4-1-AG Legal Services RFP and SOW 022326.docx

REQUEST FOR PROPOSAL TO PROVIDE LEGAL SERVICES TO ASSIST THE OFFICE OF THE ATTORNEY GENERAL IN REPRESENTING STATE’S RIGHTS IN THE COLORADO RIVER SYSTEM

Issued by:

STATE OF UTAH

OFFICE OF THE ATTORNEY GENERAL

DEREK BROWN

ATTORNEY GENERAL

RFP Designation: Public

LEGAL SERVICES TO ASSIST WITH REPRESENTATION IN CIVIL LITIGATION

PART 1: RFP Description

1.1 Executive Summary

The Office of the Attorney General of the State of Utah (“OAG”) hereby issues a Request for Proposal (“RFP”) which seeks law firms that will provide legal services to assist the OAG with representing the state of Utah in civil litigation as described in this RFP. 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 63G-6a-101, et seq., as well as Utah Code 67-5-1, et seq., 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 will take precedence.

1.2 Purpose and General Description of RFP

OAG, through this RFP, is seeking proposals from qualified law firms (Offerors) to act as outside counsel and provide legal services in assisting the OAG with representation of the state of Utah’s rights in the Colorado River system. Successful Offerors will be placed on a list of eligible law firms with whom the OAG may enter into future Professional Service Agreements (PSA). Subject to supervision by the OAG, Offerors will be expected to perform necessary legal services required to represent the state in assigned cases. Offerors will also provide consultation services or other assistance as requested by the OAG for assigned matters on appeal but will not directly represent any party on appeal unless expressly assigned by the OAG.

The decision to enter future PSAs with any successful Offeror will be at the sole discretion of OAG.

The OAG reserves the right to examine alternatives for providing legal services and may choose not to contract with any successful Offerors.

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 particularly complex and specialized areas of the law, (b) 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 such as the level of professional skill involved in litigating 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.

1.3 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.

1.4 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 Request for Proposal (RFP), the Offeror acknowledges their familiarity with, and agreement to be bound by, the laws and regulations governing this procurement, including but not limited to, the Utah Code and Utah Administrative Code.

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.

Proposals must be received by the Deadline. Proposals received after the deadline will be considered late and ineligible for consideration. Proposals must be submitted electronically through U3P.

Electronic Submission Instructions:

When submitting a proposal electronically through U3P, please allow sufficient time to complete the online forms and to upload proposal documents. This 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 process and the proposal will not be accepted by U3P, and 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 is unable to 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.

1.5 PSA Award Intent and Length

Successful Offerors will be placed on a list of law firms eligible to enter into future PSAs with the OAG for a period of five (5) years.

1.6 Compensation and Price Guarantee Period

All PSAs will include compensation structured as hourly fees, along with reimbursement for certain approved costs and expenses. Additionally, PSAs will outline the terms of compensation in the event that either the OAG or a successful Offeror terminates a PSA prior to the resolution of an assigned civil litigation matter. The hourly rates specified for Lead Counsel, Senior Attorneys, Junior Attorneys, and Paralegals on the Cost Proposal Form, Exhibit “B,” shall remain fixed for the first year following the approval of any successful Offeror’s proposal. After the first year, any increase to the hourly rates shall not exceed five percent (5%) per year during the eligibility period. Any such increase shall be subject to prior written notice at least sixty (60) days before the effective date of the increase and shall include detailed documentation explaining and supporting the request.

1.7 Maintaining Time Records

A successful Offeror will be required to “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 and shall retain these records for three (3) years after a PSA terminates and shall provide these records to the OAG at any time, upon request. 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 each civil litigation matter that goes to trial in which fees are asserted as part of the relief sought. 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 amount of costs, expenses, or attorneys’ fees awarded to the State with respect to work done by a successful Offeror may be different from the amount of hourly fees paid to a successful Offeror.

