AMERICAN BAR ASSOCIATION

SECTION OF PUBLIC CONTRACT LAW

Minutes of Council Meeting of May 17, 1997

1. The Spring meeting of the Section Council was held at the Sheraton Boston Hotel & Towers, Boston, Massachusetts, on May 17, 1997. Council members and Section members attending the meeting are identified at Attachment 1.

2. The meeting of the Council was called to order at approximately 9:30 a.m. The first order of business was approval of the minutes of the March 1, 1997 Council meeting.

ABA Legislative Liaison

3. Chairman Kuelbs introduced Mr. R. Larson Frisby. Mr. Frisby is a lobbyist in the Washington office of the American Bar Association, and the Public Contract Section is within his area of responsibility. Mr. Frisby briefed the Section on his background and role in the ABA. He also discussed at some length how the ABA determines lobbying priorities. He encouraged the Section to submit proposed resolutions for the approval of the ABA House of Delegates and discussed in some detail the situations when the use by the Section of "blanket authority" is desirable and appropriate. An outline of Mr. Frisby's remarks and accompanying materials are included at Attachment 2.

Model Procurement Code Update Project

4. Ms. McConnell provided a report on the Model Procurement Code Update Project. Details in support of her report were provided at Tab 2 of the Council Agenda Book. She noted that a Joint Project Operating Agreement between the Sections of Public Contract Law and State and Local and Government Law has been signed and that a Joint Project Steering Committee consisting currently of Mr. Madden (Section of Public Contract Law) and Mr. Ethridge (Section of State and Local Government Law) has been established. The Project has been funded with $50,000 in seed money and is in the process of securing additional funding. A discussion of various aspects of the Project's undertakings ensued with comments by Messrs. Myers and Miller and Ms. Burg. In particular, there was a discussion of the use of the Internet in soliciting dialogue regarding the Project. Mr. Miller reported that the Update Project contemplated establishing its own web site through the auspices of MIT, and the goal was to have that web site established by the end of the year. Mr. Kuelbs suggested that Mr. Yukins, who has been instrumental in establishing the Section's web site, help with the Project's efforts in that regard.

Agency Level Protest Project

5. Mr. Colley reported on two initiatives being undertaken by the Bid Protest Committee in the area of agency level protests. The first involves getting information regarding agency level protest issues more widely distributed. This was being accomplished largely through the use of the Section's web page. In that regard, Mr. Yukins reported on the status of the web page and highlighted the information contained therein with respect to agency level bid protests, including a discussion group that has been established on the issue of agency protest enhancement. Copies of Mr. Yukins' slides are provided at Attachment 3.

6. The second initiative being addressed by the Committee relates to the handling of proprietary information in the context of an agency level protest. At this time, there is not a clear solution as to how such information might be disclosed to enhance the process. Suggestions include, perhaps, new FAR language or placing of language in RFPs. This is an issue which has been the subject of dialogue on the web page discussion group established by the Committee.

"Other Transactions" Authority

7. Ms. Burg and Mr. Pickens reported on the progress of the Ad Hoc Committee established to review the proposed treatment by the Department of Defense of the so-called "other transactions" authority. A detailed report was provided at Tab 14 of the Council Agenda Book. The Committee has been meeting regularly to review the substantive issues raised by the use of this authority. Mr. Pickens summarized many of the issues being addressed by the Committee. Essentially the "other transactions" authority would permit the Department of Defense to enter into agreements with contractors without regard to many of the statutory requirements that otherwise govern contractual relationships. The main role of the Committee at this stage is to examine some nineteen statutes that have been identified by the Department of Defense to be waived under this authority to determine whether there are any legal and/or practical barriers or impediments to such waivers, as well as the potential consequences of any such waivers.

8. A discussion of the Committee's efforts and many of the underlying substantive and philosophical issues was undertaken with comments and questions from, among others, Messrs. Love, Churchill, Miller, Gavin, and Featherstrun. Ms. Dover noted that there was no pending legislative proposal on the table at this time and, accordingly, it seemed that a "white paper" on these issues would be appropriate. Ms. Madsen commented that this would provide the Section an opportunity to be "proactive," and the Committee undertook to prepare such a white paper for consideration by the Council at the Annual Meeting in August. Ms. Madsen also noted that the Council should anticipate the possible need for "blanket authority" to comment on any legislative proposal that was submitted on this issue, and Mr. Churchill undertook to look into that issue.

Court of Federal Claims (COFC) White Paper

9. Messrs. Nibley and Colley reported on the progress of their subcommittee in preparing a Monograph on issues raised by the new jurisdiction accorded to the COFC to hear and resolve bid protests. A "very rough" draft of the Monograph was provided to the Council. Mr. Nibley reported that he had attended a meeting of the COFC Task Force appointed to review the need for new rules by the Court and that significant interest in the Section's Monograph had been expressed by the COFC Judges at that meeting. It was also noted in the discussion that followed that much of the analysis being developed for the COFC might also likely apply to District Court consideration of bid protest cases. Mr. Smith noted that the COFC Task Force has targeted the June-July timeframe for submission of its recommendations to the Court on possible new rules. Messrs. Colley and Nibley responded that the Monograph was proceeding on a comparable timetable and should be further developed for review by the Council at the Annual Meeting in August.

FAR Rewrite

10. Mr. Pachter reported that a revised version of the proposed "rewrite" of FAR Part 15 had been published for another round of public comment. Comments are due July 14, 1997. Mr. Pachter's Ad Hoc Committee is in the process of reviewing the revised proposal, and all drafters have been asked to provide their initial written analysis by June 14. The Committee will prepare proposed comments on the revised rule for review by the Council in time to meet the July 14 deadline.

