ABA/SPCL

Minutes of the Council

Section of Public Contract Law

August 4, 2001

Hotel Inter-Continental

Chicago, Illinois

                                                                                                                                                           

 

            Chair Gregory Smith called the meeting of the Council of the Section of Public Contract law to order at 9:10 a.m. The reading of the minutes of the Spring Council meeting in Cambridge, Massachusetts on May 12, 2001 was waived. A motion to approve the minutes was seconded and approved by the Council.

            Board of Governors liaison Maury Poscover reported on various issues concerning the ABA. These included interim report of the annual meeting Task Force appointed by ABA President Elect Bob Hirshon, the study of the value of the ABA ÒBrand,Ó the appointment by the Board of Governors of representatives to work with the National Conference of Commissioners for Uniform State Laws to revise the proposed uniform state law on software sales contracts, the ABAÕs decision to move its headquarters to the Quaker Oats Building at 321 North Clark Street in Chicago. In addition, Maury discussed the status of the initiative to put continuing legal education programs from the ABA annual meeting on the Internet, noting that sponsors to the request for proposals revealed that only West Publishing has the technical and other capabilities to do this project and West accepted all but two of the proposed changes from the Board of Governors. Maury also provided information concerning the Ethics 2000 Committee report to be taken up by the House of Delegates and reported on the status of evaluation of judicial nominees by the ABA and on the ABAÕs lobbying focus on fewer issues.

            Chair Smith expressed the SectionÕs appreciation for MauryÕs help on many issues as the Board of Governors liaison.

            David Burgett, as Chair of the Pro Bono Committee, discussed the Manual for Pro Se Litigants Before Federal BCA. This publication was prepared by the committee to assist pro se appellants as well as lawyers unfamiliar with Board practice and to aid the administration of justice. David recommended that these be furnished to the Boards for distribution without cost when pro se appeals are filed. There was considerable discussion among Council members concerning cost, posting on the website as a pdf document for free, downloading, the attitude of Board Chairs and a disclaimer that distribution to pro se appellants by BCAÕs does not constitute an implicit endorsement. Past Chair David Hirsch moved that the Council authorize $2,500 for an initial printing, that the committee contact the various BCA Chairs to address the issue of distribution to pro se appellants, to put the manual on the SectionÕs website, to add a disclaimer and to permit BCAÕs to reprint the manual for free distribution. The motion was seconded and passed without dissent.

            Paul Khoury discussed the Uniform Mediation Act at Tab 4 in the Agenda Book and the request by the Section of Alternative Dispute Resolution for support in securing adoption of the Act by the House of Delegates at its meeting in February 2002. Chair Elect Norman Thorpe moved to support the adoption of the Act by the HOD, without Section 11 of the Act concerning summary enforcement of mediation settlement agreements. The motion was seconded and passed.

            The E-Commerce Committee report was presented by Allen Samelson and Craig Othmer. This item had been previously discussed at the Spring Council meeting. Since that discussion, the committee has redrafted the report, addressing authenticity and confidentiality, treatment of E-bids and offers in the same manner as paper bids and offers and providing guidelines for electronic posting and retention of records. A motion was made and seconded to adopt the E-Commerce Committee report, which was approved by the Council, Vice Chair Mary Ellen Coster Williams abstaining.

            Chair Smith raised the issue of increasing the Section dues. Budget and Finance Officer Patricia Meagher explained the SectionÕs financial situation and noted that the last dues increase was in 1993 to $35 per year. She pointed out that the SectionÕs dues are in the mid-range of other sectionsÕ dues. Past Chair David Hirsch moved to increase the dues for regular and associate members to $45 per year and accepted an amendment to increase law student dues from $5 to $10 per hear. The motion was seconded and was approved, to be effective as soon as possible. This proposal must be taken up at the SectionÕs annual meeting on August 7 and presented to the membership for a vote.

            Past Chair Allan Joseph presented the House of Delegates report in lieu of Marshall Doke. He noted that the HOD will consider the Ethics 2000 report and its proposal to amend the ABA Model Rules of Professional Conduct. This is expected to require much discussion and probably wonÕt be approved until the annual meeting in August 2002. The HOD will also consider other issues including standards for government ombudsmen and the proposal to work with the NCCUSL concerning uniform software contract terms.

