Attorney General, Administration

Rule R105-1

Attorney General's Selection of Outside Counsel, Expert Witnesses and Other Litigation Support Services

Notice of Proposed Rule

(New Rule)

DAR File No.: 35904
Filed: 03/01/2012 04:09:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to provide the requirements for procurements that are managed by the Attorney General, including the hiring of outside counsel, litigation support services, and procurement items.

Summary of the rule or change:

The purpose of this rule is to provide the requirements for procurements that are managed by the Attorney General, including the hiring of outside counsel, litigation support services, and procurement items.

State statutory or constitutional authorization for this rule:

• Title 67, Chapter 5
• Art VII, Sec 16
• Title 63G, Chapter 6

Anticipated cost or savings to:

the state budget:

This rule will not affect the state budget, since it is simply providing the requirements for procurements that are managed by the Attorney General.

local governments:

This rule will not affect the budget of our local government, since it is simply providing the requirements for procurements that are managed by the Attorney General.

small businesses:

This rule will not affect the budget of small businesses, since it is simply providing the requirements for procurements that are managed by the Attorney General.

persons other than small businesses, businesses, or local governmental entities:

This rule will not affect the budget of persons other than small businesses, or local government entities, since it is simply providing the requirements for procurements that are managed by the Attorney General.

Compliance costs for affected persons:

This rule will not affect compliance costs for any persons or local governmental entities.

Comments by the department head on the fiscal impact the rule may have on businesses:

This will not impact business as the rule provides compliance with applicable law and an oversight process.

John Swallow, Deputy Attorney General

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Attorney General
Administration
Room 230 UTAH STATE CAPITOL
350 NORTH STATE STREET
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Priscilla Anderson at the above address, by phone at 801-538-9595, by FAX at 801-538-3378, or by Internet E-mail at phanderson@utah.gov
• Laura Lockhart at the above address, by phone at 801-366-0283, by FAX at 801-366-0292, or by Internet E-mail at llockhart@utah.gov
• Alan Bachman at the above address, by phone at 801-538-3105, by FAX at 801-538-3313, or by Internet E-mail at abachman@utah.gov
• Paul Tonks at the above address, by phone at 801-538-9501, by FAX at , or by Internet E-mail at ptonks@utah.gov
• Chiarina Gleed at the above address, by phone at 801-538-3240, by FAX at 801-538-3313, or by Internet E-mail at cgleed@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/16/2012

This rule may become effective on:

04/23/2012

Authorized by:

John Swallow, Deputy Attorney General

R105. Attorney General, Administration.

R105-1. Attorney General's Selection of Outside Counsel, Expert Witnesses and Other Litigation Support Services.

R105-1-1. Purpose and Authority.

A. This purpose of this rule is to provide the requirements for procurements that are managed by the Attorney General, including the hiring of outside counsel, expert witnesses, litigation support services and procurement items.

B. This rule is adopted pursuant to authority granted by the Utah Procurement Code including authority to manage procurement of procurement items directly or by delegation of the Chief Procurement Officer of the Division of Purchasing of the Department of Administrative Services.

 

R105-1-2. Definitions.

Terms in this Rule R105-1 shall be as defined in the Utah Procurement Code. Additional definitions are provided below.

A. "Agency" means any department, division, agency, commission, board, council, committee, authority, institution, or other entity within the State government of Utah (see Utah Code Ann. Sec. 67-5-3).

B. "Attorney General" means the Attorney General of the State of Utah, or the Attorney General's designee.

C. "Emergency" means a determination by the Attorney General in writing that a provision of this Rule needs to be waived due to the need for timeliness, litigation deadlines, confidentiality, or other emergency circumstances.

D. "Expert witness" means a person whose knowledge, skill, experience, training or education in a scientific, technical or other specialized area would enable the person to give testimony under Rule 702 of the Utah Rules of Evidence.

E. "Litigation Support Services" includes any goods, services, software or technology.

F. "Outside counsel" means an attorney or attorneys who are not, or a law firm whose attorneys are not, employed by the Attorney General's office pursuant to Utah Code Ann. Sec. 67-5-7 et seq., which the Attorney General appoints, pursuant to Utah Code Ann. Sec. 67-5-5, to represent, or provide legal advice or counsel to, an agency of the State. "Outside counsel" may or may not be designated as "Special Assistant Attorney General", as the Attorney General determines.

G. "Procurement item" or "Procurement Items" means any goods, services, software or technology.

H. "Small purchase" means a determination by the Attorney General in writing that the fee expected to be charged:

1. By outside counsel, expert witnesses or other professional litigation support services will be $100,000.00 or less;

2. A procurement item for litigation support services, will be $50,000 or less; or

3. Such other small purchase delegated to the Attorney General by the Chief Procurement Officer pursuant to the Utah Procurement Code.

