I. Approval of the Minutes

Upon motion, the minutes of the Council's November 6, 1999, meeting were unanimously approved.

II. Introduction of Board Liaison Maury Poscover

Maury Poscover, the Section's liaison to the Board of Governors, reported that the Board has intense interest in the activities of the Sections, and related the following information on the Board of Governors' recent activities. CEELI, the Central and East European Law Initiative, as well as the Asian Law Institute were created to advance the rule of law in the world by supporting the reform process, providing technical assistance to institutions, and short-term CLE programs. The Board recommended that two additional regional councils be established, one in Africa and another in Central and South America. Mr. Poscover emphasized that these initiatives only respond to invitations from the host country and that there are strict ethical guidelines in place to prevent conflicts of interest since ABA members participating in these initiatives do so strictly on a voluntary basis.

Secondly, Mr. Poscover reported that the Board of Governors at its November meeting had extended this Section's authority to comment on the Federal Acquisition Regulations, its "blanket authority," reaffirming the Board of Governors' faith in the Section.

Third, several other Sections were granted the right to increase their dues at the last meeting.

Fourth, the ABA has invested heavily in technology, some five to seven million dollars to expedite the upgrade in technology to expand member services over the Internet.

Finally, Mr. Poscover reported that William Paul, ABA president, had endeavored to increase Government involvement and diversity in the ABA; thus far Mr. Paul has raised over a million dollars for a scholarship fund for minority law students.

Rand Allen thanked Mr. Poscover for his report and for his assistance in securing an extension of the Section's blanket authority. He emphasized that such blanket authority is a privilege which the Section must try to exercise responsibly.

III. State and Local Items

Paul Dauer reported that the Section is contemplating reinstituting a digest involving state and local cases which had been prepared by construction law attorneys but was discontinued.

Rand Allen commented that the best way to post the digest might be on the website and thanked Paul for his efforts.

Paul Dauer also reported on the False Claims Acts which are in effect in the states as well as on proposed legislation in several states. He raised two issues for the Section: (1) whether our experience with the federal False Claims Act could assist in evaluating the state legislation and (2) whether we should comment on proposed state legislation.

Rand Allen recommended that the Section look into a joint project with the State and Local Government Section on the False Claims Acts. He also suggested that the information that Paul Dauer had compiled to date on the states' False Claims Acts and the proposed legislation be posted on the web page.

IV. Report on Activities in California

Allen Samelson reported that the General Services Administration (GSA) of the state of California is revising its model contract forms for information technology. The goal is to streamline the forms and allow flexibility and tailoring of terms and conditions. He reminded the Section that the first draft of these forms had been issued last fall and that the Section had commented in October. Subsequently, Paul Dauer and Allen Samelson met with representatives of California's GSA and learned that the Section's comments had had an impact. The requirement for cost and pricing data had been eliminated, the Section's recommended approach to warranty had been adopted, and GSA asked for proposed language in several areas. There remains one overarching issue -- whether there will be a formal rulemaking.

The next version of the forms is expected in a couple of weeks. It is anticipated that the Section will sponsor a program in southern California when the next version comes out, possibly jointly with the National Contract Management Association (NCMA).

Rand Allen thanked Allen Samelson for his efforts and encouraged everyone to remain alert to opportunities such as these to become involved in state and local procurement.

V. Model Procurement Code Update

Tom Madden reported that the ABA Section of State and Local Government (SLG) had come back with a revised version of the Model Procurement Code (MPC). The SLG Section had received comments from the National Association of State Procurement Officials as well as the National Institute of Governmental Purchasing. In light of these comments, the SLG Section had incorporated over 100 revisions to the version the Public Contract Law Section had adopted. Approximately 20 to 25 of these changes are substantive. The substantive areas include alternative construction methods, mandatory debriefing, public announcements of award, and the requirement to establish factors and subfactors and disclose their numerical weights. As a result of this discussion, there was a motion duly seconded that Tom Madden and Craig Othmer be authorized to negotiate these changes with the steering committee from the SLG Section and come back to the Council with a proposal eventually to be submitted to the ABA's House of Delegates.

John Miller commented that it had always been anticipated that there would be different approaches to the Model Procurement Code from the two Sections and that there would be a need to have a Conference Committee work through the differences.