            Corporate sponsorship was discussed by Section Budget and Finance Officer Patricia Meagher. She presented two proposals: (1) to have sponsored receptions at all meetings, not just the annual meeting as is done at present, and (2) the proposal by Hill International, Inc. to sponsor the Construction Division breakfast meeting at the annual meeting and its luncheon seminar meeting at the Federal Procurement Institute at the Winter meeting. Past Chair David Hirsch, Chair of the Committee on Corporate Sponsorship, stated that the committee is considering these proposals during the annual meeting and will present its recommendations to the Council at its meeting on August 7, 2001.

            The Council received a report from Paul Dauer, Chair of the State and Local Division, to initiate a pilot organizational change to the Division pending a review of the overall Section organization by the Organization and Structure Committee appointed by Chair Elect Norm Thorpe. PaulÕs proposal would add a committee on False Claims and two Model Procurement Code subcommittees, one on Alternative Dispute Resolution and another on Information Technology. This proposal will be taken up by the Council at its meeting on August 7, 2001.

            Mike Love reported on the status of the Construction Law Source Book and stated that Commerce Clearing House expects to publish the book in late 2001 or early 2002.

            Carl Vacketta reported on the programs at the annual meeting, chaired by John Miller, Agnes Dover, Larry Baker and Rand Allen. Marcia Madsen reported on the program for the Fall meeting in San Diego concerning litigating government contract disputes.

            David Drabkin of the General Accounting Office discussed Section 508 issues concerning access to information technology by disabled persons. An Access Board established standards for accessibility, published in December of 2000. It also established standards and definitions for acquisition of electronic and information technology (ÒEITÓ), such as servers. There are few exceptions to the application of Section 508 and information concerning Section 508 may be obtained on the Internet at www.section508.gov. David noted that industry groups are promoting a FAR clause concerning 508-compliant EIT. Carl Vacketta commented on problems if the FAR requires a certification that EIT is 508-compliant.

            Rob Burton, Co-Chair with Pat Wittie of the Dispute Avoidance/Early Dispute Resolution Task Force appointed by Chair Smith, reported on its activities. The committee has reached an early conclusion that litigation and ADR are too costly and time consuming, and seeks to develop Early Dispute Resolution (ÒEDRÓ) techniques. The Task Force has circulated a questionnaire to various agencies and companies. It is now reviewing responses and Task Force member submissions. It expects to prepare a Òwhite paperÓ with recommended best practices, reviewing partnering, dispute resolution boards and dispute escalation processes.

            Daniel Gordon of the General Accounting Office discussed the activities of the Commercial Activities Panel. He noted that the Panel has held a public hearing and plans to hold two more. It will submit a report to Congress by May 1, 2002.

            A report on a special meeting of the Research and Development and Intellectual Property Committee was presented by Co-Chair Holly Svetz. This workshop was requested by Deidre Lee, Director of Defense Procurement, to convene representatives of the bar, industry and government to identify barriers to entry into government contracting in the intellectual property area. This workshop elicited many opinions and diverse views, which provided valuable information to Ms. Lee. In addition, the committee is working on draft language to present to the Council for consideration for submission to Representative Tom Davis concerning changes to the Bayh Dole Act. Holly noted that Representative Davis now wants to draft legislation in August for submission to the Congress when it returns from recess.

            The Legislative Coordinating CommitteeÕs report was presented by Co-Chairs Elizabeth Fleming and Felix Martinez. They discussed various pending legislation, noting that the DOD authorization bill provides $33 billion more than was authorized in fiscal year 2001, but it recommends cutting 33,000 employees from the defense acquisition work force. The Truth and Accountability in Contracting Act (ÒTRACÓ) was discussed. It would require A-76 cost comparisons throughout the government, not just the Department of Defense. The ÒAbercrombie AmendmentÓ would require an equal number of ÒprivateÓ jobs to be put up for competition by government employees as there are government jobs considered for Òoutsourcing.Ó ÒInsourcingÓ would be very costly to industry to track the cost in order to compare to the cost of performance by government employees. They noted that Senator Lieberman will introduce his own version of TRAC. The Share in Savings Bill will be introduced after the recess, which will provide that contractors will share in savings they are able to generate on government contracts. The Services Acquisition Reform Act also will be introduced after the recess. The Committee expects to hold monthly meetings and will have speakers at some of them.

