termination into termination for convenience and recovery of multimillion-dollar settlement from Government.

White-Collar Criminal

• Lead counsel for president of government contractor indicted in Virginia Federal District Court in alleged kickback scheme, resulting in jury verdict of acquittal in less than two hours.
• Lead counsel for principals of general contractor in bank fraud investigation resulting in indictment and conviction of borrower and bank board member with no charges brought against clients.
• Representation of Texas attorney in connection with investigation of kickback scandal involving U.S. Congressman's administrative assistant who was indicted and convicted and who accused client of participation in cover-up and suborning of perjury, ultimately resulting ultimately in U.S. Attorney's Office Criminal Fraud Section declining prosecution. Of client.
• Representation of defendant and former CIA official in investigation of major illegal arms trafficking investigation, resulting in client receiving probation on one-count felony information.
• Representation of Marine Corps assistant to former Assistant Secretary of Defense in "Operation Ill Wind" procurement scandal in which Assistant Secretary pleaded guilty, with no charges preferred against client.
• Representation of fired administrative scientist from Federal Drug Administration before House Government Operations Committee and during criminal investigation involving alleged irregularities in FDA approval of contact lens solution, resulting in no criminal charges brought against client.

Professional Activities

• American Bar Association
  - Forum on Construction, Division 7, Past Chair, 1995-1997; Member of Committee creating and conducting inaugural Trial Academy in 2012
  - Public Contract Law Section, Architects and Engineers Liability, Vice Chair, 1988-1992
  - Litigation, Construction Law
• U.S. Court of Federal Claims
  - Advisory Committee, Former Member
• Washington Building Congress
  - Former Member

Admissions

• Maryland
• District of Columbia
• Virginia
• Supreme Court of the United States

Education

• Georgetown University Law Center, J.D., 1967
  - Founder, Dormitory Prefects' Scholarship
  - 2007 Recipient of Paul R. Dean Award for Service of Georgetown
• St. Peter's College, B.A., 1964
  - Cross Keys Honor Society for academics, extra-curricular and captain of cross-country and track teams, 1964

Experience

• Duane Morris LLP
  - Partner, 2007-current
• Venable LLP
  - Partner, 2002-2007
• Thompson Hine
  - Partner, 1996-2002
• Wickwire Gavin (now Akerman Senterfitt)
  - Shareholder, 1984-1996
• Grove Engelberg and Gross
  - Partner, 1980-1984
• Levin & Toomey
  - Partner, 1978-1980
• Sachs Greenebaum & Tayler
  - Partner, 1972-1978
• U.S. Attorney's Office for the District of Columbia
  - Assistant U.S. Attorney, 1968-1972
• D.C. Court of Appeals, Office of Chief Judge Andrew M. Hood
  - Law Clerk, 1967-1968

Board Memberships

• United States Attorneys Association for District of Columbia
  - President, 1977-1978
• Institute of Pastoral Renewal, 1995-2005

Civic and Charitable Activities

• Adjunct Professor of Law, Georgetown University Law Center
  - Contract Construction (1985-2000)
  - Criminal Trial Practice (1980-1985)
• Founder and Team Leader, Georgetown/NITA Basic Trial Advocacy Skills Program (1978-2003)
• Program Director, NITA/D.C. Advanced Trial Advocacy Program, Georgetown University Law Center (2005-present)
• Faculty Member- NITA Teacher Training Program at Harvard Law School and the University of San Francisco Law School
• Program Director, Department of Labor Homeland Security Labor and Employment Deposition Program, 2010
• Faculty Member, NITA Deposition Program, Georgetown Law Center, James Beasley School of Law at Temple University, 2010-present
• Chairman, 25th and 40th Class Reunion Committee, Georgetown University Law Center
• Chairman, Georgetown Law Prefects' Reunion, 2010 and 2013, and Founding Member of Prefect Law Scholarship Committee
• Participant, "We Are Family" organization involved in semi-monthly distribution of food to elderly poor in D.C.
• The Barristers - Legal fraternal organization
• Mediation Panelist, U.S. District Court for the District of Columbia, 1997-present

