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

As in effect on August 1, 2009

Table of Contents

• R105-1-1. Authority and Purpose.
• R105-1-2. Definitions.
• R105-1-3. Scope.
• R105-1-4. Determination of Small Purchase, Sole Source, Emergency, or Waiver of Request for Proposals.
• R105-1-5. Use of Competitive Sealed Proposals in Lieu of Competitive Sealed Bids.
• R105-1-6. Selection of Outside Counsel, Expert Witnesses and Providers of Litigation Support Services Other than through Small Purchase, Sole Source, or Emergency, or Waiver of Request for Proposals Provisions.
• R105-1-7. Small Purchases.
• R105-1-8. Sole Source.
• R105-1-9. Emergencies.
• R105-1-10. Waiver of Request for Proposals.
• R105-1-11. Competitive Proposals for Small Purchases or Emergencies.
• R105-1-12. Proposals May Not Be Dependent on Proposals Submitted by Others.
• R105-1-13. Contracts.
• R105-1-14. Retention and Non-availability of Files.
• KEY
• Date of Enactment or Last Substantive Amendment
• Notice of Continuation
• Authorizing, Implemented, or Interpreted Law

R105-1-1. Authority and Purpose.

A. This rule is adopted to allow the Attorney General to obtain the services of outside counsel, expert witnesses or providers of litigation support services for agencies of the State without having to go through the Division of Purchasing in recognition of the overlapping jurisdiction in this area under the Utah Constitution and applicable statutes and the unique needs of the Attorney General in obtaining these professional services.

B. This rule is adopted pursuant to authority granted by the Chief Procurement Officer of the Division of Purchasing of the Department of Administrative Services under Utah Code Ann. Sec. 63-56-10 (1986), and pursuant to Utah Code Ann. Sec. 67-5-5 (1986), and the Utah Procurement Code (Chapter 56 of Title 63, Utah Code Ann. (1986)) and the applicable subsections thereof, viz., Sec. 63-56-1, -2, -4, -5, -16, -17, -18, -19., -20.5, -21, -22, -23, -24, -25, -26, - 27, -28., -29, -30, -32, -33, -34, -40, -41, -45, -46, -47, -48, -49, and -50 (1986 and Supp. 1987).

R105-1-2. Definitions.

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 (1986)).

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 due to the need for timeliness or confidentiality or both, the health, safety or welfare of the State, any State agency, or any citizen of the State could be significantly affected, threatened or endangered were the Attorney General to proceed to retain outside counsel, expert witnesses or providers of litigation support services under section R105-1-6 of this rule.

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 (Utah Code Ann. (1986)).

E. "In writing" means handwriting, typing or printing upon paper, dated and signed by the Attorney General or the Attorney General's designee. Unless otherwise indicated, a determination "in writing" is to be placed in the file, and together with the other documents in the file is not open for public inspection under section R105-1-14 of this rule.

F. "Litigation Support Services" means services the Attorney General determines are needed for the performance of the responsibilities and duties imposed upon the office of the Attorney General by the Constitution and laws of this State.

G. "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. (1986), which the Attorney General appoints, pursuant to Utah Code Ann. Sec. 67-5-5 (1986), 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.

H. "Person" means any business, individual, union, committee, club, other organization, or group of individuals, not including a state agency or a local public procurement unit.

I. "Small purchase" means a determination by the Attorney General in writing that the fee expected to be charged by outside counsel, expert witnesses or providers of litigation support services for a project will be $10,000.00 or less.

J. "Sole source" means a determination by the Attorney General in writing, after a reasonable attempt to locate potential providers of the needed services, that there is only one person qualified and available on a particular project to serve as outside counsel or an expert witness or to provide litigation support services.

K. "State" means the State of Utah.

R105-1-3. Scope.

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

B. The rule takes into account the special nature of the purposes for which outside counsel, expert witnesses and providers of litigation support services will often be retained, i.e., litigation, enforcement proceedings or investigations. Legal strategy often requires that a potential plaintiff or defendant not be given any notice of anticipated litigation, or that a party is considering calling expert witnesses; and enforcement proceedings and actions leading to enforcement proceedings are often delicate, with agencies and defendants concerned that in order to prevent undue harm to reputations, the public should not be made aware of any proceedings until preliminary actions have been completed. To enable the Attorney General to have the flexibility needed to provide outside counsel, expert witnesses or providers of litigation support services in instances where obtaining those services through a publicized solicitation could interfere with legal strategies or could disclose information prematurely, the rule specifically authorizes the Attorney General to determine, pursuant to Utah Code Ann. Sec. 63-56-24 (1986), that an emergency exists that would pose a threat to the public health, welfare or safety were the Attorney General publicly to disclose, through a request for proposals, information which would otherwise be necessary for a person to submit a proposal or were the Attorney General to delay procuring those services because of the time constraints imposed by the usual procurement procedures for those services. The rule does provide that even in those "emergency" situations, however, the Attorney General will make the selection with as much competition as practicable under the circumstances.

