RFP-Legal 2011 Outside Counsel

STATE OF NEW MEXICO

GENERAL SERVICES DEPARTMENT

RISK MANAGEMENT DIVISION

REQUEST for PROPOSALSfor

PROFESSIONAL SERVICES CONTRACTto provide

CONTRACT ATTORNEY SERVICES

RFP No. 20-350-00-01234

September 30, 2011

Contract Attorney Services 1RFP No. 20-350-00-01234

STATE OF NEW MEXICOGENERAL SERVICES DEPARTMENT


NOTICE OF REQUEST FOR PROPOSALSfor

PROFESSIONAL SERVICES CONTRACTto provide

CONTRACT ATTORNEY SERVICES The Risk Management Division (“RMD”) of the General Services Department (“GSD”) of the State of New Mexico invites attorneys and law firms to submit professional legal services proposals to RMD to meet RMD's broad range of legal defense needs as set forth in Subsection B of Section 41-4-4 NMSA 1978, inter alia. Any Attorneys currently on contract with the State of New Mexico awarded as a result of RFP # 10-350-00-70528 are not required to re-apply. Proposals are sought from Offerors that will provide state government legal defense services as determined by RMD in one or any of the following areas of law: general negligence liability (including highway), medical malpractice, law enforcement professional liability, public employee employment law, civil rights, state/federal administrative/regulatory proceedings, automobile liability, tort claims, and other areas of law as may be permitted by law, which may include Redistricting Litigation that may occur due to the 2011 First Special Legislative Session.

Proposals must be delivered to and received by the Procurement Manager on or before 12:00 noon Santa Fe local time, October 11, 2011 to the place specified and according to the procedures contained in the Request for Proposals. Late proposals will not be considered.

Copies of the Request for Proposal may be obtained from the Risk Management Division website at www.generalservices.state.nm.us/riskmanagement and by writing or calling:

Carmella Jasso, Procurement ManagerRisk Management Division, GSD

Joseph M. Montoya Building1100 St. Francis Drive, Room 2073

Santa Fe, New Mexico 87501(505) 476-2199

e-mail: [email protected]

Contract Attorney ServicesRFP No. 20-350-00-01234

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mailto:[email protected]

http://www.generalservices.state.nm.us/riskmanagement

STATE OF NEW MEXICO

REQUEST FOR PROPOSALSFOR

CONTRACT ATTORNEY SERVICES

I N D E X

Notice of Request for Proposals........................................................................................2

Index....................................................................................................................................3

Request for Proposals for Contract Attorney Services..................................................4

Sequence of Events.............................................................................................................4

Response Checklist.................................................................................................19

Appendix A – Acknowledgement of Receipt Form..............................................20

Appendix B – Sample Professional Services Agreement.....................................21

Attachment 1 – Performance Measures......................................................34

Exhibit A – Contractor Authorized Billing Rates......................................36

Exhibit B – Billing Guidelines......................................................................37

Form 1 - Sample Work Plan/Litigation Budget...............................52

Form 2 - Sample Litigation Risk Analysis Narrative.......................54

Form 3 - Sample Quarterly Report...................................................57

Form 4 - Sample Root Cause Analysis..............................................60


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REQUEST FOR PROPOSALS FOR CONTRACT ATTORNEY SERVICES

RFP No. 20-350-00-01234

I. INTRODUCTIONA. The Risk Management Division (“RMD”) of the General Services Department

(“GSD”) of the State of New Mexico invites attorneys and law firms to submit professional legal services proposals to RMD to meet RMD's broad range of legal defense needs as set forth in Subsection B of Section 41-4-4 of the Tort Claims Act, NMSA 1978, inter alia. Any Attorneys currently on contract with the State of New Mexico awarded as a result of RFP # 10-350-00-70528 are not required to re-apply. According to the terms of this Request for Proposals ("RFP), proposals are sought from Offerors that will provide state government legal defense services as determined by RMD in one or any of the following areas of law: general negligence liability (including highway), medical malpractice, law enforcement professional liability, public employee employment law, civil rights, state/federal administrative/regulatory proceedings, automobile liability, tort claims, and other areas of law as may be permitted by law, which may include Redistricting Litigation that may occur due to the 2011 First Special Legislative Session. The procurement will result in multiple awards.

B. Offerors will work closely with RMD Claims Administrators and RMD Supervising Attorneys. RMD administrators and/or RMD Supervising Attorneys shall review all bills for services submitted for payment by the Offeror, shall monitor legal strategies employed, and shall ensure that Offeror, where appropriate and practical, resolves all matters early through motion practice or alternative dispute prevention and resolution mechanisms. Offeror will keep RMD Claims Administrators and RMD Supervising Attorneys timely informed during all litigation stages about dates of settlement conferences, mediations, and arbitrations, and hearing dates on all dispositive motions. Offeror shall provide to RMD Claims Administrators and RMD Supervising Attorneys electronic copies of all pleadings and correspondence.

