Public Contract Law Section                                                                      

Minutes of March 2, 2002 Council Meeting

 

Chair Norman R. Thorpe called the meeting to order at 9:10 a.m. and welcomed all who were in attendance.

 

The first order of business was approval of the minutes of the November 3, 2001 Council Meeting. On a motion by Jonathan Shaffer, the minutes were approved as written.

 

Chair Thorpe then provided a brief summary of actions taken by the ABA Board of Governors at

the Philadelphia mid-year meeting held in January.

 

The Board is developing a strategic plan for the ABA, which is a reaction to falling membership and a recent survey of how lawyers are perceived in the community. The Section looks forward to reviewing this plan when it is completed.

 

The Board voted to defer raising ABA dues for one year, and directed the Executive Director of the ABA, Bob Stein, to take steps to cut the ABA’s expenses significantly. Chair Thorpe noted that this may result in a reduction in services and support to the Sections.

 

ABA President Hirshon has appointed a task force on corporate responsibility, which will look at corporate governance issues arising out of the Enron and Global Crossing failures.

 

Alan Land, a long-time member of the Section, died on February 10. Maryanne Lavan spoke about Alan for a few minutes, noting that he had worked for Lockheed Martin and its predecessors for more than 30 years, retiring as Chief Counsel at the Skunk Works just a few months ago. In addition to his Section activities, Alan was active in his church. Stanley Dees remembered Alan as a gracious and insightful lawyer, and noted that he will be missed by all of his friends in the Section. The Chair will prepare a letter of condolence.

 

David Churchill then explained that the Court of Federal Claims Bar Association is establishing a memorial for the late Judge Andewalt. The memorial will consist of a portrait of the Judge, to be hung in the COFC Courthouse. The COFC Bar Association is soliciting funds for that purpose.

At the Chair’s request, Stanley Dees reported on an ABA initiative to improve the process for submission of amicus briefs by various ABA entities. The current process is cumbersome, and often takes so much time that the deadline for filing passes before approval is obtained. The Section Officers Conference has been looking at this issue for approximately two years, and proposes to amend the process so that it will be more akin to a blanket authority review. Each Section’s brief must be within the Section’s specialty, and there may still be some limited type of review by the Standing Committee on Amicus Briefs. Mr. Dees made a motion to have the Section go on record to support this proposed new process, and the motion was passed on a voice vote. Mr. Dees will prepare a letter for the Chair to sign, to report on the Council’s position.

 

Bob Murphy reported on a request that has been discussed in the Emerging Issues Committee. Angela Styles, the Administrator of the Office of Federal Procurement Policy, has indicated that the Administration wishes to improve the FAR process by increasing public access to the analytic process through which the FAR Council evaluates proposed regulatory changes. This increased access may be accomplished by addressing major comments submitted by the public when the FAR Council publishes a final rule, together with some explanation of why the comments were or were not adopted. Ms. Styles has indicated that she would welcome a letter from the Section setting forth the Section’s views on whether this change in approach would be helpful; and she is particularly interested in hearing examples of cases in which the FAR Council’s intent in making a change was unclear. Mr. Murphy pointed out that there has recently been litigation on the release of offeror unit prices, which might have been avoided if the FAR Council’s analysis of a FAR change had been included with the published revision to the relevant rule. Mr. Murphy asked for interested persons to provide any other pertinent examples to him, so that the Committee can prepare a letter. The letter will be circulated among the Council by email if it needs to be submitted to Ms. Styles prior to the Spring Council meeting.

 

Pat Wittie reported that the monograph on dispute avoidance that has been prepared by members of the special Task Force on Dispute Avoidance and Early Dispute Resolution has been completed, and will be sent out for publication as soon as the final copyright release materials are received. On behalf of the Task Force and her co-chair, Rob Burton, she thanked those individuals who have been most directly involved in writing the monograph, including Judge Carol Park-Conroy, Neil O’Donnell, Donna Yesner, Frank Carr, Steve Klatsky, Judge Martin Harty, Geoff Domber, Elizabeth Grant, Lynda O’Sullivan, Larry Harris, Dave Christenson, Ruth Burg, Greg Smith, and Richard Walters.