Honors and Awards

• Selected as a 2013 Top Rated Lawyer in Construction by American Lawyer Media and Martindale-Hubbell
• Fellow, American College of Trial Lawyers (2000)
• Recipient, Paul R. Dean Award, presented by Georgetown Law Center Alumni Association for Distinguished Service to the Law Center (2007)
• Listed in Chambers USA: America's Leading Lawyers for Business, 2009, 2010, 2011, 2012 and 2013
• Designated "Super Lawyer" in Construction Litigation in Super Lawyers magazine, Virginia Edition, 2007-2009; Super Lawyers magazine, District of Columbia Edition, 2006-2013; and Super Lawyers magazine, Corporate Counsel Edition, 2009-2010
• Honored at dinner held in Great Hall of U.S. Supreme Court for twenty-five years of service as Co-founder and Team Leader of Georgetown/NITA Trial Advocacy Program (2003)
• Recognition by ABA Forum on Construction for Distinguished Service at Chair of Division 7 (1995-97)
• Member of Judicial Conference of the U.S. Court of Appeals for the District of Columbia Circuit, 2008-2010
• District of Columbia Court of Appeals Judicial Conference, 2010
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

Selected Publications

• Co-Author, Chapter 2: Federal Licensing Requirements, State-By-State Guide to Architect, Engineer and Contractor Licensing, (Wolters Kluwer 2d ed. 2013)
• State-by-State Guide to Construction Contracts and Claims, Chapter 49 "Virginia," (Wolters Kluwer 2013) (and updates)
• Co-Author, "The Arbitrators Have Decided the Construction Dispute: What Do I Do Now?" The Construction Lawyer, Spring 2012
• Co-Author, "The Freedom of Information Act: A Refresher and Primer for the Construction Lawyer," The Construction Lawyer, Winter 2011
• Author, "Avoiding Trapdoors and Minefields in Government Contracting," Inside the Minds, The Impact of Recent Changes in Government Contracting (Aspatore, 2011 ed.)
• Co-Author, "Chapter 23: Surety Bonds," Federal Government Construction Contracts, (ABA Forum on Construction, 2d edition 2010)
• Co-Author, "Can't We All Just Get Along? How In-House and Outside Counsel Relations in the New Age of Regulation Can Be More Than Merely 'Strained Relations,'" ABA Forum on the Construction Industry 2009 Fall Meeting, October 2009
• Co-Author, "FAR Rules for Stimulus-Funded Contracts: Alert 5 - Federal Publication of Contract Actions," Duane Morris Alert, May 26, 2009
• Co-Author, "FAR Rules for Stimulus Funded Contracts: Alert 4 - GAO and Inspector General Oversight," Duane Morris Alert, May 15, 2009
• Co-Author, "FAR Rules for Stimulus Funded Contracts: Alert 3 - Enhanced Contractors' Internet-Quarterly-Reporting Requirements," Duane Morris Alert, May 14, 2009
• Co-Author, "FAR Rules for Stimulus Funded Contracts: Alert 2 - Enhanced Whistleblower Protections," Duane Morris Alert, May 6, 2009
• Co-Author, "FAR Rules for Stimulus Funded Contracts: Alert 1 - Buy-American Provisions," Duane Morris Alert, May 5, 2009
• Author, "Energy Savings Performance Contracting: Will the Demand Remain High Despite Dropping Energy Prices?" The Procurement Lawyer, February 2009
• Author, "Bonanza for Bond Claimants? Surety Industrv Seeks to Stem the A312 Bleeding," Construct!, Summer-Fall 2008
• Co-Author, "The Incredible Shrinking 'American Rule': Navigating the Changing Rules Governing Attorneys' Fee Awards in Today's Construction Litigation," The Construction Lawyer, Spring 2007
• Author, "Whither Eichley? What's Left after the Federal Circuit 'Clarifies' the Standby Requirement in Dick v. U.S.," Construct!, Summer 2003
• Co-Author, "Sarbanes-Oxley, Move Over Wall Street, It Affects Sureties Too," National Bond Claims Association Meeting, October 2003
• Co-Author, "Sarbanes-Oxley: How It Will Affect Contractors and Sureties," The Construction Lawyer, January 2003
• Co-Author, "Contractors and Sureties Beware! Sarbanes-Oxley Will Affect You, Too," Virginia Lawyer, February 2003
• Co-Author, "The Freedom of Information Act: a Refresher and Primer for the Construction Lawyer," The Construction Lawyer, January 2003
• Co-Author, "Surety Bonds - A Basic User's Guide for Obligees and Payment Bond Claimants," The Construction Lawyer, January 2002
• Co-Author, "General Liability Coverage in the Building Construction Context: An Overview," Insurance Coverage for Defective Construction, Chapter 8, American Bar Association TIPS (1997)
• Co-Author, "Disruption Claims," Proving and Pricing Construction Claims, Chapter 5, (Wiley, 2d ed. 1996)
• Co-Author, "Who Do You Trust: What Fiduciary Responsibility Does the Surety Have to Its Principal," National Bond Claims Association Seminar, October 1998
• Co-Author, "The Scheduling Expert: A Primer on Preparing Direct and Cross," The Construction Lawyer, April 1995
• Author, "Too Many Hats? Representing Principals, Sureties and Indemnities in Litigation," American Bar Association Forum on Construction Meeting, May 1996
• Co-Author, "Understanding the Interplay Between Indemnity and the Additional Insured," American Bar Association Forum on Construction Meeting, April 1994
• Co-Author, "Surety, Insurance, Construction and Hazardous Waste: A Toxic Mix?" The Construction Lawyer, January 1994
• Author, "'Hail, Hail! The Gang's All Here!' Suggested Changes to the General Agreement of Indemnity," National Bond Claims Association Seminar, October 1995
• Author, "Is a Surety Obligated to Investigate Financing a Contractor Who Requests Financial Assistance?" The Construction Lawyer, November 1992
• Co-Author, "A Surety's Obligations When Its Principal Is Default Terminated," American Bar Association Public Contract Law and TIPS Committee on Fidelity and Surety Law Meeting, October 1992
• Co-Author, "Good Faith and Fair Dealing: The Well-Nigh Irrefragable Need for a New Standard in Public Contract Law," Public Contract Law Journal, Fall 1990
• Co-Author, "Design Professional's Liability to Third-Parties for Negligence," American Bar Association Forum on Construction Meeting, January 1992
• Co-Author, "The Project That Doesn't Work: The Functional Failure and Who Is Responsible," Construction Failures, Chapter 11 (Wiley, 1989)
• Co-Author, "Debarment & Suspension/Edition III," Briefing Papers, Fed. Pubs., March 1989
• Co-Author, "Design Professional's Liability During Construction," Construction Briefings, Fed. Pubs., March 1987