II. CONDITIONS GOVERNING PROCUREMENT A. Sequence of Events

The Procurement Manager will make every effort to adhere to the following schedule:

ACTION RESPONSIBILITY DATE

1. Issue RFP via RMD web site Procurement Manager (PM)

September 30, 2011

2. Return of Acknowledgment for Distribution List

Potential Offerors October 4, 2011


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3. Submission of Proposal Offerors October 11, 2011

4. Proposal Evaluation ** Evaluation Committee ("EC")

October 12, 2011 – October 19, 2011

5. Selection of Finalists ** EC October 21, 20116. Best and Final Offer EC October 24, 20117. Agreement Award ** GSD/RMD October 26, 20118. Protest Deadline ** Offerors November 10,

2011

** Note: These events are subject to change based on the number of responses and as needed.

EXPLANATION OF EVENTS

The following paragraphs describe the activities listed in the sequence of events shown in the above table:

1. Issue of RFP via RMD web site – September 30, 2011This RFP is being issued by RMD on Friday September 30, 2011. Paper copies of the RFP can be obtained from the Procurement Manager, Carmella Jasso.

2. Return of Acknowledgments for Distribution List – October 4, 2011On or before 5:00 p.m. October 4, 2011potential Offerors shall hand deliver or return by facsimile, or by registered or certified mail, the "Acknowledgment of Receipt Form" that accompanies this document (see Appendix A) to have their organization placed on the procurement distribution list. The form should be signed by an authorized representative of the law firm and delivered to the Procurement Manager no later than the date specified in the Sequence of Events. The procurement distribution list will be used for the distribution of written responses to questions and any RFP amendments. Failure to return this form may constitute a presumption of receipt and rejection of the RFP, and the Potential Offeror's law firm name may not appear on the distribution list.

3. Submission of Proposal – October 11, 2011ALL OFFEROR PROPOSALS MUST BE RECEIVED FOR REVIEW AND EVALUATION NO LATER THAN 12:00 NOON SANTA FE LOCAL TIME ON OCTOBER 11, 2011 AT THE FOLLOWING ADDRESS:


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Via Hand Delivery:NM Risk Management DivisionJoseph Montoya State Office Building(corner of Cordova Road and St. Francis Drive)ATTN: Carmella Jasso, Procurement ManagerContract Attorney Services RFP No. 20-350-00-012341100 St. Francis Drive, Suite 2073Santa Fe, NM 87501(505) 476-2199

Via Mail:NM Risk Management DivisionATTN: Carmella Jasso, Procurement ManagerPO DRAWER 6850Santa Fe NM 87502-6850

Proposals must be labeled on the outside of the package to clearly indicate that they are in response to the CONTRACT ATTORNEY SERVICES RFP No. 20-350-00-01234

Proposals submitted by facsimile will NOT be accepted . Proposals received after the deadline of 12:00 noon Santa Fe local time on October 11, 2011 will not be accepted, even if the postmark is on or before October 11, 2011. The receipt date and time will be recorded on each proposal. A public log will be kept of the names of all Offerors who submit a proposal. Pursuant to Section 13-1-116 NMSA 1978, the contents of any proposal shall not be disclosed until contracts have been awarded.

** Note: The following events (6 through 8) are subject to change in the discretion of the Program Manager based on the number of responses that are submitted:

4. Proposal Evaluation – October 12, 2011 to October 19, 2011The evaluation of proposals will be performed by an Evaluation Committees (EC) composed of representatives of GSD. During this time, the Procurement Manager may, at her option, initiate discussions with Offerors who submit proposals, but proposals may be accepted and evaluated without such discussion. Discussions SHALL NOT BE initiated by the Offerors.

5. Selection of Finalists – October 21, 2011The Evaluation Committee shall select, and the Procurement Manager shall notify, the Finalist Offerors. If the Evaluation Committee decides that oral presentations and demonstrations may assist the committee in evaluating the proposals of the Finalist Offerors, a schedule for these oral


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presentations and demonstrations will be established by the Procurement Manager at this time.

6. Best and Final Offers from Finalists – October 24, 2011Finalist Offerors may be asked by the Procurement Manager to submit revisions to their proposals for the purpose of obtaining best and final offers by the date specified in the Finalist Notification Letter. Best and final offers may also be clarified and amended at the Finalist Offeror's oral presentation and demonstration, if any.

7. Agreement Award(s) – October 26, 2011A Professional Services Agreement shall be finalized with the most advantageous Offeror(s). In the event that mutually agreeable terms can not be reached within the time specified, RMD reserves the right to finalize a Professional Services Agreement with the next most advantageous Offeror(s) without undertaking a new procurement process.

8. Protest Deadline – November 10, 2011Any protest by an Offeror must be in conformance with Section 13-1-172 NMSA 1978 and applicable procurement regulations. The minimum fifteen (15) day protest period for responsive Offerors shall begin on the day following the Agreement Award (which is October 26, 2011) and will end as of close of business at 5:00 PM on November 10, 2011. Protests must be written and must include the name and address of the protestor. It must also contain a statement of grounds for protest including appropriate supporting exhibits, and it must specify the ruling requested from RMD. The protest must be delivered to the following address:


Via Mail:NM Risk Management DivisionATTN: Carmella Jasso, Procurement ManagerPO Box 6850Santa Fe NM 87502-6850

Protests received after 5:00 p.m. Santa Fe local time, Thursday November 10, 2011 deadline will not be accepted.


