Oliver "Lock" Holmes has more than 35 years of experience in all aspects of public contracting. He represents clients seeking government contract awards, negotiating contracts with public agencies, and resolving public contract disputes through ADR and litigation. Mr. Holmes has handled dozens of complex construction and supply cases, from award through final resolution of disputes in mediation, arbitration, court and jury trials. He also advises clients developing and operating facilities under "public-private partnerships," franchises and concession agreements with government agencies.
His clients include construction contractors, engineers and architects involved in public works projects in the United States and abroad. He also represents equipment suppliers and others selling goods and services to an array of government agencies at the local, national and international level. Many of his clients are involved in developing complex engineering and technology projects for public agencies, including high-speed rail and other infrastructure projects, as well as computer and communications systems.
Mr. Holmes is a member of the Section on Public Contract Law of the American Bar Association, the Public Law Section of the State Bar of California, the Legal Advisory Committee of the Associated General Contractors of California, the International Bar Association and the London Court of International Arbitration. He is a fellow of the American Bar Foundation and has served on the editorial board of the Public Contract Law Journal. Mr. Holmes co-authored the California State Bar's "Handling Breaches of Commercial Code Contracts" and recently participated in the preparation of a set of jury instructions for use in construction cases (CACI No. 4500 et seq, Dec. 2010).
Mr. Holmes is a 1973 graduate of the University of Chicago Law School, where he was associate editor of the Law Review. He received an M.A. from the University of California at Berkeley (1970), and his undergraduate education at the University of York and Antioch College (B.A. 1969).
· Power Plant: Represented Mitsui & Co. (U.S.A.) and its erection contractor, Taihei Electric Ltd. (Japan), in federal district court litigation arising from the construction of a 900 MW oil-fired power plant in Puerto Rico. Contactor claims for defective owner-furnished drawings and equipment, and owner-caused delays were successfully resolved prior to trial.
· Transit System: Represented DaimlerChrysler's subsidiary, Adtranz, in contesting the award of a $150 million contract for a people mover system at San Francisco International Airport. The superior court issued a writ of mandate setting aside the proposed award for failure to comply with competitive bidding requirements. In a second competition, the client submitted the lowest compliant bid and was awarded the contract.
· Water System: Obtained a decision from the California Court of Appeal awarding the client a ten million dollar contract to computerize the Bay Area's principal metropolitan water system. Transdyn/Cresci v. City (1999) 72 Cal.App.4th 746. Represented contractor in subsequent action arising from the design and installation of SCADA system at over seventy water treatment, pumping and distribution sites. After a five month trial, the jury returned a unanimous verdict in favor of the contractor on all claims.
· Tunnel Construction: Represented Obayashi Corporation (Japan) and joint venture partner Dillingham Construction Co. (U.S.A.) in preparing and negotiating $12 million settlement proposal following termination for convenience of contract to construct eight mile segment of tunnel for Super Collider. Assisted client in resolving complex contract accounting issues, including allocation of partners' home office overhead to joint venture following termination for convenience.
· Treatment Plants: Represented Dyn Construction Co. in multiple cases against public agency owners of major wastewater treatment plants in San Mateo County, CA. Contractor recovered approximately $15 million on claims for differing site conditions, defective owner-furnished drawings and equipment, and owner-caused delays and disruptions, plus attorneys fees and costs.
· Research Hospital: Advised Perkins & Will in negotiating architectural services agreement to design UCLA's new research hospital and teaching facility. This $700 million project required the client to obtain owner approval of overall project design and then prepare construction documents for implementation under multiple prime contracts.
· Subway Design: Represented Parsons Brinckerhoff in defending the award of a $60 million dollar design contract for San Francisco's new Central Subway. The client's proposal was shown to comply with all the requirements of the RFP. The client was therefore entitled to award pursuant to the Brooks Act, 40 U.S.C. §1101 et seq.
· Nuclear Power Station: Represented ITT Cannon in litigation filed by Arizona Public Service involving electrical equipment for the Palo Verde Nuclear Power Station, the nation's largest nuclear generating facility. Litigation successfully resolved after client's equipment was shown to meet NRC requirements for use in nuclear containment vessels.
· Transit System: Represented car builder, Rohr Industries, Inc., in case arising from the design, construction and initial operation of the first new rapid transit system in the U.S. in half a century. The owner alleged defects in the overall system design and the Automatic Train Control system supplied by others, and in the six hundred transit vehicles supplied by Rohr. Claims involving Rohr were resolved in favor of the car builder prior to trial.
· Transit Vehicles: Special counsel to Pullman-Standard in litigation with NYCTA in the Southern District of New York involving seven hundred and fifty R-46 subway cars supplied by Pullman-Standard, and the trucks (undercarriages) for the subway cars supplied by Rockwell International. Jury found against Rockwell on NYCTA's claim after five-week trial. District court directed a verdict in favor of Pullman-Standard on its cross-complaint against Rockwell for indemnity.
