The meeting was opened by Chair David Churchill at 9:05 AM. The minutes of the May 22 council meeting at Scottsdale, AZ were considered and approved.

Section Vice Chair Greg Smith reported on discussions with DCAA Deputy Director Mike Thebault on the DCAA proposed joint working group to prepare guidance and training materials for US companies doing business overseas. The emphasis of the program would be on compliance issues specific to global operations. One possibility under consideration is combining this effort with the Defense Industry Initiative. Another discussion meeting is scheduled for Aug. 18.

Chair Churchill introduced John McCarthy and Marcia Madsen to review the Y2K legislation upon which the Section had provided comments and drafting suggestions to avoid conflict with the CDA. The Section’s views as approved by the Council at Scottsdale were provided to Sen. McCain and Congressman Davis. The letter pointed out procedural and technical issues, for example, the operation of the 90 day waiting period which would eat up the 90 day CDA appeal period in the case of government contractors and agencies. The Section took no position on the advisability of the legislation in general. However, this was not enough to prevent bureaucratic delay within the ABA, which occurred and which resulted in the Section’s technical comments being received too late to impact the legislation. John Clark’s effective presentation to the ABA Bd. of Governors secured ABA approval for the Section’s position, so the Section may continue to support these technical changes through the regulatory process.

John McCarthy, incoming Chair of the new committee on Y2K matters briefed the requirements of the new law, the Y2000 Readiness and Responsibility Act. The Act is not harmonized with Government contract law, especially the CDA. Karen Hastie Williams noted that time is of the essence and quick issuance of implementing regulations should be expected. In these circumstances it is likely that Ms. D. Leigh, OFPP Administrator, will welcome the Section’s views as soon as possible. Chair Churchill urged the committee to refocus its efforts on the regulatory process and to work with interested agencies to resolve these problems through prompt regulatory action, to the extent possible.

The Chair invited Stuart Nibley and Rich Rector to report on progress of work with FAA on their efforts to reengineer their procurement process. With regard to the unusual disputes process which had been proposed, R. Rector reported the following responses to the Section’s recommendations:

-ADR is preferred, but it will be clarified that it is not mandatory

Stu Nibley reviewed the process of dealing with the new FAA regulations and observed that several Section committees were helpfully involved, and a good exchange of views occurred with various agency officials. We should expect that these innovations will spread to other agencies. In their first proposals, FAA had both ADR and Protests on a two track, either/or approach: informal or adjudicate. Section was successful in convincing FAA these need not be mutually exclusive. A serious problem which remains is the ability of the FAA to "opt out" of so-called "binding arbitration" after it has occurred. This is blamed on DOJ views of agency limitations. Many procedural suggestions of the Section on the bid protest regulations were adopted. The awardee has a right to intervene in a protest, no one else does. Parties will be allowed to provide input on the timing of hearings. Categories of documents to be produced were defined, but the agency reserves the right to prescribe which documents are relevant.

Concluding his committee report, Mr. Rector reported on the CDA Review Working Group. The project has been rescoped and is examining some 15 broad, fundamental issues which they will winnow down to 5 or 6 core, manageable issues likely to lead to Section recommendations for improvement to be implemented either by legislation or by jurisprudence.

Angela Styles gave the report of the Legislative Coordinating Committee. During September there will be joint hearings of the Senate Government Affairs and Labor Committees on the new definition of contractor responsibility as it may be impacted by violations of labor laws. Any Section comments on this matter should be submitted prior to September to have an impact on this process. A number of issues were identified which will have to be resolved in Conference Committee consideration of the Defense Authorization and Appropriation Bills. The R&D tax credit, which is expiring, is reauthorized in the tax bill, but that bill is the subject of a threatened veto. A provision increasing Miller Act bond requirements to equal the amount of the contract is included in the Construction Industry Payment Protection Act.

The Regulatory Coordinating Committee report was presented by Alex Brittin. He noted the excellent work of the staff at McKenna Cuneo, Herman Levy, and Arleigh Closser who have kept the information flowing to the section’s committees in support of the substantive work of the section.

Harvey Gordon reported on the status of the DoD report on price based contracting. The report is expected in August or September and will be issued for comment in a very short period of time, perhaps as little as 30 days.

Mark Cally and David Dowd reported on the work of the Task Force on Scanwell Sunset. Concurrent protest jurisdiction in the District Courts will expire at the end of the year 2000. A report on the matter is required by the GAO prior to Dec. 31, 1999. The Section is providing information and views to the GAO. The Section believes that the loss of this remedy would be unfortunate. There appear to be no strong reasons for its cancellation. The issue is not attracting attention, but the Section may be able to provide a useful service by providing information about the issue. David Dowd observed that the GAO appears to be approaching its reporting requirement in a mainly empirical way, that is, it is preparing to provide relevant statistics for the information of the policy makers. It was moved and seconded that the Council approve the Committee’s recommendations and forward them to the GAO. Karen Hastie Williams noted the apparent importance of submitting the Section comments since the Sen. Committee requests for statistical data seem to have steered the GAO into a more theoretical study. Stanley Dees questioned whether the Council had just received the recommendation and it was noted that it had been circulated to Council members in advance of the meeting. However, some Council members expressed concern that they had not had time to study the recommendation. The motion was tabled, with the expectation that it would be discussed and voted at the Tuesday meeting of the new Council.