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Number of proposalsOfferors may submit only one (1) proposal, consisting of four (4) original

copies of the one proposal.

FormatProposals consisting solely of marketing materials will not be considered.

1. Proposals must be submitted in a sealed envelope marked “CONTRACT ATTORNEY SERVICES RFP No. 20-350-00-01234. If a proposal is mailed, the sealed envelope should be placed in a larger mailing envelope. No responses submitted via facsimile transmission will be accepted.

2. Proposals should be typewritten on standard 8 1/2 x 11 paper and placed in a binder. Completeness, clarity and brevity should be stressed.

3. Each proposal must include a letter of transmittal identifying the submitting organization, the name and title of the person authorized by the organization to contractually obligate the organization, and the names, titles and telephone numbers of persons to be contacted for clarification. The proposal MUST be organized in the following format:

a. Signed Letter of Transmittal including an express statement of the Offeror's acceptance of Conditions Governing Procurement (see Section III, paragraph A), and an unqualified statement indicating the Offeror’s assent to abide by the substance and form of the sample professional services agreement terms and conditions, attached hereto as Appendix B (see Section IV), including billing practice and procedures contained in that sample agreement. Unsigned letters will disqualify the Proposal and such unsigned proposals will not be evaluated.

b. Response to Scope.c. Response to Offeror Qualifications (including proof of insurance per

Section VI A 4, below).d. Response to Offeror Requirements (including assent to the hourly rates

contained in Section VI B 1, below).e. Other Supporting Materials/Documentation.

4. Offerors may attach other materials they believe improve the quality of their responses. However, these should be included as items in a separate appendix.

III. GENERAL TERMSA. Acceptance

Offerors must indicate their acceptance of the Conditions Governing Procurement section in their letter of transmittal. Submission of a proposal


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constitutes acceptance of the Evaluation Factors contained in Section VII of this RFP.

B. Incurring Cost/Proposal Preparation CostAny cost incurred by the Offeror in preparation, transmittal, presentation of any proposal or material submitted in response to this RFP shall be borne solely by the Offeror.

C. No ObligationThis procurement in no manner obligates the State of New Mexico or any of its agencies to the use of any proposed professional services until a valid written contract is awarded and approved by the appropriate authorities.

D. TerminationThis RFP may be canceled at any time and any and all proposals may be rejected in whole or in part when RMD determines in its sole discretion that such action is in the best interest of the State of New Mexico.

E. Proposal Offer is FirmResponses to this RFP, including proposal prices, will be considered firm for ninety (90) days after the due date for receipt of proposals or sixty (60) days after receipt of a best and final offer if one is submitted.

F. Amended ProposalsAn Offeror may submit an amended proposal before the deadline for receipt of proposals. Such amended proposals must be complete replacements for a previously submitted proposal and must be clearly identified as such in the transmittal letter. The Agency personnel will not merge, collate, or assemble proposal materials.

G. Offerors' Rights to Withdraw ProposalOfferors will be allowed to withdraw their proposals at any time prior to the deadline for receipt of proposals. The Offeror must submit a written withdrawal request signed by the Offeror's duly authorized representative addressed to the Procurement Manager. The approval or denial of withdrawal requests received after the deadline for receipt of the proposals is governed by the applicable procurement regulations.

H. Disclosure of Proposal Contents The proposals will be kept confidential until a contract is awarded. At that time, all proposals and documents pertaining to the proposals will be open to the public, except for the material that is proprietary or confidential. The Procurement Manager will not disclose or make public any pages of a proposal on which the Offeror has stamped or imprinted "proprietary" or "confidential" subject to the following requirements. Proprietary or confidential data shall be readily separable from the proposal in order to facilitate eventual public inspec-


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tion of the non-confidential portion of the proposal. Confidential data is normally restricted to confidential financial information concerning the Offeror's organization and data that qualifies as a trade secret in accordance with the Uniform Trade Secrets Act, 57-3A-1 to 57-3A-7 NMSA 1978. The price of products offered or the cost of services proposed shall not be designated as proprietary or confidential information. If a request is received for disclosure of data for which an Offeror has made a written request for confidentiality, the State Purchasing Agent shall examine the Offeror's request and make a written deter-mination that specifies which portions of the proposal should be disclosed. Unless the Offeror takes legal action to prevent the disclosure, the proposal will be so disclosed. The proposal shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data.

I. Governing LawThe laws and regulations of the State of New Mexico govern this procurement and any resulting agreement.

J. ClarificationsRequests for clarification must be in writing. All written requests for clarifications must be directed to:


Via Mail:NM Risk Management DivisionATTN: Carmella Jasso, Procurement ManagerPO Box 6850Santa Fe NM 87502-6850

K. Basis for ResponseOnly information described in this RFP shall be used in the proposal preparation. This RFP shall not be modified in any way except by written amendment by RMD.

