DRAFT Minutes of the
Council
Section Of Public Contract Law *
November 8, 2003
Hotel Intercontinental
New Orleans, Louisiana
Chair Hugh Bell called the meeting to order at 8:45 a.m. The reading of the minutes of the August 9, 2003 Annual Council Meeting was waived. A motion to approve the minutes was seconded and approved by the Council unanimously.
Chair Bell conveyed the sincere appreciation and gratitude of Past Chair/Past Section Delegate Marshall Doke, who regretted being unable to attend the Fall Meeting, for the Section's recognition at the Annual Meeting and noted that Marshall will communicate such in person at the next meeting.
Past Chair Marcia Madsen presented a detailed report concerning the Draft comments on the Safety Act regulations (See Agenda Item 3). She highlighted a number of issues. Past Chair Madsen also discussed the Department of Homeland Security (DHS) Safety Act Application Kit, focusing on the volume of cost information requested and the potential problem(s) that could arise from the certification requirement in light of the significant detailed projections that must be provided with the Application. She also asked for guidance from the Council concerning any revisions to the comments.
Dan Gordon, Council Member, excused himself from the substantive discussions concerning the Safety Act and left the Council table.
Chair Elect Pat Wittie asked for discussion as to whether the draft comments went beyond the Section's subject matter jurisdiction or went too far in attempting to incorporate substantive law into the regulations, on the issue of the government contractor defense, particularly since other Sections of the ABA may disagree with our interpretation.. She sated her concern that the Section should protect its special ability to submit FAR comments by not unnecessarily antagonizing other Sections. Council Member Karen Manos stated that in her view the comments were not aggressive. Past Chair Norm Thorpe added that the Section needs to take a stand on the Government Contractor Defense, noting that the Government and contractors should be of one mind on this issue. The discussion continued covering the issues of Federalism, the activity of other Sections in regard to the Interim Regulations, the need to revise the background portion of the comments to reflect a recognition of the efforts of the Congress and the DHS, and that the Section's comments must be directed at improving the regulations.
The issue of Blanket Authority was raised. Chair Bell, noting that Blanket Authority is necessary, stressed that the comments will be the position of the ABA and must take into consideration the known positions and workings of other Sections within the ABA. Past Chair Madsen thanked the Council for the guidance and advised that revised comments would be provided to the Council by the end of the following week.
Sandy Hoe, Co-Chair, Privatization and Competitive Sourcing Committee, presented a detailed substantive review of the white paper, "Bid Protests by Government Entities under OMB Circular A-76" (see Agenda Item 2) created by the Privatization and Bid Protest Committees.
Council Member Gordon, once again excused himself from the discussion and walked away from the Council table. However, Council Member Gordon, speaking as an employee of the U.S. General Accounting Office (GAO), stated that GAO found the White Paper beneficial in its review process in that the White Paper provided helpful analysis in some areas where no one else had provided comments. He further stated that it was GAO's specific understanding that the White Paper was not the position of the ABA. It was also made clear that the Section did not deliver a copy of the White Paper to GAO; rather, GAO was aware that it was on the Section's website and obtained a copy on its own.
The issue of "disclaimer" was also discussed. It was the sense of the Council that all White Papers must contain a prominent disclaimer, noting that the positions stated in the document are not those of the Section or the ABA.
Chair Bell announced that the Health Care Contracting Committee conducted an extremely successful seminar, which brought in between $25,000 to $30,000. He requested that Maribeth Lowe, Committee Co-Chair, report on the Committee's seminar - "Federal Drug Pricing: Ten Years of Navigating the Veterans Health Care Act." (See Agenda Item 20). Maribeth Lowe recognized a number of people for their hard work and dedication. She also explained that obtaining a mailing list through the Department of Veterans Affairs, charging more in light of the industry audience and the selection of an upscale hotel were contributing factors to the success achieved by the Committee.
Lynda O'Sullivan, as a point of information, explained that the Section has been selected for special recognition in conjunction with the Office of Federal Procurement Policy's 2003 Alternative Dispute Resolution Awards in Acquisition. The recognition results from the work of the Task Force on Dispute Avoidance and Early Dispute Resolution, established by Past-Chair Greg Smith and chaired by Chair Elect Wittie and Council Member Rob Burton. The Task Force work product is found in the Section's monograph entitled "An Ounce of Prevention - Best Practices in Dispute Avoidance for Government Contracting". The monograph served as written materials for a number of seminars put on by the Section. The Section was nominated for this award by Past Chair Frank Menaker, Jr. (See Agenda Item 37). The awards ceremony is tentatively scheduled for December 3, 2003.