I. "Sole source" means a determination by the Attorney General in writing, that the sole source requirements of the Utah Procurement Code and this Rule have been met.

J. "State" means the State of Utah.

 

R105-1-3. Special Considerations to Best Serve the Public.

A. This rule applies to the procurement and appointment by of outside counsel, expert witnesses and litigation support services by the Attorney General.

B. In order to have an effective legal strategy or to protect reputations, the procurement of outside counsel, expert witnesses and litigation support services often requires that public notice of a particular procurement not be provided. The provisions of the Utah Procurement Code and this Rule regarding an emergency procurement must be met.

C. The Attorney General may select outside counsel, expert witnesses and professional litigation support services pursuant to a request for proposals under the Utah Procurement Code, rather than an Invitation for Bids, whenever the Attorney General does not make those selections through the small purchase, sole source, or emergency provisions of this rule. In any such selection process, it may be specified that the outside counsel is responsible for providing the expert witnesses or other litigation goods and services through the outside counsel's selection process and pursuant to the contract provisions with the Attorney General.

D. If a procurement item is not procured through the request for proposals, small, purchase, sole source or emergency provisions of this rule, the Attorney General may determine to use an Invitation for Bids or any other procurement process allowed by the Utah Procurement Code provided that the following applicable Utah laws are met:

1. The Utah Procurement Code; and

2. Administrative Rules of the Division of Purchasing and General Services.

E. The Attorney General's office shall ensure that the procurement for outside counsel is supported by a determination by the Attorney General that the procurement is in the best interests of the state, in light of available resources of the Attorney General's office.

F. The Attorney General's office shall provide for the fair and equitable treatment of all potential providers of outside counsel, expert witnesses and other litigation support services.

 

R105-1-4. Initial Determination of Whether the Procurement is a Small Purchase, Sole Source or Emergency.

Prior to any procurement, the Attorney General shall first determine whether the provisions in this rule for a small purchase, sole source or emergency procurement are applicable and if so, may use such provisions.

 

R105-1-5. Use of Request for Proposal Process.

If the procurement is not a small purchase, sole source or emergency procurement, the request for proposal process may be used when the procurement includes a factor other than price. This will often apply to professional services, such as outside counsel, expert witnesses and professional litigation support services. In any such selection process, it may be specified that the outside counsel is responsible for providing the expert witnesses or other litigation goods and services through the outside counsel's selection process and pursuant to the contract provisions with the Attorney General.

 

R105-1-6. Request for Proposal Process.

The Requests for Proposals shall be subject to the following:

A. The requirements of the Utah Procurement Code for Requests for Proposals shall be met, except that the emergency procurement provisions of the Utah Procurement Code and this Rule may be used to waive certain requirements as necessary.

B. The Request for Proposal process may be issued in stages or may be issued after a request for information or other procurement process allowed by the Utah Procurement Code or this Rule.

C. The Request for Proposal, shall contain, at a minimum, the following information:

1. A description of the project.

2. Any fee arrangements.

3. The persons or entities being sought in the procurement, including whether an individual person, firm or association of firms may respond.

4. The qualification criteria and the relative importance of the criteria. Examples of criteria include:

a. Identification by name and experience of the proposed service provider(s);

b. A description of the duties and responsibilities of each person providing the service; and

c. The ability of the persons providing the service to meet the needs of the project, including the consideration of any association with other persons, expert witnesses or firms;

5. The Contractual Requirements, which may be accomplished by including a copy of the contract.

6. A request for a conflicts analysis, including potential conflicts of interest or other related matters concerning the offeror's ability to ethically perform the requested services.

7. Requirements regarding the date, time, place, form and method concerning the filing of the Response to the Request for Proposals.

8. A statement that the Attorney General reserves the right to reject late-filed or nonconforming proposals.

9. A statement that the Attorney General reserves the right to reject all proposals. The Attorney General also reserves the right to modify or cancel the Request for Proposal Process and may or may not initiate a new Request for Proposal Process for the particular procurement matter.

D. Public notice of the Request for Proposals shall be provided in accordance with the Utah Procurement Code.

E. The award process, including notice of award, shall be made by the Attorney General in accordance with the Utah Procurement Code and this Rule.

F. A record of the procurement shall be made in accordance with the Utah Procurement Code and this Rule, including Rule R105-1-14.

 

R105-1-7. Small Purchases.

A. If the Attorney General determines that an anticipated procurement meets the definition of a small purchase under this Rule, the Attorney General shall make a finding in writing to that effect prior to the procurement.