L. Negotiations and InterviewsRMD may conduct discussions or conduct interviews with Offerors who submit acceptable or potentially acceptable proposals. It should be clearly


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understood, however, that RMD reserves the right to accept proposals without conducting such discussions or negotiations.

M. Sufficient AppropriationAny contract awarded as a result of this RFP process may be terminated if sufficient appropriations or authorizations do not exist. Such termination will be effected by sending written notice to the contractor. The Agency's decision as to whether sufficient appropriations and authorizations are available will be accepted by the contractor as final.

N. Contract Terms and ConditionsThe contract between the Agency and a contractor will follow the format specified by the Agency and contain the terms and conditions set forth in Appendix B. However, the Agency reserves the right to negotiate with a successful Offeror provisions in addition to those contained in this RFP. The contents of this RFP, as revised and/or supplemented, and the successful Offeror's proposal will be incorporated into and become part of the contract. Should an Offeror object to any of the Agency's terms and conditions, as contained in this Section or in Appendix B, that Offeror must propose specific alternative language. The Agency may or may not accept the alternative language. General references to the Offeror's terms and conditions or attempts at complete substitutions are not acceptable to the Agency and will result in disqualification of the Offeror's proposal. Offerors must provide a brief discussion of the purpose and impact, if any, of each proposed change followed by the specific proposed alternate wording.

O. Offeror's Terms and ConditionsOfferors must submit with the proposal a complete set of any additional terms and conditions which they expect to have included in a contract negotiated with the Agency.

P. Contract DeviationsAny additional terms and conditions, which may be the subject of negotiation, will be discussed only between the Agency and the selected Offeror and shall not be deemed an opportunity to amend the Offeror's proposal.

Q. Offeror QualificationsThe Evaluation Committee may make such investigations as necessary to determine the ability of the Offeror to adhere to the requirements specified within this RFP. The Evaluation Committee will reject the proposal of any Offeror who is not a responsible Offeror or fails to submit a responsive offer as defined in Sections 13-1-83 and 13-1-85 NMSA 1978.

R. Right to Waive Minor IrregularitiesThe Evaluation Committee reserves the right to waive minor irregularities. The Evaluation Committee also reserves the right to waive mandatory requirements


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provided that all of the otherwise responsive proposals failed to meet the mandatory requirements and/or doing so does not otherwise materially affect the procurement. This right is at the sole discretion of the Evaluation Committee.

S. Change in Contractor RepresentativesThe Agency reserves the right to request/require a change in contractor representatives if the assigned representatives are not, in the opinion of the Agency, meeting its needs adequately.

T. NoticeThe Procurement Code, Sections 13-1-28 through 13-1-199 NMSA 1978, imposes civil and misdemeanor criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for bribes, gratuities and kick-backs.

U. Agency RightsThe Agency reserves the right to accept all or a portion of an Offeror's proposal.

V. Right to PublishThroughout the duration of this procurement process and contract term, potential Offerors, Offerors and contractors must secure from the Agency written approval prior to the release of any information that pertains to the potential work or activities covered by this procurement or the subsequent contract. Failure to adhere to this requirement may result in disqualification of the Offeror's proposal or termination of the contract.

W. Ownership of ProposalsAll documents submitted in response to this Request for Proposal shall become the property of the Agency and the State of New Mexico. However, any technical or user documentation submitted with the proposals of non-selected Offerors may be returned upon request after the expiration of the protest period.

X. Electronic mail address requiredA large part of the communication regarding this procurement will be conducted by electronic mail (e-mail). Offeror must have a valid e-mail address to receive this correspondence.

Y. Use of Electronic Versions of this RFP This RFP is being made available by electronic means. If accepted by such means, the Offeror acknowledges and accepts full responsibility to insure that no changes are made to the RFP. In the event of conflict between a version of the RFP in the Offeror’s possession and the version maintained by the Agency, the version maintained by the Agency shall govern.


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IV. AGREEMENTS

A. A sample Professional Services Agreement is attached as Appendix B and incorporated herein by reference. A proposal must affirmatively state Offeror’s assent to enter into this form of agreement.

B. Agreements awarded pursuant to this RFP shall be for a term of four (4) fiscal years, unless earlier terminated according to the termination provision contained in the agreement.

C. RMD reserves the right to:

1. Renegotiate awarded agreements to reflect any changes in state law;

2. Solicit and request additional proposals during the agreement term for contract legal services in the same or other areas of practice; and

3. Discontinue the award of additional work assignments and terminate ongoing work assignments of a Contractor that is deemed not cost efficient.