1.8 Hourly Fees

All PSAs will provide for payment of hourly fees. An Offeror shall indicate the hourly rate for Lead Counsel, each Senior Attorney, each Junior Attorney, and each Paralegal on the Cost Proposal Form, Exhibit “B.” Those hourly rates shall not exceed any publicly posted hourly rates for those individuals. In general, hourly fees will only be paid for legal work that is performed by lawyers and paralegals. A successful Offeror will be expected to use junior lawyers to perform appropriate work when doing so is reasonable given the nature of the work. Paralegal time will only be billed for paralegal work and not for general secretarial or other staff work, such as photocopying or scanning documents.

1.9 Litigation Costs and Expenses, Including Experts

All PSAs will provide that certain litigation costs and expenses (e.g. travel) incurred shall be reimbursed by the OAG at no more than 100% of the amount actually incurred (i.e. with no “administrative overhead” or other surcharge). In general, expenses incurred internally by a successful Offeror, such as in-house document-related expenses (e.g. for storage, management, review software owned or leased by a successful Offeror), will not be reimbursed. Travel is reimbursed pursuant to Utah Administrative Code R25-7.

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

If preapproved by the OAG, the additional cost to a successful Offeror of leasing or using discovery document review software for the specific needs of an assigned civil litigation matter will be a reimbursable expense (e.g. document review software platforms that charge based upon the amount of data uploaded).

To the extent feasible, a successful Offeror will be required to obtain preapproval from the OAG for all reimbursable litigation costs and expenses, including travel, and the OAG reserves the right to purchase the items directly if doing so is practical and if the OAG determines that doing so is likely to save the State money. However, a successful Offeror and OAG may enter into a Memorandum of Understanding (MOU) regarding this process at any time, either generally or with respect to a specific civil litigation matter. Such a MOU may detail the process by which certain services are procured, may include limitations on the cost of such services, and may exempt some specific litigation costs and expenses from the need for preapproval. Reimbursements for travel expenses shall not exceed those established for employees of the State of Utah, as governed by the laws and rules of the State of Utah. If the OAG approves the hiring of experts who are not in-house employees of a successful Offeror, the OAG will contract directly with such experts, and they shall be compensated outside the scope of this RFP and the PSA. The OAG will duly consider the recommendations made by a successful Offeror regarding the retention of specific experts. The procedure for engaging experts may be outlined in a MOU.

A successful Offeror will be expected to 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 a PSA terminates.

1.10 Standard Contract Terms and Conditions, Exceptions, and Negotiations

All PSAs resulting from this RFP will be in the form of Exhibit “A”, subject to any modifications approved pursuant to this subsection.

Offerors may propose reasonable exceptions and/or additions to the PSA, for example to comply with ethical requirements of different state bar associations. The OAG may accept any proposed exceptions and/or additions 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 State or the OAG; or (d) are not in the best interest of the State or the OAG.

Any assertion in a Proposal that acceptance of an Offeror’s terms and conditions is mandatory is not valid and may result in the Proposal being determined to be non-responsive.

1.11 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 may or may not initiate a new request for proposal process for this procurement matter. The OAG reserves the right to settle any civil litigation matter 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 dates set forth herein. Any amendment or modification shall be posted on U3P.

PART 2: Scope of Work

2.1 Detailed Scope of Work and Control of Litigation

Subject to the provisions of this section and the PSA, a successful Offeror will be expected to act as lead counsel with respect to an assigned matter and shall be expected to devote the resources necessary to bring the assigned matter to successful conclusions, without the need for active day-to-day support by the OAG’s attorneys or staff, except as described below.

The Lead Counsel and one or more other Litigation Team attorneys are expected to be counsel of record in any legal matter assigned by the OAG, and will have primary responsibility for all litigation functions, such as drafting pleadings and motions, conducting discovery, working closely with client agencies, trying or settling cases, and handling appeals. However, as set forth in more detail in the PSA, the OAG’s designated attorney will retain control over the course and conduct of assigned litigation matters, including overall supervision, final authority over pleadings, and the right to attend settlement conferences. Furthermore, the OAG in its discretion may assign attorneys and staff to work with a successful Offeror at any stage in an assigned legal matter, including participating with designated Litigation Team in any trial, or handling any specific functions, such as briefing and arguing a particular motion or arguing an appeal.