C. The rule also provides that the Attorney General will select outside counsel, expert witnesses and providers of litigation support services pursuant to competitive sealed proposals, rather than competitive sealed bids, whenever the Attorney General does not make those selections through the small purchase, sole source, or emergency provisions of this rule.

R105-1-4. Determination of Small Purchase, Sole Source, Emergency, or Waiver of Request for Proposals.

A. If the Attorney General determines it is necessary to retain outside counsel, expert witnesses or providers of litigation support services, the Attorney General may first determine whether the retention of outside counsel, expert witnesses or providers of litigation support services can be made under provisions of this rule for:

1. Small purchases pursuant to section R105-1-7.

2. Sole source providers pursuant to section R105-1-10.

3. Emergencies pursuant to section R105-1-9.

4. Waiver for request for proposals pursuant to section R105-1-10.

B. After the determination under subsection R105-1-4A of this rule has been made, the Attorney General shall proceed to select outside counsel, expert witnesses or providers of litigation support services pursuant to the applicable provisions of this rule.

R105-1-5. Use of Competitive Sealed Proposals in Lieu of Competitive Sealed Bids.

Projects for which outside counsel, expert witnesses, or providers of litigation support services are obtained are usually unique, and the person submitting the lowest proposed fee might not be the best person to provide the needed service for that particular project. As a result, it is not practicable or advantageous to the State or its agencies for the Attorney General to obtain the services of outside counsel, expert witnesses, or providers of litigation support services through competitive sealed bids. Thus, whenever the Attorney General selects outside counsel, expert witnesses, or providers of litigation support services under this rule, the Attorney General will request and receive competitive sealed proposals, rather than competitive sealed bids.

R105-1-6. Selection of Outside Counsel, Expert Witnesses and Providers of Litigation Support Services Other than through Small Purchase, Sole Source, or Emergency, or Waiver of Request for Proposals Provisions.

A. If the Attorney General determines the retention of outside counsel, expert witnesses or providers of litigation support services may not be made under sections R105-1-7, R105-1-8, R105-1-9, or Rule R105-1-10 of this rule, the Attorney General shall proceed under this section.

B. The Attorney General shall prepare a request for proposals ("RFP"), to serve as outside counsel, expert witnesses or providers of litigation support services. The RFP shall contain, at a minimum, the following information:

1. If the RFP is for outside counsel, the name of the agency, if any, for which outside counsel is sought.

2. The nature of the project.

3. The anticipated number of hours that will be required, the beginning date, and the date the project is expected to be completed. If unknown or irrelevant, the RFP shall so state.

4. The number of attorneys, law firms, expert witnesses or providers of litigation support services that will be retained.

5. Whether there is a preference or requirement as to how services are to be billed, e.g., payment will be made from a maximum amount against which fees can be billed on an hourly basis, or through a lump sum for the entire project, or through a contingent fee arrangement, or through a set hourly fee.

6. Whether proposals will be accepted from law firms, associations of attorneys or law firms, or associations of expert witnesses or providers of litigation support services.

7. The criteria under which the proposals will be evaluated. The RFP will state the criteria in the order of importance in which the proposals will be evaluated, and the RFP will explicitly state that the criteria are listed in the order in which the proposals will be evaluated.

8. Examples of criteria include, but are not limited to:

a. Experience of the applicant attorney, law firm, or expert witness or provider of litigation support services on the type of project for which the RFP is issued.

b. If the RFP is for outside counsel, and the applicant is a law firm, each attorney in the firm that will be assigned to the project, and the experience on the type of project for which the RFP is issued of each attorney in the firm that will be assigned to the project.

c. Whether the applicant attorney, law firm, or expert witness or provider of litigation support services may associate himself or herself with other attorneys, law firms, expert witnesses, providers of litigation support services, or whether the Attorney General will require association. If the Attorney General requires association, a specification of who the attorney, law firm, expert witness, or provider of litigation support services will be what experience each has in projects of the type for which the RFP was issued, what each will contribute to the project, and the percentage of the project that will be performed by each.

d. Any potential conflicts in providing the services on the project or projects for which the RFP is issued.

e. The fee to be charged, and how it will be determined, e.g., hourly rate, hourly rate with minimum fee, hourly rate with maximum fee, lump sum payment. If the attorney, law firm, expert witness, or provider of litigation support services intends to associate with other attorneys, law firms, expert witnesses, or provider of litigation support services, the proposal should state whether the fees and costs quoted include those of the associated attorney, law firm, expert witness or provider of litigation support services, and, regardless of whether the proposal does or does not include their fees and costs, what their fees and costs would be expected to be for the project.

