American Bar Association

Section of Public Contract Law

Minutes of November 3, 2001 Council Meeting                                        

San Diego, California

______________________________________________________________________________

 

Chair Norman R. Thorpe called the meeting to order at 8:40 a.m. and welcomed all who were in attendance.

 

Chair Thorpe began by reporting on what the ABA has been doing since the events of September 11. The Section Officers' Council meeting, scheduled for September 13, was cancelled but as a result of several conference calls, a working group of Section Chairs was created to evaluate how the ABA might support the people of New York and Washington. The Real Property Section volunteered a package of services, and the Young Lawyers' Division activated its long-standing arrangement with the Federal Emergency Management Agency to provide assistance in emergencies.

 

Allan Joseph reported that ABA President Hirshon also appointed a task force to address issues that might arise. This task force subsequently submitted comments on the terrorist legislation that was introduced in Congress. President Hirshon also wrote a letter to President Bush, emphasizing the availability of the ABA to provide whatever assistance might be needed.

 

Mr. Thorpe then explained that the Section Officers had discussed whether or not to hold the Fall Meeting, citing concerns about flying and possible reduced attendance. None of the Officers wanted to cancel. Although one or two speakers elected not to come, the program was very successful and the number of registrants substantially exceeded the break-even point on the program budget. Chair Thorpe commended the Program Committee as well as all of the speakers for a job well done.

 

Robert Murphy, Co-Chair of the Emerging Issues Committee, reported on a joint meeting of his committee and the Acquisition Reform Committee, held on October 10, to discuss how the events of September 11 may affect the Government's procurement of supplies and services for the foreseeable future. (Tab 5 of the Agenda Book includes a summary of this meeting.) The two Committees specifically discussed the Defense Production Act ("DPA") and whether there might be a need for changes in that Act. The consensus was that no changes are currently needed, but the situation should be monitored.

 

Committee members from GSA reported that GSA has thus far encountered no problems in acquiring large quantities of commercial items on an "emergency" basis, especially for the New York City relief efforts, and it appears that DPA questions have thus far not been an issue with commercial item acquisitions. Some unspecific concerns about DOD rated orders, including possible conflicts between agencies, were expressed, as well as concerns from contractors about how they can obtain compensation when rated orders interfere with ongoing non-rated orders. Mr. Murphy noted that there was not much precedent for these questions from Desert Storm, and there is very little case law.

 

The minutes of the two Council meetings in Chicago, one on August 4 and one on August 7, 2001, were approved on a voice vote with correction of two typographical errors. Corrected copies are attached to these minutes.

 

Chair Thorpe and Mr. Daniel Doogan reported on an ABA Task Force that has been studying the annual meeting format. The preliminary Task Force report (Tab 20 of the Agenda Book) recommends substantial changes in how the annual meeting is conducted, beginning with an approach in which governance functions would be segregated from CLE functions at the meeting. Mr. Thorpe noted that a number of sections have criticized the recommendations, primarily because of the level of control that the ABA will be taking over CLE programs and income.

 

Mr. Doogan explained that the report focuses on five issues: the length of meetings, their cost, allocation of revenues, overlap of programs and governance meetings, and duplication of programs. The Task Force concluded that the Tuesday through Tuesday schedule for the overall ABA meeting is too long and too costly, and has recommended that the schedule be reduced to a Thursday through Tuesday format, with CLE programs generally conducted from Friday afternoon through Monday morning. Sections would be encouraged to review their governance meetings and eliminate them if possible, in order to further reduce expense and avoid overlap with substantive programs.

 

The Task Force has also recommended major changes in the way fees are charged for the meeting. Rather than a single (and substantial) registration fee that covers everything, the Task Force recommends a $95 registration fee, no part of which would go to the Sections. The ABA would then print tickets at $25/each, and individual sections would charge one, two or three tickets for their CLE programs. Revenues from these programs would go solely to the sponsoring Section. CLE programs could be held either in a "CLE center" or in the hotel where the Section has its room block; but all programs in the CLE center must be co-sponsored by more than one Section. ABA will charge for meeting rooms in the CLE center, so the ticket prices must cover those costs. Other events which are currently covered by the registration fee, such as the President's reception, would also become ticketed events.

 

A number of Sections have objected to this proposal because they believe it will interfere with the ability of attendees to "float" in and out of programs.

 

Mr. Doogan reported that the Task Force is expected to finalize its recommendations later this month; but it is not yet clear whether the recommended changes, if adopted, would be implemented for the 2002 or 2003 annual meeting.

 

Members of the Council and the audience discussed these issues briefly. Mary Ellen Coster-Williams and Dan Gordon noted that the new arrangement would impose a particular burden on government attorneys whose travel plans must be pre-approved, and who might be entirely precluded from attending non-substantive or unrelated seminars. Jennifer Dauer reiterated how important it is for annual meeting attendees to be able to "float" among programs. John Currier pointed out that the best thing about the current system is the ability to choose programs on the "hot issues of the day", which may not be apparent in April or May when registration occurs.