 

Rick Vacura explained a proposal by the E-Commerce Committee to submit a request to the FAR Council to open a case, for the purpose of determining whether FAR guidance is needed for Trading Partner Agreements (TPAs). The issue arises primarily because various agencies are preparing TPAs on an ad hoc basis, which has resulted in some inconsistencies. Although there is no substantial evidence that this is creating problems, it may become more critical over the next 18 months since the Government Paperwork Elimination Act requires that all agencies complete their transition to a “paperless” system by 2003.

 

Jonathan Shaffer moved that the Council approve a letter, to be prepared by the Committee, asking the FAR Council to issue an advance notice of proposed rulemaking for the purpose of determining whether government-wide guidance on TPAs is needed. Following discussion by the Council, Pat Meagher moved to table the motion. The motion to table was approved, with advice to the Committee to prepare a more complete report explaining why it is necessary or appropriate, in the Committee’s view, to recommend opening a FAR case on this subject.

 

Greg Smith then reported on the results of a special project on Section Structure and Organization that he undertook last year, to review the current Committee structure and recommend revisions. The recommended changes are reflected in Mr. Smith’s memorandum (attached to these minutes). Although an alternative proposal is also explained in the memorandum, the working group does not recommend pursuing that alternative at the present time. Mr. Walz moved that the Section adopt this recommendation so that next year’s Chair could begin implementing it. The motion was carried on a voice vote. After the vote, Chair-Elect Mary Ellen Coster Williams noted that this recommended committee structure will always be subject to the Chair’s ability to add or delete committees as needed.

 

At the Chair’s request, Dan Gordon briefly reported on the Commercial Activities Panel noting that the panel is scheduled to release its final report on May 1, 2002, and that he expects it to be on time. The panel will present high-level recommendations rather than draft legislation or proposed regulatory changes. The Section will have an opportunity to submit its comments on this report if legislative or regulatory changes are proposed in the future, in response to the Report. Because the next Council meeting will be held only a few days after the report is released, Mr. Gordon suggested that he could provide a more substantive explanation at that time.

 

The Membership Committee has developed a program for encouraging participation by young lawyers. Bill Crowley summarized the two parts of this program for the Council. First, the Committee will seek to obtain commitments from law firms, agencies, contractors and other entities to send at least one junior member of their legal staffs to one or more of the Section’s quarterly meetings. Second, the Committee will organize a series of happy hours and presentations in the Washington/Northern Virginia area, targeted at young lawyers. Mr. Thorpe and Mr. McAlwee noted that success in recruiting younger lawyers will depend on the individual efforts of each current Section member. Members are encouraged to take the initiative to approach young lawyers at all Section functions, talk with them, invite them to dinner, and generally make it clear that the Section welcomes them.

 

Chair Thorpe requested ratification from the Council of actions he has taken within the past week, relating to the West Group. Chair-Elect Mary Ellen Coster Williams explained that the ABA and West have recently signed an agreement, establishing the terms under which West will enjoy the right for five years to record and sell ABA educational programs on the Internet. Sections have been given three alternatives, including an “annual participation” agreement, which Mr. Thorpe agreed to last week on behalf of the PCL Section. Pursuant to this agreement, if the Section chooses to record its programs and sell them on the Internet within the next year, it must do so through West. West will handle the recording and, until the initial recording fund is depleted, will cover the costs of recording. When a program is recorded, both the Section and West must agree that it is appropriate for Internet sales; if the Section does not agree, West may not use it. The Section will receive a 40% content royalty (and an additional 10% affiliate fee, provided the customer reaches the West website through a link on the Section’s website).

 

Mr. Thorpe and Ms. Williams explained that the Section officers held several conference calls about this. The officers were sensitive to possible concerns by speakers about being recorded, and several of the speakers scheduled for this year’s Federal Procurement Institute were polled for their reactions. However, none of them including several judges and government lawyers, indicated they would decline to speak for this reason. Because of time pressures it was not possible to submit this action to the Council for discussion and a vote prior to the program, if we were to take advantage of the free recording for this year’s Federal Procurement Institute.