· Termination for Default: Represented McDonnell Douglas/General Dynamics as part of a team of attorneys in litigation against the Navy arising from the default termination of a multibillion-dollar contract for development and initial production of the A-12 Avenger. Assisted client in defending termination for default based on government waiver of delivery schedule for prototype aircraft. Negotiated termination for convenience claims arising from client's termination of major subcontractors following default termination of prime contract.
· Mobile Radios: Represented General Electric in California court action and administrative protest filed by competitor. Successfully defended award of a $60 million contract for CHP radio equipment to client. The General Services Board held Caltrans (1) did not act arbitrarily in evaluating competing proposals, and (2) properly awarded GE the contract because its equipment most fully satisfied the state's requirements.
· Strategic Defense Initiative: On behalf of BEI Systron Donner challenged long-standing Ninth Circuit precedent supporting federal question jurisdiction in disputes between prime contractors and subcontractors arising under government contracts involving national defense matters. While the Ninth Circuit declined this opportunity to limit federal question jurisdiction, the case was settled on remand. In a subsequent decision, the Second Circuit cited Systron Donner's Ninth Circuit arguments in holding that federal question jurisdiction cannot be invoked simply because a dispute involves a subcontract under a defense prime contract. Compare New SD, Inc. v. Rockwell, 79 F.3d 953 (9th Cir. 1996), with Woodward Governor Co. v. Curtiss-Wright Flight Sys., 164 F.3d 123 (2nd Cir. 1999).
· Nuclear Submarines: Represented Westinghouse's Marine Division in preparing and negotiating $100 million settlement proposal arising from termination for convenience of contract for the Main Propulsion System for Seawolf class submarines. Assisted client in resolving complex termination and accounting issues, including allocation of various indirect cost pools to terminated work.
· Emergency Radio System: Represented General Electric and L. M. Ericsson in obtaining a temporary restraining order barring the City and County of San Francisco from making a sole source award of a $40 million contract for radio equipment to a competitor. As a result of this action, the city entered into an agreement to competitively bid the contract so that the client and others could submit proposals to the city.
· Military Rations: Represented Oregon Freeze Dry in obtaining TRO to prevent the Department of Defense from improperly awarding a multi-year contract for military rations. In order to obtain relief it was necessary to demonstrate to the district court that an unduly restrictive specification precluded the client from bidding. As a result of this action, the DOD agreed to rebid the contract and revise the specification to allow the client to competitively bid its product.
· Avionics: Represented client in protesting Army's proposed sole source award of an $18 million contract for sophisticated electronic equipment for military helicopters. One day after the filing of a GAO protest, the Army withdrew its notice of proposed sole source award and agreed to notify the client prior to taking any further action related to this procurement.
· Credit Card System: Represented Bank of America in claims before Armed Services Board of Contract Appeal arising from implementation of Army-wide credit card system for the Army Central Mess Fund. Government terminated contract for convenience with knowledge that Bank intended recovery of pilot program costs in pricing for Army-wide contract. Client was awarded development costs incurred under pilot program.
International Arbitration and Dispute Resolution
· Command and Control System: Represented Hughes Ground Systems Group in $200 million ICC arbitration claim against NATO arising from the implementation of a Command and Control Information System for the Northern European Command. Assisted client in demonstrating that NATO customers changed system functional requirements on multiple occasions, necessitating major changes to system design. Case involved development and testing of software with more than one million lines of code. The matter was resolved in favor of the client in the largest NATO claim settlement to date.
· Bridge Construction: Represented international engineering firm in ICC arbitration and parallel federal court action involving the design and construction of a five kilometer long precast segmental concrete bridge over the Jamuna River in Bangladesh. Matter was resolved in favor of the client in a combined mediation of the ICC arbitration and district court action.
· Winery: Represented European vintner in London Court of International Arbitration in matter involving ownership and control of major Napa Valley winery.
Public Private Partnerships/Government Franchises and Concessions
· Public-Private Partnership: Represented Airis Holdings LLP in negotiating long-term ground lease and agreement to develop and operate a 400,000 square foot air-cargo terminal at San Francisco International Airport. Represented client in subsequent breach of contract action resulting in a unanimous jury verdict against the Airport on claims for breach of the implied covenant of good faith and fair dealing. Obtained a 2010 decision from the Court of Appeal setting aside a judgment notwithstanding the verdict and reinstating the jury verdict for the client.
· Government Franchises: Represented exclusive franchisee of the City of Monterey, California, in case of first impression establishing that the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6961, applies to military bases and other federal enclaves. Ninth Circuit prohibited the Army from seeking competitive bids for recycling and disposal services at Fort Ord because such services were provided by client under an exclusive franchise agreement with the City of Monterey. Parola v. Weinberger, 848 F.2d 956 (9th Cir. 1988).
· Concession Contract: Represented Cable & Wireless PLC in obtaining permanent injunction against efforts to displace client as the designated supplier of telecommunications services under a concession contract with the City and County of San Francisco. This action established that concession agreements and other revenue-generating contracts with the city must be awarded on a competitive basis, in a manner similar to contracts using public funds to purchase goods and services for the city.
