Minutes of the Council Meeting[1]
Section Of Public Contract Law
August 7, 2004
Hyatt Regency Atlanta
Atlanta, Georgia
Chair Hugh Bell called the meeting to order at 8:40 a.m. The reading of the minutes of the May 1, 2004 Spring Council Meeting was waived. A motion to approve the minutes was seconded and approved by the Council unanimously.
Holly Svetz and Scott McCaleb presented a proposed Five-Year Plan that was developed by the Long Range Planning Committee. (Agenda Item 2). Each one of the seven (7) goals, together with the objectives for meeting these goals, were discussed by Ms. Svetz and Mr. McCaleb. Ms. Svetz and Mr. McCaleb noted that the Implementation Plan (Agenda Item 5) was a management tool, to be continuously modified to help meet the Five-Year Plan goals and objectives. They emphasized that the Implementation Plan was not before the Council. Thereafter, the Plan was discussed by the Council and Section membership. There were two (2) revisions suggested:
1. Past Chair Ruth Burg proposed the addition of “Public” to modify “Acquisition” in Goal Number 1; and
2. Council Member John Currier requested that “quarterly” be deleted from Goal Number 1, Objective C. There was a motion to adopt the Plan, with the suggested revisions. The motion was approved. Throughout the discussion there was praise for the Task Force that worked on the Plan and for the Long Range Planning Committee. It was the sense of the Council that the Plan would be subject to continuous revision as the need arises..
Past Chair Allan Joseph, who is the current ABA Treasurer, commended the Section on its review of the ABA Purchasing and Procurement Policy and its report on best practices. He advised that the ABA Financial Services staff made slight modifications, the Finance Committee adopted it and the Board of Governors also adopted our report and commended the Section for its extraordinary effort. The Board of Governor’s commendation will be published in The Procurement Lawyer. Past Chair Joseph commended Past Chair Norm Thorpe for his leadership on the project. Past Chair Thorpe, pointing to Agenda Item 10, advised that Peter Balch, Melissa Copeland, John Currier, Mark Langevin and Mike Love were on the committee and should also be commended for their contributions.
Past Chair Joseph also reviewed the overall ABA financial condition and advised that the ABA is restructuring. Thereafter, Past Chair Joseph commended Chair Bell for his work on a variety of issues, his knowledge of the ABA political process, and his tireless efforts behind the scenes.
Past Chair Thorpe, again pointing to Agenda Item 10, reported on the status of the California Performance Review. He advised that California has issued a report which is posted on the California Performance Review Website. Past Chair Thorpe requested that the Section’s team be reactivated in order to create a written report addressing the California report, which will include the Section’s concerns and suggestions on how California can revise its procedures to conform with the Model Procurement Code and best practices. Chair-elect Wittie highlighted a number of potential areas of interest that the Section’s team should explore in this regard. Budget and Finance Officer Pat Meagher commended Norm Thorpe, John Miller and Maggie McConnell for their work on the Model Procurement Code and with the State of California.
Subsequently, Budget and Finance Officer Meagher was asked to present the proposed 2004-2005 Budget. Chair Bell explained that since Pat Meagher was nominated to be Secretary for the 2004-2005 year, she has submitted her resignation as Budget and Finance Officer effective at the end of this Council meeting. Judge Carol Park-Conroy, who could not attend the Annual Meeting for personal reasons, was nominated and approved by the Council to serve the remaining one (1) year of Ms. Meagher’s term.
Budget and Finance Officer Meagher addressed certain budget elements, comparing them to those items listed in the Financial Report for the period of September 1, 2003 through June 30, 2004 found at Agenda Item 29. The Council was advised that the Section’s costs will be higher, income is projected to increase, investment income is improving and should continue to do so, the Section’s reserves are significant, and under the budget the Section will do slightly better than break even for the next year. There was a motion to approve the budget which was seconded and then approved.
Chair Bell advised that a proposal that had been on the calendar for the ABA House of Delegates, to eliminate the fifteen (15) year old requirement that all ABA Forum members must also be members of a Section, was withdrawn. There was significant opposition to this proposal by a number of Sections, including the Section of Public Contract Law.
David Innis, Co-Chair, Teleconference Educational Programs Committee, presented his committee’s report. (Agenda Item 3). Mr. Innis advised that on July 28, 2004 the Section presented its first teleconference program. He described the process involved in preparing for and presenting a teleconference program. The Committee’s goal is to have the Section present monthly teleconference programs on the third (3rd) Wednesday of the month, for which mandatory CLE credit will be available. In addition to enhancing the Section’s financial position (break even point is between 30 and 60 participants depending on the marketing effort involved), this will be a good outreach mechanism.
Rich Rector discussed the ABA Journal Project. Mr. Rector advised that in the October issue of the ABA Journal there will be four (4) government contract related articles. He also noted that Past Chair Joseph has volunteered to write an introduction for the ABA Journal. These articles will be followed by a teleconference program.
Devon Hewitt explained the genesis for the Section’s May 17, 2004 comments concerning the Small Business Administration’s (SBA) restructuring of the size standards. Ms. Hewitt advised that the SBA found the Sections’ comments thorough and balanced. She also noted that the SBA withdrew its proposed rule and will be conducting further review. At the conclusion of this presentation, there were a number of comments that highlighted the importance of the Section’s comments and the potential significant impact that the Section could and does have on the procurement process.
David Drabkin made a presentation (See Attachment 2) on GSA’s Get it Right Program. His presentation was concise, yet informative.