9. The date by which proposals must be received, and the date on which a decision can be expected to be announced.

10. The attorney, law firm, expert witness or provider of litigation support services whose proposal is determined to be most advantageous to the State, as determined by the Attorney General, and who accepts appointment by the Attorney General for the project, will be required to enter into a written agreement with the Attorney General's office within a reasonable time after the attorney, law firm, expert witness or provider of litigation support services has been notified that the Attorney General desires to retain their his or her services and the attorney, law firm, expert witness or provider of litigation support services has accepted.

11. The Attorney General reserves the right to reject late-filed or nonconforming proposals or any and all proposals.

12. The Attorney General shall notify all persons submitting proposals of the attorney, law firm, expert witness or provider of litigation support services selected, but after the date by which a decision can be expected, any person may call the Attorney General's office to learn who has been retained for the project.

13. All information in all proposals, including the winning proposal, is and will remain closed from public inspection under section R105-1-14 of this rule.

C. The RFP shall be printed in the "Legal Notices" section of a newspaper of general circulation in the State at least two weeks before the proposals are due.

1. In the alternative, the Attorney General may, in his or her discretion, have printed in the "Legal Notices" section of a newspaper of general circulation at least three weeks before proposals are due a summary of the RFP, containing sufficient information to convey the nature of the project to a reader, and stating that a copy of the RFP will be sent upon request made to the Attorney General's office, and shall list the Attorney General's office address and phone number.

2. The times in subsection R105-1-6C of this rule may be shortened if the Attorney General determines in writing that the interests of the State will best be served by shortening the times.

D. The Attorney General will maintain a record of all attorneys, law firms, expert witnesses and providers of litigation support services who wish to receive copies of RFPs for outside counsel, expert witnesses or providers of litigation support services. To be placed on the list, the attorney, law firm, expert witness or provider of litigation support services shall submit to the Attorney General's office a written request, stating the name of the attorney, law firm, expert witness or provider of litigation support services and the area or areas in which the attorney or law firm would be qualified to serve as outside counsel, the expert witness would be qualified to serve as an expert witness, and provider of litigation support services would be qualified to provide those services. The Attorney General shall place the names of the attorney, law firm, expert witness or provider of litigation support services on the appropriate list. Whenever the Attorney General determines to issue an RFP for services in an area for which an attorney, law firm, expert witness or provider of litigation support services has previously submitted requests that their names be included on the list retained by the Attorney General's office for service, the Attorney General shall send, via first class mail, postage prepaid, a copy of the RFP to those persons.

R105-1-7. Small Purchases.

A. If the Attorney General determines, using the best information available, that the total of the fees for outside counsel, expert witnesses or providers of litigation support services for a project will be $10,000.00 or less, exclusive of costs, the Attorney General shall make a finding in writing to that effect.

B. Upon making the finding in writing required by subsection A of this rule, the Attorney General may appoint the attorney or law firm as outside counsel or the person as expert witness or provider of litigation support services without proceeding under section R105-1-6 of this rule.

C. The Attorney General shall appoint the attorney or law firm as outside counsel, or expert witness or provider of litigation support services, under this section, whose services, in the Attorney General's determination, would be most advantageous to the State and its agencies, and shall make a finding in writing to that effect.

D. Should the Attorney General, subsequent to appointing outside counsel, expert witnesses or providers of litigation support services under this section, determine or be informed that the actual fees that will be required for the project will exceed $10,000.00, exclusive of costs, before the outside counsel, expert witnesses or providers of litigation support services have rendered any services on the project, the Attorney General shall terminate the appointment under this section and shall proceed to select outside counsel, expert witnesses or providers of litigation support services pursuant to sections R105-1-6, R105-1-8, R105-1-9, or R105-1-10 of this rule as the Attorney General may determine under section R105-1-4 of this rule.

E. A project shall not be artificially divided so as to constitute more than one small purchase.

F. In appointing outside counsel, expert witnesses or providers of litigation support services under this section, the Attorney General shall also abide by section R105-1-11 of this rule, except that in matters involving $500.00 or less, the Attorney General may make purchases without complying with R105-1-6 or R105-1-11.

R105-1-8. Sole Source.

A. If the Attorney General determines after reasonable efforts to locate providers for a project, that there is only one attorney or law firm that could provide services as outside counsel, or only one person that could provide services as an expert witness or could provide other litigation support services, the Attorney General shall make a finding in writing to that effect.

B. Upon making the written finding required by subsection A of this rule, the Attorney General may appoint the attorney or law firm as outside counsel or the person as expert witness or provider of litigation support services without proceeding under section R105-1-6 of this rule.

C. In selecting and designating outside counsel, expert witnesses or providers of litigation support services under this section R105-1-8, the Attorney General shall negotiate the best terms possible for the State.

