Minutes of Spring Council Meeting
May 12, 2001
Cambridge, Massachusetts
Chair Gregory A. Smith called the meeting to order at 9:20 a.m. on May 12, 2001. The minutes of the Winter meeting were approved. Chair Smith thanked Mark Colley and Tony Gamboa for co-chairing the educational program presented on May 11, 2001.
Alan Gourley was recognized for the purpose of making some remarks as a memorial to Susan Ludlow MacMurray, Director, International Security Programs, Office of the Under Secretary for Policy, Department of Defense. She had planned to speak at the program on May 11, but died suddenly on April 24, 2001. Alan recommended that Chair Smith send a letter of appreciation to her agency and family for her support of the Section and he indicated that he would do so.
Board of Governors Section Liaison Maury Poscover made an oral report on the American Bar Association and Board of Governors activities. He noted that Allan Joseph, former Section Chair, has been nominated for election to the post of Treasurer of the ABA. The Board of Governors approved the Section’s membership in the American Infrastructure Consortium, but there remains one contract term to be negotiated.
Maury discussed a proposal by West Publishing to contract with the ABA to provide on-line continuing legal education. The Board of Governors’ Task Force on Business Competitiveness, of which Maury is a member, is evaluating the proposal. West proposes to video tape certain CLE programs at the ABA annual meeting. A minimum of 100 hours of CLE would be professionally video taped, these primarily being the Presidential Showcase programs at the CLE Center. The ABA is responsible for obtaining accreditation for the CLE which would be available on-line at www.westlegaled.com. A fee would be charged for each hour of CLE, with several tiers in the fee structure, e.g., ABA member, Section member, non-member. West would periodically update the legal authority cited in each of the presentations. West would assume all costs of this program and proposes to share the income with the ABA on a fifty/fifty basis, with some of that fee going to the sections. West would market the programs at its expense. The ABA Task Force is studying the proposal and addressing many questions, including contract terms, the fee sharing ratio, the West exclusivity requirement, and whether to limit the programming to the CLE Center at each annual meeting.
Maury also reported that the lease on the ABA headquarters expires in 2003. ABA occupies 253,000 square feet in the main building and 53,000 square feet six blocks away. All of this is old space. The ABA has engaged a consultant to assist in finding new space. The 23 proposals have now been narrowed to four finalists, all in downtown Chicago. The ABA is seeking a better design to perhaps reduce the space required to 210,000 square feet. A new building has recently become available and has made an attractive proposal.
The Board of Governors is looking at ways to trim costs and to provide more efficient delivery of services. The Incoming President of the ABA, Bob Hirshon, has appointed a committee to study the annual meeting to make it more attractive for members to attend. Attendance has been down in recent years. Formerly, families combined the meeting with vacation, but now not so many are doing so. The committee is looking at the possibilities of compressing the meeting days, changing the format of the annual meeting, clarifying the purpose of the meeting and evaluating locations.
Finally, Maury addressed the ABA’s role in federal judicial selection. He stated that the ABA’s only criteria are professional competence, judicial temperament and integrity. Since 1952, the ABA has been providing its peer rating of proposed judicial nominees to each President. The committee conducted extensive investigation and does not make public the result. It is provided only to counsel to the President. President Bush has taken the position that the ABA will not receive advance notice of nominees and there will be no prescreening before the nominations are announced. The ABA committee intends to continue its investigations of nominees and to furnish the results to the Senate Judiciary Committee and to Counsel for the President. The ABA rates candidates only as not qualified, qualified, or well qualified, and no records are kept of an investigation or of the Committee’s deliberation beyond letters to the Counsel for the President.
Chair Elect Norman Thorpe introduced Christian Knust, his aide during the coming year while he serves as Chair of the Section. Christian is a German lawyer who is employed by General Motors and is now posted to Detroit for work at the Advanced Fuel Cell Vehicle Research Center. Chris can be reached at 313-665-9725 or, if one dials Norm’s number and gets his voice mail, one may dial zero to reach Norm’s secretary.
John Pavlick and Karen Manos reported that implementation of the contractor responsibility regulations has been stayed and more comments have been requested. The Section’s comment was not filed due to objection by the Section of Labor and Employment Law. Draft notes on reconsideration issues were available to persons attending the Council meeting. A copy is attached as Exhibit A. Although the Section will not submit comments, individuals may wish to do so and the notes concerning the reconsideration issues will be useful in that regard. Individual comments are valuable and are considered by the FAR Council. Fewer comments are expected on the third round, and individual comments may carry more weight.
In addition, John and Karen discussed the regulatory changes concerning the allowability of labor relations costs and legal costs. The proposed changes contain internal conflicts and create a burden for government contractors to track and segregate these costs. Immediate Past Chair Rand Allen noted that members should comment and testify at public hearings if possible. He stated his opinion that these rules are bad policy and the cost of compliance is substantial in personnel time, modifications to information technology systems and other costs. Past Chair Don Kinlin noted that the Section should not be involved in helping industry associations submit comments since the Section is not a trade association, but represents a broad spectrum of lawyers in government contracting, including government agency lawyers and lawyers for contractors.
