American Bar Association

Section of Public Contract Law

Minutes of August 1, 1998 Council Meeting

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The August 1, 1998 meeting of the Council of the Section of Public Contract Law was held in the Radisson Plaza Hotel in Toronto, Ontario, Canada. 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 9:00 a.m. by the Section Chair, Ms. Marcia G. Madsen.

The minutes of the May 16, 1998 Section Council Meeting were approved as presented in the meeting agenda. [Agenda, Tab 1]

The Co-Chair of the Program Committee, Mr. John Burkholder, reviewed the programs that had been presented during the past year in Santa Fe, NM, Annapolis, MD, and New Orleans, LA. He then reviewed the programs that the Section was either sponsoring or co-sponsoring as part of the annual meeting in Toronto. These included:

· Recent Developments in the Law of Qui Tam and the Civil False Claims Act

· The Civil False Claims Act and Qui Tam Enforcement: Were the 1986 Amendments Good Public policy and is Further Amendment Necessary?

· Health Care Contracting with the Federal Government: Golden Opportunity or Trap for the Unwary?

· Commercial Buying Practices: From Major Systems to Small Purchases — A Practical Assessment of What’s Working and What’s Not

· Construction Contracting: New Twists and Perennial Problems

Mr. Burkholder thanked the individual Program Chairs for their considerable efforts in organizing the programs throughout the year. Ms. Madsen then thanked Mr. Burkholder for his efforts and those of his Co-Chair, Ms. Maryanne Lavan.

Ms. Madsen expressed the Section’s thanks to Mr. Don Kinlin, Col. Al Purdue and the Air Force trial attorneys who organized the annual "John T. Murphy" dinner that was held Friday, July 31, 1998. The dinner was a great success and served again to bring together government, corporate and private practitioners in an informal social setting.

The Section Chair announced that the Section’s July 30, 1998 letter regarding Sections 805 and 816 of S. 2057 (the DoD Authorization Bill spare parts pricing provisions) had been submitted.

She further announced that the Section’s earlier Termination for Convenience proposal (that were submitted to the FAR Secretariat on June 4, 1998) had also been submitted to the Deputy Under Secretary of Defense for Acquisition Reform, Mr. Stan Z. Soloway, on July 8, 1998.

Mr. Alan Chvotkin and Ms. Angela Styles jointly presented the report of the Legislative Coordinating Committee. They reported that the Committee had held ten meetings over the past year and had work with other committees to prepare and present positions on a number of legislative actions. The Committee also worked with the legislative group within the ABA’s Washington office, particularly Mr. Lars Frisby of that office.

Ms. Styles then reviewed the status of certain legislation:

· The DoD Authorization bills will be the subject of conference discussions that will not begin until September 1998.

· The DoD Appropriations legislation is being followed by the Committee.

The Section Chair, Ms. Madsen thanked Mr. Chvotkin, the out-going Chair of the Committee, for his efforts during the past several years of active work by the Committee.

Mr. Don Featherstun, Chair of the Region Division, reported on areas of particular activity by the Division. These included Virginia where Ms. Linda Maramba had been very active in sponsoring programs. Mr. Rob Schaeffer in Arizona was also commended for meetings organized in that state. Mr. Alan Samelson’s efforts in California were highlighted, which included programs, and the comments prepared with respect to California’s Pilot Protest Procedure. Finally, Mr. Featherstun thanked Mr. Tom Treacy for his contribution through regular the articles he prepared on current cases that appear in the Procurement Lawyer. He concluded by saying that the Division is always looking for good, active Region Chairs like those he described above.

With respect to the California Pilot Protest Procedure, the Section’s Chair-elect, Mr. David Churchill, emphasized that because the procedure was only a "pilot" effort, the Section should maintain a close watch on the procedure. Ms. Madsen noted, that the "Competition Principles," currently scheduled for consideration by the ABA’s House of Delegates, could be helpful in preparing further comments regarding the pilot procedure — assuming the Principles pass the House. Mr. Rand Allen, the Section Vice-Chair, suggested that the Region Division try to use the current Model Procurement Code effort as a membership vehicle.