 

Pat Wittie moved to ratify Mr. Thorpe’s decision to participate in the West program for one year, and Ms. Williams seconded the motion. The motion was approved, with Mr. Thorpe abstaining.

 

John Pavlick reported on new proposed revisions to the non-procurement suspension and debarment rules, which have recently been published for comment. This revision is intended to make the non-procurement rules more consistent with the FAR rules. The Debarment and Suspension Committee will be preparing comments for the Council’s review, and Mr. Pavlick noted three areas that might be of particular concern.

 

GAO has issued an advance notice of proposed rulemaking to amend its bid protest rules, and Dan Gordon explained that the public has been asked to submit ideas for additional changes. There will be an April 1 deadline for public comment.

 

Pat Meagher reported on the activities of the special working group on e-publications. The group has agreed to recommend putting the Section directory onto the Section’s website, to be accessible only to Section members. This proposal was approved by acclamation.

 

Felix Martinez summarized current legislation that is being tracked by the Legislative Coordinating Committee. In particular, the Committee is following the “Services Acquisition Reform Act” (SARA), scheduled to be introduced by Rep. Tom Davis in the near future. The Committee has also flagged H.R. 30645, which will affect VA procurement supply schedules. Jerry Walz commented that this Committee is putting out extremely good substantive information on pending legislation, and encouraged all Section members to sign up for the listserv that the Committee uses to disseminate information. Members may sign up by going to the Section’s home page and clicking on “email lists”.

 

Holly Svetz reported that the Section’s request for blanket authority to submit a proposed amendment to the Bayh-Dole Act was accepted after much effort by Ms. Svetz, Section Delegate Marshall Doke, and Chair Thorpe. That proposed amendment is expected to become a part of the SARA bill.

 

Chair Thorpe announced that Mr. and Mrs. Alan Peterson have made a $15,000 contribution to the Section’s educational fund. As evidenced by Tabs 21, 22 and 23 of the Agenda Book, the ABA Board of Governors has approved the Section’s dues increase for the 2002-2003 year (voted on by the Council in August); approved our request for NCMA co-sponsorship of the 2002 Federal Procurement Institute; and approved our request for extension of authority to comment on state and local procurement jointly with the Section of State and Local Government Law.

 

Chair Thorpe and Ms. Wittie summarized changes to the Annual Meeting format and pricing structure that have been implemented by the ABA. The Section’s meeting will run from Friday night (beginning with the Air Force Trial Attorneys’ Dinner) through Monday evening, rather than Tuesday afternoon. The ABA will charge a flat fee of $95 for registration. However, each educational program will be ticketed, with tickets being sold in $25 increments. The price for each of the Section’s three programs will be $75. The Section will also offer a “Section passport” for $175. The passport will be good for all three programs. Judges and government attorneys are to receive special discounts; although they will be required to pay the $95 fee to ABA, they will be permitted to attend all Section programs for $25 each. Thus, judges and government attorneys should not purchase PCL Section passports. In addition, the ABA will now charge for several functions that were formerly free, including the President’s reception. While this new arrangement is likely to reduce the ability of members to informally attend programs sponsored by other Sections, it is hoped that our Section members will benefit from the lower price and the shortening of the meeting from 4 days to 3.

 

Pat Meagher reported that she is “cautiously optimistic” about the Section’s finances for the year. Both the Fall program and the Federal Procurement Institute were financially successful, and the Public Contract Law Journal has received renewed commitments from its advertisers for the coming year.

 

Chair Thorpe thanked the Program Committee for an extremely successful FPI, which had 144 paid registrants and netted $17,000. The Council discussed whether to seek NCMA co-sponsorship for this event every year.

 

Carl Vacketta announced that the next single-subject edition of the Public Contract Law Journal will be the Fall 2003 edition, and the subject will be intellectual property.

 

There being no further business, the meeting was adjourned at 12:20 p.m.

 

                                                                                    Respectfully submitted,

 

 

                                                                                    Patricia H. Wittie

                                                                                    Secretary

 

 

 

Attachment:   Memo Dated Feb. 25, 2002 re: Proposal for Restructuring the Section of Public Contract Law