Pat Wittie and Allen Samelson presented a report on the E-Commerce Committee FAR review project. Kimberly Heifetz was commended for her work on the e-commerce survey and Anthony Bedwell-Coll was commended for his work in drafting the comments. The Committee concluded that little tinkering with the FAR is needed. Allen reported that four issues were identified: establishing authenticity and confidentiality, electronic bids and offers, electronic postings and record retention, and educational efforts with government agencies. The report makes recommendations in each of these four areas. Changes to FAR Chapters 14 and 15 were suggested to eliminate the requirement for receipt of electronic bids one day before the due date, and to avoid the “initial point of entry” definition problems by adopting the “acceptable evidence” standard now in force for paper bids. Pat noted that the Federal Electronic Commerce Coalition will provide comments if desired.
Chair Greg Smith noted that there has been little time to review the report since the final report was distributed immediately prior to the Council meeting and he questioned whether the Council should considering adopting the report or adopting only the recommendations contained in it. Council Member Jonathan Shaffer moved to adopt the recommendations at Section II, A through C, and to convert this section to a comment letter. This section is attached to the minutes as Exhibit B. Jonathan’s motion was seconded by Past Chair Stanley Dees.
There was substantial discussion concerning the recommendations regarding authenticity and confidentiality, electronic bids and offers, and electronic postings and record retention. The discussion centered on verification of receipt at the proper office and the effect of server failure and other technology faults. It was noted that these technical problems cannot be resolved through regulation. Council members noted that it was unclear how an electronic bid is tracked through an agency’s e-mail and who bears the risk of non-receipt. The GAO is now studying the latter issue, and is leaning toward putting the risk on the submitter to assure receipt at the ultimate destination. The E-Commerce Committee took a neutral position on this risk. During discussion it was noted that there must be technology available to verify receipt and that putting the risk on the bidder is not a good idea because it would result in dual filing by e-mail and by submitting a paper bid or proposal. If the government encourages electronic bids, then the burden should be on the government to implement the technology needed to identify the location of a bid or proposal in the system and when it reached government control. It was noted that the “initial point of entry” has little meaning and is interpreted differently by many. Because of the substantial discussion and the lack of time to adequately study and comment on the report, Jonathan Shaffer withdrew the motion, but Stanley Dees was not present to withdraw his second. Therefore, Chair Elect Norm Thorpe moved to table the motion, which motion was passed. When Stan Dees returned, Jonathan again withdrew his motion and Stan withdrew his second. This report will be given further consideration later.
There was discussion of the corporate sponsorship initiatives set out in a memo from Pat Meagher, Section Budget and Finance officer and Chair of the Ad Hoc Committee on Sponsorship Opportunities, which was sent to the Standing Committee on Corporate Sponsorship chaired by Past Chair Dave Hirsch. The Standing Committee considered the memo during several telephone conference meetings. The committee noted that agencies have differing ethics standards and several agencies were consulted concerning sponsoring meeting receptions. The committee’s consensus was that corporate sponsors may contribute to the Section generally and be recognized by the Chair but not as a sponsor of a particular reception. A corporate sponsor for the Construction Division breakfast meeting at each ABA annual meeting might meet the ethical standards if the individual breakfast cost is within the dollar limitation for nominal gifts, but a sponsor for a lunch probably would exceed that limit. The same conclusion was reached regarding miscellaneous breakfast and lunch sponsors. The Standing Committee concluded that corporate exhibitors at meetings would meet ethical muster, and would be most appropriate at the annual Procurement Institute in Annapolis.
Council Member Jerry Walz asked about the status of the letter to the U.S. Attorney General regarding government lawyer participation in Section activities. Vice Chair Mary Ellen Coster Williams noted that there has been no response at this time.
Pat Wittie reported on the activities of the Dispute Avoidance/Early Resolution Task Force. The task force is at work and has developed a questionnaire concerning use of ADR procedures to be furnished to the Alternative Dispute Resolution offices of various agencies and to contractors. The task force has collected various samples of ADR agreements and will soon begin analysis of the information collected. The task force will develop “best practices” and plans to publish a monograph. Its work is expected to be complete by January 1, 2001.
The current status of the Construction Law Source book was described by Mike Love, Co-editor of the book together with Doug Patin. This effort began in 1996 and now Commerce Clearing House has agreed to publish the book rather than the ABA. Mike reported that all state chapters but one have been received and he and Doug Patin have edited all but ten. CCH will pay royalties on sales of the book to the ABA Fund for Justice and Education, earmarked for the Alan Peterson Fund. Mike and Doug will try to recognize the authors and the Section in the editor’s notes. This may not be possible since the ABA does not want the CCH book to have any connection with the ABA or with the Section.
John Miller made a presentation concerning the status of the American Infrastructure Consortium. The AIC Steering Committee met at the Massachusetts Institute of Technology on May 10, 2001. The AIC has three years of funding in place at this time, with the lead sponsor being the American Consulting Engineers Council, composed of 5,000 engineering firms. AIC is working with the American Legislature Exchange Council (“ALEC”) to target key state legislators to influence the acceptance and adoption of the Model Procurement Code. AIC with ALEC will set up briefings for legislative leaders in various states to promote the Model Procurement Code.
