MINUTES OF AUGUST 10, 1999, COUNCIL MEETING

       The August 10, 1999, meeting of the Council of the Section of Public Contract Law was held in the Hyatt Regency in Atlanta, Georgia. The Section officers, Council members, and Section members who attended the meeting are identified in Attachment 1, hereto. The meeting was called to order at 2:15 p.m., by the Section Chair, Mr. Rand Allen.

I. Model Procurement Code (MPC)

      John Miller reported that he, Rand Allen, David Churchill, and Tom Madden met with the Council of the Section of State and Local Government Law (SLGL) this morning. Mr. Madden briefed the SLGL Council on the background of this project and on the changes in the MPC. The SLGL Council agreed to review this Section's proposed changes, and discuss and vote on the proposed changes at the SLGL's October 17 Council meeting. Assuming approval by the SLGL, the Sections will jointly submit the revised MPC for approval by the House of Delegates at the ABA's mid-year meeting in Dallas.

II. Budget

      Budget Officer, Patricia Meagher, highlighted the 1999-2000 proposed budget, a copy of which is included as Attachment 2. Michael Hordell noted the high cost of audiovisual equipment budgeted for the annual meeting in New York in July 2000 and suggested that the Section consider using Peterson Foundation funds for the purchase of such equipment for use at future programs. Ms. Meagher agreed to discuss this with Don Kinlin. It was also noted that the law firm contribution for the reception for next year's annual meeting would increase from $600 to $1000 to cover the cost of the Section's reception at the London portion of the 2000 annual meeting. In response to a question by Stanley Dees, Pat Meagher stated that the $53,000 referenced in footnote A is part of the $83,350 attributable to the New York meeting expenses. Upon motion duly seconded, the proposed budget was unanimously approved by the Council.

III. Bid Protest Jurisdiction Sunset Issue

      At the August 7, 1999, Council meeting, a motion to approve the Bid Protest Committee's "Comments Regarding U.S. General Accounting Office (GAO) Study of Concurrent Protest Jurisdiction" had been tabled and deferred until today's meeting. Mr. Allen invited additional discussion on the proposed comments. Hugh Bell stated that he thought the proposed comments were very well done, and that the Council should approve them in time to be considered by both GAO and appropriate congressional committees. Don Featherstun echoed his support of the comments and suggested that the comments should add a discussion to the effect that protests provide a unique mechanism to protect the public. He believes the comments could be improved by adding an analysis questioning how taxpayers would be hurt if district court jurisdiction over protests were abolished, thereby eliminating a forum for "private attorney generals." Mr. Dees endorsed this and stated the concept as follows: "The integrity of the procurement system would not benefit from reducing the opportunity for oversight, consistent with the private attorney general theory." Mike Mutek commented that there could be an unanticipated adverse consequence in that the comments beg another question, i.e., should there be an alternative to the elimination of district court jurisdiction. He suggested that the topic of such adverse consequences should be analyzed separately.

      Mary Ellen Coster Williams questioned whether it would benefit the GAO to have additional citations of legal authority in the comments. Bob Murphy replied that the Council should primarily direct its comments to the Congressional committees which would be considering legislation and holding hearings in the spring of 2000. He stated that for GAO's purposes additional legal authorities would not be necessary because GAO was looking for facts to provide to the Congress. He stated that the GAO report was due at the end of December 1999.

      Mary Ellen Coster Williams pointed out that Senator Cohen's remarks quoted in footnote 25 of the Comments suggested that there was a divergence among the circuit courts in the substantive law on bid protests. She noted that the comments as drafted did not specifically address the law in the circuits.

      Rand Allen stated that given the Council's comments to date, the lack of an immediate deadline, and the inability of some Council members to have considered the draft fully, the Council's suggestions could be provided to Mark Colley for incorporation into the draft and a revised draft recirculated to the Council. Mr. Dees noted that the Section should request blanket authority to cover both the comments to GAO and the Congress. It was generally agreed that the request for blanket authority would be drafted as part of this revision.

      The Council commended the Bid Protest Committee for its excellent work.

     By motion duly seconded, the Council unanimously voted to approve withdrawal of the motion tabled from the Council's August 7 meeting. Stanley Dees made a substitute motion that the Council not approve the comments at this meeting but that Council members individually send their suggestions to Bid Protest Committee Chair, Mark Colley, and request that the Committee recirculate revised comments consistent with the Council's concerns in early September. This motion was duly seconded and passed unanimously.

IV. ABA Model Rule 4.2

      In her capacity as the Section Representative on the ABA Section/Division Advisory Committee on Ethics and Professionalism, Mary Ellen Coster Williams reported that the proposal to revise Model Rule 4.2 had been withdrawn and would not be considered by the Ethics 2000 Commission at this time. It is anticipated that this rule will undergo further revision and be recirculated for comment at a later date.

