WHEREAS, this administration has consistently demonstrated a strong commitment to ensuring the highest ethical standards in government contracting; and
WHEREAS, in furtherance of this commitment, this administration has successfully implemented a number of policies to improve the processes governing the awarding of State government contracts, including but not limited to contracts for legal services, to ensure that merit and cost-effectiveness drive the government contracting process; and
WHEREAS, with regard to contracts for legal services, N.J.S.A. 52:17A-13 authorizes the Attorney General, with the approval of the Governor, to designate Special Counsel to the State of New Jersey under appropriate circumstances; and
WHEREAS, the designation of special counsel for any type of legal matter is materially different than the procurement of other professional services and requires the Governor and Attorney General to exercise the utmost judgment to determine how the State's interests can best be represented; and
WHEREAS, as part of the administration’s commitment to promoting transparency and accountability while, at the same time, balancing the need for exercise of judgment that the special counsel designation process requires, the Office of the Attorney General has implemented policies and procedures that serve as a model for other states; and
WHEREAS, prior to the award of a contract for legal services, it is appropriate to require a publicly advertised process involving Requests for Qualifications (RFQs) with respect to distinct legal practice areas, merit-based decision making in the selection of law firms responding to RFQs, and impartial review by an evaluation committee based upon clearly defined evaluation criteria, as well as well-defined procedures for retaining counsel for particular legal matters, absent unusual circumstances; and
WHEREAS, in some other states, the hiring of outside counsel is not a sufficiently open process and is unguided by proper policies and procedures, giving rise to claims of misconduct and improper politicization of the special counsel designation process; and
WHEREAS, it is appropriate to formalize the procedures to be used by the Attorney General;
NOW, THEREFORE, I, JON S. CORZINE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:
1. In generating the list of outside counsel designated to serve as Special Counsel to the State of New Jersey pursuant to N.J.S.A. 52:17A-13, the Attorney General shall adhere to the following requirements:
a. The Attorney General shall identify and periodically update the practice areas for which outside counsel are generally needed. Such areas may be grouped into broader Requests for Qualifications based on similarity of the practice area, as appropriate.
b. RFQs for identified practice areas shall be issued periodically, but at least once every three years from the date of the previous designation list for that RFQ.
c. Advertisement and distribution of the RFQ shall be accomplished by:
(i) placing advertisement(s) in an appropriate legal periodical;
(ii) mailing a notice of the RFQ or the RFQ, as appropriate, to all firms currently on the outside counsel list and to all law firms that have requested to be on the RFQ mailing list for related topics;
(iii) mailing a notice of the RFQ or the RFQ, as appropriate, to specialty bar groups that represent minority and female attorneys;
(iv) posting the RFQ on the Division of Law’s Internet website; and
(v) mailing a notice of the RFQ or the RFQ, as appropriate, to law firms possessing specialized expertise, where a matter requires specialized knowledge or experience.
d. Once the Division of Law receives responses to the RFQ, the responses shall be reviewed by an evaluation committee comprised of at least three members, including but not limited to supervisors from the Division of Law and representatives of appropriate client agencies, as appropriate. Evaluation committee members shall include attorneys with involvement in the relevant practice areas and client representatives, as appropriate.
e. The criteria to be employed for evaluating RFQ responses shall include but not be limited to the following: experience of the firm in the practice area; the firm’s resources, including but not limited to the size of the firm (small or medium/large); the firm’s approach to communication with the Division of Law; the past experience of the State with the firm and its named attorneys; and geographic location, where appropriate.
f. Responses to RFQs shall be ranked on the basis of technical merit and, where appropriate, the highest scoring small and medium/large firms, consistent with the number specified in the RFQ, in each practice area shall be submitted for designation.
2. After the list of qualified firms for a particular practice area is developed, firms from that list shall, as appropriate, be retained for particular matters as follows:
a. The Division of Law shall decide whether a small or medium/large firm should be retained.
b. From either the list of designated small firms or the list of designated medium/large firms, as appropriate, a firm shall be selected based on the following criteria: geographic location; magnitude or complexity of the matter; the firm and/or its attorneys’ past success in handling similar matters; whether the firm’s experience and knowledge coincide with the type of legal work to be performed; the firm’s capacity to staff and perform the required work; and any current adversarial position or potential conflict of interest between the firm and/or its attorneys and the State, its agencies, or officials.
3. If a particular matter requires expertise in one or more practice area outside of those encompassed by existing lists, a separate RFQ shall be distributed, consistent with paragraph 1(c) above, for that retention; provided, however, that in these circumstances the Division may forego advertising under paragraph 1(c)(i).
4. In matters requiring strict confidentiality, timely retention decisions, or otherwise involving emergent or extraordinary circumstances, the Division of Law shall solicit proposals from at least three law firms, unless the Attorney General decides to use one particular firm to preserve confidentiality.
5. Nothing in this Order shall prohibit the awarding of a contract when the Attorney General decides emergent or extraordinary circumstances require the timely performance of legal services.
6. The selection of special counsel for designation pursuant to N.J.S.A. 52:17A-13 and any decisions whether to waive advertising requirements or the solicitation of proposals shall be in the sole discretion of the Attorney General.
7. Bond counsel shall continue to be retained as provided for in Executive Order No. 26 (1994).
8. This Order shall take effect immediately.
GIVEN, under my hand and seal this
19th day of October,
Two Thousand and Nine, and of the
Independence of the United States,
the Two Hundred and Thirty-Fourth
/s/ Jon S. Corzine
/s/ William J. Castner, Jr.
Chief Counsel to the Governor