American Bar Association
Section of Public Contract Law (PCL)
Annual Council Meeting
July 8, 2000
TheWaldorf-Astoria
New York, New York
I. Approval of the Minutes
Upon motion, the minutes of the Council's March 11, 2000, Annapolis meeting were unanimously approved. A list of attendees at the Council meeting in Attachment 1.
II. Resolution in Memory of F. Trowbridge vom Baur
John Pachter reported with great sadness that F. Trowbridge (Trow) vom Baur, a founder and the Sixth Chair of the PCL, had passed away on June 17, 2000, at the age of 91. John Pachter highlighted Trow vom Baur's career in government and private practice noting that he had served with distinction as General Counsel of the Navy, and that as a private practitioner had practiced law in the grand manner and embraced the highest standards of the profession. In honor of Trow vom Baur, John Pachter read a resolution commemorating Mr. vom Baur=s life and legacy of distinguished service. He then made a motion that the Council approve the resolution. The motion was seconded by Stanley Dees and passed unanimously. Alan Peterson and Marshall Doke shared their memories and delivered moving and touching remarks honoring Mr. vom Baur. Mr. vom Baur=s granddaughter, Zoe Hamilton vom Baur was present for this tribute to her grandfather. A copy of the resolution is in Attachment 2.
III. Model Procurement Code
Tom Madden reported that the Section of State and Local Government Law (SLGL) and the PCL Section had worked through their differences in the draft Model Procurement Code in amiable fashion and arrived at a consensus. The Council of both Sections approved the Code which is now before the ABA House of Delegates. Maury Poscover, the Section's representative on the Board of Governors, commented that the only comments received on the Code had been positive, that the Code represented a remarkable effort and was a great contribution by the Section.
IV. Report on the Activities on the Board of Governors
Maury Poscover stated that ABA President, Bill Paul, had urged the ABA Sections and Divisions to seek diversity among the membership and to make this
a priority item. He also stated that an item of significance pending before the Board was multidisciplinary practice.
Mr. Poscover reported that the Board had approved an ABA corporate sponsorship policy which had changed slightly from the initial proposal. Mr. Poscover also provided an update on the ABA's technology activities and noted a new member benefit with Starwood Hotels.
V. Resolution Commending McConnell and Miller for Model Procurement
Code
A motion adopting a resolution commending Maggie McConnell and John Miller for their tremendous and successful effort on the Model Procurement Code passed unanimously.
VI. Public Contract Law Journal Advertising Proposal
Carl Vacketta summarized a written report which contained the recommendations of the Public Contract Law Journal (PCLJ or Journal) Ad Hoc Committee on Journal Advertising. (Agenda Book, Tab 3). This committee is composed of Editor-in-Chief Carl Vacketta, Faculty Advisor and Associate Editor Steve Schooner, Managing Editor Dave Handler, Associate Editor John Howell, and former Student Editor-in-Chief John Clark. The Committee was asked to consider whether the PCLJ should include advertising and, if so, to outline parameters.
The ad hoc committee recommended that the Council approve limited advertising to help defray costs of publishing the Journal as well as to help the law school. The committee estimated that limited advertising would generate revenue of approximately $15,000 to $25,000 per year.
After some discussion, it was the consensus of the Council that advertising in the Journal should not be restricted to publishing companies. It was also agreed that there need not be a set limitation of five pages of advertising, recognizing, however, that the number of pages would still be limited. After some discussion, a motion was made and duly seconded that the PCLJ could accept advertising with the following parameters:
(1) The Journal will only accept full-page, black-and-white advertisements (consistent with the type of advertising seen in major university law reviews).
(2) Advertisements shall not contain pricing information, coupons, cut-out (or business reply) forms; nor will negative or comparison advertising be permitted. The Board will permit the inclusion of contact information in the advertisement (such as telephone number, facsimile number, web page, e-mail address, etc.).
(3) The Journal will accept annual advertisement agreements only. This will reduce any administrative burden on the Journal or the ABA.
(4) The Board will authorize a reasonable number of pages of advertising inside the back of each issue.
(5) The Board will not limit advertisements to reputable legal publishing firms with a significant presence in the field of public contract law, but will screen advertisements for their propriety.
There was an amendment to this motion, duly seconded, regarding how the proceeds of the advertising should be distributed. This amendment provided that advertising revenue would be distributed as follows:
1. Deduct all expenses (ABA management fee of $2,000 per year, printing costs, etc.),
2. Fund the student editorial board's memberships in the ABA Law Student Division and in the PCL (there are currently 75 students on the Journal),
3. Reserve $5,000 for the GW Law School , and
4. Any remaining revenues would go to the PCL Section.
The motion as amended passed unanimously. It was recognized that the Section could consider requests from the student board for additional funding on an as-needed basis. It was also understood that the advertising proposal would be grandfathered and not subject to any new requirements which had been proposed for corporate sponsorship.
