AMERICAN BAR ASSOCIATION
SECTION OF PUBLIC CONTRACT LAW
Minutes of Council Meeting of March 1, 1997
1. The mid-year meeting of the Section Council was held at the Omni Shoreham Hotel, Washington, D.C. on March 1, 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 the approval by the Council of the minutes of the November 16, 1996 Council meeting.
Increased Use of Section Web Page
3. The first item of business was a report by Mr. Yukins on the SectionÌs proposed use of the Internet. (Details of the proposal were provided at Tab 8 of the Council book.) Mr. Yukins summarized the primary recommendations regarding use of the Internet: (1) creating web pages listing Section leaders, Council members, and Division and Committee Chairs --with photographs if appropriate. (This would be in addition to the web pages that certain committees, such as Procurement Fraud and Bid Protest, have already created); (2) placing the Procurement Lawyer -- in part -- on the web page; and (3) placing past Section position papers on the web.
4. Council Member and Editor of the Procurement Lawyer, Pat Wittie, thanked Mr. Yukins for his efforts and indicated that the Board of the Procurement Lawyer strongly endorses putting selected articles and perhaps an index to the Procurement Lawyer on the web site. Further discussion ensued with contributions by Messrs. Miller, Churchill, Vacketta, Hordel, Soya, Doke, Walz, and Langevin and Msses. Sullivan and Burg regarding the efforts required to put position papers on the web site, whether the Public Contract Law Journal or its index should be included and the technological details associated with utilization of the web page and inputting data onto the Web page. Chairman Kuelbs stated that the Section needed to develop a plan for this effort which addressed the extent of data which would be included and the budget for the project. Ms. Madsen suggested that an ad hoc committee of Messrs. Churchill, Allen, Yukins, Vacketta, Langevin, Hughes and Msses. Wittie and Neforas consider the problem further and report at the next meeting of the Council. The Council agreed with the appointment of the ad hoc committee.
Model Procurement Code Update Project
5. Mr. Madden reported on the status of the Model Procurement Code (MPC) Update Project. A major accomplishment since the last Council meeting was achieving a consensus with the State and Local Government Section on how to proceed with the project. The project will be co-chaired by Mr. Madden and Mr. Etheridge, and the State and Local Government Section has agreed to match the Public Contract SectionÌs initial contribution of $25,000 to initiate the project. Ms. McConnell and Mr. Miller will serve as reporters on the project.
6. Mr. Miller generally described the projected schedule for the project as follows: (1) the Section year Î96-Ì97: achieve initial funding goal of $100,000, agreement with the Section on Local Government and establishment of a web site for the project (to be based at MIT); (2) Section year Î97-Ì98: collect information from local and state procurement activities and interested organizations, i.e., the people who actually use the Code, on the problems they experience and proposed changes. Based upon collection of this data, an outline of proposed changes would be prepared, which changes are expected to be relatively few and narrow in scope; (3) Section year Î98-Ì99: prepare draft changes and solicit reactions from the affected communities, submit the revised code for approval by the Councils of the Public Contract Law and State and Local Government Sections at the mid-year meeting and submit the agreed upon update for approval by the ABA at the Annual Meeting.
7. Mr. Miller also reported that Ms. McConnell had done a tremendous job in briefing the status and scope of the project to the State and Local Government Section, and Mr. Kuelbs quoted from a letter from the State and Local Government Chair to Ms. McConnell thanking her for her efforts. Further discussion included observations by Mr. Thorpe that a brochure on the project would probably help facilitate funding requests and Mr. LoveÌs comment that the ultimate budget should be coordinated within the ABA for approval. Mr. Montalto, who worked extensively on the initial Code project, also noted that he had retained in his possession significant files from the original project that may be useful to the Update Committee. Mr. Kuelbs thanked Messrs. Madden and Miller for their efforts to date and asked Mr. Miller to report at the next Council meeting on the status of funding.
COFC Jurisdictional Change
8. Mr. Nibley reported on the efforts of the SectionÌs working group on implementation of the Court of Federal Claims (COFC) new post-award bid protest jurisdiction. (A copy of his written report is included at Attachment 2.) Mr. Madden then reported on the Task Force appointed by the COFC to provide input on potential rules changes. He indicated that the Task Force included some 25 members, including several from the Section Council, and had first met on March 4. The Task Force is ensuring that it maintains liaison with other interested parties including the Clinton Administration Task Force (being spearheaded by OFPP), the ABA and the FBA. The Task Force is shooting for production of an initial product in the June-July timeframe.