Past Chair Roy Mitchell provided the report of the Archives Committee. Past Chair Mitchell advised that the George Washington University School of Law will be the repository for the Section’s key documents. The issue of oral histories was brought up by Council Member Lannie Elderkin. Past Chair Don Gavin suggested that the oral history project be given to the Fellows.
Secretary Michael Hordell presented the
Acquisition Reform and Experimental Procurement Processes Committee report on
Share–in–Savings. Immediate Past Chair Mary Ellen Coster -Williams
and Council Members Rob Burton and Dan Gordon recused themselves from this
issue. At the conclusion of the report,
past Chair Marcia Madsen noted that the draft comments did not address the
issue of who bears the risk of loss if there is destruction of the technology.
She proposed that the issue should be raised and that the comments could
include a suggested resolution of the matter by treating it the same way
destruction of IP is dealt with. The comments were approved subject to the
inclusion of the risk of loss issue and other revisions suggested by
the Chair.
Council Member Karen Manos presented the report of the Task Force on Publication of Agency Procurement Regulations. Council Member Manos commended the work of task force members Paul Haseman, John Pavlick and Donna Yesner. (See Attachment 3).
Chair Bell announced that the revisions to the Section’s By-Laws (Agenda Item 9) were approved by the Board of Governors subject to the Section’s membership’s vote of approval. Chair Bell advised that the vote will take place today at the Section’s Annual Business Meeting.
Chair–Elect Wittie reported that the Section has contributed One Thousand Dollars ($1,000) to support ADR program teleconferencing during 2004-2005. These teleconference programs are jointly sponsored by our Section, the Dispute Resolution Section, and the Federal Interagency Working Group on Alternative Dispute Resolution.
Council Member Manos reported on four (4) current cases of interest to Section members. Those cases were:
(1) Harrison v Westinghouse Savannah River Co., 352 F.3d 908; 2003 U.S. App. LEXIS 25789 (2003);
(2) Christopher Village L.P. v. United States, 360 F.3d 319; 2004 U.S. App. LEXIS 4379 (2004);
(3) Appeals of PK Contractors Inc. ASBCA Nos. 53576, 53577; 2004-1 BCA (CCH) P32,516; 2004 ASBCA LEXIS 3 (2003); and
(4) Rumsfeld, Secretary of Defense v. General Dynamics Corporation, 365 F.3rd 1380; 2004 U.S. App. LEXIS 8495 (2004).
Chair Bell announced that the Section Directory will be on the website, not in print.
Sandy Hoe provided an update on GAO’s jurisdiction in cases involving bid protests filed by Most Efficient Organizations ("MEOs"). Mr. Hoe noted that the Bid Protest and Privatization Committees addressed GAO’s questions concerning the ability of an MEO to bring a protest in a White Paper, which has been posted on the Section’s website. He also advised that the GAO has issued a letter to Congress explaining current decisions concerning MEO jurisdiction and essentially inviting Congress to address the issue in an effort to change the current situation.
Council Member Burton then reported on the status of the Section 1423 Panel (SARA Acquisition Panel). Mr. Burton advised that currently there is a list of panel nominees that cannot yet be made public, since they will be special Government employees and mandatory background reviews are still being performed. Mr. Burton pointed out that the mission of the panel will be broad – to look at all federal laws, regulations, and policies. The panel’s report will be prepared for OFPP and the Congress, and should take about one (1) year to complete.
Chair Bell provided an update on a number of topics:
(1) The Iraqi Governing Council adopted the Section’s Task Force Recommendations;
(2) A Task Force has been formed to survey membership (current and past) on a number of issues, including, but not limited to, the Spring Meeting, services expected from the Section and reasons for leaving the Section;
(3) The ABA is creating a Task Force to address Attorney-Client Privilege Waiver and those who are interested should provide their names to him or Chair-Elect Wittie;
(4) The NAFI comments will be submitted for blanket authority during the week of August 9; and,
(5) The Homeland Security Committee is looking at doing an ABA-wide program.
Past Chair John Pachter discussed the programs to be presented at the Annual Meeting (Agenda Item 28). Chair Bell commended the Health Care Contracting Committee Report (Agenda Item 23) to Section Members and the Council.
Council Member Elderkin and Jennifer McCready presented the Membership Outreach and Diversity Committee Report. They reported that the Section would engage Eire to produce the new Section brochure if the funds allocated this past year were available. Budget and Finance Officer Meagher advised that those funds were rolled over to the 2004-2005 year and the Committee was authorized to spend those dollars.
Ms. Svetz and Mr. McCaleb were recalled to discuss the Implementation of the Five-Year Plan. (Agenda Item 5). They discussed the eleven (11) recommendations and their relationships to the goals of the Five-Year Plan. Chair-Elect Wittie commented that these recommendations are a terrific start. She also noted that the Section has already begun to implement some of the recommendations.
Chair Bell then reminded all present about the upcoming Fall Meeting--Terminations Decanted. Ms. Meagher announced that in lieu of the traditional practicum, there will be a wine tasting. She referred all present to Agenda Item 28 for websites of interest, winery information and other activities concerning NAPA Valley.
Chair-Elect Wittie rose to point out the tremendous contributions of Chair Bell over the past year. More specifically, she noted his significant leadership role in addressing substantive issues, overseeing amendment of the Section’s By-Laws, the archiving of important Section documents, the Five-Year Plan, the revival of the Long Range Planning Committee, his attention to detail on the regulatory comment process, and his success in reaching out to other Sections within the ABA.
All present rose and gave Chair Bell a well-deserved standing ovation.
Meeting adjourned at Noon.
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Respectfully submitted, |
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Michael A. Hordell |
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Secretary |
