REQUEST FOR PROPOSAL FOR LEGAL SERVICES TO ASSIST THE OFFICE OF

THE ATTORNEY GENERAL WITH OPENAI INVESTIGATION AND LITIGATION

Solicitation No. GN27-3

Issued by:

DEREK BROWN

ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

STATE OF UTAH

RFP Designation: Public

REQUEST FOR PROPOSALS

Legal Services to assist with OpenAI Investigation and Litigation.

Title: Legal Services to assist with OpenAI Investigation and Litigation

Issuing Procurement Unit: Office of the Utah Attorney General (“OAG”) Conducting Procurement Unit: OAG Designated Procurement Officer: John Dougall, Administrator, by designation of

Attorney General Derek Brown Bid Contact: John Dougall, Administrator

Contract duration: With respect to the OpenAI Investigation and Litigation pursued within the scope of Legal Services, the Contract will continue until the conclusion of litigation, including all appeals, or until a final determination is made by the OAG not to pursue litigation further or to terminate the Contract.

Comments: This Request for Proposals seeks legal services related to potential OpenAI Investigation and Litigation, alleging violations of various data privacy, competition, and consumer protection laws. Enforcement authority for specific statutes that give rise to causes of action may reside with any state entity. Claims may also be brought on behalf of the State of Utah or state entities or agencies for monetary, injunctive, or other relief. The successful Offeror may be asked to file multiple cases in federal or state adjudicative venues.

ITEM RESPONSE FORM

Item: Legal Services to assist with the OpenAI Investigation and Litigation Unit Price: Contingent Fee, plus reimbursement of authorized costs and expenses Delivery Location: Legal Services may be provided in Utah and other locations Quantity: At least one contract Description: This Request for Proposal seeks legal services to assist the OAG in evaluating and pursuing litigation pertaining to liability by OpenAI for concerns about privacy, consumer, and public safety issues.

The OAG issues this Request for Proposals (“RFP”) which seeks a law firm(s) that will provide legal services to assist with the OpenAI Investigation and Litigation. This RFP is designed to provide interested Offerors with sufficient basic information to submit Proposals. It is not intended to limit a Proposal’s content or exclude any relevant or essential data. Offerors are encouraged to expand upon the specifications to demonstrate service capability. This RFP is issued in accordance with the Utah Procurement Code, Utah Code Chapter 63G-6a, as well as Utah Code Chapter 67-5, and applicable Rules found in the Utah Administrative Code, including Rules R33-7 and R105-1. If any provision of this RFP is deemed to conflict with any statute or administrative rule, the applicable statute or administrative rule controls and takes precedence.

Part 1. Overview and Instructions

1.1 Executive summary

The OAG issues this RFP to seek law firms that will provide legal services to assist the OAG in evaluating and litigating claims against OpenAI concerning data privacy, competition, and consumer protection violations. Depending on the legal theories pursued, the Attorney General may assert claims in his own constitutional capacity or as counsel for different state officers, agencies, or entities which may have claims for relief. The OAG will be the client for purposes of this RFP. This RFP specifically includes working for the OAG as it represents the State of Utah or any state officer, agency, or entity.

Interested law firms should prepare a Cost Proposal Form, Exhibit B, and a Technical Proposal Cover Sheet Form, Exhibit C, and should submit them through U3P, as defined below, by the closing date and time. The Cost Proposal and the Technical Proposal MUST be separate, and nothing contained in the Cost Proposal may be included or referenced in the Technical Proposal.

1.2 Definitions

The following terms used in this RFP have the following meanings:

“Contingent Fee” means a compensation arrangement in which the Offeror is paid a contingent fee as set forth in Section 1.11, and expenses as set forth in Section 1.12.

“Contract” means a Legal Services Agreement in substantially the form set forth in Exhibit A between the OAG and the successful Offeror responding to this RFP.

“Cost Proposal” means the Cost Proposal that the Offeror must submit using the form attached as Exhibit B to this RFP, and which must be submitted separately from the Technical Proposal. The Cost Proposal specifies the Contingent Fee that the Offeror is willing to accept.

“Cover Sheet” means the Technical Proposal cover sheet using the form attached as Exhibit C to this RFP, which is to be completed and submitted by the Offeror with its Proposal.

“Deadline” means the Closing (Proposals Due) date and time, as stated on U3P.

“Evaluation Committee” means the committee that will evaluate and score each Proposal and make a recommendation to the Procurement Officer. The Evaluation Committee will be formed after the Deadline.

“GRAMA” means the Government Records Access and Management Act, Utah Code §§ 63G-2-101 through -901.

“Legal Services” means all services to be performed by the successful Offeror under the Contract, which includes evaluating, investigating, and litigating the OpenAI Investigation and Litigation.

“Litigation Team” means the individuals employed or retained by the Offeror who will be the primary people providing Legal Services under the Contract.

“OAG” means the Office of the Utah Attorney General and its staff.

“Offeror” means a law firm, or group of law firms, that submits a Proposal under this RFP.

“OpenAI Investigation and Litigation” means the potential investigation and potential legal action(s) related to OpenAI for concerns about privacy, consumer, and public safety issues.