 

Budget and Finance Officer Patricia Meagher reported that it is not possible to know what the cost impact of these new arrangements would be on our Section, although currently our costs are almost double what we receive as income from the meeting and the various events that we sponsor. Several people commented that, ideally, our Section would be permitted to sell a single ticket that allows registrants to attend all Section events for a single fee.

 

The Section's comments on the Task Force report were included at Tab 20 of the Agenda Book.

 

Ms. Meagher then reported on current analysis of the Section's own schedule for the annual meeting. A hypothetical schedule for a reduced, three-day meeting, was included in the Agenda Book as Tab 22. This schedule is illustrative only; it is provided merely to show that the Section can accomplish its work in three days (Friday evening through Monday afternoon) rather than four (Friday evening through Tuesday afternoon). The schedule will need to be adjusted to reflect what the ABA decides to do about the overall annual meeting format. This was an information item only; Ms. Meagher and Ms. Wittie, who are reviewing this question, will provide a recommendation to the Council after the ABA Task Force report on the annual meeting is finalized.

 

The Research and Development and Intellectual Property Committee presented a draft request for blanket authority, for a proposal addressing some recommended revisions to the Bayh-Dole Act (Tab 2 of the Agenda Book). Chair Thorpe commended the quality of the report, including the clarity with which it addresses a difficult area. Ms. Holly Svetz, Co-Chair of the Committee, summarized the report. Because of concerns that private companies are increasingly reluctant to engage in R&D for the government due to data rights issues, the Committee sponsored a meeting in June to discuss how these issues might be addressed. Of particular concern were provisions of the Bayh-Dole Act that require the government to retain a non-exclusive, paid-up license as well as march-in rights with respect to inventions developed with government funding. Ms. Deirdre Lee, who attended the meeting, inquired whether the government could waive those rights. In light of Ms. Lee's questions and at the request of Congressman Davis (R-Va), who has said that he intends to introduce a bill called the Service Acquisition Reform Act in the near future, the Committee drafted its report, recommending that the Bayh-Dole Act be amended to permit the heads of contracting activities to waive both the license rights and the march-in rights when they determine that it is in the best interests of the government.

 

Ms. Svetz noted that some people have expressed concerns about whether, if this waiver authority were implemented, government personnel might use the authority to extract other concessions. Many universities are not interested in giving such authority to the government, in part for that reason. Mr. Walz asked what evidence there is, from the government, to support the Committee's position that the government is finding it increasingly difficult to obtain the R&D work it wants and that contractors are unwilling to enter into R&D contracts with the government because of data rights issues. Ms. Svetz explained that this is a particular concern where the government is not providing 100% of the funding for a project, and that hi-tech companies in particular, who are used to preserving their investments through patents and copyrights, are impacted. There is also an issue about FMS sales, since it appears that under current law the government has a royalty-free license to provide product overseas under FMS, in direct competition to the companies that develop the product.

 

The Council then discussed whether to seek blanket authority to submit the proposal, or to take it to the House of Delegates and submit it as an ABA-wide position. Mr. Doke recommended seeking blanket authority, and if that is not approved, the Section could then go to the House of Delegates. Ms. Svetz stated that, in anticipation of seeking blanket authority, she has already provided a copy of this draft to the Intellectual Property Section, which thus far has had no comments.

 

Ms. Wittie suggested that language about possible reduction in competition on page 6 of the report be expanded, to explain why the Section believes that despite its Principles of Competition, a potential reduction in competition in this instance is justified. Mr. Thorpe asked Ms. Svetz to provide the Council with information and citations to studies or other information demonstrating that this amendment to Bayh-Dole is actually needed.

 

A motion was made and seconded to adopt the report and to seek blanket authority so that the Section may submit it to Congressman Davis' office for consideration, with revisions pertaining to competition and the issues of small versus large businesses. The motion was passed, with Mr. Walz and Ms. Coster-Williams abstaining. The Chair will have authority to approve the final wording of the report.

 

Chair Thorpe spent a few minutes reflecting on Kathleen Buck's many contributions to our profession and our industry. He noted that she served as a role model for many members of our Section, she was a highly professional and dedicated public servant, and she was a strong and devoted single mother. Ms. Buck passed away in August.

 

Mr. Aguirre, Chair of the State and Local Use of Federal Dollars Committee, summarized a memorandum to the Section Officers and Council Members dated October 31, 2001 on "Election Reform Legislation". The memorandum addressed several bills currently pending in Congress that would provide federal funds to state and local governments for the purchase of voting machines and other election reforms.

 

Chair Thorpe stated that he intends to ask the Principles Committee to develop a new principle, to be submitted to the House of Delegates, stating that when the federal government provides grant dollars to state or local governments, those funds should be spent in a manner that is consistent with sound procurement practices. If such a principle were approved, the Section could rely on it when promoting the Model Procurement Code. Mr. Thorpe asked anyone with suggestions as to additional steps we can take immediately to support and promote the MPC, to contact either Mr. Aguirre, Mr. Miller or himself. Mr. Walz then commented that the Section might want to consider recommending an amendment to the Common Rule to address this issue.