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.

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.

Each designated Legal Team must consist of a designated Lead Counsel, up to one other designated Senior Attorney, up to two Junior Attorneys, and at least one paralegal. The Lead Counsel must have at least 12 years of experience litigating complex cases in the designated subject area, including jury trial experience in the designated subject area, and must be admitted to the Supreme Court of the United States. Any other designated Senior Attorneys must have at least 7 years of experience litigating complex cases in the designated subject area. Complex cases are those that require management of many potential witnesses, large quantities of documentary evidence, and numerous depositions, and that raise complex issues of law and fact. Offeror may provide Legal Services using other attorneys and paralegals with the written consent of the OAG.

The Litigation Team must have a litigation-oriented practice, regularly handle cases in federal district and appellate courts, and preferably have prior experience representing public entities in litigation matters.

The types of legal matters for which Legal Services would be provided are:

· Litigating interstate compacts and compact interpretation, including appellate and original actions in the United States Supreme Court and special master practice.

· Competency in Colorado River “Law of the River” particularly the 1922 Colorado River Compact and 1948 Upper Colorado River Basin Compact

· Competency inBureau of Reclamation operations, ESA/NEPA litigation, Supreme Court original jurisdiction briefing, and tribal reserved rights issues.

· Competency in working with fact and expert witnesses in the areas of hydrology, modeling, engineering and economics.

· Experience in federal environmental litigation.

· Proven knowledge in federal abstention, justiciability, standing, and related jurisdictional doctrines.

· Strong environmental, natural resources, and federal Indian law portfolios.

· Prior negotiations with Interior/BOR.

All attorneys who are part of a designated Litigation Team or who work on any legal matter assigned by the OAG at any time shall 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. A successful Offeror must provide certificates of good standing for members of all designated Litigation Team members within 30 days of execution of a PSA.

Malpractice Insurance: Offeror must have 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. A successful Offeror will be required to provide proof of such insurance prior to the execution of a PSA.

Background Checks: The OAG may require any member of a designated Litigation Team and anyone else who works on a matter assigned by the OAG to obtain a criminal background check from the Utah Department of Public Safety, Bureau of Criminal Investigation, which shall be provided promptly to the OAG. A successful Offeror will bear the cost of any such background checks. If the OAG determines that an individual has failed a criminal background check at any time, that individual shall be excluded from the Litigation Team and barred from working on any matter assigned by the OAG.

Exhibit “A”

PROFESSIONAL SERVICES AGREEMENT

THIS AGREEMENT made effective as of *, by and between the Attorney General of the State of Utah ("Attorney General"), 236 State Capitol, Salt Lake City, Utah 84114 and the law firm of * (“Law Firm").

RECITALS

WHEREAS, the Attorney General has the responsibility of providing legal services for the State of Utah in connection with the matters referred to herein; and WHEREAS, it is in the best interests of the State of Utah to hire Law Firm to provide such services on the terms set forth herein; and WHEREAS, Law Firm desires to furnish said services and employs attorneys who are duly authorized to practice law and who are capable of rendering such services, NOW THEREFORE, in consideration of the foregoing and the promises set forth herein, the parties agree as follows:

1. Employment of Law Firm. The Attorney General hereby retains Law Firm to represent *, in the legal action entitled *, filed in the *, Case No. *.

Law Firm shall provide all legal services that are reasonably necessary for such representation, including without limitation the preparation and filing of all pleadings, motions, memoranda, briefs, and other documents. The Law Firm shall also conduct negotiations and provide representation at all hearings, trials and other appearances required in said legal action. Law Firm will meet with and submit interim reports to the Attorney General’s designee *, Assistant Utah Attorney General, and to the State Risk Manager upon request, regarding the nature, progress, and extent of the legal services, as well as any forecast that may be reasonably made regarding the extent and nature of the work yet remaining.