VII. Corporate Sponsorship
Pat Meagher reported that the ABA had revised its own corporate sponsorship policy which passed yesterday and took into consideration comments by the PCL Section and other sections. The final product is a clearer delineation of the distinction between corporate support and corporate sponsorship. Pat Meagher highlighted the Section's ad hoc committee's report (Agenda Book, Tab 4). Committee members are Pat Meagher, Al Purdue, Carol Park-Conroy, Mark Langevin, and Greg Bingham. Upon motion duly seconded, the ad hoc committee's proposed Section policy on corporate sponsorship and support was unanimously approved.
VIII. London Meeting
Tony Gamboa reported that approximately 80 Section members would attend the London meeting and described the programs that the Section would sponsor in London.
IX. Annual and Quarterly Programs Committee Report
Phil Davis said that there were over 200 people signed up for the Section meeting in New York. He highlighted the three programs which occurred yesterday and thanked the New York meeting co-chairs, Sheila C. Cheston, James C. Fontana, Anthony H. Gamboa, and Kenneth M. Roberts, as well as the London co-chairs, James P. Gallatin, Jr., Anthony H. Gamboa, and vice chairs Frank H. Menaker, Jr., and Kent R. Morrison for their excellent work.
X. Regulatory Coordinating Committee Report
Chair Allen thanked Alex Brittin for chairing the Regulatory Coordinating Committee for the fourth year in a row. He also thanked Herman Levy for his assistance as editor. Alex Brittin highlighted the Regulatory Committee's written report at Tab 10 in the Agenda Book.
XI. Demonstration and Briefing on Legal Issues Associated with "Reverse
Auctions"
Phil Harrington introduced Ted Carter, the Director of Public Sector Marketing for Free Markets Company, who conducted the demonstration. Mr. Carter demonstrated an actual reverse auction taking place electronically.
Scott McCaleb then highlighted the legal issues associated with reverse auctions pointing out that this process was not limited to sealed bidding. He noted that there were issues regarding bid openings, multiple BAFOs, late bids, and socioeconomic programs. Pat Wittie also commented on the legal issues. There followed some discussion of maintaining the integrity of this process.
XII. Report of the E-Commerce Committee
Pat Wittie and Craig Othmer highlighted the activities of the E-Commerce Committee (Agenda Book, Tab 31) including a FAR review project, privacy issues, and the federal e-signature legislation.
XIII. Presentation by Fellows of Ethics Resource Center on Four Models to Provide Employee Confidentiality and Nonretributory Reporting Systems
Dick Bednar reported on the defense industry initiative on business ethics and self-governance. He explained that while employees are encouraged to report suspected misconduct within their companies they must be ensured of confidentiality and anonymity. Therefore, the Fellows of the Ethics Resource Center are recommending a mechanism to ensure greater confidentiality. Mr. Bednar outlined the four models described in detail at Tab 12 of the Agenda Book.
XIV. Debarment and Suspension Committee Report
John Pavlick reported that this committee was preparing comments on proposed changes to FAR Part 9.104 dealing with the definition of present responsibility.
XV. Comments on Price-Based Acquisition
Tom Barletta reported that no objections had been raised to the Section's request for blanket authority regarding comments to the draft report of the Department of the Defense (DOD) study group on price-based acquisition. The Section's comments were transmitted to DOD in May 2000.
XVI. Past Performance
Rick Vacura thanked everyone who contributed to the Section's comments to OFPP on its best practices for using current and past performance information. He noted that the degree of success in achieving the comment's objective is reflected in the final published version of OFPP's best practices which addressed the majority of the Section's recommendations.
XVII. Region VII Report
Don Featherstun highlighted the report of activities in Region VII contained in the Agenda Book at Tab 26.
XVIII. Privatization/Outsourcing Committee Report
Bill Roberts, who co-chairs this committee with Agnes Dover, highlighted the activities of the committee. Legislative developments involving A-76 were also described.
XIX. Proposed Section Bylaw Amendment
Rand Allen reported that Paul Dauer had submitted a proposal to create a Council position for a young lawyer. However, the language and details have not yet been worked out. There followed some discussion on setting aside a Council seat for a young lawyer. As a result of the discussion, the chair agreed that an ad hoc committee should be appointed to further study this issue.
XX. Construction Law Source Book
Mike Love reported that publication of a Construction Law Source Book of approximately 2,000 pages drafted by Section members had been approved at the Council's last meeting. Since then he had received information regarding the cost of publication and explored alternative means of publishing. There followed a discussion of publishing through the ABA, on CD-ROM, or through CCH. David Lane made a motion that the Council approve proceeding with CCH, allow Mike Love and Hugh Bell to negotiate with CCH as appropriate and come back to the Council with a final proposal. This motion was duly seconded and unanimously approved.
The meeting was adjourned at approximately 1:00 p.m.
Respectfully submitted,
_________________________________
Mary Ellen Coster Williams
Secretary