Senate Co-Sponsorship Memoranda

In the near future, I intend to re-introduce legislation that was introduced as Senate Bill 1170 in the 2011-12 legislative session, which was companion legislation to House Bill 1021 last session. This legislation amends the Procurement Code provisions relating to competitive selection procedure for certain professional services from persons who are not commonwealth employees.

The past decade has witnessed a dramatic increase in the use of private contingency fee attorneys on behalf of the state by both attorneys general and governors. While there is often a good reason for states to hire private outside lawyers in specific cases, the lack of uniform policies to govern such arrangements has the potential for abuse and conflict of interest.

Recognizing this, leading state attorneys have called for reforms that recognize the discretion and independence needed to enforce state laws free from the influence of parties that may have a private interest in the outcome of litigation. Proposed reform measures have sought to preserve the ability for state attorneys general to contract with outside contingency fee counsel while insulating themselves from political pressure and ensuring maximum benefit to taxpayers. Policy proposals focus on common sense good government principles including transparency and accountability.

Accordingly, I will be re-introducing the Transparency in Private Attorney Contracting Act. This legislation is necessary to ensure that support for government transparency and accountability transcends an individual’s tenure in office. The purpose of the proposed legislation is essentially to create transparency, encourage reasonable contingency fees and preserve due process by ensuring that the Commonwealth remains in control of litigation when it hires contingency fee counsel.

Specifically, the bill provides that when the need for professional services exists, the purchasing authority must solicit services through a request for proposal. The request for proposal must disclose, among other items, the method of compensation. If compensation is based on a contingent fee, the fee cannot exceed 20% of the award or settlement or $25,000,000, whichever is less.

In addition, if the procurement is for legal services, each contract must provide that the Commonwealth attorneys will retain control over the course and conduct of any legal action, retain the ability to have direct contact with any party to the action and participate in settlement conferences and trial. The contracting agency maintains the exclusive power to accept a settlement.

Finally, all contracts entered procuring professional services shall be in writing and posted in accordance with the right-to-Know Law.

Cosponsors of Senate Bill 1170 of the 2011-12 session included: Senators RAFFERTY, BAKER, ERICKSON, FOLMER, MENSCH, FARNESE, BLAKE, SCHWANK, YUDICHAK and FERLO