John E. McCarthy, Jr., Co-Chair of the Special Committee on Y2K, highlighted the report prepared by his committee. There followed extensive discussion on the committee's recommendation. The Council commended the committee for its excellent work. At Al Purdue's suggestion, the committee agreed to ascertain the status of the FAR Council's efforts to implement this statute. At the conclusion of the discussion, Allan Joseph made the following motion: "That the Council authorize the committee to prepare comments under the FAR authority and direct them to the appropriate officials. The comments should do two things: (1) suggest the Y2K legislation apply to the maximum extent possible prior to the issuance of a contracting officer's final decision; (2) include appropriate definitions to clarify the real role of the parties in government contract cases." This motion was duly seconded and passed unanimously except that Mary Ellen Coster Williams abstained.

John Miller reported that the ABA's Section of State and Local Government Law (SLGL) was unable to approve the Section's proposed changes to the Model Procurement Code as expected. Instead, the SLGL had received comments from third parties, including the National Institute of Government Purchasing. Due to these comments, which questioned some of the changes, the Model Procurement Code is essentially "in limbo." John Miller outlined a few of the issues and stated that they were not insurmountable and appeared to stem from a different reading of the provisions than intended. As a result of this delay, it appears that the Model Procurement Code will not be submitted to the House of Delegates for approval at the ABA's midyear meeting in Dallas.

V. Request for Board of Governors' Extension of Section's Authority to Comment on Procurement Regulations

Chair Allen highlighted the Section's request submitted to the ABA Board of Governors for consideration at its November 1999 meeting. Specifically, the Section requested the Board of Governors to extend the authority to comment on FAR changes for another three years. Marshall Doke explained that the basis for the request is a provision in the ABA bylaws which states that no one can speak for the ABA except the president; however this authority can be delegated. He explained that since 1978 the Section had been granted such delegated authority by the Board of Governors limited to commenting on proposed changes to federal procurement regulations, in particular the FAR. In 1996, the Board of Governors approved the Section's request to extend this authority to comment through December 31, 1999.

Mr. Doke emphasized that the Section has earned the confidence of the Board of Governors and that it is important that individual Section members and committees not submit their own views to any committee of Congress, especially on ABA letterhead. Mr. Allen reiterated that the Section needs to continue to "police itself" to retain the privilege to comment shared by only one other ABA Section.

Chair Allen raised the proposed comments regarding the FAR blacklisting provisions previously approved by the Council for submission. Although the Section could have filed the comments without seeking the approval of any other Section pursuant to its delegated authority to comment on procurement regulations, it elected to circulate the comments to the Section of Labor Law as a courtesy. Rand Allen spoke to the chair of the Section of Labor Law at the Sections' Officers Conference in Chicago in September and alerted him that these comments would be coming.

Greg Smith reported that the request for blanket authority went out to the Section of Labor Law on October 28, and on October 29, that Section filed a formal objection without explaining its reasons. Although both Greg Smith and Rand Allen tried to contact the Section of Labor Law in an effort to understand their objections, they have been unable to do so.

Because the comments on the proposed regulations are due on Monday, November 8, they would be untimely at this point. Although the Section could pursue an appeal of the Section of Labor Law's objection with the Board of Governors, this could not be done until November 11, so the Council agreed not to pursue an appeal. The Council commended the Committee, in particular John Pavlick and Lynda O'Sullivan, for the comments, noting that they were extremely well done and that they were narrowly focused on procurement issues.

VII. Comments on CAS Board Second Supplemental Notice of Proposed Rulemaking (NPRM) on Cost Accounting Practice Changes

Lynda O'Sullivan highlighted the proposed comments. She said that the Committee had drafted a proposed rule to set an example of how the rules could be phrased succinctly. In response to a question from the Chair, Ms. O'Sullivan noted that the working group which had prepared the comments had significant input from Government employees and that the Committee's Co-Chair Rob Burton is a Government lawyer. She also stated that the Committee had met with DOD personnel and discussed these issues. Allan Joseph recommended that the proposed regulation, FAR 31.201-8, Change in Organizational Structure, be clarified to include the concept stated at page 8 of the report that: "Decreased cost allocations to fixed price contracts would not be considered to be 'increased costs' under this proposal."

Greg Smith moved the adoption of the draft comments with Allan Joseph's clarification. This motion was duly seconded and approved unanimously, except that Mary Ellen Coster Williams abstained. At Maryanne Lavan's suggestion, the Chair appointed Lynda O'Sullivan to testify at the December 6 public meeting of the CAS Board on this issue.

Ms. O'Sullivan also reported on the activities of the Committee. She noted that Deirdre Lee, the Administrator of OFPP, had been the guest speaker at the Committee's October meeting and that the Deputy Director of DCAA would be the guest speaker at the November 9 meeting and would discuss operational audits which are becoming more frequent. The Committee also hopes to have Nelson Gibbs, the executive director of the CAS Board, as a guest speaker.

Ms. O'Sullivan pointed out that the Committee's comments on allowable interest had apparently been taken to heart, since proposed changes which the Section had criticized were not included in the final rule published on November 23.