The Committee’s Chair, Mr. Mark Colley, reported that the Committee-sponsored program in the Spring in Washington attracted over 100 attendees and was marked by lively panel discussions. For next year, one of the Committee’s projects will be to consider a possible position regarding the sunset provisions affecting Scanwell jurisdiction in the U. S. District Courts.

Ms. Ruth Burg reported that the "Competition Principles" are currently scheduled to be considered by the ABA’s House of Delegates on the afternoon of Tuesday, August 4, 1998. The matter is Item No. 111 on the House of Delegates agenda.

The next group of principles to be presented to the House of Delegates will be those concerning "Controversies," which were discussed at length in New Orleans. Other principles still in the drafting stage include those concerning "risk allocation."

Messrs. Alan Gourley and Richard Rector, the Chairs of the Judicial Remedies and Federal Claims and Remedies Committees respectively, reported on the Committees’ joint activities.

The Procurement Principles concerning "controversies" that the Committees were closely involved in were approved at the Section Council meeting in New Orleans. Since then the Committees prepared a report to explain and accompany those principles. The report and principles now give equal weight to the importance of informal resolution of disputes and the right to full redress of disputes.

The Committees next focus will be on developing a report on the Contract Disputes Act after twenty years. The report will look at where the process has been as well as potential areas for improvement. The Public Contract Law Journal is also planning an issue that will focus on the CDA.

The Section Chair thanked Messrs. Gourley and Rector for their considerable efforts over the past year, which was a very busy year for both Committees.

Mr. Marshall Doke was asked to report on activities before the House of Delegates. Mr. Doke said that he was still attempting to determine if the "Competition" procurement principles that are currently scheduled for House action on Tuesday, could be moved to the consent calendar. He reported on procedural proposals before the House regarding the operation of the Nominating Committee, and then described a number of items of general interest on the House agenda.

Mr. Allan Joseph was next asked by the Section chair to report on recent issues of interest to the Section generally that were before the Board of Governors. Mr. Joseph reported upon the "Pay-to-Play" issue, involving restrictions on political contributions at the state/local level for those who do business with state/local organizations. The matter has been highly controversial.

The Section chair then thanked both Mr. Joseph and Mr. Doke for their considerable efforts on behalf of both the Section and the ABA, particularly in the past very busy year.

Ms. Maggie McConnell and Mr. Larry Etheridge jointly reported upon issues of relevance to the Model Procurement Code (MPC).

Ms. McConnell began by reporting on the status of funding for the MPC Update Project. She also noted that a Website approach for the Project was adopted and has been up and running since early July 1998. A demonstration of the Website by Mr. John Miller is planned for tomorrow. She also reported that there is an article on the MPC Update Project in a recent issue of the Public Purchaser.

Mr. Etheridge reported on the passage of the MPC in Pennsylvania. He noted that this was accomplished through the considerable efforts of Mr. Jim Marsh and is reported on at Tab 5 of the Agenda Book. He asked that the Section thank Mr. Marsh for his significant help in making this happen.

Mr. Rob Schaeffer and Ms. Mary Ellen Coster Williams jointly reported on activities of this Division. The Section of Public Contract Law had co-sponsored with the Public Sector Lawyers Division a resolution before the House of Delegates regarding participation of public sector lawyers in the ABA that was intended recognize the substantive contribution of such lawyers, their substantial number, and the need to encourage (or at least not obstruct) their participation in the ABA and to permit them to appear as representatives of their agencies. The resolution appears at Tab 3 of the Agenda Book.

The Section is also co-sponsoring with the Division a program on ethics that is expected to be held in the D.C. area and fill _ day. Ms. Karen Hastie Williams reported that the Department of Justice was engaged in discussions of the resolution and, at present, had indicated that it will not oppose it.

Ms. Stephanie Gilson reported on the joint program with the Health Care Law Section scheduled for August 2, 1998, which will generally address lessons learned from DoD contractors’ experience with compliance and how it relates to health care contracting. She also reported on the considerable work that has been done in preparing the program on Medicaid managed care, which is scheduled to be given at four different locations on four different dates in the coming year. Each program will have a "core" section concerning federal requirements with another section covering requirements in the states in the region in which the program is being given. Ms. Gilson then observed generally, that most Government contract practitioners who have become involved in health care contracting issues have become involved in the compliance area.