“Procurement Officer” means John Dougall, Administrator, by appointment of Attorney General Derek Brown under Utah Code section 63G-6a-103(58)(p)(ii).

“Procurement Unit” means the Office of the Utah Attorney General.

“Proposal” means the Offeror’s response to this RFP, including the Technical Proposal, interview (if the Offeror is selected for an interview in accordance with Section 4.2), and Cost Proposal.

“Question Period” means the period, ending on the Question Period End Date, during which a potential Offeror may ask questions about the RFP through U3P.

“Reference Materials” means the reference materials described in Part 3 and may not exceed 30 pages, to be submitted by the Offeror in response to this RFP.

“RFP” means this Request for Proposals, including all exhibits, formal responses to questions made through U3P, and any other addenda.

“Standard Terms and Conditions for Services” means Attachment 1 to the Contract, which is attached as Exhibit A to this RFP.

“State” means the State of Utah.

“Technical Proposal” means the Technical Proposal as described in Part 3 of this RFP.

“U3P” means the Utah Public Procurement Place or system Utah State Purchasing is using to solicit procurements (formerly SciQuest/Jaggaer), which may be accessed at this internet address: https://utah.bonfirehub.com/portal.

Terms defined in the Contract will have the same meanings as defined in this RFP.

1.3 Purpose and general description of the request for proposal

The OAG, through this RFP, seeks proposals from qualified Offerors to act as outside counsel and provide Legal Services to assist the OAG with the OpenAI Investigation and Litigation. The OAG may enter into a Contract with a successful Offeror. Subject to supervision by the OAG, the Offeror will be expected to perform substantially all day-to-day Legal Services needed to investigate and litigate the OpenAI Investigation and Litigation.

https://utah.bonfirehub.com/portal

The Offeror must specify a Litigation Team composed of attorneys, paralegals, and other support personnel, as defined in Part 2 of this RFP, “Mandatory Minimum Requirements/ Qualifications,” who will have primary responsibility for providing the Legal Services. An Offeror to whom the Contract is awarded will provide all Legal Services in an expeditious and professional manner under the direction of, and in consultation with, the OAG. An Offeror may be composed of one law firm or of two or more law firms. If an Offeror is composed of more than one law firm, the Technical Proposal must clearly explain why it is advantageous to employ multiple law firms and describe how the work will be divided between the participating law firms. If an Offeror is composed of more than one law firm, the Cost Proposal must clearly state how the Contingent Fee will be divided between the participating law firms (please attach a page to the Cost Proposal Form, Exhibit B).

The OAG has determined that the RFP process will provide the best value to the Procurement Unit because (a) this is a procurement for professional legal services in a particularly complex and specialized area of the law, (b) this procurement will be for a Contingent Fee and cost is not the most important factor to be considered in making the selection that is most advantageous to the Issuing Procurement Unit, and (c) factors like the level of professional skill and knowledge of the particular legal and factual subject matter involved in the OpenAI Investigation and Litigation are highly significant in making the selection that is most advantageous to the Issuing Procurement Unit. Those factors can best be evaluated through an RFP process. Utah Code § 63G-6a-702(1).

The Procurement Officer has determined that using a Contingent Fee is cost-effective and in the public interest because of the nature of the OpenAI Investigation and Litigation. In these cases, there will likely be extensive discovery and complex trial(s). This will likely be a level of dedicated legal and financial resources that is most efficiently committed through a Contingency Fee counsel, allowing the OAG to deploy its attorneys across a full range of its enforcement priorities. Also, there likely are several qualified potential Offerors who would have subject-matter and sector expertise to supplement the OAG’s own. Given the real possibility that fully litigating the OpenAI Investigation and Litigation may take years, it is advantageous to the State to offer a Contract that provides for a Contingent Fee. Thus, it is cost-effective and in the public interest to pursue the OpenAI Investigation and Litigation using private counsel hired under a Contingent Fee Contract. See Utah Code § 67-5-33(3).

1.4 Issuing procurement unit, conducting procurement unit, and RFP solicitation number

The OAG is the Issuing Procurement Unit and the Conducting Procurement Unit for this RFP and all subsequent addenda relating to it. The Procurement Officer for this procurement is John Dougall (jdougall@agutah.gov and (801) 702-7194). The solicitation number for this RFP is listed on U3P and above. The solicitation number must appear on all Proposals, correspondence, and documentation relating to this RFP.

1.5 Questions and answers

All questions MUST be submitted through U3P before the Question Period End Date. Questions submitted through any other channel will not be answered. Answers may be provided individually mailto:jdougall@agutah.gov or compiled into one document. All answers will be posted on U3P. The OAG will make reasonable efforts to timely answer all questions submitted by the Question Period End Date. Answers disseminated by the OAG through the U3P system will serve as the official and binding position of the OAG and will constitute addenda to this RFP.

Questions, exceptions, or notifications to the OAG of any ambiguity, inconsistency, excessively restrictive requirement, or error in this RFP MUST be submitted as a question through U3P before the Question Period End Date. Offerors should periodically check U3P for answered questions and addenda before the Deadline. It is the responsibility of each Offeror to submit its Proposal as required by this RFP, including any requirements contained in any answered questions and/or addenda.

