Minutes of the Council Meeting[1]
Section of Public Contract Law
May 1, 2004
5th Avenue Suites Hotel
Portland, Oregon
Chair Hugh Bell called the meeting to order at 8:50a.m. The reading of the minutes of the February 28, 2004 Mid-Year Council Meeting was waived. A motion to approve the minutes was seconded and approved by the Council unanimously.
Past Chair Gregory A. Smith presented a detailed report on the proposed revisions to the Section’s By-Laws. (See Agenda Item 2) He also recognized his committee members – Paul Dauer, Don Featherstun, Jim Hinchman, David Hirsch, Rocco Maffei, Craig Othmer and Rob Schaefer. Past Chair Smith explained that a number of changes were non-substantive and editorial. He added that one change was made to reflect what the Section had been doing over the years, while still preserving the availability of a written ballot (Article V1§ 7). Thereafter, he focused on substantive changes, i.e.,
(1) Article I – reconciled description of the purpose of the Section to the Mission Statement.
(2) Article V § 2 – the procedural and substantive distinction was dropped, leaving the majority vote of the Council, without any distinction as the method to conduct the Section’s business;
(3) Article V § 4 – noted that email transmissions satisfies the requirement for written submissions or votes.
Once this portion of the report was completed, Past Chair Smith pointed out that Paul Dauer submitted a proposal (see Agenda Item 2, Attachment A) which was not incorporated into the revisions. Paul Dauer then explained that his proposal was to add up to two (2) seats on the Section’s Council, reserving them for attorneys under thirty-five (35) years of age or having less than five (5) years of practice. These positions were in addition to the Young Lawyers Division Liaison position.
Chair Bell asked for a motion. Immediate Past Chair Mary Ellen Williams made the motion, which was seconded by Previous Past Chair Norm Thorpe. This motion was amended and reworked a number of times at various times during the lively discussion.
The comments addressed the definition of the young lawyer, which the Council agreed should follow the ABA definition; the ability of the young lawyer to be a member of the Council for two (2) terms but, not consecutive terms and the purpose of creating the position.
Budget and Finance Officer Pat Meagher made a suggestion that only one (1) young lawyer position be created with a term of two (2) years. The Council was asked by Chair Bell to, by a show of hands, indicate whether Pat Meagher’s suggestion was acceptable. The Council indicated its agreement and at that point, Council Member Mark Colley, whose motion was before the Council, was asked to amend his motion, which he agreed to do. Essentially, the motion was that the Council membership would be increased by one (1) and that position, which would be a two (2) year term, would be designated for a young lawyer. The amended motion was voted on by the Council and was approved.
In a separate motion relating to Article IX § 3, the Council approved a revision to that section which specified that the prohibition on compensation did not apply to reimbursement of expenses. Past Chair Smith was delegated to revise the By-Laws to reflect the Council’s action and thereafter, present it to the Council, via email for a final vote.[2] At that time, Marilyn Neforas, Section Director, advised that the revised By-Laws would have to be approved by the Section’s membership at the Annual Meeting and, thereafter, sent to the ABA’s Board of Governors for its approval.
Budget and Finance Officer Meagher discussed the status of March 16, 2004 proposed revisions to the Blanket Authority procedures. (Agenda Item 4) At the Mid-Year Meeting the Section agreed to a proposal pursuant to which the Section retained its ability to comment on proposed procurement regulations. That proposal was tabled. The new proposal (March 16, 2004) was distributed to all of the Sections. Chair Bell responded to the proposal by letter dated April 13, 2004. Essentially, he noted the ABA got it right the first time and that the new proposal was overly restrictive. The Council was advised that the Business Law and Tax Sections support our Section’s position and have sent in separate comments. Past Chair Allan Joseph has been working the issue along with Past Chairs Smith and Williams and Chair Bell.
Chair-Elect Wittie discussed the request by Rich Walters, Co-Chair, Special Committee on Alternative Dispute Resolution, for partial funding for ADR program teleconferencing. The range of the request was between $1,750 and $2,000. The Council was advised that between 50 – 150 people attend the ADR program in person, with 100 attending via teleconference. A number of issues were raised: was CLE provided?; why not charge for admission?; can the Section utilize the Public Contract Law Education Fund?; are there strings attached to the grant provided by the Underserved Lawyers Fund?. Chair Bell requested that Budget and Finance Officer Meagher speak with Rich Walters to obtain the necessary information to address the request.
Chair-Elect Wittie, at Chair Bell’s request, discussed the trend among agencies to strip large sections out of the regulations and place them in their non-regulatory Guidance Manuals, which are not subject to public comment. (Agenda Item 3) She highlighted the U.S.P.S. actions and the Section’s comments (Attachment 4). NASA’s proposed rule was also mentioned. The Council was then presented with the question of whether it should monitor this. A number of Council Members (and officers) commented:
Karen Manos- advised that while she is sympathetic with the Government’s desire to have a faster, easier and more streamlined process to make some changes, without the publication and comment period requirements, there are a number of problems that arise thereunder. Some of the problems noted were: effect on the DFARS, need to locate guidance manual and the legal effect of the guidance.
Donna Yesner – noted that the VA has been operating using guidance manuals which has caused problems and uncertainty.
Norm Thorpe – reminded the Council that the Section has supported the principle that the contracting officer should have some discretion/authority to do his/her job. He emphasized a need for balance as the Council addressed this issue.