Ms. Mary Lou Soller and Ms. Alison Doyle reported upon a number of proposals that have been made to address the extent to which Government lawyers may contact individuals who are known to be represented by counsel. There is going to be a proposal on this issue considered by the ABA at the Mid-Year meeting that will focus upon the old "Thornburg" memorandum as revised by Attorney General Reno. See Attachment 2, hereto. There are other proposals being developed by the Department of Justice, by individual groups within the ABA and by the Supreme Court. The Section Task Force was established to address these various proposals and prepare comments as appropriate. Volunteers interested in working on the Task Force were solicited.

Ms. Alison Doyle, Chair of the Ethics Committee, described the regular monthly meetings the Committee held during the past year. She then described the nature of the Ethics program currently being planned with the public Sector lawyers Division. The Committee’s Report is at Tab 18 of the Agenda Book.

Ms. Mary Lou Soller, Chair of the Procurement Fraud Committee, reported on the status of the Qui Tam Monograph. The new target date for publication is October 1998. She also indicated that the Committee was monitoring proposals for changes to the False Claims Act which had been made affecting the health care industry.

The Section Chair thanked Ms. Soller and Ms. Doyle for their efforts during the past year and for their joint efforts on the Task Force.

Mr. Churchill noted that the because the Task Force may be called upon to deal with multiple proposals, they should concentrate their early attention on issues that will be common to the various proposals, and then wait for the actual proposals to sort themselves out.

Ms. Pat Wittie reported on the Pro Bono Committee’s preliminary thinking regarding its role and the nature of the activities it should undertake. She noted that at the meetings held to date, a number of issues have been identified that are unique to the sponsorship of pro bono activities involving public contracting. The Section Officer Committee is currently sponsoring a pro bono initiative.

Ms. Wittie also reported that the Procurement Lawyer was now receiving more articles than it could publish. The articles that were being received were of high quality, and diverse with respect to topics and authors.

The Section Chair specifically thanked Ms. Wittie for her considerable efforts on behalf of the Procurement Lawyer over the past few years.

The Section Vice Chair, Mr. Rand Allen, reported on the planning efforts currently underway for the "London-2000" meeting. The first half of the annual meeting will be held in New York. The meeting will then reconvene in London. 11,000 attendees are anticipated. He discussed the pre-registration opportunity available to members. The session in London will include 18 plenary programs, which will be monetarily supported by the ABA. The London-2000 Planning Committee suggested that the Public Contract Law Section and the Health Care Law Section co-sponsor a plenary session. Meaningful participation from the AMA and other ABA Sections is being sought. The Public Contract Law Section can put on its own program as well, but will have to bear the cost, which will be high.

Ms. Lynda T. O’Sullivan, the Committee’s Chair, reported upon the Committee’s activities over the past year, which are otherwise summarized at Tab 19 of the Agenda Book. Substantial time was spent during the year preparing comments with respect to a variety of proposed regulations including: (i) CAS Board regulations defining cost accounting practices and changes to practice; (ii) allowability of qui tam defense costs; (iii) OPM changes to FEHBAR regarding TINA applicability.

The Section Chair also noted that a special CAS Board Working Group was created to monitor the current Congressionally-mandated study being undertaken under the auspices of the GAO. Ms. O’Sullivan and Mr. Alan Brown are to co-chair the Working Group. The group’s initial efforts are due by the end of September 1998.

Mr. Hugh Bell gave the report of the Construction Division. He noted that the Division is co-sponsoring a program with the Forum on the Construction Industry to be held in Chicago on October 16-17, 1998. The program will focus on a wide range of subjects including design/build and creative financing issues. He also reminded everyone of the construction program to be held on August 4, 1998. He noted the work of the International Public Construction Committee in preparing a Manual relating to the legal and financial of doing business in individual foreign markets. See Tab 8 of the Agenda Book. Finally, Mr. Bell noted that the Construction Deskbook has been completed and fills 52 chapters. Publication of the Deskbook, however, has been delayed from the scheduled Fall 1998 date..