V. SCOPE

Awards made, if any, under this RFP shall be to Contractor(s) that shall provide professionally competent legal representation of governmental entities and public employees in tort claims brought pursuant, but not limited to the provisions of the New Mexico Tort Claims Act, Sections 41-4-1 to 41-4-29 NMSA 1978, Section 1983 and 1988 of the Civil Rights Act and Human Rights Act, Section 28-1-1 to 28-1-15 NMSA 1978, as may be amended from time to time, and other areas of law as may be permitted by law, which may include Redistricting Litigation that may occur due to the 2011 First Special Legislative Session, and as provided for in the sample Professional Services Agreement (see Appendix B of this RFP), on a case-by-case basis when such work is assigned to it by RMD and accepted by such Contractor.

VI. MINIMUM QUALIFICATIONS AND REQUIREMENTS

Failure to address and satisfy the below qualifications shall result in rejection of the proposal, or, in the instance of a later discovered conflict of interest, shall result in termination of a contract awarded by this RFP, if any.

A. Qualifications1. Offerors must have documented experience, skills and knowledge in representing municipal, county or state governmental entities in any of the following areas of law: general tort liability (including highway), medical


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malpractice, law enforcement professional liability, employment law, civil rights, federal/state administrative/regulatory proceedings, Redistricting litigation, automobile liability and subrogation tort claims.

2. Attorneys must be licensed and have at least five (5) years general civil litigation experience or be associated with attorneys who have at least five (5) years general civil litigation experience. Only attorneys approved in advance by RMD who are listed on the current Exhibit A to the Professional Services Agreement are permitted to work on, or bill for work on assigned RMD cases. Work performed by unauthorized personnel will not be paid.

3. The proposal must provide the following detail for each attorney:a. Area(s) of legal experience, e.g., "general tort liability, federal and/or

state administrative/regulatory proceedings, medical malpractice, law enforcement professional liability, employment law, civil rights, automobile liability subrogation tort claims". (Please do not provide extensive or uninformative case lists);

b. A summary of the attorney’s general litigation experience;

c. A summary of the attorney’s experience in federal and/or state administrative/regulatory proceedings and Redistricting Litigation;

d. A list of the highest and lowest hourly rate(s) charged to current private and governmental clients for liability defense cases (not including pro bono cases);

e. Date licensed as an attorney in the State of New Mexico, and other bar admission dates; and

f. A summary of the attorney’s educational background, special training, and awards.

RMD retains the right to request additional information demonstrating the requisite experience.

4. Offeror must be insured as required pursuant to the terms of set forth in paragraphs 18, 21 and 32 of the sample professional services agreement, attached hereto as Appendix B and incorporated herein by reference. Proof of such insurance shall be deemed satisfied by submitting of a copy of the law firm's current insurance declarations page along with the Proposal.

5. Offeror agrees to bill RMD in 0.10-hour billing units and at pre-approved hourly rates.


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Failure to address and satisfy the above qualifications shall result in rejection of the proposal, or, in the instance of a later discovered conflict of interest, shall result in termination of a contract awarded by this RFP, if any.

B. RequirementsFailure to address and satisfy these requirements shall result in rejection of the proposal.

1. As authorized by NMSA 1978, § 41-4-23 (B) (5) [authorizing RMD "to contract with one or more attorneys or law firms on a per-hour basis..."], Offerors must agree in the letter of transmittal that it accepts the following schedule of hourly billing for services rendered on a per-hour basis as follows:

a. Attorneys. This schedule is based on the number of years that an individual attorney has practiced tort law as of the effective date of this Agreement. Each individual attorney must be listed on Exhibit A, which is attached hereto and incorporated into this Agreement. The hourly rate for each attorney may not be revised upward during the course of the Agreement. The schedule of hourly rates is as follows:

Required Number of Years CorrespondingExperience Practicing Tort Law Hourly Rate

0 to 4.99 years $ 90.005 to 9.99 years 120.00

10+ years 150.00

b. Law Clerks and ABA Approved Law School Graduate Awaiting New Mexico Attorney Licensure. Law Clerks who are second or third year law students in an ABA accredited law school or a graduate of an ABA accredited law school who have not passed the New Mexico Bar Exam, may be authorized to bill at rates up to $60.00 (sixty dollars) per hour. Upon proper documentation evidencing admission to the State Bar of the State of New Mexico, law clerks and J.D. degree conferees may be listed on an amended Exhibit A, and upon approval of an amended Exhibit A, are authorized to bill at rates up to $90.00 (ninety dollars) per hour.

c. Paralegals. The maximum rate for Paralegals will be as follows:

Paralegals who provide evidence that they meet the requirements of Supreme Court Rule 20-102 and are active members of the Paralegal Division of the New Mexico State Bar Association, may be authorized to bill at rates up to $50.00 per hour.


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Paralegals who provide evidence that in addition to meeting the requirements of the above and have passed the National Legal Assistant’s Certifying Exam administered by the National Association of Legal Assistants, may be authorized to bill at rates up to $60.00 per hour.

Paralegals who do not meet requirements of 1 or 2 above but have at least five (5) years of experience as a legal assistant, may be authorized to bill at rates up to $40.00 per hour.

Paralegals who do not meet the requirements of 1 or 2 above but have at least two (2) years of experience as a legal assistant, may be authorized to bill at rates up to $35.00 per hour.