Exceptions to the scope and/or content of this RFP that have not been previously addressed within the Q&A period of the procurement are forbidden and not allowed and may result in the Offeror’s Proposal being considered non-responsive.

1.6 Restrictions on communications

From the RFP Start Date, as appears on U3P, until an Offeror is awarded a Contract and the award is published, Offerors are prohibited from communicating regarding this RFP with the Evaluation Committee members, or the Cost Proposals evaluators identified in Part 4 of this RFP, except through U3P or as otherwise provided in this RFP (i.e., during interviews with selected Offerors). Offerors are likewise prohibited from communicating with:

• Derek E. Brown, Utah Attorney General;

• Daniel Burton, Chief Deputy Attorney General;

• Douglas Crapo, Public Protection Deputy Attorney General;

• Mark Burns, Civil Deputy Attorney General;

• Marie W.L. Martin, Division Director, Antitrust & Data Privacy Division;

• Robert G. Wing, Division Director, Commercial Enforcement Division;

• Alexandra Butler, Section Director, Commercial Enforcement Division;

• Sarah Duensing, Assistant Attorney General, Antitrust & Data Privacy Division;

• Andrew Butler, Assistant Attorney General, Antitrust & Data Privacy Division;

• Peishen Zhou, Assistant Attorney General, Commercial Enforcement Division;

• Carina Wells, Assistant Attorney General, Commercial Enforcement Division;

• Blake Erickson, Assistant Attorney General, Commercial Enforcement Division;

• Katie Villani, Assistant Attorney General, Commercial Enforcement Division;

• Daniel Ruskin, Assistant Attorney General, Commercial Enforcement Division;

• Margaret Woolley Busse, Executive Director of Utah Department of Commerce;

• Katherine Hass, Division Director, Utah Division of Consumer Protection; and

• Blake Young, Deputy Division Director, Utah Division of Consumer Protection.

Offerors may communicate with other OAG or State employees for non-substantive administrative purposes like scheduling, but otherwise, Offerors should not contact any OAG or State employees regarding this RFP. Questions about the mechanics of submitting a Proposal using the U3P system may be addressed to the Bid Contact listed on the first page of this RFP.

However, any substantive question relating to this RFP itself must be submitted through U3P in accordance with Section 1.4. Any unauthorized communications by an Offeror with any person listed in this section may result in the disqualification of the Offeror.

Responses must be based solely on the criteria and instructions in this RFP, questions answered on U3P, or related addenda. Offerors cannot rely upon information from any other source, such as communications with OAG staff, regarding how to respond to this RFP.

1.7 Submitting a proposal

By submitting a Proposal in response to this RFP, the Offeror acknowledges and agrees that the requirements, scope of work, and evaluation process outlined in this RFP are understood, fair, equitable, and are not unduly restrictive. Any exceptions to the scope or content of this RFP must be addressed within the Question Period. The Offeror further acknowledges that it has read this RFP, along with any attached or referenced documents, including the Standard Terms and Conditions for Services.

By submitting a Proposal in response to this RFP, the Offeror acknowledges that it is familiar with and agrees to be bound by the laws governing this procurement, including and not limited to the Utah Procurement Code, Utah Code Chapter 63G-6a, as well as Utah Code Chapter 67-5 and applicable Rules found in the Utah Administrative Code. Without limitation, the Offeror agrees to be bound by the provisions of Utah Code Section 67-5-33 and Utah Administrative Code Rules R33-7 and R105-1.

All costs incurred by an Offeror in the preparation and submission of a Proposal, including any costs incurred during interviews, oral presentations, and/or product demonstrations, are the responsibility of the Offeror, may not be billed to the OAG or the State, and will not be reimbursed by the OAG or the State.

An Offeror MUST submit both a:

1. Technical Proposal, consisting of:

a. A cover sheet using the form attached as Exhibit C,

b. A narrative, as described below, that may not exceed five single-spaced pages, and

c. Reference materials, as specified below, that may not exceed 30 pages.

2. Cost Proposal using the form attached as Exhibit B.

The Cost Proposal will be evaluated independently of the Technical Proposal and, thus, MUST be submitted separately from the cover sheet, Technical Proposal, and reference materials.

Failure to submit the Cost Proposal separately may result in a Proposal being deemed non-responsive and ineligible for contract award. See Utah Code § 63G-6a-707(7).

Proposals must be submitted on time. Proposals received after the Deadline will be considered late and ineligible. Proposals must be submitted electronically through U3P.

Submission instructions: When submitting a Proposal electronically through U3P, please allow sufficient time to complete the online forms and to upload Proposal documents. The RFP will end at the Deadline. If an Offeror is in the middle of uploading a Proposal when the Deadline arrives, the system will stop the upload and not accept the Proposal; the attempted submission will be considered late and ineligible for consideration. Electronic Proposals may require uploading of electronic attachments. U3P will accept a wide variety of document types as attachments. However, the State cannot view certain documents. Therefore, DO NOT submit documents that are embedded (zip files), movies, wmp, encrypted, or mp3 files. All documents must be uploaded in U3P as separate files.