11. A helpful matrix cataloging the Section's comments on the initial version of the rewrite and discussing how those comments were treated by the revised rewrite was provided by the Government Contracts Practice Group at the Venable law firm. A copy of that matrix is provided at Attachment 4.

Membership Campaign

12. Ms. O'Sullivan and Mr. Pronchick reported on the new "Share Our Wealth" membership campaign. The campaign will be kicked off by a letter to Section members from Chairman Kuelbs describing the campaign and noting its key feature: asking each member to bring in one new member. Copies of the proposed materials with respect to the campaign are included at Attachment 5.

Federal Claims and Remedies/Judicial Remedies Committees

13. Mr. Morrison provided a Joint Report on the activities of the Federal Claims and Remedies and Judicial Remedies Committees. Details of his report were provided at tab 23 of the Council Agenda Book. Highlights of the Committees' activities for the past quarter include the development of a questionnaire on "past performance" issues which will be disseminated shortly, formation of a subcommittee (with both private bar and government representation) to recommend changes to the FAR termination for convenience provisions based upon recent decisions by the Federal Circuit in the Krygoski and Ellett cases, and the preparation of comments for submission by the Section on GSA's proposed rules regarding subpoenas or similar demands to former and current government GSA employees.

Accounting, Cost & Pricing Committee

14. Mr. Smith reported on the activities of the Accounting, Cost & Pricing Committee for the previous quarter. Details in support of his report were provided at tab 22 of the Council Agenda Book. The Committee continues to hold regular monthly meetings which often include outside speakers on items of interest and to prepare comments and positions for the Section on various cost allowability and Cost Accounting Standards Board (CASB) rulemakings and discussion papers. The Committee is also in the process of developing a web page which it hopes to be able to demonstrate at its May meeting. Ms. O'Sullivan, Co-Chair of the Committee, also noted that the Committee will be considering comments on proposed rules regarding post-retirement benefit costs. She also noted that the Committee was in the process for considering the preparation of a white paper discussing how a contractor should account for proposal costs on IDIQ contracts.

Financial Report

15. Section Budget and Financial Officer, Ms. O'sullivan, provided a report on the Section's budget. Details of the report were provided at tab 29 of the Council Agenda Book. Ms. O'Sullivan noted the continuing trend of reduced dues income, but noted that that was not a trend unique to our Section but rather reflected the reduction of membership in the entire ABA. Notwithstanding the drop in dues income, however, the Section should meet or exceed its budget for the year because its investment income is substantially above budget.

Expressions of Sympathy

16. It was noted that Section member Judge Alan Goodman's son recently passed away. The Council and Section members were encouraged to sign a sympathy card to be sent on behalf of the Section to Judge Goodman.

17. Likewise, it was noted that Section member John Pavlik had been ill and, again, Council and Section members were encouraged to sign a card to be send to Mr. Pavlik on behalf of the Section.

Programs

18. Program Chair Laura Kennedy reported on the status of programs. She thanked, on behalf of the Section, the Co-Chairs, Ms. O'Sullivan and Ms. Elderkin, for the successful May 16 program, "Service Contracting: A Booming Business in the Downsizing Decade". She also noted that a new Section publication, Government Contracts for Services by Section member Carl Peckinpaugh, was introduced at the program and now available for sale.

19. Ms. Kennedy also reminded the Section that a full range of programs was scheduled for the Annual Meeting in San Francisco as follows: "Procurement Reform: A Never Ending Cycle?" (August 3); "Adarand's Legacy: The Future of Small and Disadvantaged Business Contracting in the Federal Government" (August 4); and A Presidential Showcase Program, "Dealing With Today's Global Market: Problems and Solutions in Sales by United States Companies to Foreign Governments" (August 5). In addtion, the Section is co-sponsoring with the Section of Administrative Law and Regulatory Practice a Program on August 3, "Voluntary Disclosures in Procurement: The Road to Absolution or Execution?"

20. Ms. Kennedy also noted upcoming mini-programs in D.C. in the month of June, including a program for summer associates and new lawyers on Government Contract Fundamentals on June 26 and a June 30 breakfast program on FAA Dispute Resolution Issues.

Section Proceedings on the Internet

21. Mr. Moss, Chair of the Ad Hoc Committee formed to pursue the inclusion of Section "proceedings" on the Internet, reported on the status of that effort. A summary of the implementation plan utilized by the Committee is included at Attachment 6. Mr. Moss noted that the project was proceeding ahead of schedule and the Committee's objective was to have a pilot version of the proceedings "on line" by the Annual Meeting in August.

"Opportunities for Women Lawyers" Program

21. Ms. Madsen noted that the Section on Law Office Management was sponsoring the Second Annual "Opportunities for Women Lawyers" program at the Annual Meeting and encouraged Section members to support the program. She noted that this program will also be announced in the upcoming issue of the Section's newsletter.

Region Divisions

22. Mr. Featherstrun reported on Region Division activities in the prior quarter. He noted that most of the activity of the Regions seems to be occuring west of the Mississippi. In general, the goals of Region Division activities are to identify Federal, state and local government public contract attorneys who are not otherwise involved with the Section and invite them to attend local programs and meetings. As indicated in his written report at tab 17 of the Council Agenda Book, there have been over fifteen such meetings or programs in the first nine months of this year. As noted by Mr. Featherstrun and documented at tab 8 of the Council Agenda Book, the Section members in Arizona (under Mr. Schaffer) and Southern California (under Ms. Maramba) have been particularly active.

23. The meeting of the Section Council was adjourned at approximately 12 p.m.