B. Upon making the finding in writing required by subsection A of this Rule, the Attorney General may proceed with the procurement in accordance with the small purchase requirements of the Utah Procurement Code.

C. Small purchases may be by a direct award, by the use of a request for quotes or rotational system among qualified providers in accordance with policies established by the Attorney General.

D. The procurement shall be made with as much competition as reasonably practicable

while avoiding harm, or a risk of harm, to public health, safety, welfare or property.

 

R105-1-8. Sole Source.

A. If the Attorney General determines in writing after reasonable efforts to locate providers for a project, that the circumstances described for a sole source in accordance with the Utah Procurement Code exists, or if a sole source may be justified based on another provision of the Utah Procurement Code, the Attorney General may use the Sole Source procedures of the Utah Procurement Code.

B. The Attorney General may publish notice of the sole source procurement on the internet or other means in order to learn if there is any other qualified entity or product that meets the needs of the procurement.

C. The Attorney General shall negotiate with the provider to ensure that the terms of the contract, including price and delivery, are in the best interest of the state.

 

R105-1-9. Emergency Procurements and Waiver of Requirements.

A. If an emergency as defined in this Rule or the Utah Procurement Code exists, the Attorney General may authorize waiver of any provision of this Rule in order to eliminate or reduce the impact of the emergency situation.

B. An emergency procurement, or the balance of the procurement that is not waived, shall be processed in accordance with the Utah Procurement Code and this Rule.

C. The authorization shall be in writing, stating the emergency condition upon which the emergency procurement or waiver of the requirement is made.

D. The procurement shall be made with as much competition as reasonably practicable while avoiding harm, or a risk of harm, to public health, safety, welfare or property.

 

R105-1-10. Confidentiality.

Except when an emergency exists under Rule R105-1-9 and in accordance with applicable law, where public inspection may be delayed until such time as the cause for the emergency no longer exists, the following shall be met:

A. Receipt, Opening, and Recording of Bids.

1. Receipt. Upon receipt, all bids and modifications will be time stamped, but not opened. Bids submitted through electronic means shall be received in such a manner that the time and date of submittal, along with the contents of such bids shall be securely stored until the time and date set for bid opening. They shall be stored in a secure place until bid opening time.

2. Opening and Recording. Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at the time and place designated in the Invitation for Bids. The names of the bidders, the bid price, and other information as is deemed appropriate by the procurement officer, shall be read aloud or otherwise be made available. The opened bids shall be available for public inspection except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in subsection 3 of this section. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the non-confidential portion of the bid. Make and model, and model or catalogue numbers of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary. Bids submitted through electronic means shall be received in such a manner that the requirements of this section can be readily met.

3. Confidential Data. The Attorney General shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data, the Attorney General shall inform the bidders in writing what portions of the bids will be disclosed.

B. Protected Records. The following are protected records and will be redacted subject to the procedures described below. From any public disclosure of records as allowed by the Governmental Records Access and Management Act (GRAMA) Title 63G, Chapter 2 of the Utah Code. The protections below apply to the various procurement records including records submitted by offerors and their subcontractors or consultants at any tier.

1. Trade Secrets. Trade Secrets, as defined in Utah Code Ann. Section 13-24-2, will be protected and not be subject to public disclosure if the procedures of subsection C of this Rule are met.

2. Certain commercial information or non-individual financial information. Commercial information or non-individual financial information subject to the provisions of Utah Code Ann. Section 63G-2-305(2) will be a protected record and not be subject to public disclosure if the procedures of subsection C of this Rule are met.

3. Other Protected Records under GRAMA. There will be no public disclosure of other submitted records that are subject to non-disclosure or being a protected record under a GRAMA statute provided that the requirements of subsection C of this Rule are met unless GRAMA requires such nondisclosure without any preconditions.

C. Process for Requesting Non-Disclosure. Any person (firm) who believes that a record should be protected under subsection B of this Rule shall include with their proposal or submitted document:

1. A written indication of which provisions of the submittal(s) are claimed to be considered for business confidentiality (including trade secret or other reason for non-disclosure under GRAMA; and

2. A concise statement of reasons supporting each claimed provision of business confidentiality.

D. Notification. The person who complies with subsection C of this Rule shall be notified by the governmental entity prior to the public release of any information for which business confidentiality has been asserted.

E. Non-Disclosure and Dispute Process. Except as provided by court order, the governmental entity to whom the request for a record is made under GRAMA, may not disclose a record claimed to be protected under subsection B of this Rule but which the governmental entity or State Records Committee determines should be disclosed until the period in which to bring an appeal expires or the end of the appeals process, including judicial appeal. This subsection E does not apply where the claimant, after notice, has waived the claim by not appealing or intervening before the records committee. To the extent provided by law, the parties to a dispute regarding the release of a record may agree in writing to an alternative dispute resolution process.