1.8 Contract award intent and length of contract

This RFP will may, however is not guaranteed to, result in multiple contract awards.

The Procurement Officer has determined that the contract for this procurement should not be limited to five years but will instead continue until all cases making up the OpenAI Investigation and Litigation are either litigated to finality (including any appeals), a decision not to pursue, or are dismissed, or the Contract is terminated in accordance with its termination provisions. This determination is based upon the fact that a period longer than five years may be necessary in order to resolve the OpenAI Investigation and Litigation, an undefined period is customary for industry standards (litigation contracts are not customarily limited in time, but rather are for the duration of the litigation), and a longer period is in the best interest of the Issuing Procurement Unit, in order to assure continuity of legal services with respect to the OpenAI Investigation and Litigation. See Utah Code § 63G-6a-1204(3).

The Contract permits both the OAG and the Offeror to terminate the contract either for cause or without cause, subject to appropriate notice and transfer of responsibility provisions, and subject to obtaining any necessary approvals (e.g., for substitution of counsel) from any courts in which a OpenAI Investigation and Litigation is pending.

1.9 Compensation and price guarantee period

The Contract provides for compensation consisting of a Contingent Fee, plus reimbursement for certain approved costs and expenses. The Contract also provides that certain work may be performed for an hourly fee if a change order authorizes it in advance.

All pricing must be guaranteed for the duration of the contract. The Contingent Fee portion of the compensation, as described in Section 1.11, may not change based on changes to the maximum contingent fees permitted by Utah Code section 67-5-33.

The Contract contains provisions concerning compensation if either the OAG or the successful Offeror terminates the Contract before all the OpenAI Investigation and Litigation is resolved.

1.10 Maintaining time records

Although the Contract is for a Contingent Fee, the successful Offeror must “maintain detailed contemporaneous time records for the attorneys and paralegals working on the case(s) and promptly provide the records to the attorney general upon request.” Utah Code § 67-5-33(8)(b).

The successful Offeror must retain these records for at least three years after the Contract terminates. Certain statutes and legal theories may allow for the recovery of attorneys’ fees by the State, and in the discretion of the OAG, an application for recovery of fees is likely to be made in the OpenAI Investigation and Litigation. Attorneys’ fees may also be sought as part of any settlement, at the discretion of the OAG.

If attorneys’ fees are recovered, those fees will be paid to the OAG. The portion of the awarded attorneys’ fees attributable to the Offeror’s Legal Services will be included in the recovery for calculating the Contingent Fee. The portion of the awarded attorneys’ fees attributable to the work performed by OAG staff or any other person who is not a part of the Litigation Team or employed by the Offeror will be excluded when calculating the Contingent Fee. The amount of attorneys’ fees awarded to the State for work done by the Offeror may differ from the amount of hourly fees paid to the Offeror, if the Offeror is entitled to any hourly fees (e.g., in the case of a change order).

1.11 Contingent fee

The Contract provides for a Contingent Fee based upon recoveries in the OpenAI Investigation and Litigation that will be a percentage of the maximum contingent fees permitted by Utah Code section 67-5-33(5) (as restated in Utah Administrative Code Rule R105-11):

(a) The attorney general may not enter into a contingent fee contract with a private attorney that provides for the private attorney to receive a contingent fee, exclusive of reasonable costs and expenses, that exceeds:

(i) (A) 25% of the amount recovered, if the amount recovered is no more than

$10,000,000;

(B) 25% of the first $10,000,000 recovered, plus 20% of the amount recovered that exceeds $10,000,000, if the amount recovered is over $10,000,000 but no more than $15,000,000;

(C) 25% of the first $10,000,000 recovered, plus 20% of the next $5,000,000 recovered, plus 15% of the amount recovered that exceeds $15,000,000, if the amount recovered is over $15,000,000 but no more than $20,000,000; and

(D) 25% of the first $10,000,000 recovered, plus 20% of the next $5,000,000 recovered, plus 15% of the next $5,000,000 recovered, plus 10% of the amount recovered that exceeds $20,000,000, if the amount recovered is over $20,000,000; or

(ii) $50,000,000.

Each Offeror’s Cost Proposal must indicate a percentage of the maximum contingent fee that the Offeror will accept; that percentage will be applied to all tiers of the statutory maximum contingent fee. For example, if an Offeror indicates 50% in the Cost Proposal, the Offeror would receive 12.5% of the first $10,000,000 recovered, 10% of the next $5,000,000, 7.5% of the next $5,000,000, and 5% of the amount in excess of $20,000,000, with a total contingent fee cap of $25,000,000.

For purposes of determining the Contingent Fee, all recoveries in the individual cases of the OpenAI Investigation and Litigation will be aggregated, based upon the date when the money is paid to any person or entity acting as an agent for the OAG, the State of Utah, or any State agency or entity. Thus, until recoveries from individual cases aggregate $10,000,000, the first-tier percentage set forth in the Cost Proposal applies. Once recoveries aggregate to $10,000,000, the second-tier percentage applies until recoveries aggregate to $15,000,000, at which point the third-tier percentage applies, and so forth. For a more detailed description of how recoveries are calculated and what types of recoveries are included in and excluded from the Contingent Fee, see Exhibit A, Form of Legal Services Contract, Parts 6 and 7.