· Concession Lease: Represented Delstar/CalStar Corporations in disputes involving multiple concession leases at San Francisco International Airport. Successfully defended client in unlawful detainer action initiated by airport to terminate leases and obtain possession of concession spaces. Case settled with multimillion-dollar reduction in rents due airport under client's concession agreements.
· Park Concession: Represented Yosemite National Park's principal concessionaire in bidding and negotiating concession agreements. Advised client on recovery of capital investments made under concession agreements.
· Mission Computer: Represented General Motors' Delco Division in claims against McDonnell Douglas and the Air Force arising from client's development of the mission computer for the C-17 Globemaster. Assisted client in demonstrating that Air Force customers significantly changed basic requirements for the mission computer. As a result, the client's fixed price development agreement was converted to a cost-plus contract.
· Mainframe Computers: Represented manufacture of IBM-compatible mainframe computers in preparing and negotiating OEM agreements, technology purchase and licensing agreements, and in litigation to enforce exclusive rights agreement.
· Microprocessors: Represented Hughes Radar Systems Group in claims against Intel Corp. involving the Intel 960 RISC processor and programming software used to develop avionics for the F-22 Raptor. Case settled after complaint was filed in federal district court seeking recovery of client's added development costs.
· Communications Satellites: Represented Hughes Space & Communications Group in reviewing multiple change orders arising under the INTELSAT VI program for the design, assembly and launch of six broadband commercial communications satellites.
· SCADA Systems: Represented multiple clients providing SCADA systems to public agencies to monitor and control water and power distribution, vehicle traffic, subways and similar operations. Advised clients with respect to bidding and award of public contracts, and represented clients in bid protests and claims litigation.
· Database System: Reached a favorable settlement on behalf of Sybase, Inc., a supplier of database management systems, in a GAO protest concerning the Air Force's award of a task order under an I-CASE Contract.
Other Representative Matters
· Technology Acquisition: Represented General Electric in licensing (1) the Kalina Cycle technology - a thermodynamic cycle that improves the efficiency of converting heat to power for generation of electricity- from Exergy, Inc., and (2) emissions control technology for power plants from Catalytica Energy Systems.
· Technology Acquisition: Represented EMI's Systron Donner Corporation in the acquisition of all rights in solid state accelerometers for use in military guidance systems and stability control systems for automotive applications.
· Technology Licensing: Represented well-known designer of IBM and Apple compatible PCs in licensing system designs to major offshore manufacturers.
Areas of Practice
· Government Contracts
· Construction Litigation
· International Arbitration and Dispute Resolution
· Public Private Partnerships/Franchises and Concessions
· Information Technology
· Commercial Litigation
· Duane Morris LLP
- Partner, 2002-present
· Sonnenschein Nath & Rosenthal, San Francisco, California
- Partner, 1991-2002
· Pettit & Martin, San Francisco, California
- Partner, 1979-1991
- Associate, 1973-1979
· International Bar Association
· London Court of International Arbitration
- Specialisations: International Contracts, Construction and Technology
· American Bar Association
- American Bar Foundation (Fellow)
- Section of Public Contract Law
· The State Bar of California
- Committee on Public Contract Law
· Associated General Contractors of California
- Legal Advisory Committee
Honors and Awards
· Listed in Chambers USA: America's Leading Lawyers for Business, 2012 and 2013
· Listed in California Super Lawyers, 2006 and 2010
· AV® Preeminent™ Peer Review Rated by Martindale-Hubbell
· Member, Editorial Board of Public Contract Law Journal, 1992-1995
· Member, University of Chicago Law School Visiting Committee, 1986-89
· American Bar Foundation, 2007 (Fellow)
· "Developing Airport Infrastructure - 21st Century Challenges," International Construction SuperConference, London, May 2006
· "Delivering Infrastructure Projects Under Public-Private Partnerships," Construction SuperConference, San Francisco, December 2003
· California Commercial Code Jury Instructions, Volume II, Matthew Bender, 1986
· "Rights in Technical Data," Government Contractor Briefing Papers, December 1984
· "Patent Rights," Government Contractor Briefing Papers, December 1983
· California Breach of Contract Remedies, CEB Publishers, 1980
Selected Speaking Engagements
· Speaker, "Public-Private Partnership," American Bar Association Section of Public Contract Law, May 13, 2011
· Session Chair, "Jury Instructions, New Standards for Construction Cases," Construction SuperConference, San Francisco, December 2010
· Session Chair, "On Track: California High-Speed Rail," Construction SuperConference, San Francisco, December 2009
· Session Chair, Panel on International Arbitration of Construction Disputes before ICC, LCIA and Other Bodies, Construction SuperConference, San Francisco, December 2008
· Session Chair, Workshop on Jury Trials in Construction Cases, Construction SuperConference, San Francisco, December 2007
· Session Chair/Presenter, Panel on Developing Airport Infrastructure, International Construction SuperConference, London, May 2006
· Presenter, Panel on Public-Private Partnerships, Construction SuperConference, San Francisco, December 2003