Public Contract Law Section
Minutes of May 4, 2002 Council
Meeting
Savannah,
Georgia
Chair Norman R. Thorpe called the meeting to order at 9:25 a.m. and welcomed all who were in attendance.
Minutes of the March 2, 2002 meeting in Annapolis were approved, following a motion by Mr. Walz, seconded by Ms. Coster Williams.
Robert Huffman reported on the April 22 program on "R&D Commercial Practices and Government Contracts", arranged by the Research and Development and Intellectual Property Committee. Approximately 60 people attended the program; the papers and PowerPoint slides that were presented by the speakers are posted on the Committee's ABA website.
Mr. Huffman then reported on a recent decision of the Court of Federal Claims, Zoltek Corporation v. United States, No. 96-199C (51 Fed.Cl. 829) which addresses the scope of 28 U.S.C. 1498(c).
Chair Thorpe reported that Congressman Tom Davis, who chairs the House Government Reform Subcommittee on Technology and Procurement Policy, has asked the Section to prepare a white paper on commercial practices in purchasing R&D and services. Mr. Thorpe suggested that this could be a white paper or a monograph; he will work with the R&D and Intellectual Property Committee and the Section's officers to get this started.
Daniel Gordon summarized the April 30 Final Report of the Commercial Activities Panel, chaired by Comptroller General David Walker. Copies of the report were provided to those in attendance, and Mr. Gordon, who served as general counsel to the Panel, also provided a PowerPoint summary of the report. There was a brief discussion of some of the issues raised by the report. The Commercial Services Committee will move quickly to prepare appropriate comments for Congressional committees, to be provided if and when Congress considers legislation to implement the Panel's recommendations.
Jennifer Dauer reported that the Membership Committee is preparing a new brochure for the Section, to be used in recruiting new members. The Committee is also reviewing a number of ways to attract new members.
Chair Thorpe pointed out that the report of the Regulatory Coordinating Committee was included in the Agenda Book, and commended it to Section members as a valuable resource.
The Chair of the Antitrust Section has written a letter to our Section, complaining about use of the Section's blanket authority to comment on a proposed FAR change on teaming agreements. (The proposed change has since been withdrawn.) The Antitrust Section asserts that we did not consult and coordinate our comments on this issue, which in its view implicates antitrust matters. Chair Thorpe reported that the Strategic Alliances Committee, which prepared the Section's comments on the proposed rule change, had contacted the Antitrust Section and had been told that the Antitrust Section would not be submitting comments. Chair Thorpe reminded all Section members that where the interests of other Sections may be affected, the Chair should always be included in the comment process so that he/she can coordinate with the chair(s) of the other Sections, and so that their agreement can be properly documented. The PCL Section's blanket authority is a special privilege within the ABA and we must protect our ability to rely on that authority in submitting comments on proposed regulatory changes.
Mary Ellen Coster Williams provided a summary of the so-called "SARA" legislation (Services Acquisition Reform Act), which has been introduced by Congressman Davis and was included in the Agenda Book. Congressman Davis has asked for the Section's views on the issues that are addressed in SARA, and Chair Thorpe is appointing a Task Force to review and prepare comments. The Task Force will be co-chaired by Gerry Doyle and Rob Burton; members will include Felix Martinez, David Dowd, Lynda O'Sullivan, Allison Doyle, Bill Walsh and Harvey Gordon. Mr. Thorpe encouraged other interested Section members to participate in the work of this Task Force.
Stanley Dees reported that, although the Section has submitted a brief letter to the SOC Committee on Amicus Curiae Briefs stating its support for modification of blanket authority policy to accommodate amicus briefs filed on behalf of individual sections, there appear to be outstanding issues at the Board of Governors on this question. A full discussion will take place at the Board of Governors meeting in June, and the Section's liaison, Maury Poscover, will report back to the Section on the results of that meeting.
John Miller has prepared draft implementing regulations for the Model Procurement Code, and Chair Thorpe distributed a CD-ROM containing the draft to all attendees at the meeting. The Chair strongly encouraged all Section members to comment on this draft, which represents a significant effort on Mr. Miller's part. Our partners in the MPC effort are waiting for approval of these regulations; Chair Thorpe explained that this will be an action item at the Council meeting in August. Comments should be addressed to John Miller via email within the next four to six weeks.
Al Purdue, co-chair of the Annual and Quarterly Programs Committee, thanked Agnes Dover and Karen Kinlin for co-chairing the Spring program, which was successful in bringing in a number of new speakers on an interesting topic. Programs for the Annual Meeting are close to being finalized, including plans for a joint program with the Labor Law Section. There will be three stand-alone programs on False Claims Act issues, dispute avoidance, and teaming arrangements. Paul Dauer noted that Virginia has recently passed a False Claims Act, and suggested that the Section should do a special mailing to facilitate the interest of Virginia practitioners in this program.
Chair Thorpe reported that Carl Vacketta has been discussing with Steven Kelman the possibility of conducting a program jointly sponsored by the Kennedy School of Government and the Public Contract Law Journal, on public purchasing policy. This idea is still in the planning stages and has not been finalized.
In Jose Aguirre's absence, Chair Thorpe also reported on efforts by the Grantee Procurement Committee to persuade Congress to include a reference to the Model Procurement Code in legislation on procurement of voting machines. Mr. Aguirre has been informed by staffers that this is regarded as a regulatory issue and will not be included in the legislation. Mr. Thorpe stated that the Section should be prepared to move quickly to assist in preparation of implementing regulations.
The ABA's Museum of Law is to be expanded to include a Lawyer's Hall of Fame. The Section has been invited to send in names of volunteers to work on this project, and Chair Thorpe offered to do so for anyone who is interested.
