MINUTES OF COUNCIL MEETING

SECTION OF PUBLIC CONTRACT LAW

 

November 6, 2004

Embassy Suites, Napa, California

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Chair Patricia Wittie, called the meeting to order at 8:40 a.m. The reading of the minutes of the August 7, 2004 Council meeting was waived. A motion to approve the minutes was seconded and unanimously approved by the Council.

Chair Wittie introduced Jacqueline Cooke, the law student representative to the Section.

John Burkholder presented the proposed 4th Edition of the “Guide to Fixed Price Supply Subcontract Terms and Conditions” developed by the Strategic Alliances, Teaming and Subcontracting Committee. (Agenda Item 3.) Mr. Burkholder noted that the Guide was last published in 2001, and that the new edition includes commercial flow downs clauses as well as updating several areas including the Buy America Act and the Trade Agreement Act. Budget and Finance Officer Carol Park Conroy noted that the Section’s 2004-2005 budget includes the cost of publication of the new edition. There was a motion to approve the publication of the 4th Edition of the Guide which was seconded. The motion was passed by the Council unanimously.

Chair Wittie introduced Craig Schmauder, the Co-Chair of the Task Force on Battlefield Procurement. Mr. Schmauder provided the Council with a summary of the workings of the Task Force. The Task Force has had one meeting thus far and intends to meet on a regular basis. The Task Force will act as a clearinghouse for acquisition issues, track and report on legislation and draft white papers, among other things. The most significant issues that the Task Force is addressing currently are: (1) force protection and contractor liability; (2) command and control of contractors; (3) streamlining of battlefield procurements and acquisitions; (4) audit, oversight and performance issues on the battlefield; (5) the effect of battlefield procurements on small businesses; and (6) personal service contracting to support military troops, including IDIQ contracts. Mr. Schmauder invited section members to provide comments to the Task Force by contacting him directly at craig.schmauder@usace.army.mil.

Past Chair Norm Thorpe noted the issue of the United States exercising jurisdiction over civilian contractors to pre-empt the jurisdiction of host country. Past Chair Thorpe indicated that regulations may soon be issued on this subject, and suggested that the Section conduct an analysis of the regulations. Mr. Schmauder agreed to check on the status of regulations and report back to the Section.

Chair Wittie called on Paul Ebert, Vice Chair of the Commercial Products and Services Committee. Mr. Ebert distributed to the Council draft comments on FAR Case 2003-027, Advance Notice of Proposed Rulemaking, Additional Commercial Contract Types, 69 Fed. Reg. 56316 (September 20, 2004). Mr. Ebert explained that the notice of proposed rulemaking solicits comments for implementation of Section 1432 of SARA which expressly authorizes the use of time and material (T&M) and labor hour (LH) contracts for commercial services acquisitions. Mr. Ebert explained the issues that were identified by the Committee as appropriate for comment.

Chair Wittie then opened the matter for discussion. Council member Rob Burton noted that OFPP is grappling with the issue of what is a “commercial” practice and asked whether the Committee determined what commercial practices were. Mr. Ebert responded that the question of what is a commercial practice may be best addressed by an industry group rather than the Section, that the Committee drafted the proposed comments assuming commercial services fall within the FAR definition of “commercial” item.

After further discussion, Chair Wittie asked for a sense of the Council. It was determined that the Council preferred to review a revised draft of the proposed comment letter which reflects the Council discussion prior to a vote. Mr. Ebert noted that the due date is November 19th and asked for comments to be sent to him at paul.ebert@oracle.com by close of business Tuesday, November 9, after which Mr. Ebert will circulate a revised draft to the Council.[1]

Chair Wittie introduced Desiree Lomer and Ashley Rahn, third-year law students at George Washington University and Vice Chairs of the Membership Committee. Ms. Lomer and Ms. Rahn brought to the Council’s attention the upcoming November 9th function at George Washington University Law School on career options in government contracting.