V. California's Revision to Model Contracts for Information Technology Terms and Conditions

      Paul Dauer reported that by notice dated August 2 the state of California, Department of General Services, Procurement Division (PD), was soliciting comments on new draft model provisions for information technology (IT) contracts. See Attachment 3. The state will receive comments through August 1999. The model contract provisions are available on the state's website at http://www.pd.dgs.ca.gov/acqui/itcmnew.htm . The current version of IT contracts can be found on the state's website at http://www.pd.dgs.ca.gov/acqui/itcm2.htm under the heading "Standard Bid/Contract Language." In November 1998 the PD issued new standardized general provisions effective 1/1/99 and these are on the website at http://www.pd.dgs.ca.gov/acqui/gentrov.htm . Paul Dauer suggested that given the Section's expertise on these types of contracts, it would be helpful for the Section to submit comments if at all possible.

      Rand Allen agreed that commenting on the proposed revision to California's model IT contracts would provide an opportunity for the Section to become involved at the state level and share expertise on substantive issues which have arisen at the federal level. He suggested that the Section form an ad hoc group to work on these issues in California and other states. He noted that the Section has blanket authority to comment on state and local regulations under the Model Procurement Code. There are two conditions, however, to such authority. First, the Section must coordinate with the Section of State and Local Government Law. Second, the Section must consult with the affected state bar.

      After some discussion, it was the consensus of the Council that an ad hoc committee should be formed, and the following members volunteered for the committee: Allan Land, Michael Hordell, Herman D. Levy, Aaron Silberman, Jim Thompson, and Paul Dauer. Rand Allen also invited any other persons interested in serving on this committee to contact him directly.

VI. Introduction of Maury Poscover, Section's Liaison to Board of Governors

      Rand Allen introduced Maury Poscover, the Section's new liaison to the Board of Governors. Mr. Poscover is a practicing lawyer from St. Louis and the immediate past chair of the Section on Business Law. He views his job as Public Contract Law Section liaison to help if the Section has something pending before the Board of Governors or needs action by the Board. Chair Allen thanked Mr. Poscover for making the effort to come to the meeting and meet the Council.

VII. Report by Program Committee Co-Chair, Philip Davis

      Incoming Co-Chair of the Annual Meeting and Quarterly Programs Committee, Philip Davis, reported that program chairs for the Santa Fe meeting, Robin McCune and Bob Smith, have a working draft of the program which will focus on employment and labor law and settling or litigating employee disputes. Suggested topics include performance, customer relations, costs, and blacklisting. There was a suggestion that there be a panel on developments at OFPP. Phil Davis also reported that John Kuelbs and Jonathan Shaffer are co-chairing the Federal Procurement Institute and planning to focus that program on electronic commerce (e-commerce). It is anticipated that this program will include lessons learned in e-commerce, federal legislation, DOD, civilian and state and local paperless procurements and ethics. Rand Allen pointed out that the Section has been co-sponsoring the Federal Procurement Institute with the National Contract Management Association.

      In response to a question by Pat Meagher, Phil Davis said the Committee was considering co-sponsoring the fall program with the Labor and Employment Law Section, and Rand Allen endorsed this. Rand Allen commented that the Section was also considering co-sponsoring with the SLGL a program on state qui tam statutes and that this would be a possible topic for the Procurement Fraud Committee. Alan Land stated that he observed an excellent FBI presentation on the Economic Espionage Act and agreed to send the materials to Phil Davis.

      Don Featherstun commended Hugh Bell on the excellent Construction Division program on the Kumho Tire decision held this morning.

      A motion to adjourn was made and duly seconded and the meeting was adjourned at 3:30 p.m.

Name                               Position

Rand L. Allen                      Chair
Gregory A. Smith                   Chair-Elect
Mary Ellen Williams                Secretary
Patricia Meagher                   Budget Officer
Hubert J. Bell, Jr.                Council member
Don Featherstun                    Council member
Kevin Flanagan                     Council member
Maryanne Lavan                     Council member
Bob Murphy                         Council member
Michael W. Mutek                   Council member
Carol Park-Conroy                  Council member
Al Purdue                          Council member
C. Stanley Dees                    Past Chair
John Miller                        Past Chair
Philip J. Davis                    Annual/Quarterly Program Chair
Stan Soya                          Vice Chair, International Procurement
Paul Dauer                         Chair, State and Local Comment Coord.
Jerry Walz                         Co-Chair, Bid Protest Committee
Harvey J. Gordon                   Vice Chair, R&D and Emerging Issues
Michael Hordell                    Co-Chair, Acquisition Reform and Exp. Proc. Proc.
Alan Land                          Vice Chair, R&D/Chair, Region VII
Herman D. Levy                     Vice Chair, Reg. Coord - Asst. Ed. PCLJ
Robert Burton                      Co-Chair, Acctg, Cost and Pricing
Paul E. Van Maldeghem              Co-Chair, R&D/Vice Chair, Strategic Alliance
Phil Harrington                    Co-Chair, Comm'l Prod & Svcs Comm.
Tom Barletta                       Vice Chair, Accounting Cost & Pricing
Mark Langevin                      Vice Chair, Acctg Cost & Pricing
Marilyn Neforas                    Section Director
Charlton C. Walker                 Section member
Aaron Silberman                    Section member
Elizabeth Fleming                  Section member
James E. Thompson                  Section member