Felix Martinez reported that the design/construction community is prepared to take the MPC as it exists.

The motion passed unanimously.

VI. London 2000

Jim Gallatin reported that the basics are in place for two complementary programs at the annual meeting in New York and London on global defense consolidation. He also noted that Kent Morrison had planned a reception at the National Liberal Club in London for the Section.

VII. Report of the Strategic Alliances, Teaming and Subcontracting Committee

Peter Balch walked the attendees through the committee's home page using an overhead projector. He and John Burkholder noted that the committee is planning a program on strategic alliances and teaming for Tuesday, May 23, at the Willard Hotel in Washington, D.C.

The committee has also been updating the Guide to Fixed Price Supply Subcontract Terms and Conditions. It is anticipated that the committee will request Council approval for issuing a third edition.

Rand commented that this committee's work was a good example of using E-Commerce effectively.

VIII. E-Commerce Committee Activities

Pat Wittie and Craig Othmer highlighted Committee's recent activities, including its work on cooperative purchases and FAR provisions.

IX. Report of the Program Committee

Phil Davis and Lannie Elderkin reported on the program held on March 10 in Annapolis on E-Commerce. They noted that the Federal Procurement Institute was very successful and thanked Jonathan Shaffer and John Kuelbs.

Ruth Burg commended the Program Committee for the number of women on the program and for the outstanding presentations.

X. Membership

Ross Branstetter provided that membership was stable and thanked Carl Vacketta and Steve Schooner for their efforts at increasing law student participation.

XI. Beatrice Rosenberg Award Presented to Ruth Burg

Marcia Madsen reported that the D.C. Bar's prestigious Rosenberg Award for Public Service had been awarded to past chair Ruth Burg on March 3, 2000, in Washington, D.C. Marcia Madsen thanked Larry Harris and Pat Wittie for their efforts in nominating Ruth for this outstanding award, and Rand Allen commented that it was especially satisfying to see Ruth Burg get the broader recognition she so deserved. Ruth Burg thanked everyone for their kind comments.

XII. Draft Comments on Price-Based Acquisition

Rand Allen commended Tom Barletta and his working group for their thoughtful comments on the DoD study group's draft report on price-based acquisition. He noted that the comments analyzed a 200-page report.

Tom Barletta highlighted the comments. In response to a question from Dave Churchill, Tom Barletta stated that it appeared that the Section would have another opportunity to comment on DoD's actions once the proposed regulations are issued. Rand Allen also noted that DoD had not yet shared the specific regulatory proposals and that this was a very preliminary draft. Greg Smith noted that Stan Soloway had stated the document on which the committee has commented is a Policy Statement and that there will be regulations to follow.

Tim Coburn congratulated Tom Barletta and the committee for their excellent work and suggested that they insert an affirmative statement supporting DoD's recognition that new technology is now within the commercial world, not exclusively DoD. David Hirsch joined in this suggestion. Rand Allen complimented the committee for a very evenhanded approach, and invited a discussion on the threshold question of whether the Council favored the overall objectives stated in the draft comments.

Greg Smith made a motion that the Section endorse the concept that DoD needs to remove barriers to accessing commercial technology. This motion was duly seconded and additional discussion followed. David Hirsch noted that the Section was not endorsing the draft, just the concept of working toward a solution to a problem. After additional comments, Rand Allen amended Greg Smith's motion to state that the Section: (1) endorses the concept that DoD needs to remove barriers to accessing commercial technology, and (2) further points out that DoD's effort to move toward price-based acquisition is not the only tool for achieving that objective. This motion passed unanimously with one abstention. It was recognized that the Section should request blanket authority to comment. It was further agreed that the new endorsement language would be recirculated to the Council prior to submitting the comments.

XIII. Report on CEELI

Mike Mutek introduced Molly Stephenson of CEELI who outlined the possible role the Section might have in assisting Central and East European countries with the development of a public procurement system. Ms. Stephenson explained that CEELI, which was begun in 1990 as a public service project of the International Law Section, now has 34 offices in 22 countries. There are three key principles that CEELI follows: (1) respond to the needs of the host country; (2) provide neutral advice; and (3) provide public service (not develop business).