R105-1-9. Emergencies.

A. The Attorney General may appoint outside counsel, expert witnesses or providers of litigation support services without complying with section R105-1-6 of this rule if the Attorney General first determines, and makes a finding, in writing, based upon the best information available, that the health, safety or welfare of the State, any State agency, or any citizen of the State could be significantly affected, threatened or endangered, if:

1. The Attorney General were to proceed to retain outside counsel, expert witnesses or providers of litigation support services under the time constraints set forth in section R105-1-6 of this rule; or

2. The Attorney General were to publicly disclose RFP information and by doing so would cause situations such as hindering or impairing legal strategies and tactics, or causing harm to parties or potential parties to proceedings or to third persons, or causing harm to the State or a State agency.

B. In appointing outside counsel, expert witnesses or providers of litigation support services under this section R105-1-9, the Attorney General shall also abide by section R105-1-11 of this rule.

R105-1-10. Waiver of Request for Proposals.

A. Pursuant to Utah Code Ann. Sec. 63-56-21(1) (Supp. 1986), the Attorney General may waive the requirement of requesting and receiving proposals if the Attorney General makes a finding in writing that it is not practicable or advantageous to the State to obtain outside counsel, expert witnesses or providers of legal services due to the following:

1. There exists an emergency or other need for immediate action by the Attorney General in obtaining those services; or

2. There is a need for confidentiality that could be compromised were the Attorney General to obtain these those services through requests for proposals.

B. In appointing outside counsel, expert witnesses or providers of litigation support services under this section R105-1-10, the Attorney General shall also abide by section R105-1-11 of this rule.

R105-1-11. Competitive Proposals for Small Purchases or Emergencies.

In appointing outside counsel, expert witnesses or providers of litigation support services under sections R105-1-7 or R105-1-9, the Attorney General shall still make appointments on a competitive basis insofar as possible. If practicable, the Attorney General shall at least do the following:

A. Call at least two attorneys, law firms, expert witnesses or providers of litigation support services, as the case may be, who the Attorney General determines are qualified to be appointed as outside counsel, expert witnesses or providers of litigation support services for the project.

B. Disclose information the Attorney General determines necessary for the attorney, law firm, expert witness or provider of litigation support services contacted to ascertain the nature of the services required and whether the attorney, law firm, expert witness or provider of litigation support services might have a conflict, are not qualified or are not available to serve on the project.

C. After determining that the attorney, law firm, expert witness or provider of litigation support services does not have a conflict and is qualified and available to serve on the project, the Attorney General may disclose enough information to allow the attorney, law firm, expert witness or provider of litigation support services to make a good faith estimate as to whether he or she could undertake the project and what the fees and costs would be.

R105-1-12. Proposals May Not Be Dependent on Proposals Submitted by Others.

Proposals received by the Attorney General, whether submitted in response to an RFP under section R105-1-6 of this rule, or whether submitted to the Attorney General under sections R105-1-7, R105-1-8, R105-1-9, or R105-1- 10 of this rule, must stand alone and may not be dependent on proposals submitted by others submitting proposals, e.g., a proposal to perform services "for five percent less than the lowest fee received in any other proposal submitted". A proposal reliant upon the proposal submitted by another submitting a proposal will not be considered for appointment by the Attorney General.

R105-1-13. Contracts.

All attorneys, law firms or other persons retained under sections R105-1-6, R105-1-7, R105-1-8, R105- 1-9 or R105-1-10 of this rule shall be required to enter into a written contract with the Attorney General and any person or agency the Attorney General may require. The written contract shall contain all terms set forth in:

A. The RFP, except to the extent the Attorney General has explicitly agreed those terms may be modified;

B. The proposal submitted to and accepted by the Attorney General, except to the extent the Attorney General explicitly has agreed those terms may be modified; and

C. 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 the finding in writing by the Attorney General that outside counsel, expert witnesses or providers of litigation support services may be obtained for the project under sections R105-1-7, R105- 1-8, R105-1-9, or R105-1-10 of this rule; otherwise, a copy of the request for proposals and a copy of the affidavit of publication in the newspaper of general circulation.

2. All proposals received, and modifications, in writing, to any proposals if those modifications have been negotiated by the Attorney General.

3. A determination in writing by the Attorney General as to why a proposal was selected as being most advantageous by the State.

C. Information in the file shall not be open for public inspection.

D. After a reasonable period of time, which the Attorney General shall determine a file may be transferred to the State Archives, but the records in the file shall continue to be closed to public inspection.

KEY

attorneys, witnesses, litigation, government purchasing

Date of Enactment or Last Substantive Amendment

December 17, 1996

Notice of Continuation

November 22, 2006

Authorizing, Implemented, or Interpreted Law

67-5-5; 63-56-1