9. Considerable discussion on the Task Force processes and objectives, as well as the appropriate input from the Section, ensued. Mr. Johnson noted his view that the Task Force could not properly be involved in providing guidance to the Court on statutory interpretation as that required action by the Court itself in connection with a particular case or controversy. Other Council and Section Members, including Msses. Dover, Cadieux, Yesner, Madsen and Messrs. Churchill, Love, and Kuelbs contributed comments. There was, in particular, a discussion of how the Section ad hoc working group could properly reconcile divergent views from its members in the private bar and the government. It was agreed that the Section ad hoc group would proceed with development of a scholarly-type paper which would research and address issues "from both sides."
Public Contract Law Journal
10. Mr. Vacketta, Editor-in-Chief of the Public Contract Law Journal, introduced two members of the Student Editorial Board, Mr. Evan Farber, Editor-in-Chief, and Ms. Dana Cohen, Senior Managing Editor. The Council thanked the student members for their efforts on behalf of the Journal.
Defense Industrial Base Committee
11. Ms. Burg provided an informational report (enclosed at Attachment 3) on DODÌs expanded authority to use the "other transactions" instruments authorized by law. She also commented that the issue was moving on a "faster track" than originally anticipated as proposals by DOD for expanded use of the authority were pending before the Senate Armed Services Committee for inclusion in the DOD Authorization Act, to be marked-up by the end of April. Further discussion by Messrs. Pickens, Kuelbs, Gamboa, Wallick, Featherstrun, Thorpe, and Dees and Msses. Dover and Burg addressed the policy behind the other transactions authority and the extent of its appropriate use.
DOD "Verticality Task Force"
12. Section Member, Dennis Trosch, provided a report on the DOD Verticality Task Force which was empowered to examine the effect of vertical integration on the defense industry. This was a follow-up to the Defense Science Board Task Force Report in 1994, which recommended more extensive DOD involvement in significant mergers of DOD suppliers, establishment of a DOD-wide "focal point" to manage the effects of such mergers and the need for further study of the effect of such vertical mergers on DOD.
13. In particular, the charter to the Task Force included the need to determine the effects of the defense industry vertical integration on supplier decisions as they affect competition and innovation. The Task Force began its efforts in September or early October and has conducted five or six meetings to date. The focus so far has been on attempting to achieve balance among the members. A final report is due in April.
Legislative Coordinating Committee
14. Legislative Coordinating Committee Chair, Alan Chvotkin, submitted a report on the 105thCongress, "An Early Look" (included at Attachment 4). The report focused on the expected agenda of the Congress in the area of acquisition and the identification of key members and staff on acquisition issues.
Presidential Commission on Critical Infrastructure Protection
15. The Department of Justice member from the Presidential Commission on Critical Infrastructure Protection, Mr. Steve Mitchell, presented a briefing on the goals and efforts of the Commission. The Commission was empowered by Executive Order No. 13010 and focused on the various ways that the nationÌs infrastructure could be compromised and ways to anticipate and prevent such compromise.
Joint Construction Law Summit
16. Hubert Bell, Chair, Construction Division, proposed Section cooperation in support of the Joint Construction Law Summit. This is a bi-annual conference addressing construction law issues. Council member Mike Love moved for approval to authorize the Section to support the Summit, and his motion was seconded by Mr. Menaker. The motion passed by unanimous approval of the Council.
ADR Committee
17. Messrs. David Marmelstein and Joseph McDade, Co-Chairs of the SectionÌs ADR Committee, reported on developments in the area of alternative dispute resolution. Mr. Marmelstein noted that the ADR Act of 1996 had passed and incorporated many of the SectionÌs suggested changes, including a strengthened confidentiality provision and, removal of the Government "opt out" provision. He proposed that the Committee prepare a monograph discussing the status of ADR provisions.
18. Mr. McDade discussed the regulations issued to implement the ADR Act and noted that they were largely non-controversial. The one exception he noted with respect to the subject was binding arbitration. Under the ADR Act of 1996, binding arbitration is now authorized, but the implementing regulations provide little guidance on how it should be utilized. Mr. McDade commented that this may present an opportunity for Section input through a white paper or a letter to the Attorney General suggesting more detailed regulatory guidance. A discussion ensued with input from Messrs. Kuelbs, Featherstrun, Love, Bell, Miller and Churchill and Ms. Sullivan. In particular, the discussion focused on whether the SectionÌs comments should be limited to the federal level or address the use of ADR in state construction law context as well. It was generally agreed that the Committee monograph should focus on the federal area because that is where the new developments exist. In any event, Mr. Marmelstein indicated that the next meeting of the Committee was scheduled for April 2nd and that he would ensure that members from the Construction Division were notified of the meeting and invited to participate.