Mr. Cameron Hamrick reported on the activity of this new Committee, which has included proposed changes to agency regulations implementing the FOIA as well as other issues. A complete report is at Tab 21 of the Agenda Book. Mr. Hamrick said that the meetings held to date have been lively, and he specifically thanked Ms. Melanie Pustay from the Dept of Justice who has made a substantial contribution.

Ms. Ruth Burg made a motion that the Section send a letter to the families of Geoffrey Creyke and Harold Blasky both of whom recently died. The motion was seconded by Mr. Rand Allen.

Mr. Marshall Doke then summarized the career of Mr. Creyke and his considerable contributions to the Section. He noted the fact that Mr. Creyke help create the Section and became its first Chair in 1965. He was responsible for the Section’s basic structure, a structure with a national focus, and Mr. Creyke was a true gentleman.

Mr. Larry Schor then summarized Mr. Blasky’s career as a pre-eminent construction lawyer, including his career with the Corps of Engineers and in private practice. He also noted some of the significant cases in which Mr. Blasky had been involved.

The motion was passed without objection.

Mr. Ron Hutchinson gave the report of the Commercial Products Committee, which otherwise appears at Tab 9 of the Agenda Book. He noted the various comments to proposed regulations the Committee had prepared over the past year, and the fact that a monograph entitled Contracting for Commercial Products and Services was in the early stages of preparation.

Mr. Jerry Walz reported that most of the Section Committees were now on-line. He reviewed some of the sample screens that were currently on-line. See Attachment 3, hereto. Mr. Walz’s very considerable efforts throughout the year in getting the Section’s webpage and those of the various Committees up and running was specifically noted by the Section Chair with her personal thanks.

Mr. Fred Moss gave the report of the Proceedings Committee. He noted first that a beta version of a CD Rom with the material from the Section webpage was currently available. This would be a searchable resource when completed. He was not sure the CD Rom would be commercially viable at least so long as the Proceedings webpage continues to include meeting minutes, Section comments, meeting agendas and other publications of general interest. Ms. Madsen thanked Mr. Moss for his considerable work on the Section’s behalf in the past year.

Mr. Robert Murphy gave the Committee report. He began by noting the contribution of Mr. Dave Hirsch throughout the year. He summarized the current issues the Committee was exploring, which included: (i) promised FAR changes relating to labor relations (responsibility and cost related changes); (ii) Y2K issues (Ms. Donna Yesner is chairing this effort); (iii) "Other Transactions" monograph; and (iv) an update of the "Depot Maintenance" being prepared by Mr. Tony Gamboa. The Section Chair thanked Mr. Murphy for the Committee’s considerable contribution and effort over the past year.

Ms. Agnes Dover, the Chair of the Committee, reported on the Committee’s activities in the past year. The Committee held regular meetings, and a website is near completion. She reported on S. 314 which passed the Senate as a modified version of an earlier bill (on which the Section had submitted comments) regarding the A-76 process.

The Section membership showed an overall decline of 2%, a decline parallel to that within the ABA as a whole. As bright spots it was noted that Associate membership was up 3%, however, and law student membership was up 20%. Factors contributing to the decline are numerous and varied. Another "share the wealth" type campaign is contemplated, and Mr. Stan Dees suggested that the Section might be underspending on Region and State/Local Activities.

The Section Chair then noted the following individuals who were outgoing chairs of Committees, all of whom deserved individual thanks for their contributions not only in the past year, but for many years:

Alan Chvotkin

John Farenish

Devon Hewitt

Doug Patin

Joel Heusinger

Maurice Baskin

John Burkholder

John Kuelbs

Hugh Bell

Maryanne Lavan

Barbara Pollock

Ty Hughes

Special thanks was also owed to Mr. Allan Joseph for his work on the Board of Governors. Similarly, Ms. Ruth Burg deserves special thanks for the work she did during the year on a number of difficult assignments.

The Chair entered a motion to adjourn at 12:15 p.m., which was seconded and passed unanimously.

Respectfully submitted,

Gregory A. Smith