AMERICAN BAR ASSOCIATION

SECTION OF PUBLIC CONTRACT LAW

The March 14, 1998 meeting of the Section Council was held at the Loews Annapolis Hotel in Annapolis, MD. Council and Section members who attended the meeting are identified in Attachment 1.

The meeting of the Council was called to order by the Section Chair, Ms. Marcia Madsen, at 8:35 a.m.

The minutes of the November 15, 1997 Section Council meeting were approved as presented in the meeting Agenda. [Agenda; Tab 1]

The Section Chair introduced the Section's Law Student Liaison, Mr. Chima Ucheya, who was attending the meeting from St. Paul, MN.

Ms. Pat Wittie, editor of the Section's newsletter, The Procurement Lawyer, reported upon an opportunity to sell subscriptions to the newsletter through an existing ABA relationship with EBSCO. By motion and unanimous vote, the Council approved of the sale of the newsletter through EBSCO at an annual subscription price of $60.00. [Agenda; Tab 4]

Mr. Peter Balch, Chair of the Federal Subcontracting Committee, reported upon the Committee's efforts over the past year to complete a second edition of the Subcontract Guide. Mr. Balch explained that since initial publication of the Guide in 1996, there have been FAR and DFARS clause changes that require corresponding changes to the Guide. He noted that two new clauses were added to the list of those that were "discretionary" in nature. He further described the Committee's intent to place future updates to the Guide on the Section's homepage. [Agenda; Tab 5]

Ms. Patricia Meagher, who was involved in the publication of the first edition of the Guide made it clear that the Guide was a Section publication, not an ABA position. As such, the Section was free to revise the guide to meet the continuing flow of changes to the underlying FAR and DFARS clauses.

A motion to approve the publication of the second edition of the Guide was made, seconded and approved. The Committee's intent to update the clauses on the homepage was approved with the understanding from the Section Chair that the changes were to be presented solely as Committee recommendations.

Mr. Michael Love, Chair of the Federal Procurement Division proposed a revised "mission statement" for the Division, which he believed was a more accurate reflection of the role and activities of the Division. [Attachment 2]

Mr. Tim Coburn proposed an amendment to the mission statement that required the following insert to item 5 of the originally proposed version:

(a) initiate for Council action improvements in federal procure-

ment and grant law, (b) prepare for Council action comments

on proposed statutes and regulations relating to federal pro-

curement and grant law,

The existing ¶¶ 5(a)-(c) would be redesignated ¶¶ 5(c)-(e).

The proposed amendment was discussed and approved and a motion to approve the revised mission statement, as amended, was made, seconded and approved.

Mr. Robert Murphy presented a draft of a letter to the Office of Federal Procurement Policy ("OFPP") concerning the current OFPP position regarding the need to obligate funds to cover cancellation ceiling liability for multi-year procurements by the Department of Defense. [Attachment 3] The proposed letter would oppose such a funding requirement.

A motion to adopt the letter as written was made and seconded. A discussion followed, after which the motion was approved (Note: Ms. Coster Williams abstained). Mr. Hirsch, Chair of the Emerging Issues Committee, thanked Mr. Harvey Gordon and Ms. Donna Yesner for their efforts in drafting the letter.

Mr. John Miller reported that the minimum $100,000 had been raised to launch the Model Procurement Code Revision project. A website is to be established as the initial step in the project. In addition, interest outside the Section is being developed, and further support from the Section's substantive committees will be required. Additional funding will be required if the project is to be completed on time.

The Section Chair, Ms. Madsen, thanked both Mr. Miller and Ms. Margaret McConnell for their substantial efforts in connection with this project to date and directed the attention of all those attending the meeting to the Agenda materials for Ms. McConnell's additional fund raising material. [Agenda; Tab 7]

Mr. Fred Moss, Chair of the Proceeding Committee, reported that the Committee had added 180 pages of information to the Section's homepage since the San Francisco meetings. He described the nature of the information added, which included Council meeting minutes, agendas and links to key committee pages. [Agenda; Tab 6]

Mr. Moss further noted the Committee's interest in developing potential CD-ROMs for sale that would contain Section documents in searchable form. He requested up to $500.00 for such initial efforts, which funds were approved by the Council.

The Section Chair, Ms. Madsen, explained that an Ad Hoc Committee had been established for the purpose of preparing a set of fundamental government procurement principles that would be suitable for presentation to the ABA House of Delegates for adoption as ABA position.

Ms. Ruth Burg, Chair of the Ad Hoc Committee on Procurement Principles reported generally on the activities of the Committee and its purpose, while describing the three sets of recommended principles prepared to date. Those three sets of principles generally concern competition, disputes and allocation of risk. [Agenda; Tab 2]

To make the discussion more manageable, the Section Chair asked that Ms. Burg limit the discussion of the principles to those concerning "competition." The discussion which followed included a number of proposed amendments to the draft competition principles and discussion of those amendments. Ultimately, the motions were withdrawn and it was agreed that rather than attempt to engage in a group drafting effort, each competition principle should be discussed separately and that the Committee would evaluate the various comments and suggestions, and revise the current draft competition principles for further discussion at the next Council meeting in May 1998. The draft competition principles are Attachment 4. Set forth separately in Attachment 5 is a summary of comments made during the course of the discussion.

At the conclusion of the discussion of the individual competition principles, the Section Chair asked the Council whether it was the "sense" of the Council that the principles be revised by the Committee taking into account the various comments made during the discussion. The Council voted to continue the process, and Ms. Burg, the Committee Chair, was asked to prepare a revised set of principles and an accompanying explanatory report for discussion at the next Council meeting in May 1998. Ms. Madsen thanked Ms. Burg for the Committee's substantial efforts to date, and suggested that membership on the Committee was open to any interested parties, including all those who had offered comments during the discussion.