1.12 Litigation costs and expenses, including experts

The Contract provides that certain litigation costs and expenses (e.g., travel) incurred by the successful Offeror will be reimbursed by the OAG at no more than 100% of the amount actually incurred by the Offeror (i.e., with no “administrative overhead” or other surcharge). In general, expenses incurred internally by the successful Offeror, like in-house document-related expenses (e.g., for storage, management, review software owned or leased by the Offeror without regard to the specific OpenAI Investigation and Litigation, or copying), may not be reimbursed. Westlaw, Lexis, and other online legal research platform costs are to be considered part of a successful Offeror’s overhead and will not be reimbursed. Permissible reimbursements should not be specified in the Cost Proposal and will be paid in addition to the Contingent Fee.

If preapproved by the OAG, the additional cost to the successful Offeror of leasing or using discovery document review software for the OpenAI Investigation and Litigation will be a reimbursable expense (e.g., document-review platforms that charge based on the amount of data uploaded).

To the extent feasible, the successful Offeror must first obtain preapproval from the OAG for all reimbursable litigation costs and expenses, including travel. The OAG reserves the right to purchase the items directly if doing so is practical and the OAG determines it is likely to save the State money. However, the Offeror and OAG may enter into a Memorandum of Understanding regarding this process at any time, either generally or with respect to specific OpenAI Investigation and Litigation. Such a Memorandum of Understanding may detail the process for procuring certain services, may include limitations on the cost of these services, and may exempt specific litigation costs and expenses from the need for preapproval. Reimbursements for travel expenses may not exceed those established for State employees, as governed by the laws and rules of the State of Utah, including Utah Administrative Code R25-7.

If the OAG approves the hiring of experts who are not in-house employees of the Offeror, the OAG may contract directly with those experts, and they are to be compensated outside the scope of this RFP and the Contract. The OAG must give due consideration to the Offeror’s recommendations regarding retaining specific experts. The process for obtaining experts may be set forth in a Memorandum of Understanding.

The successful Offeror will maintain detailed records of all “expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that relate to the legal services provided” for three years after the Contract terminates. Utah Code § 67-5-33(8)(a).

Certain statutes and legal theories may allow for the recovery of costs and expenses, and an application for recovery of costs and expenses will be made in each OpenAI Investigation and Litigation that goes to trial in which they are asserted as part of the relief sought. Costs and expenses may also be sought as part of any settlement, at the OAG’s discretion. If costs and expenses are recovered, they will be paid to the OAG and excluded from the recovery for purposes of calculating the Contingent Fee.

1.13 Standard contract terms and conditions, exceptions, and negotiations

Any agreement resulting from this RFP will be in the form of the attached Contract, which includes Attachment 1: Standard Terms and Conditions for Services, subject to any modifications approved in accordance with this subsection.

Offerors may propose reasonable exceptions and/or additions to the Contract, for example, to comply with the ethical requirements of different state bar associations. This type of request must be submitted with the Technical Proposal. Exceptions and/or additions submitted after the date and time for receipt of Proposals may be ignored and will be considered only as Change Orders after execution of the Contract. Offerors may not submit requests for exceptions and/or additions by reference to any website. Offerors may submit questions regarding the Contract only during the Question Period.

The OAG may accept any proposed exceptions and/or additions without negotiation, and may refuse to negotiate exceptions and/or additions that the OAG determines: (a) are excessive;

(b) are inconsistent with similar contracts of the Issuing Procurement Unit; (c) seek to alter warranties, insurance, or indemnification provisions that are necessary to protect the OAG or the State; or (d) are not in the best interest of the OAG or the State.

If contract negotiations are permitted, they will begin immediately upon notification of the successful Offeror of the award. Within three business days thereafter, the Offeror must provide all proposed documents in Microsoft Word format for redline editing. The Offeror must also provide the name, contact information, and access to the person(s) that will be directly involved in negotiations.

Any assertion in a Proposal that acceptance of an Offeror’s terms and conditions is mandatory is invalid and may result in the Proposal being determined to be non-responsive.

An award resulting from this RFP is subject to the successful negotiation of contract terms and conditions. The OAG, at its sole discretion, will decide when contract negotiations become unproductive, resulting in termination of negotiations and no contract award to that Offeror.

Immediately thereafter, the State may award the procurement to the next eligible Offeror.

1.14 Other OpenAI Investigations and Litigations

The Contract defines the circumstances in which the Offeror will be compensated for work done as part of, or in conjunction with, any Multistate Working Group, any Multistate Settlement, any other OpenAI Investigation and Litigation, or other State or government litigation or settlement.

If a Multistate Settlement involves any defendant in a OpenAI Investigation and Litigation, the Offeror will receive a proportionate share of a Contingent Fee as set forth in the Contract.