Paul Dauer asked if there is a system for periodic review of the Model Procurement Code rather than revising it on a 20-year cycle, as was just completed. In discussion of this issue, Chair Greg Smith noted there is no system in place now and would recommend that Chair-Elect Norm Thorpe deal with this issue. Norm noted that he favors volunteers who might look at additional chapters on information technology procurement, but the priority now is producing the regulations to implement the MPC. He does not favor adding an affirmative action chapter because this very controversial subject draws unnecessary attention. Norm will seek ABA support for friendly state legislators in the effort to adopt the MPC.
John Miller continued his briefing on infrastructure issues, addressing infrastructure data collection, municipal accounting standards concerning infrastructure, such as those promulgated by the Government Accounting Standards Board (“GASB”), and establishing uniform standards regarding inventory of infrastructure networks. John noted that the MPC provides a standard set of procurement alternatives and would be promoted by the AIC. He also noted that systems will be developed to keep infrastructure condition information current. An example of an AIC activity is to restructure the client information, use the information to monitor conditions, identify fund sources and uses and plan for expenditures for maintenance and new construction. In addition, this activity might implement the GASB standards, project cost and revenues, and develop strategies for infrastructure improvement programs.
The AIC program plan is to adopt the MPC as the AIC standard, develop the MPC regulations, develop standards for condition assessment and consider existing standards for financial reporting, possibly adopting GASB Statement 34.
A report on the General Accounting Office Commercial Activities Panel was presented by Bill Roberts. Members of the Panel have been selected and its first meeting was held May 8, 2001. The Section will try to provide meaningful input to the GAO even though the Section may not be able to provide official comments. GAO attorney Bill Woods noted that the GAO has scheduled public hearings in June, August and September 2001 and that there is information concerning the Panel on the GAO website. Several Panel working groups have been established to address various issues, including current government challenges, such as human capital, developing strategies for dealing with those challenges, and to identify which activities are actually working well – for example, the A76 Program.
Paul Khoury reported on the Contract Claims and Dispute Resolution Committee activities. He discussed the Air Force initiative concerning use of ADR in past performance ratings. A contractor’s willingness to participate in ADR will be a factor in past performance ratings. This initiative was introduced at the Air Force ADR Conference in San Antonio, Texas on April 17, 2001. The Air Force has identified a number of initiatives and intends to include timely identification and resolution of issues using ADR in the CPARS evaluation of contractors’ performance. The Air Force cannot require ADR use but can reward contractors that work with the government to identify and resolve contract issues and disputes. There are concerns that past performance ratings may be lowered because the contractor has made claims even if those claims are legitimate. Additional concerns include how to reward contractors who engage in ADR without penalizing others. The committee plans to prepare a white paper to aid the Air Force in drafting guidance on ADR impact on past performance ratings. The Committee’s report on Air Force use of ADR in past performance ratings is attached to these minutes as Exhibit C.
Chair Greg Smith reported on initiatives undertaken by the Court of Federal Claims. First, COFC General Order 38 concerning protests is being revised. The COFC Advisory Council is working on changes to recommend to the court. These will address protective orders and other issues. The COFC has also begun an ADR Pilot Program under which four judges are designated as ADR judges and all cases filed with the COFC will be assigned for evaluation to these judges, except for bid protests. The goal of the Pilot Program is to determine whether early neutral evaluation by a settlement judge will help the parties reach a better understanding of their differences and their prospects for settlement.
Carl Vacketta reported on plans for the annual meeting in August. The meeting will be in Chicago and the Section’s reception will be held at the Field Museum. The Section is presenting three CLE programs. Invitations to the annual Air Force Trial Attorney Dinner will be out soon. Carl also reported on the status of the Public Contract Law Journal and noted that another single-subject issue is planned and that the writing competition will be conducted again this year.
Chair-Elect Norm Thorpe noted that the Section of Public Contract Law and the Section of State and Local Government Law and their Model Procurement Code revision project have been nominated for the ABA Section Officers’ Conference 2001 Meritorious Service Award.
Chair Greg Smith called attention to various items in the agenda book including the proposal by the Section of Litigation regarding the use of unpublished opinions which is to be presented to the House of Delegates at the annual meeting, the memorandum by the ABA Commission on Multi-Jurisdictional Practice, the Goal IX Update Report on Women in the Profession and particularly women’s advancement into leadership positions in the American Bar Association, the recognition of Alan and Milly Peterson’s recent and generous contribution to the ABA Fund for Justice and Education to benefit the Public Contract Law Education Project, and, finally, the nomination of Past Chair Allan Joseph as ABA Treasurer-Elect.
A roster of those persons attending the Council meeting is attached as Exhibit D.
Chair Smith adjourned the Spring Council Meeting at 12:25 p.m.
Respectfully submitted.
Hubert J. Bell, Jr.
Secretary