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DEPARTMENT OF JUSTICE
DIVISION 9
SCREENING AND SELECTION PROCEDURES FOR
PERSONAL SERVICE CONTRACTS FOR ATTORNEYS
137-009-0125
Purpose
The Department may contract for the services of special legal assistants or private counsel to provide legal services otherwise required by law to be performed by the Attorney General. These rules specify the screening and selection procedures the Department will use to select individuals or entities to perform such services.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05
137-009-0130
Definitions
For purposes of OAR chapter 137, division 009, these terms have the following meanings:
(1) "Advocate" means the Advocate for Minority, Women and Emerging Small Businesses as defined in OAR Chapter 125.
(2) "Attorney General" means the Attorney General of the State of Oregon.
(3) "Contractor" means an individual or entity that is obligated under a contract with the Department to provide legal services required by law to be performed by the Attorney General.
(4) "Department" means the Department of Justice of the State of Oregon.
(5) "Deputy" means the Deputy Attorney General, appointed by the Attorney General to that position pursuant to ORS 180.130.
(6) "Designated Practice Areas" means subject matter areas generally recognized within the legal profession as requiring specialized knowledge of a particular field of law.
(7) "Lowest Overall Cost" means the lowest cost to the state taken as a whole including the prospective Contractor's hourly rates (or other billing methods), available resources, expertise, and ability to accomplish an optimal, timely outcome to a particular matter.
(8) "Master Agreement" means a document that contains contractual provisions that will be included in certain future contracts between the parties. Each future contract will provide detail on scope of services, delivery terms, not-to-exceed amounts and other items necessary to establish a definite contract. A Master Agreement is not a contract, but is a document of understanding between the Department and an individual or entity.
(9) "ORPIN" means the on-line electronic Oregon Procurement Information Network administered by the State Procurement Office, as further defined on OAR 125-246-0500, or its successor.
(10) "Self Search" means a search of the Advocate's list of certified firms for firms that meet the Solicitation requirements, using the Advocate's Self Search tool which is available at: http://www4.cbs.state.or.us/ex/dir/omwesb/.
(11) "Solicitation" means a written or oral request for offers, proposals, statements of qualifications, or other information from individuals or entities.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05; DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
Guidelines
137-009-0135
Policy
The policy of the Department is to select Contractors in an expeditious and efficient manner that is consistent with the goal of delivering highly competent legal services at the Lowest Overall Cost to the State of Oregon.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05
137-009-0140
Methods for Selecting Contractors
(1) The Department will use one of the following methods to select a Contractor:
(a) The Department may select a Contractor from a list of individuals or entities established for a Designated Practice Area as set forth in OAR 137-009-0145.
(b) The Department may select a Contractor from a group of proposers within a Designated Practice Area as set forth in OAR 137-009-0147.
(c) The Department may select a Contractor from a group of proposers to a specific matter Solicitation as set forth in OAR 137-009-0150.
(d) The Department may select a Contractor through direct negotiation as set forth in OAR 137-009-0160.
(2) Nothing in this section shall prevent the Department from entering into an amendment to a contract for legal services according to its terms.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05; DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
137-009-0145
Procedure to Develop Lists of Individuals or Entities under Master Agreements
(1) The Department may use a Solicitation to request proposals or information that describes general or specific legal services to be performed within a defined period of time. The purpose of such a Solicitation is to establish a list of individuals or entities under Master Agreements for a specified period of time to provide legal services within Designated Practice Areas as requested by the Department and agreed to by the individual or entity.
(a) The Department shall provide notice of the Solicitation on ORPIN or in any other manner the Department deems appropriate to provide notice to a sufficient number of individuals or entities to develop adequate lists of available individuals or entities.
(b) The Department shall provide notice of the Solicitation to the Advocate in accordance with ORS 200.035 and this subsection. The Department may satisfy the requirement for notice to the Advocate by posting the notice on ORPIN for at least five calendar days prior to selection. The Department may also provide notice to the Advocate by any of the following Advocate approved methods:
(A) Faxing notice of Solicitation to the Advocate; or
(B) E-mailing notice of Solicitation to the Advocate; or
(C) Performing a Self Search with notice of results to the Advocate.
The notice form is available at: http://www.governor.oregon.gov/Gov/MWESB/index.shtml
No waiting period is imposed, prior to selection, when using the fax or e-mail method.
(2) The evaluation criteria in the Solicitation may include, without limitation, consideration of the following factors:
(a) Availability and capability to perform the work;
(b) Fees or costs, including proposed discounts from rates generally charged other clients;
(c) Geographic proximity to the location where the legal services will primarily be performed;
(d) Ethical considerations, such as the existence of conflicts of interest;
(e) Recommendations of subject matter experts, such as client agency representatives with special knowledge or insights into necessary or desirable non-legal knowledge or background;
(f) Any other criteria the Department determines relevant to the provision of legal services.
(3) In weighing the factors set forth above, no single factor shall be determinative. But if one factor strongly suggests the Department should enter into a Master Agreement with a proposer with respect to a Designated Practice Area, it may outweigh one or more other factors that favor other proposers.