            Past Chair Marcia Madsen commented on recent initiatives by the Court of Federal Claims, including the ADR pilot program in which selected cases assigned to four designated judges will be assigned to another four designated judges to help resolve the disputes through ADR procedures. Bid protest cases will be included in the referrals for ADR. The second item is the reform of the CourtÕs General Order 38 concerning bid protest cases. Proposals are ready for the Court of Federal Claims Council to consider which will increase the advance notice required to the Court, the Agency and the Department of Justice. This may help to avoid the need for a temporary restraining order and may reduce protective orders and filing under seal. Nevertheless, any filing under a protective order will require a redacted version to be furnished within 48 hours to the parties and sealed files will be unsealed after conclusion of the matter to increase accessibility to the public.

            Chair Elect Norman Thorpe invited all Section members to the Incoming ChairÕs reception Saturday evening. Chair Greg Smith recognized outgoing Council members David Lane, Kevin Flanagan, Fred Moss, Robert Murphy and Felix Martinez, presenting each of those present with a plaque commemorating their service.

            There was a motion to adjourn which was approved, ending the Council meeting at 12:15. A list of those attending the Council meeting is attached and incorporated in these minutes.

 

 

 

                                                                                                                                               

                                                                                    Hubert J. Bell, Jr.

                                                                                    Secretary

ABA/SPCL

August 4, 2001 Council Meeting Ð Chicago, Illinois

Attendance

 

Name

Section Position

Telephone

Melanie I. Dooley

Section Member

202-452-4398

Dan Gordon

Co-Chair, Outsourcing & Privatization

202-512-8219

Carl L. Vacketta

Editor-in-Chief, PCLJ

202-861-6460

Bryan Arnold

Chair, State and Local Comment Coord.

213-229-7581

Paul F. Khoury

Chair, Contract Claims & Dispute Res.

202-719-7346

Eric Nelson

V-Chair, Bonding & Ins., Const. Div.

404-582-8061

John E. Jensen

Co-Chair, Small Business

703-770-7560

Tom Barletta

Co-Chair, Annual/Quarterly Prog.

202-429-8058

Whit Thornton

Section Member

415-544-1016

Scott McCaleb

V-Chair, Regulatory CC

202-719-3193

Kathleen Reilly

Section Member

202-828-0294

Cameron Hamrick

Co-Chair, Access to Information

202-263-3381

David Hamond

Co-Chair, Health Care Contracting

202-624-7298

Marilyn Neforas

Section Director

312-988-5596

Ernestine Robles

Section Assistant

312-988-5699

Dan Allemeier

Section Member

310-317-5851

Lee Dowd

Section Member

206-766-1672

John Strong

Section Member

206-662-0723

Dwight M. Francis

Section Member

214-999-4264

Jeff Loudtky

MF/BPL

702-429-3393

Dennis Phillips

Co-Chair, Procurement Fraud

202-307-1086

Hubert J. Bell, Jr.

Secretary

404-521-3800

Pat Meagher

Finance Officer

415-956-2828

Maryanne Lavan

Council Member

301-897-6697

Marcia Madsen

Past Chair

202-263-3274

Frederick E. Moss

Council Member

972-679-5377

Karen Kinlin

Council Member

703-697-3387

Bob Murphy

Council Member

202-225-1971

Mark Langevin

Council Member

818-598-5191

Jonathan Shaffer

Council Member

703-847-6280

Michael W. Mutek

Council Member

703-295-2580

Jerry A. Walz

Council Member

202-482-1122

Rand L. Allen

Immediate Past Chair

202-719-7329

Don Kinlin

Past Chair

937-443-6922

Felix Martinez

Law School Representative

703-848-7292

Thomas J. Madden

Past Chair

202-962-4803

John B. Miller

Past Chair

 