Law Firm’s authority to act will be subject to the requirements of UAC R105-1-10, which mandates that the OAG designate an OAG attorney to retain oversight and control over the course and conduct of the litigation or anticipated litigation.

Law Firm accepts the foregoing employment and agrees to discharge the duties involved in such employment under the terms and conditions of this Agreement.

2. Compensation. Subject to Section 3., the Attorney General agrees to pay Law Firm for its reasonable services rendered hereunder at the hourly rates for the respective attorneys and paralegals as follows:

The hourly rates shall remain fixed during the first year of this Agreement. After the first year, any increase to the hourly rates charged under this Agreement shall not exceed five percent (5%) of the applicable hourly rate in effect for the immediately preceding twelve (12) month period. Any such increase shall be subject to prior written notice at least sixty (60) days before the effective date of the increase, and shall include detailed documentation explaining and supporting the request.

In addition to the foregoing amounts, the Attorney General agrees to reimburse Law Firm for necessary travel and other necessary costs including consultants and experts. Out-of-state travel and the hiring of consultants and experts shall be done after notice and concurrence of the Attorney General. All requests for reimbursement of costs must be supported by receipts or similar supporting documentation, which shall be supplied to the Attorney General upon request. No expenditures for food or beverages will be reimbursed except for working lunches in a reasonable amount as may be necessary during the course of trial, and reasonable meal allowance supported by receipts or State per diem when traveling.

Westlaw, Lexis, online legal research platforms, and e-discovery review platforms, are considered part of Law Firm’s overhead and will not be reimbursed.

3. Monthly Billings. The Law Firm shall submit monthly billings for its fees and costs hereunder to * by the 15th of the following month. Monthly billings submitted more than 15 days following the end of the month in which the services were rendered, or costs were incurred may be subject to substantial delay in payment. Law Firm understands and agrees that although it is retained by the Attorney General, Law Firm shall be paid from funds or accounts identified by the State of Utah and the Attorney General shall not be liable for payment from its budget unless expressly provided in writing. Law Firm agrees to maintain or supervise the maintenance of all records necessary to properly account for payments made under this Agreement for at least three (3) years after conclusion of the lawsuit, including any appeals, and until all audits initiated within the three (3) years have been completed, whichever is later. Law Firm agrees to allow, at no additional cost, the State of Utah and federal auditors access to all such records upon reasonable advance notice and during reasonable times

4. Limitation on Services Provided. Law Firm agrees that decisions regarding the scope, extent, and breadth of the representation shall remain with the Attorney General. In addition, the Law Firm recognizes that unless additional funding is made available, and agreed to by the parties, the fees and costs chargeable under this Agreement shall not exceed $1,000,000 without the express written authorization of the Attorney General or his designee. The Law will follow an OAG-approved phased budget throughout representation.

5. Records and Files. The Law Firm agrees to maintain pleading, correspondence, and evidentiary files in connection with said lawsuit and agrees to maintain records in accordance with generally accepted accounting procedures which properly reflect all expenditures of any nature that are necessary for the performance of the PSA. While all such files, records, books, and other documents shall be and are confidential and constitute the work product and proprietary materials of the Law Firm, each and all of said files, records, books and documents shall be made available for inspection by the Attorney General or his designee upon reasonable request. Law Firm agrees to maintain or supervise the maintenance of all pleadings, correspondence and evidentiary files in connection with said lawsuit for at least three (3) years after conclusion of the lawsuit, including any appeals, and until all audits initiated within the three (3) years have been completed, whichever is later. Law Firm agrees to allow, at no additional cost, the State of Utah and federal auditors access to all such records upon reasonable advance notice and during reasonable times

6. Confidentiality of Files. Law Firm agrees to maintain the confidentiality of all information obtained in the course of providing legal services under this Agreement in accordance with the Utah Rules of Professional Conduct. Law Firm shall implement appropriate safeguards to protect confidential and privileged information from unauthorized access or disclosure.