1.15 Right to reject proposals and to cancel or modify RFP

The OAG reserves the right to reject all proposals and to modify or cancel this RFP at any time and for any or no stated reason, and the OAG may or may not initiate a new request for proposal process for this particular procurement matter. The OAG reserves the right to settle any portion or case of the OpenAI Investigation and Litigation without procuring Legal Services under this RFP. The OAG reserves the right to amend or modify this RFP during the procurement process, consistent with law, including extending any deadlines. Any amendment or modification will be posted on U3P.

1.16 Protected information

Utah’s public records law, GRAMA, provides that the following records are protected if properly classified by a government entity:

(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has provided the governmental entity with the information specified in Section 63G-2-309;

(2) commercial information or nonindividual financial information obtained from a person if:

(a) disclosure of the information could reasonably be expected to result in unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;

(b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and

(c) the person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309;

(6)(a)(ii) records, the disclosure of which would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity, except, subject to Subsections (1) and (2), that this Subsection (6) does not restrict the right of a person to have access to, after the contract or grant has been awarded and signed by all parties . . . . a bid, proposal, application, or other information submitted to or by a governmental entity in response to . . . a request for proposals

Utah Code § 63G-2-305. An entire Proposal cannot be identified as “Protected,” “Confidential,” or “Proprietary,” and if so identified, the Proposal will be considered non-responsive unless the Offeror removes the designation. Pricing, including the Cost Proposal, may not be classified as confidential or protected and will be considered public information after the award of the contract.

Process for Requesting Non-Disclosure: Any Offeror requesting that a record be protected under GRAMA must, at the time the information (Proposal) is provided to the State:

1. Provide a written Claim of Business Confidentiality, which must include a concise statement of reasons supporting the claim of business confidentiality, see Utah Code § 63G-2-309(1); and

2. Submit an electronic “redacted” (excluding protected information) copy of the Proposal, which must clearly be marked “Redacted Version.”

The Claim of Business Confidentiality form is attached as Exhibit D.

Redacted and Protected Copies: If an Offeror submits a Proposal that contains information claimed to be business confidential or protected information, the Offeror must submit two separate Proposals: one redacted version for public release, with all protected business confidential information either blacked-out or removed, clearly marked on each page as “Redacted Version”; and one non-redacted version for evaluation purposes, clearly marked on each page as “Protected Business Confidential Version.” Failure to provide a redacted copy, or failure to properly mark both copies, may lead to disclosure of the information for which the Offeror claims business confidentiality. Neither the OAG nor any part of the State cannot be liable for any harm caused by any such disclosure.

Part 2. Scope of Services and Requirements

2.1 Mandatory minimum requirements/qualifications

This section contains mandatory minimum requirements that must be met for a Proposal to be considered responsive. As part of the Technical Proposal, Offerors must make the certifications below and clearly show how they meet each of the following mandatory minimum requirements.

This can be done, in part, by reference to resumes or other documents in the reference materials.

1. Offeror must certify it meets the experience and requirements of the Litigation Team.

2. Offeror must certify that no members of the Litigation Team to whom a matter is assigned or the law firm that employs them have, or appear to have, any conflict of interest in providing the assigned Legal Services.

3. Offeror must certify they have or will commit to acquiring legal malpractice insurance coverage in an amount not less than $5,000,000 per incident, which covers all attorneys and paralegals from that firm who are part of the Litigation Team.

4. Offeror must certify it will complete a background check.

5. Offeror must certify that they are not presently debarred, suspended, proposed for debarment or ineligible for contracting by a governmental entity.

Failure to demonstrate that the Offeror meets any one of the mandatory minimum requirements will result in the Proposal being rejected and the Proposal will not move forward in the evaluation process. The Evaluation Committee must reject any Proposal if at any meeting of the Evaluation Committee at any Stage of the procurement process a majority of the Evaluation Committee determines that the Proposal does not clearly meet any of these mandatory minimum requirements, including before or after interviews.

Litigation Team: The Offeror must identify the law firm or firms that will be providing the Legal Services and must specify the individuals who will constitute the core Litigation Team.

Offeror will not be assigned to provide Legal Services in any type of legal matter described herein for which a Litigation Team is not designated. At a minimum, the Litigation Team must consist of a designated Lead Counsel and between three and six designated Senior Attorneys.

The Lead Counsel must have at least 20 years of experience litigating complex civil cases, including jury trial experience, and each Senior Attorney must have at least 10 years of experience litigating complex civil cases. The Lead Counsel and the Senior Attorneys must each have actual trial experience in complex civil cases. Complex civil cases are those that require management of many potential witnesses, large quantities of documentary evidence, and many depositions, and that raise complex issues. These may include class actions, multi-district litigation, or other highly complex cases that involve significant discovery and motion practice.

The Litigation Team must also have sufficient other attorneys, paralegals, and support staff (e.g., data analysts, technologists, document-review staff, etc.) to be able to effectively pursue the OpenAI Investigation and Litigation to trial in the face of expected vigorous opposition by well-funded, top-tier law firms. Those additional attorneys, paralegals, and full-time support staff whom the Offeror anticipates using on a regular basis must be specified as members of the Litigation Team.