VIII. Task Force on Priced Based Contracting

Greg Smith reported that the Task Force on Price Based Contracting had moved the report date out until November 15, but a DOD official suggested that might slip. The committee's comments are ready to go once a draft report is issued.

Greg Smith said that ABA/AGA research project on compliance requirements for American companies doing business overseas is continuing to be reviewed for scope and feasibility.

Elizabeth Fleming, sitting in for Angela Styles, highlighted the Legislative Coordinating Committee's report.

David Lane reported that International Public Construction Committee intends to draft a manual and will be submitting a proposed budget to the Council. The Construction Division is holding another luncheon program at the Federal Procurement Institute in Annapolis and will attempt to continue cosponsoring programs with other Sections and the Forum.

XII. Revision of California Information Technology (IT) Contract Terms and Conditions

Rand Allen pointed out that the final work product of the ad hoc committee on the California revisions to the terms and conditions for California IT contracts was in the agenda book at Tab 13. He commended Paul Dauer and his committee members for their excellent work and noted that the Section is becoming more involved in state and local procurement issues.

XIII. Report on October 19, 1999 Joint Program with State Bar of California and NCMA

Pat Meagher reported that Allen Samuelson had put on an excellent program in California, which seventy persons attended including state employees, private IT vendors, and attorneys; they discussed alternatives to leasing IT and model IT contracts. The Government also used the session as an informational comment period incorporating the verbal comments received into the proposed regulations. Ms. Meagher stated that the state also anticipates revising its Instruction to Bidders which would afford the Section an additional opportunity to comment.

XIV. Davidson Award

The Davidson award for excellence in state and local government work, a sculpture of a wise owl, was presented to Craig Othmer for his outstanding contributions to the Section.

XV. Report of the E-Commerce Committee

Pat Wittie and Craig Othmer highlighted the written report of the E-Commerce Committee. Craig Othmer reported on the cooperative purchase of computer equipment via an electronic solicitation run by the state of New Mexico. Pat Wittie reported on the Uniform Electronics Act, noting that it had been adopted by California with some modifications and was under consideration in a number of other states.

XVI. Report of the Program Chair

Lannie Elderkin reported on the excellent program conducted yesterday (Nov. 5, 1999) with seventy attendees, and Phil Davis outlined the program for the Federal Procurement Institute in March.

XVII. Corporate Sponsorship

Rand Allen reported that he had appointed an ad hoc committee chaired by Pat Meagher and Al Purdue to consider the issue of corporate sponsorship which was raised at the ABA's Sections' Officers' Conference. He noted that several other sections have entered into lucrative sponsorships and requested that the ad hoc committee investigate this for our Section, focusing on the unique issues raised by our significant Government participation.

Chair Allen noted that multidisciplinary practice between lawyers and accountants was "a front burner" issue in the ABA.

Marshall Doke explained that the ABA had held hearings on the issue with fifty-six witnesses testifying and after extensive debate no one favored MDP, but three positions emerged. First, since MDP is inevitable, regulate it. Second, fight MDP because it excludes solo and small practitioners. Third, study MDP further. Mr. Doke reported that there will be another open hearing on the MDP issue at the upcoming midyear meeting in Dallas.

The Council agreed that this is not a matter the Section needs to take a position on at this time, but would welcome the input of the Section members. Felix Martinez, the Law Student Division representative, stated that in the architect/engineering field multidisciplinary practice had already become a reality.

XIX. International Procurement Committee

Mike Mutek reported on the activities of the International Procurement Committee and highlighted the written report. He stated that CEELI had requested that the committee consider developing a guidance paper for procurement issues confronting eastern European countries. He also said that a representative of CEELI will talk to the Council at the Annapolis meeting.

John Burkholder reported that the committee was considering publishing an update to the guide on fixed price supply contract terms and conditions. He also said the committee is contemplating a full-day program in the spring of 2000 on international joint ventures and exclusive teaming agreements to be held in D.C. and possibly on the west coast as well. He noted that FTC and the Department of Justice had published guidelines for collaboration among competitors and that comments were due in mid-January. He said the committee may work with the Antitrust Law Division on this. Finally, he urged members to submit articles to the Procurement Lawyer.

Ross Branstetter reported that over the last year Section membership overall had been down one half of one percent, but that law student membership was up four percent. For the period 1996 through 1999, total membership was down three percent but law student membership was up fifty-five percent -- which he attributed to the efforts of Carl Vacketta at GW.

Mr. Vacketta noted that Section membership had helped law students in their careers and cited as an example one of Judge Williams' former law clerks working at the Social Security Administration. He pointed out that the Public Contract Law Journal is the second most popular law journal at GW, and said that this year seven articles were submitted for the biannual writing competition. Rand Allen commended Carl Vacketta for the fantastic job he has done.

XXI. New Business

Harvey Gordon pointed out that two sections of the DOD Appropriations Act were troublesome, i.e., Sections 8175 and 8176, because they restrain the Government's ability to make prompt progress payments. In response to a question by the Chair, Mr. Gordon stated the Section will have a chance to comment on these provisions when regulations are proposed.

The meeting was adjourned at approximately noon.