Mary Lou Soller and Alison Doyle reported on the status of the Ethics issues relating to contact by government counsel and their investigators with employees of companies represented by counsel. The ABA and DOJ had negotiated until just prior to the annual meeting and had produced the draft which appears in the agenda book. This draft is on the agenda for House of Delegates action at the Atlanta Annual Meeting, provided it receives concurrence prior to the meeting by the Attorney General. It was not immediately determinable whether Attorney General Reno had in fact approved the draft. If not, it was expected the item would be withdrawn from the House agenda. Stay tuned.

Tom Madden, John Miller, Margaret McConnel and Larry Ethridge reported on the progress of the joint work on the Model Procurement Code (MPC) by the PCL Section and the Section of State and Local Law. PCL Section member Mr. Ethridge is the current Chair of the Section of State and Local Law. Mr. Miller reviewed the approval of the MPC draft at the previous Council meeting in Scottsdale, subject to incorporation of certain changes desired by the Council and necessary technical editing. The result is the draft in the agenda book, with certain last minute edits which are provided on a separate memo. This now goes to the Section of State and Local Law for approval of the changes desired by the PCL Section. If there is a need to negotiate between the sections, Mr. Madden and Mr. Othmer will conduct the negotiations on behalf of the PCL Section. Final approval by the PCL Section is expected and desired at the Santa Fe meeting in November, The deadline for the House of Delegates agenda for the midyear meeting is mid-December. State and Local Government Section Council meeting in October. Ms. McConnell stressed the need to continue the effort to get full buy-in by the other organizations sponsoring the revision efforts, and noted that success in getting acceptance of the final product will depend heavily on the support of these organizations who will be impacted by the new Code.

Paul Dower spoke to the omission of ADR from the draft, and presented for Council consideration an ADR provision based on his review of California practice and his extensive experience in this area. He also urged the Council to continue its oversight of the MPC and give appropriate attention to advancing commercial concepts of intellectual property, information technology procurement, and telecommunications. These areas, he said, need to be addressed and closely followed in order to stay abreast of changes in the commercial world. As requested by Mr. Dauer, his proposal for an ADR provision in the MPC was referred to the Committee on Dispute Resolution for review and report to the new Council.

Tom Madden then addressed the follow-on actions and activities needed to support and promote the MPC following its expected endorsement by the ABA. Based on his experience with the 1979 Code he believes it is essential that the Section draft and propose implementing regulations. John Miller described how his revision project staff could continue in operation in order to achieve broad consensus on implementing regulations, solicitations, contracts, and other forms. Some of the sponsoring groups have discussed the possibility of forming a consortium to do this. This needs additional funding, some of which has been promised.

Davidson Award. Margaret McConnell reported for the Committee on the Davidson Award for Excellence in State and Local Procurement Law. The Chair recalled the tireless work of Don Davidson in Section activities, especially regional and local activities. Mr. Davidson served the Section as Council Member, State and Local Division Chair, Chair of Region VIII, and Co-Chair of the Regional Division. He was personally responsible for large increases in section membership. In spite of severe physical handicap, he led a vigorous professional life as a construction trial attorney active in legal and civic affairs. Don Davidson added substantially to the knowledge, character, and reputation of the Section at the national, state and local levels through tireless energetic activity, good humor, wonderful companionship and professional scholarship.

Chair Churchill announced the Davidson Award for Craig Othmer. Mr. Othmer has been active in the Section for 17 years, rarely missing a Section meeting in that time. He has worked tirelessly as a council Member, State Chair for the State of New Mexico, and Division Chair. In addition to active committee work, Craig has c0chaired numerous highly successful programs contributing favorably to the reputation and effectiveness of the Section. Of particular importance is the enthusiasm Craig has generated in others for working at the State and Local level, maintaining a record of many years successful luncheon programs in his state. He serves on the Steering Committee for the Model Procurement Code revision effort and was instrumental in organizing discussions in his state among procurement professionals and interested attorneys. In all of his efforts, Craig Othmer gets the work of the Section done in a low key and cooperative manner. It is a pleasure to work with him.

The Chair presented the stone statue of a wise owl representing the Davidson Award to Craig Othmer of Santa Fe New Mexico.

There being no further business, the meeting was adjourned at 12:45 PM.

Norman Thorpe

Secretary