The Offeror may provide Legal Services using other attorneys, paralegals, and support staff (both full-time and part-time) with the written consent of the OAG. All attorneys who are part of the Litigation Team or who work on the OpenAI Investigation and Litigation at any time must be active licensed members of at least one state (or the District of Columbia) bar and one federal district court bar and be members in good standing with all bars in which they are admitted to practice. The successful Offeror must provide certificates of good standing for members of the Litigation Team within 30 days of execution of the Contract.

No Unresolved Apparent Conflicts of Interest: Each Offeror must certify that no members of the Litigation Team or the law firms that employ them have, or appear to have, any conflict of interest in providing the Legal Services; alternatively, the Technical Proposal must identify any known potential conflicts or appearances of conflicts of interest. Failure to disclose an actual or apparent conflict may, at the sole discretion of the Evaluation Committee, result in the Proposal being rejected, in which case the Proposal will not move forward in the evaluation process. If the Offeror discloses any potential conflicts, the Technical Proposal must discuss potential paths to resolution, like obtaining waivers, and the OAG may make acceptance of the Proposal contingent upon the Offeror successfully resolving the potential conflict to the satisfaction of the OAG. Other clients of the Offeror’s law firm or firms which may have actions with or against the State in unrelated matters must also be noted in the Technical Proposal to the extent these types of actions are known to the Offeror.

Malpractice Insurance: Each law firm who employs an attorney member of the Litigation Team shall provide proof of legal malpractice insurance coverage in an amount not less than $5,000,000 per incident, which covers all attorneys from that firm who are part of the Litigation Team or who work on the OpenAI Investigation and Litigation.

Financial Capability to Sustain the OpenAI Investigation and Litigation: Each Offeror must demonstrate its financial stability and general ability to financially sustain the OpenAI Investigation and Litigation. In addition to demonstrating general financial stability, each Offeror must establish that it can sustain paying associate and staff salaries incurred in performing Legal Services in an amount of at least $1,500,000 per year for at least five consecutive years, without regard to any potential payment of any Contingent Fee under the Contract. The Offeror may attempt to establish financial capability in any manner chosen by the Offeror, which may include providing (a) law firm financial statements demonstrating the Offeror’s cash flow and/or cash reserves, (b) Dun & Bradstreet reports, (c) evidence of reserves set aside for the OpenAI Investigation and Litigation, (d) evidence of success in funding other complex litigation, or (e) historical evidence of the stability of the Offeror’s law firm or firms. The OAG may request additional information it deems necessary to further evaluate an Offeror’s financial stability and capability.

Background Checks: The OAG may conduct a background check of any person or entity that might assist in providing services under a response to this RFP to determine the person or entity’s fitness and qualifications to fulfill the requirements of this RFP. The OAG may reject any response to this RFP that involves services from a person or entity that the OAG determines is unfit or unqualified to fulfill the requirements of this RFP.

The OAG may require any member of the Litigation Team and anyone who works on the OpenAI Investigation and Litigation to obtain a criminal background check from the Utah Department of Public Safety, Bureau of Criminal Investigation, which must be provided promptly to the OAG. The Offeror will bear the cost of any requested background checks. If the OAG determines that an individual has failed a criminal background check at any time, that individual must be excluded from the Litigation Team and barred from working on the OpenAI Investigation and Litigation. If this type of determination occurs during the procurement process, and involves a member of the Litigation Team, the Offeror may designate another person to serve that role. The Evaluation Committee may rescore the Offeror’s Proposal if the individual was listed as Lead Counsel or as a Senior Attorney, and by a majority vote may determine that the failed background check makes the Proposal non-responsive.

2.2 Detailed scope of work and control of litigation

Subject to the provisions of this section and the Contract, the Offeror is expected to act as lead counsel for the State with respect to the OpenAI Investigation and Litigation, and to devote the resources necessary to bring all of the OpenAI Investigation and Litigation to successful conclusions, without the need for active day-to-day support by the OAG’s attorneys or staff, except as described below. The Technical Proposal should demonstrate that the Offeror has the resources and expertise necessary to fulfill that role.

The Lead Counsel and one or more other Litigation Team attorneys are expected to be counsel of record in the individual OpenAI Investigation and Litigation, and the Offeror will have primary responsibility for all litigation functions, like drafting pleadings and motions, conducting discovery, and trying or settling cases, and handling appeals. However, as set forth in more detail in the Contract, the Offeror’s authority to act will be subject to the requirements of Utah Code section 67-5-33(6)(a), which mandates that the OAG’s designated attorney “retains complete control over the course and conduct” of the OpenAI Investigation and Litigation, including overall supervision, final authority over filings, and the right to attend settlement conferences.

Offeror certifies that they are not presently debarred, suspended, proposed for debarment, or ineligible for contracting by a governmental entity. Offeror agrees to notify the OAG within 30 days if suspended, debarred, or declared ineligible for contracting with a government entity.