(4) The Department may either sign a Master Agreement with qualified individuals or entities in particular Designated Practice Areas or cancel the Solicitation.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5), 200.035 & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05; DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
137-009-0147
Solicitation to Engage a Contractor to Provide Legal Services within a Designated Practice Area
The Department may use a Solicitation to request proposals to provide legal services within a Designated Practice Area:
(1) The Department may provide notice of the Solicitation in any manner the Department deems appropriate to provide notice to a sufficient number of individuals or entities, but in no event shall notice of a Solicitation under this section be provided to fewer than three prospective proposers.
(2) The Department shall provide notice of the Solicitation to the Advocate in accordance with ORS 200.035 and subsection (1)(b) of OAR 137-009-0145.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5), 200.035 & 279A.025(2)(j)
Hist.: DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
137-009-0150
Solicitation to Engage a Contractor to Provide Legal Services for a Specific Matter
The Department may use a Solicitation to request proposals to provide legal services on a specific matter:
(1) The Department may provide notice of the Solicitation in any manner the Department deems appropriate to provide notice to a sufficient number of individuals or entities, but in no event shall notice of a Solicitation under this section be provided to fewer than three prospective proposers.
(2) The Department shall provide notice of the Solicitation to the Advocate in accordance with ORS 200.035 and subsection (1)(b) of OAR 137-009-0145.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5), 200.035 & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05; DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
137-009-0155
Criteria for Selection of Contractor under OAR 137-009-0145, 137-009-0147, and 137-009-0150
(1) If the Department decides to select a Contractor from a list of individuals or entities developed pursuant to OAR 137-009-0145, or from among the proposers to a Solicitation under 137-009-0147 or 137-009-0150, the Department will use the evaluation process described in this section.
(2) The Department will make its selection decision based on an evaluation of factors that the Department determines appropriate in any particular instance, which may include, without limitation:
(a) The experience and level of expertise of Contractor and Contractor's available personnel, as determined by the Department, in the Designated Practice Area and for the type of legal services the Department requires;
(b) Whether the Contractor's available personnel possess any required licenses or certifications required to perform the legal services for the specific matter, such as licenses to practice law in the appropriate jurisdiction, or licenses to appear in a certain forum;
(c) The legal and business constraints or requirements, if any, imposed by particular characteristics of the matter for which the Department seeks legal services;
(d) The extent and nature of any likely conflicts of interest that exist or could arise if Contractor provided legal services with respect to a particular matter;
(e) The training, expertise, temperament, style and experience of the particular Contractor personnel available to perform work on the specific matter and the training, expertise, temperament, style and experience of the particular State of Oregon agency personnel that will be working on the matter with the Contractor's personnel;
(f) Recommendations of subject matter experts, such as client agency representatives with special knowledge or insights into necessary or desirable non-legal knowledge or background.
(g) Lowest Overall Cost; or
(h) Other factors the Department considers relevant to the selection of a Contractor to provide particular legal services.
(3) In weighing the evaluation factors, no single factor shall be determinative, but Lowest Overall Cost always will be considered.
(4) To reduce the Lowest Overall Cost to the state, the Department should select a Contractor from the list of firms established under OAR 137-009-0145 when the work is within an individual's or entity's Designated Practice Area under a Master Agreement and the Department determines:
(a) The administrative cost of selecting a Contractor under OAR 137-009-0150 outweighs potential cost savings under that process;
(b) The services are likely to be integrally related to other services provided by the Contractor under a Master Agreement, resulting in greater economy and efficiency; or
(c) The Department's need for services is of such urgency that selecting a Contractor under OAR 137-009-0147 or 137-009-0150 would result in unacceptable delay.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05; DOJ 4-2008, f. 1-29-08, cert. ef. 2-1-08
137-009-0160
Direct Negotiation and Contracting
(1) The Department may directly negotiate and enter into contracts with Contractors to provide legal services without following the procedures set forth in OAR 137-009-0145 through 137-009-0155 in the following circumstances:
(a) The contract's maximum consideration does not exceed $25,000;
(b) The subject matter of the representation is highly confidential, and there is a substantial risk that the interests of the State of Oregon or the Department would be adversely affected by a more public Solicitation;
(c) The subject matter of the representation is highly time sensitive, and there is a substantial risk that the interests of the State of Oregon or the Department would be adversely affected by any delay in obtaining a Contractor;
(d) The cost of the representation will be borne in whole or in part by a nonstate entity and the nonstate entity has a legal right to influence selection of legal counsel; or
(e) Any other situation in which the Attorney General or the Deputy determines that the interests of the Department or the State of Oregon are best served by direct negotiation and contracting with Contractors.
(2) In directly negotiating and entering into a contract with a Contractor, the Department shall consider Lowest Overall Cost.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05
137-009-0165
Repealed Rules
As required by Or Laws 2003, chapter 794, section 334, OAR 137-009-0000, 137-009-0005, 137-009-0010, 137-009-0045, 137-009-0060, 137-009-0065, 137-009-0100 and 137-009-0120 are repealed.
Stat. Auth.: ORS 180.140(5), 183.310(9) & 279A.025(2)(j)
Stats. Implemented: ORS 180.140(5) & 279A.025(2)(j)
Hist.: DOJ 3-2005(Temp), f. & cert. ef. 3-18-05 thru 9-2-05; DOJ 7-2005, f. 8-16-05, cert. ef. 9-2-05
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