Past Chair Stanley Dees discussed, in detail, the Contract Claims and Dispute Resolution subcommittee's position paper on the issue of jurisdiction and remedies concerning disputes with non-appropriated fund instrumentalities (NAFIs). (See Agenda Item 4). Noting that the paper needs to first be presented to the full committee before being presented to the Council, Past Chair Dees formally asked the Council for guidance. The Council discussed the genesis of the existing problem and the need to ensure consistency in any proposed statutory amendments. It was the sense of the Council that the Committee should continue to refine the paper to craft a legislative solution, in which enforcement actions would be brought against the agency that has established the NAFI, rather than against the NAFI entity itself.
Past Chair Thorpe made a series of reports and/or announcements as follows:
1. An update of the Model Procurement Code Committee activity. (See Agenda Item 8). Past Chair Thorpe advised that the Committee will provide a report to the Council concerning California by the next meeting; that the committee (through Past Chair Thorpe) has the opportunity to introduce the Revised Model Procurement Code to representatives of Michigan; and that the Committee (through Larry Ethridge) has the opportunity to introduce the Revised Model Procurement Code update to representatives of New York;
2. Past Chair Thorpe attended his first meeting of the Board of Directors of Friends of the CEELI Institute in Prague, Czech Republic which included the dedication of its new headquarters. He also explained the purpose of the organization and the need for volunteers; and
3. The Section received an award from the Section Officers Conference (SOC) for the "Most Innovative CLE Program for 2002-03." The award recognized the excellence of a series of CLE teleconference programs (see Agenda Item 26) that was co-sponsored by the Section's Special Committee on ADR.
Chair Bell, as a point of information, advised that he just became aware that the 2003 D'Alemberte/Raven Award was given to Richard Holbrooke. He noted that the Section nominated Judge Martin J. Harty for the award. (See Agenda Item 27). Past Chair Mary Ellen Coster Williams, at the request of Chair Bell, briefed the Council on the Court of Federal Claim's electronic filing. Chair Bell commended the New Orleans Program Chairs, Lannie Elderkin and Bill Crowley and acknowledged the work of the Annual and Quarterly Programs Co-Chairs Michael Mutek, Linda O'Sullivan and John Pachter.
Council Member Rob Burton briefly discussed the Administration's position on competitive sourcing and referred the Council to the September 2003 Supplemental Report to Congress by the Office of Management and Budget at Agenda Item 7. Chair Bell advised the Council that Janet Gibbs, ABA's Chief Financial Officer has requested that our Section assist in creating procurement procedures for the ABA (See Agenda Item 5). Past Chair Norm Thorpe has agreed to chair the ad hoc Task Force. Chair Bell advised that Council Members Peter Balch, and John Currier, along with Mark Langevin and Michael Love, volunteered to assist Past Chair Thorpe. An unofficial goal of mid-January was established to have a draft procedure.
Chair Bell highlighted two points of interest: (1) the Section Officers and selected members of the Long-Range Planning Committee were meeting this afternoon with ABA staff representatives to work on a Strategic Communications Plan; and (2) the revised Blanket Authority Procedure was high on the Mid-Year Meeting agenda of the House of Delegates and that the Section will be addressing its request for Special Blanket Authority in light thereof.
Past Chair and Co-Annual and Quarterly Programs Co-Chair John Pachter provided a preview of the Federal Procurement Institute. (See Agenda Item 31). Chair Elect Wittie reported on the activities of the Long Range Planning Committee - the creation of a mission statement and a rolling five-year plan for the Section.
Chair Bell advised the Council that Agenda Item 22 provided an update and explanation of the ABA Pension Plan controversy.
Budget and Finance Officer Pat Meagher presented the Financial Report to the Council. (See Agenda Item 32). She noted a $94,000 surplus which resulted from a combination of events - program successes and expenses lower than expected due to delays in the brochures and publications.
Council Member Lannie Elderkin commended the Membership Committee report, prepared by Jennifer McCready, to the Council. (See Agenda Item 15). She then asked that anyone who had any supplemental comments provide them to her and Jennifer McCready.
Chair Bell adjourned the meeting at Noon.
Michael A. Hordell
Secretary
Section of Public Contract Law