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5 Pub. Cont. Newsl. 1 (1969-1970)

handle is hein.journals/procurlw5 and id is 1 raw text is: M SECTION OF PUBLIC CONTRACT LAW AMERICAN BAR ASSOCIATION Vol. 5, No. 1, October 1969 FEDERAL STATE & LOCAL GOVERNMENT CONTRACTS Paul Shnitzer, Editor, 1803 Cody Drive, Silver Spring, Md. 20902 Moody R. Tidwell, III, Assistant Editor Public Contract Section Meeting at Dallas by Carl F. Paul of the D. C. Bar The Public Contract Section met in Dallas, Texas, at the Annual Meeting of the American Bar Association on August II and 12, 1969. The initial session on August II at the Dallas Memorial Auditorium dealt with Direct Con- sequential and Liquidated damages in Government Con- tracts-Right of Government Prime Contractors and Third Parties to Recover, with Gilbert Cuneo, Chairman; as moderator, and a Panel of William Munves and F. Trow- bridge vom Baur. Presentations were made by four mem- bers of the Section. John E. Cavanaugh pointed out that private product liability insurance costs about $1.25 per $1000.00 and clarification of prime and subcontractor's liability is essential. Overton A. Currie discussed the applicable principles of damages. Walter L. Pettit pointed out that provisions for liquidated damages are now on occasion found in research and development contracts and supply contracts, not just in construction contracts. In addition to discussing the rationale given for including them and pointing out their limitations, Mr. Pettit discussed the five basic defenses to the assessment of liquidated damages. Frederick Sass, Jr., discussed the contractor's normal contractual warranty and his obligations to deliver a product conforming to the specifications and without defects. Trowbridge vom Baur expressed concern over the trend that developed over the past several years of shifting risks to the Contractor. If this is followed with reference to product liability even though the Government has principal responsibility for :ts products, the trend will be away from defense and Government business. The Annual Luncheon meeting at the Baker Hotel was presided over by Gilbert Cuneo, Chairman of the Section. The luncheon speaker, Chief Judge Wilson Cowen of the Court of Claims, pointed out that while only a very small percentage of Board of Contract Appeals Cases are there- after filed in Court, both the administrative and the judicial remedy now take as long as or longer than they once did. The review process has presented more problems to the Court of Claims than was anticipated, and time alone has become a significant factor in the delay experienced until a contractor finally receives payment of his claim. Judge Cowen therefore, proposed instead of the adoption of an All Disputes Clause, either (1) giving the contractor the option of appealing the dispute directly to the applicable Board, or filing a suit directly in court, where he would obtain a trial de novo, or (2) the adoption of the Cellar bill H.R. 10765, introduced April 9, 1964, giving a right of appeal to a court, with a trial de novo, with a rebuttable presumption of correctness attaching to the administrative proceedings. The first of the two sessions on August 12 at the Baker Hotel was Moderated by Geoffrey Creyke, Jr., on the subject Issuance of Procurement Regulations-What can the Bar, Industry and Trade Association Do to Protect and Promote the Interests of Prime and Subcontractors with Panelists Harold Gold and James V. Joy, Jr. The Chairman of the ASPR Committee, Captain E. C. Chapman, U.S.N., discussed in detail the lengthy steps in making procurement regulations. The Committee itself is small, and subcommit- tees, set up as cases arise, perform a substantial portion of the work. Coordination is provided for with eighteen industry associations and with other Government agencies such as GAO, GSA, and NASA. Matters of major policy are frequently decided by SEC Def., after comment by the Ass't Sec. Def. One of the principal problem areas has been a better quality input from the individual military services and from industry. Captain Chapman, however, made it clear that the Committee's purpose is the protection of the Government's long term interests and it was his view that publication in the Federal Register, as was suggested in the discussion, would not be worthwhile in view of the widespread coverage given by ASPR Committees proposals by professional journals. Informative presentations were made by John Love, Jr., and John A. McWhorter, both of Washington, D.C., and Prof. John W. Whelan of the University of California Law School. The final session dealt with the Government Right of Appeal from an Adverse Decision of a Board of Contract Appeals. Are recent Developments Consistent with Govern- ment-Wide Disputes Procedures? Under Moderator Marshall J. Doke, Jr., and Panelists Harold L. Blasky and Paul L. Hannah, six presentations were made. George M. Coburn discussed the Attorney General's opinion of January 16, 1969, and expressed concern that the finality of board of contract appeals decisions may be subject to attempts by employees of the contracting agencies to upset those adverse to the Government by reporting dissatisfaction to the Department of Justice or the GAO, and by delaying payment. Irving Jaffee took the position that this was not an attack on finality, but the exercise of a right in the Government, coexistent with that of the private party, to (continued on page 2)

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