Minutes of the Council
Section of Public Contract Law
August 9, 2003
Mark Hopkins Inter-Continental Hotel
San Francisco, California

Chair Mary Ellen Coster Williams called the meeting to order at 8:45 a.m. The reading of the minutes of the May 2, 2003 Spring Council Meeting was waived. A motion to approve the minutes was seconded and approved by the Council by acclamation, without dissent.

Past Chair Norm Thorpe discussed the People to People Program in China and the general history of the People to People Program. He, on April 1, 2004, will be leading a group, assuming adequate participation, to China to meet with government officials to discuss our government contract law and process.

Budget and Finance Officer Patricia Meagher presented the 2003-2004 proposed budget to the Council for its approval. She explained the basis for the budget, highlighting certain expenses and noting a surplus of $9,650. The Council, upon motion, adopted the budget, without any change.

Past Chair Thorpe advised the Council that he, Patricia Meagher and Margaret McConnell, represented the Section at a meeting with officials of the California Department of General Services ("DGS") to discuss DGS' ongoing efforts to improve the processes and systems used to purchase goods and services. (See Agenda Item 6). The Section Delegation provided the California officials with the Model Procurement Code, regulations and the principles for public purchasing. Past Chair Thorpe explained that DGS gave the delegation an opportunity, albeit extremely short, to review its initial report. Due to time constraints only the high points were addressed in the Delegation's oral response. The final report has now been received and DGS has requested the Section's comments. Past Chair Thorpe recognized the value of Margaret McConnell's participation in that she had extensive experience in state purchasing.

Pamela Roberts, Section Representative to the Board of Governors, lauded our Section. Further, she singled out Past Chairs Allan Joseph and Marshall Doke for their significant help in addressing serious issues facing the ABA. She then recognized Chair Coster Williams, Chair Elect Hugh Bell and Section Director Marilyn Neforas for their assistance in addressing other issues of importance.

Ms. Roberts provided the Section with a review of three issues facing the ABA:

                        (1)       Fiscal Year Budget 2003-2004;

                        (2)       Technology Issue Overrun;

                        (3)       Staff Pension Plan

Finally, she advised that she will return as the Section's representative for next year. Chair Coster Williams complimented and thanked Ms. Roberts for representing our Section and expressed her delight that she will continue in that role.

Sandy Hoe addressed the proposed response to the revised OMB Circular A-76. At the beginning of his presentation, Chair Coster Williams and Council Member Dan Gordon recused themselves from the presentation and discussion. Sandy Hoe explained that the response was based on a request by GAO concerning the interested party status of the federal entity participating in the public-private competition. Chair-Elect Bell noted that any comments would have to be in the form of a white paper, possibly posted on the Section website, since the subject matter was outside the Section's Blanket Authority to comment on the FAR.

Chair Coster Williams announced that the Section was approved as a co-sponsor for The National Construction Dispute Resolution Committee ADR Program, scheduled for November 13 and 14, 2004.

David Dowd presented the report of the Emerging Issues Committee on Homeland Security Task Force concerning the Safety Act. Mr. Dowd advised that the interim regulations were issued on July 11, 2003. He noted that the regulations do not (a) address the inter-relationship between the Safety Act and P.L. 85-804 or (b) include the Government Contractor Defense. In regard to the proprietary information issue, Mr. Dowd advised that while the regulation noted protocols were to be established consistent with protection of sensitive information and FOIA exemptions, there was no discussion of the actual protocols. The sense of the Council, at the conclusion of the presentation, which also noted a short time frame to respond, was that the Task Force should provide a complete written work product, to be submitted under a request for Blanket Authority (separate from the special FAR Blanket Authority), and not be driven by any deadline. The Council based its direction on its understanding that during the committee meetings individual members provided their own comments, which were not made on behalf of the ABA.

The nomination of Norm Thorpe for election to the Board of Directors of "Friends of CEELI" was announced by Chair Elect Bell. All were hopeful that the nomination would be approved. Past Chair Allan Joseph provided the news, soon after the announcement, that the nomination was in fact approved.

The issue of how to promote the Model Procurement Code was then brought to the Council. Past Chair Thorpe solicited ideas from all. The discussion included how to generate revenue to meet the Section's budget, the conflict between the need to publicize the Code and generating revenue, the desire to build on the California experience, the logistics involved in the distribution of the Code to state and local representatives and the possibility of utilizing part of the membership development budget in this regard. It was announced that Past Chairs Thorpe and John Miller, along with any volunteers, were going to meet and thereafter, provide a report at the Fall meeting in New Orleans.

Pete Glowacki, ABA CLE Deputy Director of Programming on Live Teleconferencing of Section Programs, provided the Council with information concerning program development utilizing technology which would permit distance learning. Mr. Glowacki also addressed cost and marketing issues. Chair-Elect Patricia Wittie noted that the Long Range Planning Committee would, among other things, be looking at this service.