Ms. Angela Styles reported on the status of various pieces of legislation. Of particular note was the fact that drafts of proposed changes to the Tucker Act and Contract Disputes Act had been circulated by the Department of Defense as suggested additions to the Defense Authorization legislation.

Mr. Scott Pickens and Ms. Ruth Burg reported on the activities of the Ad Hoc Committee, noting first that the Committee was in the process of finalizing a monograph on the applicability of certain statutes to "other transactions."

Mr. Pickens and Ms. Burg further reported that legislation is anticipated in the near future extending the use of "other transaction" authority to production of items that previously had been developed as prototypes using the same authority. Ms. Madsen noted that the Council may be asked to approve a request for blanket authority and comments regarding such legislation in the event it is introduced.

Mr. Rich Rector, Chair of the Federal Claims and Remedies Committee, and Mr. Alan Gourley, Chair of the Judicial Remedies Committee, jointly reported on a set of draft recommendations that were prepared in response to legislation drafted by the Department of Defense that would affect both the disputes and protest process. Mr. Mark Colley, Chair of the Bid Protest Committee also participated. [Agenda; Tab 3]

The individual proposed changes were described as well as the Committees' preliminary reaction to the draft proposals. However, because there is reason to believe the proposed legislation may be revised before being formally submitted to the Congress, further discussion of potential comments was deemed premature.

Mr. David Churchill suggested that the Committees should consider the possibility of suggesting changes to the legislation, if warranted, even if the Department of Defense draft is never formalized.

Ms. Madsen announced that two new committees had been created since the last Council meeting. An Access to Information Committee had been created to monitor legislative and regulatory changes affecting access to government information. She noted that there had been numerous changes, for example, to agency regulations implementing the Freedom of Information Act.

In addition, a Pro Bono Committee was created. Its primary purpose at this point is to determine what appropriate pro bono opportunities may exist for the Section.

Ms. Mary Lou Soller reported upon recent activities of the Procurement Fraud Committee. Specifically, she reported upon efforts to revitalize interest in Committee activities by putting on a number of specific programs at lunch meetings. She further indicated an intent by the Committee to update the current Qui Tam monograph, and requested authorization for publication of the monograph. The authorization was provided by the Council.

Mr. Chris Yukins reported that the ABA now has the ability to "lock out" users from its homepage unless they are members of the ABA. Access can thus be treated as another membership benefit. The Committee is setting up a Working Group to decide what Section materials should be available only in a locked out area. For example, which publications are candidates for lock out access? At some point in the future, a lockout feature will be available at the Section level as well. Also at issue for the Working Group is the appropriate method of funding maintenance of the homepage. [Agenda; Tab 11] The Section Chair indicated that members of the Working group should include Mr. Greg Smith, Mr. Carl Vacketta and Ms. Pat Wittie.

Judge Mary Ellen Coster Williams and Mr. Rob Schaeffer reported on recent joint activities between the Section and the Government and Public Sector Lawyers Division. Judge Coster Williams reported upon recent activities concerning ethical issues, which are reported in greater detail in the Agenda; Tab 13.

She further reported that the group is considering the need for a Working Group to look at professionalism issues, and whether guidelines similar to those promulgated by the D.C. Bar and ABA Litigation Section are appropriate or needed. A Working Group is to look into the issue.

Finally, a joint program with the Division is under discussion, which would address ethical issues unique to Government and Public Sector lawyers operating in the procurement area. The program would be an adaptation of an existing Division program, and could become part of a "road show" effort.

Mr. Rand Allen reported on the status of planning for the Year 2000 program in London. A plenary session program the Section had proposed was one of 70 such programs, for which there are only 18 time slots. As a result, the ABA planning group asked the Section to team with the Health Law Section on a joint program.

Ms. Madsen suggested that it was time to establish a general planning group to support planning for the Year 2000 Program. Volunteers should contact Rand Allen.

Ms. Agnes Dover reported upon the activities of the Privatization and Outsourcing Committee, including specific programs that were part of regular Committee meetings. [Agenda; Tab 14]

Ms. Patricia Meagher, Budget and Finance Officer, reported upon the financial condition of the Section. [Agenda; Tab 34] Generally, the Section's financial condition is good. 90% of budgeted dues have been received and publications and meetings are doing well. The Section Chair thanked Ms. Meagher for her considerable efforts in the past year.

Ms. Stephanie Gilson reported on recent Committee sponsored luncheon programs regarding health care contracting issues, including one regarding "Medicare Billing" presented by Tucker Alan representatives. She also reported on a joint program with the Health Law Section being planned for the meeting in Toronto, as well one a regional program to address Medicaid issues.

Mr. Stuart Nibley reported on the Committee's activities. [Agenda; Tab 18] He stated that the Committee's goals are largely educational in nature and that the Committee has had success getting government agencies to describe new procurement approaches and engage in dialogue regarding issues raised by those approaches.

Mr. Marshall Doke, the Section Delegate reported upon the activities of the ABA House of Delegates at the Nashville mid-year meeting. He specifically reported on actions related to ABA positions on sensitive social issues and the impact those positions may have had on membership in the ABA.

Mr. Don Featherstun, chair of the Region Division, reported on the activities of the Division which included work on a program, and a pilot California protest pilot program. The Region Division was to consider the possibility of submitting comments to regulations that will implement the program.

The Section Chair, Ms. Madsen reminded those attending the Council meeting that lunch followed and that the Committee Officer Training would begin immediately thereafter.

The Council meeting was adjourned at 12:40 p.m. following a motion that was seconded and passed.

Respectfully submitted,

Gregory A. Smith

Secretary

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