Furthermore, the OAG in its discretion may assign attorneys and staff to work with the Offeror at any stage in the litigation, including participating with the Litigation Team attorneys in any trial, or to handle any specific functions, like briefing and arguing a particular motion or arguing an appeal. Depending upon the claims and legal theories pursued in specific OpenAI Investigation and Litigation, the Offeror’s authority to act also may be subject to the requirements of Utah Code section 67-5-33(6)(a). The OAG has and will retain complete control and final, full-decision-making authority over all aspects of any and all OpenAI Investigation and Litigation.

Part 3. Proposal Contents and Format

3.1 Technical proposal

The Evaluation Committee will evaluate each Technical Proposal in accordance with the criteria set forth in Section 4.2. For ease of evaluation, the Technical Proposal should clearly show how the Offeror meets each evaluation criterion. However, those criteria are not intended to limit a Proposal’s content or exclude any relevant data. Offerors may and are encouraged to expand upon the criteria set forth in this RFP in general and in section 4.2 in particular, in order to demonstrate the Offeror’s capability to provide the services sought by this RFP. Technical Proposals should be concise, straightforward, persuasive, and prepared simply and economically.

Expensive displays, bindings, or promotional materials are neither required, nor desired.

Technical Proposals should not identify or address specific legal strategies that could constitute protected or confidential information, (e.g., attorney advice or work product)—doing so may lead to public disclosure of those strategies. Proposed legal strategies may be discussed during the interviews, which are a mandatory part of the RFP process for this procurement.

Important: To avoid any appearance of improperly publicly disclosing an investigation or target, see, e.g., Utah Code § 13-2-11(2)(b), Technical Proposals should not publicly comment upon any potential target of the OpenAI Investigation and Litigation, even if the potential target has been named as a defendant in existing lawsuits. If a Proposal needs to reference an existing lawsuit or a defendant in a lawsuit, the Proposal should include a disclaimer similar in substance to the following: “Reference to the P v. D lawsuit is provided solely for the purpose of [state purpose, like ‘demonstrating the Offeror’s capacity to litigate complex litigation’] and does not constitute a recommendation that any defendant should be investigated or sued.” Offerors may discuss, and may be asked about, potential targets during the interviews. Offerors may be asked after the interview process to confirm in writing (and without identifying any potential target by name) that no such potential targets raise any conflict of interest concerns on the part of the Offerors. A Proposal that fails to comply with this provision may be deemed non-responsive and ineligible for contract award.

All submitted materials become the property of the OAG. Materials may be evaluated by anyone designated by the OAG as part of the Evaluation Committee.

The Technical Proposal must be organized as follows, using the specific headings indicated.

1. RFP Cover Sheet: using the attached Exhibit C.

2. Narrative: This document may not exceed five single-spaced, typed pages, exclusive of the RFP cover sheet, and must be organized as follows:

a. Executive summary: The executive summary should briefly describe the

Offeror’s Technical Proposal and highlight its major features.

b. Identify the litigation team: The Offeror must identify each member of the

Litigation Team by title and provide enough information to show that each member meets the minimum experience qualifications. Reference can be made to resumes contained in the Reference Materials.

c. Detailed proposal: This section should constitute the major portion of the Proposal and include, at a minimum, a concise overview of the following: The Offeror’s assessment of the work to be performed, the Offeror’s ability and qualifications (including how the Offeror meets all mandatory minimum qualifications set forth in Part 2), and the general approach to the OpenAI Investigation and Litigation that the Offeror anticipates taking.

d. Potential conflicts of interest: The Offeror must identify any actual or potential conflict of interest or appearance of a conflict of interest that might arise during the contract and must propose potential resolution mechanisms, like obtaining waivers. If no conflicts are identified or expected, the Offeror must say so.

e. Exceptions or additions to the standard terms and conditions: Any proposed exceptions or additions to the Contract must be submitted in this section. The Offeror must provide the name, contact information, and access to those who will be directly involved in negotiations.

f. Identify all public and private clients: Identify all public and private clients that the Offeror is working with or has worked with in relation to matters pertaining to OpenAI. This will include any government entity including state attorneys general, state government agencies, federal government, native American tribes or nations, state or local subdivisions, or private clients.

3. Reference Materials: This section should not exceed 30 pages of materials, organized as follows:

a. Claim of Business Confidentiality Form: If the Offeror is making a claim of business confidentiality, the Claim of Business Confidentiality form attached as Exhibit D to this RFP must be placed at the beginning of the Reference Materials. If the Offeror’s Proposal has protected or proprietary information, the Offeror must comply with section 1.16 of this RFP. Each Offeror acknowledges that its Proposal response (or the redacted copy if the Offeror has complied with section 1.16 and the OAG has accepted the designations) will be made public upon the completion of the procurement or the OAG’s receipt of a GRAMA request. The Offeror will not be notified of any GRAMA request for the Offeror’s Proposal. If the Offeror submits a redacted copy, the OAG will make reasonable efforts to respond to a GRAMA request for the Offeror’s Proposal response with the Offeror’s redacted copy. However, if the Offeror fails to submit a redacted copy, the OAG may respond to a GRAMA request with the Offeror’s Proposal response, which might result in the Offeror’s purportedly protected or proprietary information being made public.