FAR Rewrite
19. Mr. Pachter reported that the SectionÌs comments on the proposed FAR Rewrite (provided at Tab 6 of the Agenda book) had been submitted on November 27th and that comments on the NASA FAR Rewrite had been submitted on November 22nd. In addition, Section Officers and members of the FAR Rewrite Working Group met with OFPP Administrator Kelman and other administration officials involved in the FAR Rewrite project to discuss in detail the SectionÌs comments. The meeting was cordial and productive.
20. Mr. Pachter reported that it was expected that the administration would revise the proposed FAR Rewrite based on comments from interested parties, and republish it, possibly by the end of March. He also believed that there was a 50 percent chance it would be published as a revised rule with a request for comment period. It is also possible that Congressional hearings will be convened to discuss the proposal. He also referenced the GAO comments on the proposed Rewrite and provided copies of the comments for Section members.
Section Programs
21. Chairman Kuelbs thanked, on behalf of the Section, Msses. Dover and Kennedy and Mr. Hordell for the success of the preceding dayÌs program which was attended by some 200 people. Ms. Kennedy reported on five upcoming programs: (1) an April 9th breakfast program on the latest policy guidance from DCAA on use of the Eichley formula; (2) an April 24th program developed by the Health Care Committee on The Unexamined Anatomy of Title Kasselbaum/Kennedy - "The Risk and Opportunities of Medicare Integrity Contracting and Associated Health Care Fraud Enforcement by DOJ and HHS." (It was noted that this program should be of interest to other ABA Sections, for example, Criminal Justice, and it was suggested that information regarding the program be put on the SectionÌs web site); (3) a May 16th program on service contracting (in association with the Spring meeting of the Council); (4) three one-half day programs in conjunction with the Annual Meeting in August; and (5) a program on the "Year 2000 Problem" sponsored by the Information Systems Committee to be held on March 25th.
22. A discussion ensued regarding a possible summer program for summer associates and new lawyers on Government contract basics and opportunities in Government contract law. It was agreed that such a program would be a good idea.
Financial Report
23. The Section Treasurer, Ms. Lynda O'Sullivan, provided a report on the Section budget. She noted that dues income was down -- a continuing trend, that law student dues income was up and that associate member dues was "holding steady." The SectionÌs investment income is currently exceeding the budget and program income is on track.
24. Ms. O'Sullivan also commented on membership status and noted that current membership of the Section is approximately 3,700. She noted that the Section had participated in a direct mail solicitation through the ABA and that we needed to see how many members we retain once the six month free membership offered expired. She also discussed a proposed membership campaign, i.e., "Each One Get One," under which each Section member would be asked to recruit a new member. This effort is being co-chaired by Dave Pronchick and should be in place prior to the Annual Meeting.
Subcontracting Committee
25 Pat Meagher, Chair, Federal Subcontracting Committee, reported on publication of the SectionÌs Guide to "Fixed-Priced Supply Contract Terms and Conditions." It was published in August 1996. The Subcontracting Committee has been focusing the past six months on publicizing the Guide and is in the process of preparing a supplement to the model terms and conditions through December 1996. A longer-term goal (1998) is the preparation of model certifications and representations to include in a future version of the model subcontract terms and conditions.
Regional Divisions
26. Mr. Featherstrun reported on efforts by the Regional Divisions. He noted that the job of the Divisions was "outreach" and that one vehicle used to achieve this goal is small breakfast meetings conducted quarterly or semi-annually in the regions. The Divisions are attempting to identify major contractors who do not participate in the Section and local agency counsel.
27. Linda Maramba also reported on the activities in Southern California which include a number of evening sessions on subjects such as attorney-client privilege, subcontracting, claims and GAO bid protests. In addition, Ms. Maramba has identified a series of attorneys in Los Angeles and Orange County targeted to receive a personal invitation from Chairman Kuelbs to an ABA event where they can obtain CLE credit. Chairman Kuelbs thanked Ms. Maramba for her outstanding efforts.
Government Lawyer Involvement in ABA
28. Chairman Kuelbs noted the publication of a report by an ABA ad hoc committee on participation by Government lawyers in the ABA. Section member Karen Hastie Williams was a member of the group which prepared the report and will discuss its findings at the May meeting.
Health Care Procurement Committee
29. Chair Bruce Shirk reported on recent activities by the Health Care Procurement Committee. A copy of Mr. ShirkÌs written report was contained at Tab 20 of the Council agenda book. It included a discussion of the CommitteeÌs efforts on the Kasselbaum/Kennedy program to be held on April 24th and included a copy of a letter to be sent to Committee members enclosing a copy of the CommitteeÌs mission statement.
30. The meeting of the Section Council was adjourned at approximately 12:35 p.m.
Respectfully submitted,
Rand L.
Allen
Secretary