Chair Wittie then called on Secretary Pat Meagher to present the proposal for a pilot program for the waiver of Section membership dues for law students and recent law school graduates. The proposal is found in Item 2 of the Agenda Book. After a summary by Secretary Meagher, a motion was made to adopt the proposal, seconded and unanimously approved by the Council. Section Director Marilyn Neforas noted that the waiver in membership dues for law students and first year law school graduates would take effect in August 2005. The Council, after further discussion, approved two special promotions to provide for a free section membership: (1) in November 2004 in conjunction with the George Washington University reception and (2)  in late February/early March 2005 to coincide with the Federal Procurement Institute.

Chair Wittie called on David Innis to provide a report of the Special Committee on Teleconferences. (Agenda Item 4.) Mr. Innis explained that the first telephone conference was held in July 2004, and that the Committee is well on its way to meeting its goal of monthly telephone conferences. Mr. Innis brought to the Council’ attention the Committee’s written report (Tab 4 of the Agenda Book) and his report of the CLE Task Force meeting at the Section Officer’s Conference on September 11, 2004 (Tab 20 of the Agenda Book). Mr. Innis is soliciting ideas for future programs and can be reached at dinnis@rjop.com. Council member Lannie Elderkin requested that Mr. Innis provide her with the names and telephone numbers of the participants for use in her work on the Membership Committee. Budget and Finance Officer Carol Park-Conroy requested that Mr. Innis provide her with further details on the financial risk of the teleconferencing program.

Chair Wittie called on Fern Lavallee to provide a presentation from the Research and Development/IT Committee concerning development of a white paper on procurement issues involved in the federal government’s increasing use of open source software. Mr. Lavallee, who was joined in the presentation by Rod Marvin, reported that the Committee believed the use of open source software was an appropriate topic for a monograph. Chair Wittie thanked Mr. Lavallee and Mr. Marvin for their efforts in this area.

Cheryl LeeVan was then called upon by Chair Wittie to provide the preliminary results of the Section survey (Agenda Book, Tab 11). Ms. LeeVan provided the Council with a summary of the information gleaned from the survey to date, and noted that the survey would be open for responses for a few more weeks, after which final results would be tabulated.

Chair Wittie then called upon Michael Mutek to provide a summary of the Section’s comment letter[2] to Michael W. Wynne, Under Secretary of Defense, on his office’s Memorandum entitled “Selection of Contractors for Subsystems and Components” as well as the comment letter to Debra Scheider, Director, Office of Contracts, on her office’s Notice posted to the National Reconnaissance Office Acquisition Manual Website on the subject of exclusive teaming agreements[3] (Agenda Book, Tab 5).

Mark Colley provided the Council with information on the upcoming Federal Procurement Institute, including that the Comptroller General, David Walker, will be the Luncheon Speaker. Chair Wittie thanked Pat Meagher and Peter Balch for their work on the Fall Education Program.

Lannie Elderkin and Jennifer McCready provided a membership report to the Council, noting the Committee’s recent outreach efforts and its strategies to address both recruitment of new Section members and retention of existing members. The Committee’s written report is found in the Agenda Book at Tab 18.

Chair-Elect Rob Schaefer announced to the Council and Section members that the ABA Journal is receiving nominees for editorial positions, and any interested Section member should contact him.

Past Chair Norm Thorpe reported to the Council on the efforts of the Ad Hoc Committee on Recognition of Members Who Have Made Significant Contributions to the Section. He noted that the Ad Hoc Committee recommends that the Fellows be involved in this process.

Chair Wittie then noted to the Council and Section members that traditionally the outgoing chair was elected as a Section Fellow at the ABA Annual Meeting. Chair Wittie explained that, through oversight, this tradition was not followed in August in Atlanta. Chair Wittie then called upon Norm Thorpe who, as a Representative of the Fellows, called upon Hugh Bell, who was welcomed into the Fellows and presented with the group’s lapel pin.

The meeting was adjourned at approximately 12:05 p.m.