125-247-0295 Special Procurements: General or Special Counsel Authorized by the Attorney General (1) Authority and Application. An Authorized Agency with delegated Authority under OAR 125-246-0170 may use this Special Procurement by Rule. Under ORS 180.235, the Oregon Attorney General may authorize a public officer or Agency to retain its own general or special counsel, including but not limited to conflict counsel, other than the Department of Justice. This Rule governs the process for obtaining such counsel. (2) Definitions. For purposes of this Rule only, these terms have the following meanings: (a) "Attorney General" means the Attorney General of the State of Oregon. (b) "Authorized Agency" means a public officer or Agency that the Attorney General authorized to retain its own general or special counsel other than the Department of Justice under ORS 180.235. (c) "Authorized Legal Services" means the legal services as authorized by the Attorney General for the particular matter or class of matters and as required by the Authorized Agency. (d) "Outside Counsel" means general or special counsel selected by the Authorized Agency under this Rule. (e) "Firm" means the proprietorship, partnership or professional legal corporation engaged in the practice of law of which Outside Counsel is a partner, a shareholder, an associate, a member, or a lawyer serving as "of counsel." (f) "Solicitation" means a written or oral request for offers, proposals, statements of qualifications, or other information from individuals or entities. (3) Selection Criteria. (a) The Authorized Agency must select the Firm it considers most advantageous based on the following factors: (A) The knowledge, skills and ability of the Firm that will provide Authorized Legal Services. The Firm's ability to provide Authorized Legal Services includes the training and expertise of the Firm attorneys, including Outside Counsel. Outside Counsel must be a member of the Oregon State Bar according to ORS 180.235(2); (B) The Firm's experience, level of expertise and suitability to perform the Authorized Legal Services; (C) Whether the Firm's available personnel possess any required licenses or certifications required to perform the legal services for the Authorized Legal Services, such as licenses to practice law in the appropriate jurisdiction, or to appear in a certain forum; (D) The Outside Counsel’s availability and capability to perform the Authorized Legal Services and meet the Agency’s needs; (E) The commitment the Outside Counsel and Counsel’s Firm can make to the Authorized Agency to meet the Agency’s needs; (F) The value of the Firm's legal services, taking into account the cost of the Firm's legal services; and (G) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome. (b) In weighing the evaluation factors, no single factor is determinative. (4) Scope of Firms Considered. The Solicitation process may range from direct negotiation and contracting with a single firm to publication of a request for proposals. The Authorized Agency must extend Solicitations to those firms that it considers reasonable and practical to solicit under the circumstances, and must take into consideration the following factors: (a) When the subject matter of the Authorized Legal Services requires specialized knowledge in a particular field of law, the Authorized Agency may limit the Solicitation to prospective Firms that have a reputation of subject matter expertise in that field of law; (b) The Authorized Agency must limit the number of Firms considered under the Solicitation as appropriate if the interests of the Authorized Agency would likely be adversely affected by delay in obtaining a Firm or through broad distribution of the Solicitation; and (c) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome. (5) Documentation of Selection. (a) The Authorized Agency must prepare a record of selection signed by the public officer or Agency designated to be responsible for the selection process. The record of selection must include the public officer’s or Agency’s summary of: (A) The Solicitation process used and the Firms considered in the Solicitation process; (B) Why the selected firm is considered most advantageous to the Authorized Agency; and (C) Why the Scope of the Solicitation was reasonable and practical under the circumstances. (b) As used in (5)(a) above, the public officer may include a member of the Authorized Agency’s board or commission. (c) The record of solicitation must be retained by the Authorized Agency within the Procurement File for the Firm. (6) The Agency may procure Amendments to existing Contracts under this Rule. In lieu of complying with Sections (4) through (5) of this Rule, the Agency must document why amending the Contract is necessary and in the best interest of the State. Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070 Statutes/Other Implemented: ORS 279B.075 & 279B.085 History: DAS 1-2023, amend filed 04/11/2023, effective 05/01/2023 DAS 6-2022, temporary amend filed 11/07/2022, effective 11/07/2022 through 05/05/2023 DAS 6-2008, f. & cert. ef. 7-2-08 DAS 5-2006, f. & cert. ef. 5-31-06