Donald G. Gavin

Past Chair

703-790-8750

Don Featherstun

Council Member

415-544-1088

Roy S. Mitchell

Past Chair

202-408-3001

Frank Menaker

Past Chair

301-897-6125

Dave Hirsch

Past Chair

313-792-6525

John Pachter

Past Chair

703-847-6300

Kevin Flanagan

Council member

703-604-8350

Carol Park-Conroy

Council Member

703-681-8507

David G. Lane

Council Member

703-760-1600

Craig Othmer

Co-Chair, E-Commerce

505-982-4676

Laurence Schor

Section Member

202-296-9260

Paul F. Dauer

Chair, State & Local Comment

916-974-3400

Alan Peterson

Section Member

312-849-9900

Rocco Maffei

Chair, Region Division

330-796-1755

Candida Steel

Member (Judge, IBCA)

703-235-3813

Valerie Schuman

Section Member

562-797-1121

Ted Collins

Section Member

206-287-3578

Scott Pickens

V-Chair, R&D&IP

202-626-5938

Peter Hutt

Co-Chair, Procurement Fraud

202-626-5905

Bob Huffman

V-Chair, Str. All. Teaming & Subcntrg.

202-263-3286

Martin McAlwee

Section Member

321-494-7861

Mary Lou Soller

V-Chair, Procurement Fraud

202-244-1558

Elizabeth Fleming

Co-Chair, Legislation Coord.

202-661-3862

Lynda OÕSullivan

Co-Chair, Fed. Procurement Div.

202-626-5814

D. Kay Cannon

Co-Chair, International Procurement

703-604-6587

Michael Hordell

Co-Chair Acquisition Reform

202-508-5878

Peter T. Fagan

V-Chair, Region VII

949-223-7108

Al Purdue

Section Member

937-255-6111

Pat Wittie

Co-Chair, E-Commerce

202-414-9210

Rob Burton

Co-Chair, Acctg, Cost and Pricing

703-428-1817

Paul E. Van Maldeghen

V-Chair, E-Comemrce

011-81-31175-58118

Jim D. Agostino

V-Chair, Ethics/Conflicts

703-734-4622

Hermon D. Levy

V-Chair, RCC, Assoc. Editor, PCLJ

 

William Crowley

Section Member

202-861-6439

Holly Emrick Svetz

Co-Chair,R&D and Intellectual Property

202-861-6449

Cheryl Nilsson

 

937-255-6111

Allen Samelson

V-Chair, Region VII

415-956-2828

David Drabkin

V-Chair, Acquisition Reform

202-501-1513

John Rice

Member

202-626-5960

Clarence Kipps

Member

202-626-5840

Richard Farr

V-Chair Strat. Alliances

321-727-4127

Pamela Schnabel

Member

310-332-6629

Kent Morrison

Co-Chair Fed. Did.

202-624-2610

Greg Bingham

V-Chair, Acct. Cost & Pricing

202-326-9202

John Currier

Chair, Gen. Counsel

301-838-6940

Aaron Silberman

Member

415-956-2828

Tom Hill

V-Chair, State & Local Div.

214-651-5541

Rob Ryland

V-Chair, Acctg. Cost & Pricing

202-879-5086

Tom Abbott

Member

213-243-6200

LeRoy Haugh

V-Chair, IP/R&D

703-532-5377

Buel White

V-Chair, Priv. & Outsourc.; Contr. Clm

703-241-0095

Alison L. Doyle

Co-Chair, Conflcits/Ethics

202-496-7604

Karen Wilson

Member

301-983-1594

Rick Vacura

V-Chair, CC&DR; V-C, Intl Proc.

202-861-6411

Bob Tanahashi

member

213-977-3254

Eileen Fennesy

Member

202-366-4305

Jim Gallatin

V-Chair, Health Care

703-734-4666

Christian Knust

member

313-665-9725

Charles Rumbaugh

V-Chair, Strat. Alliances

310-373-1981

Greg Smith

Chair

202-861-6416

Norm Thorpe

Chair-Elect

313-665-4721

Mary Ellen Coster Williams

Vice Chair

202-501-4668

Maury B. Poscover

Bd. of Governors Liaison

314-622-0617

Allan Joseph

Past Chair

415-956-2828

Mike Love

V-Chair, Acctg. Ref.

202-955-1564

Stanfield Johnson

Section Member

202-624-2520

Dave Burgett

Chair, Pro Bono

202-537-6597