7. Examination of Records. The Attorney General shall have the right to audit, examine, and make copies of any and all records, documents, and other evidence maintained by Law Firm related to this Agreement at any reasonable time and upon reasonable notice.

8. Malpractice Insurance. Law Firm represents that it maintains or will obtain prior to the execution of this Agreement, legal malpractice insurance coverage in an amount not less than $5,000,000 per incident covering all attorneys and paralegals providing services under this Agreement. Proof of such insurance shall be provided to the Attorney General upon request.

9. Compliance with Laws, Rules, and Regulations. Law Firm shall comply with all federal, state and local laws, rules and regulations. Law Firm shall immediately notify the Attorney General if any disciplinary action, suspension, or disbarment of any attorney providing services under this Agreement.

10. Termination. The Attorney General may at any time terminate this Agreement immediately upon written notice. In the event of termination of this Agreement, the Law Firm shall be compensated only for fees and costs earned and incurred up to and including the date of termination. If Law Firm thereafter expends additional time and incurs costs relative to the transfer of the case and its materials as directed by the Attorney General, the Law Firm will be compensated for such reasonable time and costs incurred.

11. Indemnification. The Law Firm agrees to protect, defend, indemnify and save harmless the State of Utah and OAG and their agents and employees (collectively, “Utah Indemnitees”), from and against all claims, demands, damages, causes of action, and losses, of every kind or character (collectively, “Losses”), suffered or incurred by any of the Utah Indemnitees arising out of or relating to the performance of the Services under this Agreement, and arising from or relating to the negligence or fault of the Law Firm except and to the extent that any such Losses arise from the negligence or fault of the Utah Indemnitees. By way of clarification, the Law Firm’s duty to pay a judgment under this indemnification provision shall be limited to the Law Firm’s proportionate share of comparative fault. The Law Firm shall defend the Utah Indemnities from all claims covered by this indemnification provision and shall pay its proportionate share of all costs and expenses incidental thereto, but the OAG shall have the right, at its option, to participate in the defense of any such suit without relieving the Law Firm of any obligation hereunder. This obligation shall survive any termination of this Agreement.

12. Independent Contractor Status. Compensation paid to Law Firm as specified hereunder shall be total compensation for its services. The Law Firm is retained as an independent contractor and is responsible for withholding taxes, FICA, and payments to associates, paralegals, clerical assistants, and others from the compensation paid hereunder.

13. Conflicts of Interest. Law Firm shall immediately notify the Attorney General in writing of any conflict of interest which may exist or hereafter arise as a result of the representation and services furnished by Law Firm hereunder. Law Firm shall not proceed until a written resolution of such conflict, signed by the Attorney General, is accomplished.

14. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Except for termination under paragraph 6, this Agreement may not be amended except by an instrument in writing signed on behalf of all parties hereto. This Agreement shall be governed in all respects, including validity, interpretation, and effect, by the laws of the State of Utah.

15. Governing Law and Venue. This Agreement shall be governed by the laws, rules, and regulations of the State of Utah. Any action or proceeding arising from this Agreement shall be brought in a court of competent jurisdiction in the State of Utah. Venue shall be in Salt Lake City, in the Third Judicial District Court for Salt Lake County.

16. Photocopies. Photocopies of this Agreement shall have the same force and effect as the original.

UTAH ATTORNEY GENERAL’S OFFICE

By: _____________________________ Title: _____________________________

By:

Title:

Exhibit “B”

COST

The hourly rates specified shall remain fixed for the first year of agreement.

Lead Attorney

Senior Attorney

Senior Attorney

Senior Attorney

Junior Attorney

Junior Attorney

Junior Attorney

Junior Attorney

Junior Attorney

Junior Attorney

Paralegal

Paralegal

Paralegal image1.jpeg