2. A narrative description of procedures routinely used that are designed to ensure that legal representation is provided in a cost-effective manner. RMD reserves the right to evaluate the cost-effectiveness of any Offeror that has had an RMD contract in the last four fiscal years. Offerors without such a contract will be evaluated based on Offeror’s references including those references submitted by the Offeror.

3. A narrative description of innovative suggestions for minimizing costs.

4. A narrative description of guidelines applied to ensure that only necessary services are employed for the proper resolution of the claim.

5. A narrative description of the procedures to be followed to ensure the timely submission of required recurring documentation (Work Plans/Litigation Budgets, Quarterly Reports, Narrative Litigation Risk Analyses, and Root Cause Analyses which are required by the Sample Professional Services Agreement in Appendix B of this RFP). With regard to the written Root Cause Analysis on each qualified completed case, RMD may request a Contractor to provide a total of 4 hours of pro bono consultation to the RMD Legal Bureau or to the public entity represented. Descriptions addressing this requirement positively and offering unique and resourceful methods of achieving these ends will be assessed a higher score in the proposal evaluation process.

6. No proposal response will be accepted without an unqualified statement indicating Offeror’s willingness to abide by the billing practices and procedures detailed in the RFP appendices and the sample professional service agreement and agreement exhibits.

7. Offerors must provide a list of all cases currently against the State of New Mexico or its political subdivisions, if any, in which Offeror or members of


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Offeror’s firm have been involved in any capacity in which RMD is not involved. The list must include the name of the law firm's staff member involved, the case name, and the year in which the case was filed.

Failure to address and satisfy these requirements shall result in rejection of the proposal.

VII. EVALUATION CRITERIA

Proposals shall meet the Qualifications and Requirements contained in Subsections A and B of Section VI of this RFP, above. Provided that a determination is not made that the Offeror firm is not a responsible offeror as defined by the Procurement Code, Proposals meeting the Qualifications and Requirements shall be considered for selection based on the weighted Evaluation Criteria below.

Proposals submitted by an Offeror firm that is determined to be not a responsible offeror shall not be accepted and shall not be considered. Properly submitted Proposals not meeting the Qualifications and Requirements criteria shall not be accepted and shall not be considered.

For purposes of evaluating the below criterion, the Evaluation Committee reserves the right to take into consideration the law firm's past record of compliance with the terms of an RMD professional services agreement, if any, during the last four calendar years.

On a 1,000 point scale, the Evaluation Criteria are:

A. 200 points: The law firm's litigation experience, per attorney, specifically trial experience, in the area(s) of law for which a proposal is made, as detailed in the narrative description;

B. 200 points: The law firm's procedures routinely used to ensure that legal representation is provided in a cost-effective manner, the description of innovative suggestions for minimizing costs, and the guidelines applied to ensure that only necessary services are employed by the law firm for the proper resolution of the claim, as detailed in the narrative description;

C. 150 points: The existence of previous or current conflicts of interest including an absence of previous litigation against the State of New Mexico or its political subdivisions, as detailed in the narrative description;

D. 150 points: Quality of actual services provided based on references provided by the Offeror of entities for which the law firm has provided defendant legal services, focusing on governmental entity, insurance company or corporation defense;


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E. 150 points: Procedures to be followed to ensure the timely submission of recurring documentation (work plans, litigation budgets, quarterly reports, narrative litigation risk analyses, and root cause analyses) which are required by the terms of the attached sample Professional Services Agreement (Appendix B to this RFP), as detailed in the narrative description. (Proposals addressing this requirement positively and offering unique and resourceful methods of achieving these ends will be assessed a higher score.);

F. 75 points: Geographic location within the State of New Mexico including proximity to state entities and public employees, and proximity to state and federal courts and administrative hearing sites; and

G. 75 points: An expression of willingness coupled with the ability to take cases in parts of the state in which RMD has historically had difficulty retaining contract attorneys, especially outside of the metropolitan areas of Las Cruces, Albuquerque, and Santa Fe.

VIII. NOTICE

The Procurement Code, NMSA 1978, Sections 13-1-28 through 13-1-199, imposes civil and criminal penalties for its violation. In addition, New Mexico criminal statutes impose criminal penalties for bribes, gratuities and kickbacks.


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RESPONSE CHECKLIST

The deadline for receipt of proposals is on or before 12:00 noon, local Santa Fe time, October 11, 2011. Late proposals will not be considered. Proposals submitted by facsimile will not be accepted. Proposals received after the 12:00 noon October 11, 2011 deadline will not be accepted, even if the postmark is on or before October 11, 2011.

BY OCTOBER4, 2011, send "Acknowledgment of Receipt Form" by fax to Carmella Jasso, fax (505) 827-0593 or return by hand delivery, registered or certified mail.