Selected Speaking Engagements

• "Using Your Expert Like an Expert," Construction Superconference, December 2012
• Faculty, National Institute for Trial Advocacy?(NITA) Deposition Program, Temple University Law School, January 2013
• Co-Program Director, Advanced Trial Advocacy Program, Washington, D.C., Fall 2005-present
• "Arbitration Isn't the End: The Status of ADR and Issues in Challenging and Confirming Awards," 33rd Annual Construction and Public Contracts Law Seminar, Charlottesville, Virginia, November 2, 2012
• "It's Not Easy Being Green: State and Municipal Compliance with Green Building Requirements and How to Comply in the Age of Slashed Budgets," ABA's 5th Annual State and Local Procurement Symposium: Pointing the Way State and Local Procurement in Challenging Times, May 14, 2010
• "ESPC Contracting: Basics, Performance Issues and What's New," Alternative Energy Conference, George Washington University Law School, Washington, D.C., February 18-19, 2010
• Panel Chair, "Business Ethics & Professionalism: Representing the Construction Industry," ABA Forum on the Construction Industry Fall Conference, Philadelphia, Pennsylvania, October 16, 2009
• "Representing the Owner in the Construction Contracting Process," Construction Section, Montana State Bar Association (October 2007)
• "Pass Through Claims and Liquidating Agreements in Virginia Construction Practice," Virginia Construction and Public Contracts Law Seminar (November 2005)
• "Construction Management/Design Build in Virginia," Lorman Education Services (December 2002)
• "Express Warranties and Sick Building Syndrome," Mealey's Sick Building Litigation Conference (November 1999)
• "Ethics in Government Contracting," Judicial Conference of the U.S. Court of Federal Claims (1999)
• "Ohio Construction Law: Can This Job Be Saved? Creative Strategies for Project Completion & Litigation Avoidance," Lorman Educational Services (October 1998)