One of the Section's members recently sent a letter to Chair Thorpe, enclosing his/her ABA card which had been cut into two pieces. The letter protested the recent resolution of the ABA House of Delegate condemning the Administration's proposed use of military tribunals to try Taliban and Al Quaeda prisoners. Chair Thorpe noted that positions taken by the House of Delegates have occasionally resulted in loss of members, but cited his own experience in trying to reverse those positions as a reason to stay involved. He has responded to this member, and will make both the member's letter and his response available to the Council via email.
The Financial Statement of the Section was included in the Agenda Book.
Chair Thorpe highlighted the Dialogue on Freedom program that has been started by ABA Chair Hirshon with Justice Kennedy, and encouraged all Section members to participate or contribute in their own ways.
Daniel Doogan reported on his investigation into the costs of purchasing a PowerPoint projector for use by the Section. Hotels currently charge from $500 to $1000 per day for use of such a projector; and some hotels are beginning to charge up to one-third of that amount even if an outside projector is brought in. Marilyn Neforas explained that she and Ernestine Robles are not able to physically transport such a projector to out-of-town meetings, and expressed her concerns that shipping an expensive piece of equipment could involve some risk. Mr. Doogan will report back to the Council with a recommendation when he has completed his investigation of the available alternatives.
Pursuant to our agreement with West Publishing, both the Annapolis program and the Spring program were taped at West's expense. Mr. Purdue asked whether the Section prefers to continue taping each program even when West is no longer willing to finance the taping process, and particularly whether the programs at the Annual Meeting should be taped. On motion by Ms. Wittie, seconded by Ms. Coster Williams, the Council approved taping of the August programs.
Mr. Langevin reminded the Program chairs that the Section's brochures for each program need to notify attendees that the programs will be taped, for privacy purposes.
Chair Thorpe announced creation of a Task Force to review the current legislative proposal on consolidation of the Boards of Contract Appeals and to prepare appropriate comments. The House Small Business Committee has requested our input. Marcia Madsen will chair the Task Force and Paul Khoury will serve as Vice-chair; members will include Elizabeth Fleming, Al Purdue, Dave Burghett, Karen Manos, and Jerry Walz.
Marshall Doke announced that Judge Ruth Burg (ret.) will receive a distinguished alumna award from George Washington University later this month. The Section commends her on this award, which is well-deserved.
There being no further business, the meeting was adjourned at 12:00 noon.
Respectfully submitted,
Patricia H. Wittie
Secretary
Attendance List
Council Meeting
May 4, 2002
|
Name |
Membership |
Telephone Number |
|
Norman
Thorpe |
Chair
|
313
665-4721 |
|
Mary Ellen Coster
Williams |
Chair
Elect |
202-219-0270 |
|
Hubert J.
Bell, Jr. |
Vice-Chair |
404-582-8027 |
|
Carol N.
Park-Conroy |
Council Member |
703-681-8507 |
|
Michael W.
Mutek |
Council
Member |
703-295-2580 |
|
Karen
Kinlin |
Council
Member |
703-697-3387 |
|
Ruth
Burg |
Past
Chair |
202-338-0254 |
|
John
Pachter |
Past
Chair |
703-847-6260 |
|
Marshall
Doke |
Section
Delegate |
214-999-4733 |
|
Stuart
Nibley |
Section
Member |
202-828-5393 |
|
Phillip
Davis |
Section
Member |
202-719-7044 |
|
Craig
Othmer |
Member |
505-982-4676 |
|
Alison
Doyle |
Co-Chair
Ethics/Conflicts
Center |
202-496-7604 |
|
Al
Purdue |
Ann/Quarterly Meetings |
937-255-6111 |
|
Paul F.
Dauer |
Chair, State &
Local Procurement Div. |
916-974-3400 |
|
Jennifer Dauer
McCready |
Section
Member |
|
|
John
Rice |
Section
Member |
202-626-5800 |
|
Scott
Pickens |
V. Chair R & D;
E-Commerce |
202-626-5938 |
|
John
Harris |
|
781-377-2145 |
|
Brian
Donovan |
Section
Member |
949-833-8893 |
|
Paul Van
Maldeghem |
Vice-Chair, E-Commerce
Assoc. Ed, Proc. Lawyer |
011-81-31175-75552 |
|
Tom
Hill |
Vice-Chair
State Leg. |
214-651-5541 |
|
Jeri
Somers |
Vice-Chair
St. & Loc.
Proc. Div. |
202-626-5958 |
|
Peter
Hutt |
Co-Chair, Procurement
Fraud |
202-626-5905 |
|
Dan
Doogan |
Member |
313-655-4733 |
|
Herman J.
Levy |
Asst.
Editor, PCLJ |
703-698-5246 |
|
Robert
Burton |
Chair,
AC&P |
202-395-3302 |
|
Robert
Schaefer |
Vice-Chair Priv. &
Outsourcing Committee |
310-893-1609 |
|
Gerry
Doyle |
Section
Member |
703-248-3380 |
|
Patricia
Wittie |
Secretary |
202-414-9210 |
|
C. Stanley
Dees |
Past
Chair |
202-496-7628 |
|
Donald
Kinlin |
Past
Chair |
937-443-6922 |
|
Daniel I.
Gordon |
Council
Member |
202-512-8219 |
|
Jerry A.
Walz |
Council
Member |
202-501-1681 |
|
Jonathan D.
Shaffer |
Vice Chair
Privatization |
310-893-1609 |
|
Mark
Langevin |
Council
Member |
818-598-5191 |
|
Alexander
Brittin |
Council
Member |
202-496-7726 |
|
Marylin
Neforas |
Section
Director |
312-988-5696 |