Budget and Finance Officer Meagher reported that the ABA is changing its Blanket Authority process. Past Chair Joseph confirmed that the ABA adopted a resolution that was based on the Section's procedure and that the extension of the Section's Special Blanket Authority did not have an end date. Thereafter, there was a discussion concerning the scope of the Section's Special Blanket Authority to comment on proposed changes to regulation and legislation affecting the FAR (to be known under the new procedure as authority to submit "Technical Comments"). At some point it was agreed that the Council will have to address what other areas we can include under Blanket Authority.

David Kasanow and Paul Khoury reported that the Subcommittee to Propose Updated Model Rules for the BCAs hoped to have a report to present in New Orleans. They noted that there have been no rule changes since the 1970s.

Mr. Kasanow then presented the Report on Past Performance Survey. He referred the Council to Tab 1, Attachment 8 of the Agenda Book for a description of the Committee's work. The survey, which was utilized by OFPP in its Best Practices publication and DOD in its Guide to Past Performance, revealed that people are positive about the survey and the process. However, one area of concern, from both government and private respondents, was the potential inconsistency in data bases and survey response forms.

Messrs. Kasanow and Khoury also provided the Council with the Contract Claims and Disputes Resolution Committee report concerning non-appropriated fund instrumentalities ("NAFIs"). The Council was advised that the Committee was looking at legislative fixes concerning the jurisdiction of the Courts and BCAs. The Committee sent out a questionnaire to the NAFIs listed in its handout. Messrs. Kasanow and Khoury asked that the Council look at the Committee's proposal broadly, with the understanding that a final/refined proposal will be presented in New Orleans.

Chair Coster Williams and Council Member Gordon recused themselves from the discussion on the proposal and any Council deliberations concerning the proposal. As Mr. Gordon left the Council table he, on his own behalf, did advise that the NAFI issue is broader than the claims/jurisdiction issue.

Past Chair David Churchill noted that any proposed legislative fixes should be provided to Chief Judge Edward J. Damich, Court of Federal Claims, as he is involved in determining whether he will submit proposed changes to the Hill.

Budget and Finance Officer Meagher advised the Council that she was invited to speak at the NCMA Western Educational Conference on July 17, 2003. She took that occasion to push our Section's programs. This was a follow up to the Federal Procurement Institute.

Council Member Lannie Elderkin and Jennifer McCready presented the report on membership. The report addressed target groups, methods of outreach and benefits of joining the Section. The Council was advised that the Membership, Diversity and Outreach Committee plans to have the new membership brochures available by the New Orleans meeting.

Bill Crowley discussed the Section's Outreach Plan, which included a Fall social event at American University School of Law and sending letters to law firms and corporations encouraging the participation of younger lawyers.

Vice Chair Wittie advised that the Section nominated Judge Martin J. Harty for the ABA Section of Dispute Resolution Lawyer as Problem Solver Award for 2003. Vice Chair Wittie commended Agenda Item 24 to all attending the Council Meeting so all would be aware of Judge Harty's contributions to his board and the ADR process at the Federal level.

Gerry Doyle provided an update on the status of the Services Acquisition Reform Act ("SARA"). He advised that SARA was in the House Defense Authorization Bill but was excluded from the Senate version.

Liz Fleming gave an abbreviated legislative report. Nonetheless, Ms. Fleming did provide the background and current status of the 65% Buy American content provision that is being pushed by Rep. Duncan Hunter.

Paul Dauer described to the Council the status of the GSA Acquisition Regulation providing for the acquisition of information technology by State and Local Governments through the Federal Supply Schedule. Mr. Dauer advised that the Maryland Initiative will be placed on the agenda for New Orleans.

Chair Coster Williams advised that the nomination of Col. (Ret.) Alexander W. Purdue as Section Representative to the Council of Government and Public Sector Lawyers Division was approved. Then, Chair Coster Williams announced a surprise - the honoring of Judge Ruth C. Burg. Chair Coster Williams noted Judge Burg has had a life of firsts - the first woman to (a) graduate number one in her GW Law School class; (b) clerk at the Tax Court; (c) be appointed an administrative law judge at the Armed Services Board of Contract Appeals; and (d) chair the ABA's Section of Public Contract Law. She emphasized her devotion to the Section and the Law and announced that the Luncheon for Women in Public Contract Law has been renamed as the "Ruth C. Burg Luncheon for Women in Public Contract Law." Thereafter, Judge Burg was given the first Annual Ruth C. Burg Women in Public Contract Law Award and a rousing standing ovation.

There was a motion to adjourn which was approved, ending the Council meeting at 12:45 p.m. A list of those attending the Council meeting is attached and incorporated in these minutes.

                                                                       

            Michael A. Hordell

Acting Secretary