So far CEELI has received some $90,000,000 in donations and has ongoing projects addressing judicial reform, bar association development, commercial law, gender issues, criminal law, environmental law reform, legal education, and the coalition for international justice. Ms. Stephenson explained that CEELI is looking for good attorneys to serve without salary typically for a one-year posting. CEELI also utilizes legal specialists for a period of one to six months to assist in drafting and some two-week workshops to provide CEELI training. Here in the United States attorneys can assist by hosting U.S. based training for foreign judges and attorneys, by evaluating proposed legislation, and by drafting a concept paper on procurement law.

Rand Allen thanked Ms. Stephenson for coming and sharing information on CEELI and urged the membership to spread the word.

XIV. Report of the International Committee

Mike Mutek and Ross W. Branstetter highlighted the International Procurement Committee's report. Mike Mutek stated that recently DoD had requested that the Section participate in its plan to re-engineer export controls. A specific task has not yet been assigned because DoD is coordinating with the Departments of Commerce and State, but the committee should be advised as to its specific role shortly. Rand Allen asked the Council to guide the committee with regard to whether export controls were within the Section's jurisdiction. It was the sense of the Council that export controls are within the Section's jurisdiction and that many members have a working knowledge of this area.

XV. Nominations

Rand Allen reported that David Churchill is chairing the Nominations Committee and asked any interested persons to submit candidates for positions of Secretary and Council membership to the committee.

XVI. Recognition of Alan and Mildred Peterson

Rand Allen thanked Alan and Mildred Peterson for their generous contribution to the Section and noted that the substantial contribution had enabled the Section to do projects it could not have otherwise undertaken. There was a hardy round of applause for Alan Peterson who was present.

XVII. Region 7 Report

Rob Schaefer and Peter Fagan reported on the Section activities in Arizona and Southern California, respectively.

Pat Meagher reported on the activities of the Ad Hoc Committee on Corporate Sponsorship. She stated at the outset that Rand Allen had asked her and Al Purdue to chair a committee composed of Carol Park Conroy, Mark Langevin, and Greg Bingham to consider the issue of corporate sponsorship and make appropriate recommendations to the Council.

The ad hoc committee prepared comments on the ABA revised guidelines. Pat Meagher explained that under the ABA guidelines there were two types of corporate sponsorship arrangements -- (1) corporate support in which an outside entity funds an activity on a one-time basis, and (2) corporate sponsorship which is long-term support. She noted that there are certain restrictions in the ABA policy with regard to corporate sponsorship. For example, the ABA logo cannot appear on any product. Corporate sponsorship must be in a written agreement approved by the ABA's General Counsel, but corporate support can be a less formal arrangement.

Pat Meagher then discussed the five comments which the committee proposed submitting to the ABA on these guidelines. There was a motion duly seconded to approve the comments, and it passed unanimously. Pat Meagher then discussed the other issues that the committee was in the process of considering and invited input from Section members. These issues are: (1) whether the Section should seek corporate support of its programs or events or corporate sponsorship, and (2) what are the ethical rules that would prevent any Section member from participating in an event, and (3) what would the Section do if it obtained funds from corporate sponsorship.

Carl Vacketta then noted that he had set up a committee on the Public Contract Law Journal to consider accepting advertising. Marilyn Neforas noted that the Journal should contact the ABA office on advertising before doing this since accepting ads would change the mailing rate.

XIX. ABA Model Code Rule 4.2

Alison Doyle and Mary Lou Soller reported that the Ethics 2000 Commission had recently posted Rule 4.2 for formal comment and that the comments were due on April 15. They proposed that the Section prepare comments and coordinate with the Criminal Justice, Business Law, Litigation and Antitrust Sections.

It is the committee's plan to consider the draft rule and prepare comments for circulation to the Council by April 5 in time to submit the Commission by April 15.

XX. The Sunset District Court Protest Sunset

Angela Styles reported that legislative action is needed in order to stop the district court protest jurisdiction from sunsetting in December 2000. She noted that this could take two forms -- an independent bill to extend the jurisdiction or an add-on to a bill from the House or Senate Judicial Committee.

There being no new business the meeting was adjourned at 12:35 p.m.