F. Timing of Public Disclosure. Any allowed public disclosure of records submitted in the request for proposal process will only be made after the selection of the successful offeror(s) has been made public.

G. Publicizing Awards.

1. After the selection of the successful offeror(s), notice of award shall be available in the purchasing agency's office and may be available on the internet.

2. The following shall be disclosed to the public after notice of the selection of the successful offeror(s) and after receipt of a GRAMA request and payment of any lawfully enacted and applicable fees:

a. The contract(s) entered into as a result of the selection and the successful proposal(s), except for those portions that are to be non-disclosed under R33-3-204;

b. The unsuccessful proposals, except for those portions that are to be non-disclosed under R33-3- 204;

c. The rankings of the proposals;

d. The names of the members of any selection committee (reviewing authority);

e. The final scores used by the selection committee to make the selection, except that the names of the individual scorers shall not be associated with their individual scores or rankings; and

f. The written justification statement supporting the selection, except for those portions that are to be non-disclosed under this Rule.

3. After due consideration and public input, the following has been determined by the Attorney General to impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with the Attorney General, and will not be disclosed by the Attorney General at any time to the public including under any GRAMA request:

a. The names of individual scorers in relation to their individual scores or rankings;

b. Non-public financial statements; and

c. Past performance and reference information, which is not provided by the offeror and which is obtained as a result of the efforts of the Attorney General. To the extent such past performance or reference information is included in the written justification statement, it is subject to public disclosure.

 

R105-1-11. Special Provisions regarding Contingency Fee contracts for Outside Counsel.

A. The Attorney General shall not enter into a contingency fee contract for outside litigation or anticipated litigation counsel services unless the following requirements are met throughout the contract period and extensions thereof:

1. The Attorney General shall retain complete oversight and control over the course and conduct of the litigation or anticipated litigation;

2. The Attorney General shall appoint a member of the Utah Attorney General's Office to personally oversee the litigation;

3. The Utah Attorney General shall retain veto power over any decisions made by outside counsel;

4. The Utah Attorney General shall be apprised, attend and/or participate in all settlement conferences; and

5. Decisions regarding settlement of the case shall be made by the Utah Attorney General and not the outside counsel.

B. This Rule R105-1-11 does not apply to the hiring of outside bond counsel.

 

R105-1-12. Transparency in Contingency Fee Contracts with Outside Counsel.

A. Except as otherwise provided by GRAMA, applicable law, Rules of Professional Conduct or this Rule, a copy of the executed contingency fee contract shall be made available for public inspection in accordance with GRAMA.

B. Any payment by the Attorney General under a contingency fee contract shall be made available for public inspection in accordance with GRAMA.

C. Upon request of the President of the Utah Senate or Speaker of the Utah House of Representatives, the Utah Attorney General shall make available all contracts for hiring outside counsel on a contingency fee basis in the preceding year from the date of the request as well as any known names of the parties to the legal matter, the amount of any recovery and the amount of any contingency fee paid. Notwithstanding this, the Attorney General may withhold information that is confidential under GRAMA, Rules of Professional Conduct or applicable law unless the Attorney General determines that such release of information to the President of the Utah Senate or Speaker of the Utah House of Representatives can be adequately assured of confidentiality through a confidential agreement or similar document.

 

R105-1-13. Contracts.

Those awarded a contract under this Rule shall be required to enter into a written contract with the Attorney General. The written contract shall contain all material terms set forth in:

A. The final procurement documents issued by the Utah Attorney General;

B. The provisions in documents submitted by the provider to the extent such provisions are accepted by the Attorney General;

C. A termination for cause and a termination for convenience clause; and

D. Any terms required by law, whether by the constitutions, statutes, or rules or regulations of the United States or the State of Utah.

 

R105-1-14. Retention and Non-availability of Files.

A. All proposals submitted to the Attorney General under this rule become the property of the State of Utah and the office of the Attorney General.

B. All information in all proposals shall be placed in a file relating to the project for which the proposal was submitted. Each file shall contain:

1. If applicable, a copy of all written determinations of the Attorney General required by the Utah Procurement Code or this Rule;

2. A copy of the procurement documents and any written documentation related to notification requirements; and

3. All responses to procurements and modifications, in writing, to any procurement if those modifications have been negotiated by the Attorney General.

 

KEY: Attorney General, litigation support, outside counsel, expert witnesses

Date of Enactment or Last Substantive Amendment: 2012

Authorizing, and Implemented or Interpreted Law: Art VII Sec 16; 67-5; 63G-6