John Pavlick – agreed that streamlining is good. He then pointed out that guidance documents introduce confusion into the process and the rights and obligations of the parties are called into question.
What also was emphasized was that if the substantive rights of the contractors are affected by the “guidance” then such must be published and subject to public comment.
It was the sense of the Council that the Section should pay significant attention to this type of agency action. A suggestion was made that a White Paper addressing the effect of removing materials from agency supplements and moving such into guidance which would include the effect on business relations, should be issued by the Section. Chair Bell advised that he would form a Task Force. Council Members Karen Manos, Donna Yesner and John Pavlick volunteered. Paul Haseman also volunteered to join the Task Force.
Chair Bell announced that the Section has requested Blanket Authority concerning the Nonappropriated Fund Instrumentalities Reform Legislation. (Agenda Item 7) Thereafter, Mike Love discussed how the Iraq Procurement Task Force was created, how the work was assigned, the presentation of the report to the Council and the relationship to the ABA’s Iraq Initiative. He mentioned the names of the members of the Task Force: Felicia Collins, Paul Debolt, Terry Elling, Susan Warshaw Ebner, S. Jun Jin, Brett Howard, James Kearney, Stephen Knight, Dismas Locaria, Karen Manos, James Pankovics, and Pat Wittie. (Agenda Item 23).
Chair Bell focused the Council’s attention to Agenda Item 8 and the letters contained therein, from Robert B. Charles, Assistant Secretary of State and A.P. Carlton, Jr., Chair Iraq Initiative, recognizing the Section’s contribution to the Assessment of Iraqi Procurement Law. Further, Chair Bell advised that Robert Horowitz, Director of The ABA Iraq Initiative, nominated the Section of Public Contract Law for the 2004 Meritorious Service Award. In the nomination submission (Agenda Item 13), Mr. Horowitz stated:
This activity demonstrates how a section, without months of planning, can utilize the substantive expertise of its members and respond, rapidly and professionally to a demonstrated public need. Helping in the legal reconstruction of Iraq is an activity all members of the section can take great pride in.
Vice Chair Rob Schaefer requested that minutes reflect the Council’s pride of and thankfulness for the Iraq Procurement Task Force’s hard work and dedication to the procurement process. At that point, the Council noted its unanimous agreement with an ovation for the Task Force.
Jerry Walz, Co-Chair of the Teleconference Educational Programs Committee reported on the goals of the programs (provide useful service to Section Members and create a revenue stream) and the procedures for putting on a program. It was his opinion that the Committee would need to put on two (2) or three (3) programs to see if it will be beneficial for the Section. The Health Care Contracting Committee will perform the first teleconference program in July 2004. (See Attachment 5 to these minutes).
Chair Bell announced that the ABA Journal will publish 4 articles, each 650 words, concerning the basics of government procurement. He also noted that ABA CLE will put on a 90 minute teleconference on this subject. Rich Rector has been designated to chair this effort.
Past Chair Thorpe provided a State of California update. (Agenda Item 10) He advised that a meeting with the Subcommittee of the Performance Review Group was scheduled for the week of May 3, 2004. While no agenda was established for the meeting, Past Chair Thorpe noted that he will be volunteering the Section’s services. Thereafter, he discussed the City of Atlanta Program and that Chair Bell was involved in that program. Finally, he advised that the Committee reviewing the ABA’s procurement procedures was still drafting its report and plans to send it to the ABA Task Force shortly. Chair Bell recognized Past Chair Thorpe for all of his work on behalf of the Section.
Chair Bell then called upon Marilyn Neforas, Section Director, to address the issue of the 2006 Spring Meeting. Essentially, she argued that the Spring Meeting should not be held. The reasons noted to support this position were:
(1) The FPI can only be held in Annapolis at the Loews Annapolis Hotel;
(2) Weather is an issue for a February program and shifting the date to late March
would lessen this issue;
(3) Shifting the FPI to late March brings that meeting close to the Spring Meeting;
(4) Historically, the Spring Meeting has had low attendance at the program and
Council Meeting. The low attendance could trigger the Hotel’s attrition clause;
(5) There are staffing issues:
(a) Brochure for Spring Meeting needs to be created, and
(b) The Annual Meeting requires that the short and long versions of the
Section’s Directory and Handbook be created.
There were a number of comments made by the Officers, Council Members and attendees:
(1) Is the Council aware of how the Section members view the Spring Meeting?
(2) The time between the FPI and Annual Meeting could be used by the Committees
to put on their programs.
(3) If the Spring Meeting is eliminated, Section members who are with the
Government could have a six (6) month hiatus, if they could not attend the
Annual Meeting.
(4) The Section should more widely advertise the Spring Meeting.
(5) Reducing the number of meetings would do the Section a disservice.
(6) Drop the 2006 Spring Meeting and make a decision on the Spring Meeting later.
(7) We need to breakdown this issues into its four (4) different components:
(a) Do we have a Spring program?
(b) Do we continue to have a Spring Council Meeting?
(c) What are the financial considerations?
(d) Administrative work / Section staff issues.
(8) Have the Spring Meeting in DC and utilize a law firm’s conference room.
Chair Bell brought the discussion to a close and requested that Council Members Colley and Gordon provide their positions, as expressed to the Council, in an email and send it to the Council Members and Officers for further discussion. See Attachment 6.
Chair Bell adjourned the meeting at 12:30 p.m.
Michael A. Hordell
Section of Public Contract Law
Attachments