PRINTER'S NO. 1009
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
841
Session of
2015
INTRODUCED BY KRIEGER, KAUFFMAN, SAYLOR, DUNBAR, BLOOM, DIAMOND,
COX, METCALFE, GRELL, CUTLER, GABLER, MURT, JAMES, EVERETT,
B. MILLER, ENGLISH, BAKER, MAHER, WARNER, FEE, A. HARRIS,
HARPER, TALLMAN, GINGRICH AND LAWRENCE, MARCH 24, 2015
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 24, 2015
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in source selection and contract formation,
providing for legal services contracts.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 62 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 544. Legal services contracts.
(a) General rule.--A purchasing agency shall determine the
payment method to be used pursuant to a legal services contract
entered into under section 515 (relating to sole source
procurement) or 518 (relating to competitive selection
procedures for certain services).
(b) Contract.--The method of compensation determined under
subsection (a) shall be part of the contract for legal services.
(c) Determination.--The following factors shall be
considered by the purchasing agency when selecting a contractor
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for legal services:
(1) Whether outside counsel:
(i) Possesses the requisite skills, expertise and
staff to handle the nature, scope and complexity of the
matter.
(ii) Intends to engage other counsel or firms to
assist in the matter, and the manner in which these
counsel or firms will be compensated.
(iii) Is in compliance with all applicable Federal
and State laws.
(2) The estimated costs and expenses to be incurred to
fulfill the legal services contract.
(3) Any other factors deemed necessary by the purchasing
agency.
(d) Conduct.--Commonwealth attorneys shall be subject to the
Rules of Professional Conduct established by the Pennsylvania
Supreme Court under section 10(c) of Article V of the
Constitution of Pennsylvania.
(e) Posting.--A contract under this section shall comply
with Chapter 17 of the act of February 14, 2008 (P.L.6, No.3),
known as the Right-to-Know Law, subject to all applicable
privileges or exceptions.
(f) Contingent fees.--The following shall apply:
(1) In order to enter into a legal services contract
paid on a contingent fee basis, the purchasing agency shall
make a written determination that payment on a contingent fee
basis is all of the following:
(i) Feasible and efficient.
(ii) In the best interest of the Commonwealth.
(2) Contingent fee contracts under this subsection shall
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comply with all of the following:
(i) Compensation shall not exceed 25% of an award or
settlement in favor of the Commonwealth.
(ii) The following provisions shall be included in
the contract:
(A) Commonwealth attorneys designated by the
head of the purchasing agency shall retain final
authority over the course and conduct of the legal
action, including authority to:
(I) Review and approve all court filings,
including briefs, pleadings, motions and other
materials.
(II) Veto any decision of outside counsel.
(III) Retain the ability to have direct
contact with any party to the action.
(IV) Participate in any conference call,
hearing, trial or Commonwealth settlement.
(B) The Commonwealth shall maintain the
exclusive authority to accept a settlement.
(C) A detailed description of the expectations
for both the contractor and the Commonwealth.
(iii) A contingent fee shall not be based on a
penalty or civil fine awarded or an amount attributable
to a penalty or civil fine.
(iv) A contractor that provides legal services
pursuant to a contingent fee agreement shall maintain
detailed current records and documentation of all
expenses, charges, credits, receipts and other financial
records relating to the legal services provided for no
less than four years from the execution of the contract.
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(3) By February 1 of each year, the head of the
purchasing agency shall submit a report to the President pro
tempore, Majority Leader and Minority Leader of the Senate,
and the Speaker, Majority Leader and Minority Leader of the
House of Representatives relating to the use of contingency
fee contracts under this section in the preceding calendar
year. Subject to all applicable privileges, the report shall
include all of the following information:
(i) All current contingent fee contracts or
contracts that expired in the calendar year, with
description of all of the following:
(A) The name of the outside counsel and the name
of the attorney representing the Commonwealth.
(B) The nature and status of the matter.
(C) The name of the parties to the matter.
(D) The amount of any recovery by the
Commonwealth.
(E) The amount of any contingent fee paid at the
conclusion of the litigation.
(ii) The written determinations made under paragraph
(1).
(4) This subsection shall not apply to contracts where
the gross amount of the award or settlement is less than
$100,000.
(5) The report shall not include matters that are
related to an ongoing investigation.
(g) Applicability.--This section shall not apply to legal
services contracts entered into by the Public School Employees'
Retirement System or the State Employees' Retirement System.
(h) Definitions.--As used in this section, the following
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words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Commonwealth attorney." An attorney at law employed by the
purchasing agency who is eligible to participate in the
retirement system under 71 Pa.C.S. Pt. XXV (relating to
retirement for State employees and officers).
"Outside counsel." A private attorney at law, law firm,
partnership, association or professional corporation.
Section 2. This act shall take effect in 60 days.
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