BY 12:00 NOON LOCAL SANTA FE TIME, OCTOBER 11, 2011, four (4) originally-executed copies of the proposal must be submitted as follows:


or

Via Certified or Registered Mail:NM Risk Management DivisionATTN: Carmella Jasso, Procurement ManagerPO Box 6850Santa Fe NM 87502-6850

Proposals must be labeled on the outside of the package to clearly indicate that they are in response to the CONTRACT ATTORNEY SERVICES RFP No. 20-350-00-01234.

REMEMBER TO INCLUDE:

□ Letter of Transmittal

□ Response to Scope

□ Response to Desired Offeror Qualifications and Requirement

□ Other Supporting Materials/Documentation (if any)


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ACKNOWLEDGMENT OF RECEIPT FORM

REQUEST FOR PROPOSALS FOR CONTRACT ATTORNEY SERVICES

RFP No. 20-350-00-01234

In acknowledgment of receipt of this Request for Proposals the undersigned agrees that he/she has received a complete copy.

This Acknowledgment of Receipt Form should be signed and returned on or before October 4, 2011 to Carmella Jasso, Procurement Manager, by fax at (505) 827-0593, or return by hand delivery, registered or certified mail.

Only potential Offerors who elect to participate in this RFP must complete and return this form with the indicated intention of submitting a proposal will receive copies of all Offeror written questions and the Agency's written responses to those questions as well as RFP amendments, if any are issued.

FIRM: _______________________________________________________________

REPRESENTED BY: ___________________________________________________

TITLE: ______________________________________________________________ PHONE NO.(___)_____________________ FAX NO. (___)____________________

ADDRESS: ___________________________________________________________

CITY: ______________________ STATE: _______________ ZIP:______________

SIGNATURE: ________________________________________ DATE: __________

E-Mail Address: ________________________________________________________

CIRCLE ONE:Firm DOES/DOES NOT intend to respond to this Request for Proposals.

Fax completed form to:Carmella Jasso, Procurement ManagerRisk Management DivisionFax Number: (505) 827-0593

Or scan and email to [email protected]


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mailto:[email protected]

APPENDIX B to RFPSample Professional Services Agreement

STATE OF NEW MEXICO GENERAL SERVICES DEPARTMENT


PROFESSIONAL SERVICES CONTRACT #*1

THIS AGREEMENT ("Agreement") is made and entered into by and between the State of New Mexico, GENERAL SERVICES DEPARTMENT, RISK MANAGEMENT DIVISION (hereinafter referred to as "RMD" or the "Agency") and *2 (hereinafter referred to as the "Contractor”), and is effective as of the date set forth below upon which it is executed by the Department of Finance and Administration (“DFA”) IT IS AGREED BETWEEN THE PARTIES:

1. Scope of Work.

A. The Contractor shall perform the following work: The Contractor shall provide professionally competent legal representation of governmental entities and public employees including but not limited to tort claims, civil rights and employment discrimination litigation brought pursuant to the provisions of the New Mexico Tort Claims Act, Sections 41-4-1 to 41-4-29 NMSA 1978, Section 1983 and 1988 of the Civil Rights Act, and the New Mexico Human Rights Act, Section 28-1-1 to 28-1-15 NMSA 1978, as may be amended from time to time, and other areas of law as provided by law, which may include Redistricting Litigation that may occur due to the 2011 First Special Legislative Session, and as provided for in this Agreement, including all Exhibits, on a case-by-case basis when such work is assigned to it by RMD and accepted by the Contractor.

All work will be performed pursuant to the terms and conditions set forth in the Billing Guidelines attached to this Professional Services Agreement as Exhibit B:

B. Services will be performed and billed for at the offices of the Contractor in the State of New Mexico or at such other out of state locations as may be authorized by the Agency.

C. Performance Measures. The Contractor shall substantially perform the Performance Measures set forth in Attachment 1 ("Performance Measures") to this Agreement, which is incorporated herein by reference. These Performance Measures may be amended from time to time by RMD upon written notification to the Contractor. In the event the Contractor fails to obtain the results described in Attachment 1 hereto, RMD may provide written notice to the Contractor of the default and specify a reasonable period of time within which the Contractor shall advise the Agency of specific steps that it will take to achieve these results in the future and the timetable for implementation. Nothing in this subparagraph shall be construed to prevent Agency from exercising its right to termination pursuant to Paragraph 4.


2. Compensation .

A. The Agency shall pay to the Contractor in full payment for services satisfactorily performed pursuant to the Scope of Work at the rate of ***** dollars ($*****) in FY20__ (See schedule of rates below). The New Mexico gross receipts tax levied on the amounts payable under this Agreement in FY20__ totaling (*****) shall be paid by the Agency to the Contractor. The total amount payable to the Contractor under this Agreement, including gross receipts tax and expenses, shall not exceed (*****) in FY20__. This amount is a maximum and not a guarantee that the work assigned to Contractor to be performed under this Agreement shall equal the amount stated herein. The parties do not intend for the Contractor to continue to provide services without compensation when the total compensation amount is reached. Contractor is responsible for notifying the Agency when the services provided under this Agreement reach the total compensation amount. In no event will the Contractor be paid for services provided in excess of the total compensation amount without this Agreement being amended in writing prior to those services in excess of the total compensation amount being provided.