 

The Council next considered a proposed comment on FAR Case 99-303 that was prepared by the Commercial Products and Services Committee. Because neither of the Co-Chairs of that Committee was able to attend, Herman Levy, one of the Committee's Vice-Chairs, summarized the proposal, which had been circulated via email among Council members the previous week. Ms. Wittie explained certain comments she had provided to the Committee, and Mr. Thorpe raised several additional issues.

Following discussion of these issues, Mr. Langevin made a motion to table further discussion so that the Co-Chairs of the committee could be asked for additional explanation. The motion was seconded and passed. Further discussion, and a vote by the Council, will be conducted via email.

 

Mr. Othmer presented a report on the status of the Model Procurement Code regulation review project. Tab 4 of the Agenda Book provides a matrix for submitting comments on existing and new regulations, and the MPC Committee intends to solicit comments from all interested persons. John Miller will then compile the comments so that they can be discussed at the next quarterly meeting of the Council. Thereafter, Mr. Miller will prepare the revisions.

 

Chair Thorpe encouraged everyone to participate in this process. Mr. Dauer suggested that it might be useful to poll those jurisidictions which have enacted the Code, to obtain their input.

 

Mr. Greg Smith, Chair of the Section Structure and Organization Committee, reported on the efforts of that Committee (Tab 6). Two meetings have been held to discuss how to address state and local issues, membership, and participation. Mr. Smith seeks input from all interested Section members.

 

Ms. Meagher reported on initial discussions of the "E-Publication Task Force". That group has held one meeting to review current Section publications for possible conversion to electronic publication. It has focused initially on the Section Directory and The Procurement Lawyer, and expects to make a recommendation at the spring meeting. Ms. Meagher stated that she welcomes ideas and input from all interested Section members.

 

Ms. Elizabeth Fleming, Co-Chair of the Legislative Coordinating Committee, discussed current Congressional efforts to craft the "Services Acquisition Reform Act" which Congressman Davis intends to introduce. No bill has yet been drafted, but an outline has been prepared (Tab 9 of the Agenda Book). Congressman Davis held hearings this week; among those testifying were Angela Styles, Administrator of OFPP, and Charles Tiefer, a professor at the University of Baltimore College of Law. Ms. Fleming summarized the provisions in the outline, as well as comments on those provisions that had been provided by Ms. Styles and Mr. Tiefer in their testimony.

 

Budget and Finance Officer Patricia Meagher reported that the Section ran a $52,000 deficit last year primarily due to the downturn in the market, and will face the same challenges this year for the same reasons. However, renewed advertisements for the Public Contract Law Journal, expanding sponsorship for certain Section events, and the dues increase that was voted at the August Council meeting, will offset some of the likely market losses.

 

Chair Thorpe pointed out that the Pro Bono Committee has provided a report on its activities relating to the Pro Se Manual, including interviews with a number of judges on the Boards of Contract Appeals. (Tab 11 of the Agenda Book) Mr. Thorpe has also given information about the Pro Se Manual to the ABA's pro bono coordinator; that information will be included on a web site that the pro bono coordinator is establishing.

 

Chair Thorpe announced that he has asked the International Procurement Committee to design a process to enable the Section to support various international ABA activities. By way of background, he explained that the Section was recently asked to identify someone who could assist the country of Paraguay in developing procurement legislation and procedures. This request came on short notice and required someone who is fluent in Spanish, so we were not able to accommodate it. However, similar requests come up from time to time; and frequently there are grant funds available to provide financial support. Mr. Thorpe wants to see a process in place to support this kind of request -- not to provide individuals, but to help by providing copies of the Model Procurement Code, providing some level of supervision or oversight to ensure the quality and consistency of the advice provided, or other similar kinds of support.

 

The proposed regulatory changes that were recommended by the Electronic Commerce Committee and approved at the August Council meeting, were submitted to the FAR Council in October. (Tab 10 of the Agenda Book). Chair Thorpe commended the Committee for this effort.

 

Finally, Chair Thorpe noted that the Agenda Book includes many reports that are "rich with information", and he encouraged all Section members to review them. He also stated that he would like to see more sharing of information between Committees and other Section members. Accordingly, he asked that when Committees prepare their quarterly reports, they provide as much substantive information as possible about what they are doing.

 

Ms. Wittie reported that the Dispute Avoidance and Early Dispute Resolution Task Force is in the process of writing a monograph, which should be completed shortly after the first of the year. In order not to delay publication of that monograph, the Task Force requested approval to spend $5000 to have it published. A motion was made and seconded to approve this expenditure, and it passed on a voice vote.

 

There being no further business, the Chair adjourned the meeting at 12:00 noon.

 

 

                                                                                    Respectfully submitted,

 

 

 

                                                                                    Patricia H. Wittie

                                                                                    Secretary

 

 

Attachments:

            Attendance List -- Council Meeting 11/03/01

            Revised Minutes (as approved) -- August 4, 2001 Council Meeting

            Revised Minutes (as approved) -- August 7, 2001 Council Meeting