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4 Pub. Cont. Newsl. 1 (1968-1969)

handle is hein.journals/procurlw4 and id is 1 raw text is: SECTION OF PUBLIC CONTRACT LAW AMERICAN BAR ASSOCIATION Vol. 4, No. 1, Oct. 1968 FEDERAL STATE & LOCAL GOVERNMENT CONTRACTS Paul Shnitzer, Editor, 1803 Cody Drive, Silver Spring, Md. 20902 Important Topics Discussed at Annual Meeting by Carl F. Paul of the D. C. Bar The Annual Meeting, on August 5 and 6, 1968, in Philadelphia, Pennsylvania, was the first time all sections of the American Bar Association held their section meetings and other events under a single roof-the Philadelphia Civic Center. The sessions on August 5, 1968, were held jointly with the Section of Corporation, Banking and Business Law on the subject, Problems of States and Municipalities, and Vendors to States and Municipalities, Concerning the Awarding and the Administration of Contracts for Construction, Services and Supplies. The sessions concerning Federal Contracts were held on August 6, 1968. The Annual Luncheon Meeting was presided over by Louis Spector, Chairman of the Section, and was honored by the presence at the speaker's table of the Solicitor General of the United States, Erwin N. Griswold. The speaker was Dean L. H. Pollak of Yale University Law School, who gave an outstanding address on the subject, Our Commitment to Freedom: Notes on the Centennial of the Fourteenth Amendment. Over a hundred members of the Section attended the luncheon and the Annual Meeting. The general sessions on August 6, 1968, filled the room to capacity, and a series of outstanding presentations was made to the membership. The initial subject, Recent Developments in Cost and Pricing, was presented by Eldon H. Crowell of Washington, D.C. There followed a detailed discussion of the ruling in Honeywell (ASBCA 12353, 68-1 BCA 7036) that the Government has the option of proceeding under the False Claims Act against a contractor being charged with deffective pricing under PL 87-653, or of using the normal administrative procedure for handling contract disputes. Mr. Crowell referred to 54 Virginia Law Review 505-5 15, to an article critical of the subject ruling. He also cited two recent cases-Cutler-Hammer (ASBCA 10990, 67-2 BCA 6432) and Lockheed (ASBCA 10453, 67-1 BCA 6356) as marking a change from the Government's having the burden of proof regarding defective pricing to the contractor now having the burden, and he approved of the 60-40 splitting of defective pricing recovery in Bell & Howell (ASBCA 11999, 68-1 BCA 6993). Both Geoffery Creyke, Jr. and John T. Koehler made detailed comments pointing out the need for clarification, standardization, and changes in both the defective pricing clause itself and its interpretation by the Board. The Cutler-Hammer and Lockheed decisions are on appeal to the Court of Claims. Geoffery Creyke, Jr. and Robert Sheriffs Moss of Washington, D.C. outlined the recent court cases reviewing the various Boards of Contract Appeals' decisions. Mr. Moss analyzed 19 recent cases in which the Court of Claims differed with the action of the Board of Contract Appeals; in 11 cases the court reversed on the question of liability; in (continued on page 5) DEVELOPMENTS IN PROCUREMENT LAW REGULATIONS by Seymour Efros of the New York Bar Revision No. 30 to the Armed Services Procurement Regulation, dated 1 September 1968, was recently issued in part to incorporate various existing Departmental procure- ment instructions into the current ASPR (1963 edition). These are some of the highlights. a. The revision incorporates in the price warranty provision of the price escalation clauses in ASPR 7-106 and ASPR 7-107 a definition of established price and a requirement to verify any revised established price. The changes also serve to clarify the contractor's obligation to continue deliveries based on his proposed escalated price, pending agreement or decision on that proposed price. b. New ASPR Supplement No. 5, Procurement of Utility Services is now reported to be available for purchase at the U.S. Government Printing Office. Supple- ment No. 5 prescribes uniform policies, procedures and contract formats applicable to the several types of utility services from both public and private sources. c. As previously published in item Ill, Defense Procure- ment Circular No. 58, paragraph 3-809, is revised to limit the extent to which audit findings may be disclosed by auditors to contractors. Also, criteria are set forth govern- ing the coverage to be included in the advisory audit report with respect to cost or pricing data. d. The audit clauses in ASPR 7.104.41 (a) through (d), previously published in DPC No. 57, are included in this revision. They provide for post-award audit to assure that defective cost or pricing data were not submitted. Prior to DPC No. 57 the audit clause only provided access to the information available at the time of the certification. (continued on page 4)

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