Payments in FY 2011, FY 2012, FY 2013, and FY 2014 are subject to availability of funds pursuant to the Appropriations Paragraph set forth below and are also subject to any negotiations between the parties from year to year pursuant to Paragraph 1, Scope of Work, and to approval by the DFA. All invoices MUST BE received by the Agency no later than fifteen (15) days after the termination of the Fiscal Year in which the services were delivered. Invoices received after such date WILL NOT BE PAID.

Schedule of Rates

B. Hourly Rate Schedules. The Agency shall pay to the Contractor in full payment for services satisfactorily performed calculated at the following schedule of rates:

i. Attorneys. This schedule is based on the number of years that an individual attorney has practiced tort law as of the effective date of this Agreement. Each individual attorney must be listed on the current and approved Exhibit A, which is attached hereto and incorporated into this Agreement. The hourly rate for each attorney may not be revised upward during the course of the Agreement. The schedule of hourly rates is as follows:

Required Number of Years CorrespondingExperience Practicing Tort Law Hourly Rate



0 to 4.99 years $ 90.005 to 9.99 years 120.0010+ years 150.00

ii. Law Clerks and ABA Approved Law School Graduates Awaiting New Mexico Attorney Licensure. Law Clerks who are second or third year law students in an ABA approved law school or a graduate of an ABA approved law school who have not passed the New Mexico Bar Exam, may be authorized to bill at rates up to $60.00 (sixty dollars) per hour. Every law clerk must be listed on the current and approved Exhibit A. As an exception to the general prohibition of revising hourly rates upward during the course of the Agreement, upon proper documentation evidencing admission to the State Bar of the State of New Mexico, law clerks and J.D. degree conferees may be listed on an amended Exhibit A, and upon approval of the amended Exhibit A, are authorized to bill at rates up to $90.00 (ninety dollars) per hour.

iii. Paralegals. The maximum rate for Paralegals will be as follows:

Paralegals who provide evidence that they meet the requirements of Supreme Court Rule 20-102 and are active members of the Paralegal Division of the New Mexico State Bar Association, may be authorized to bill at rates up to $50.00 per hour.

Paralegals who provide evidence that in addition to meeting the requirements of the above and have passed the National Legal Assistant’s Certifying Exam administered by the National Association of Legal Assistants, may be authorized to bill at rates up to $60.00 per hour.

Paralegals who do not meet the requirements of 1 or 2 above but have at least two (2) years of experience as a legal assistant, may be authorized to bill at rates up to $35.00 per hour.

Paralegals who do not meet requirements of 1 or 2 above but have at least five (5) years of experience as a legal assistant, may be authorized to bill at rates up to $40.00 per hour.

iv. Cost of Living Adjustment. The hourly rate amount may be adjusted annually based on the increase or decrease in the U.S. Department of Labor, Bureau of Labor Statistics’ Consumer Price Index (CPI) for the State of New Mexico using the most recently published percentage change for the 12-month period preceding the contract anniversary date, which shall be the effective date for any cost of living adjustment.



C. Contractor must submit a detailed statement accounting for all services performed and expenses incurred. If the Agency finds that the services are not acceptable, within thirty days after the date of receipt of written notice from the Contractor that payment is requested, it shall provide the Contractor a letter of exception explaining the defect or objection to the services, and outlining steps the Contractor may take to provide remedial action. Upon certification by the Agency that the services have been received and accepted, payment shall be tendered to the Contractor within thirty days after the date of acceptance. If payment is made by mail, the payment shall be deemed tendered on the date it is postmarked. However, the agency shall not incur late charges, interest, or penalties for failure to make payment within the time specified herein.

3. Term.THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL

APPROVED BY THE DFA or Fiscal Year 2012 beginning on or before November 1, 2011, as determined by the Agency. This Agreement shall terminate on October 31, 2015 unless terminated pursuant to paragraphs 4 ("Termination") or 5 ("Appropriations"), infra. In accordance with Section 13-1-150 NMSA 1978, no contract term for a professional services contract, including extensions and renewals, shall exceed four years, except as set forth in Section 13-1-150 NMSA 1978, or except as set forth in Section 15-7-10 NMSA 1978 ("Legal defense contracts; renewal") which, in general, permits any valid contract between the Risk Management Division and any law firm to defend claims against the state or any of its public employees to be automatically extended for the purpose of and as long as necessary for completing and concluding any matter in litigation, including appeals. Section 15-7-10 NMSA 1978 is hereby incorporated herein by reference.

4. Termination.A. Termination. This Agreement may be terminated by either of the

parties hereto upon written notice delivered to the other party at least ten (10) days prior to the intended date of termination. By such termination neither party may nullify obligations already incurred for performance or failure to perform prior to the date of termination. Except as otherwise allowed or provided under this Agreement, the Agency’s sole liability upon such termination shall be to pay for acceptable work performed prior to the Contractor’s receipt of the notice of termination, if the Agency is the terminating party, or the Contractor’s sending of the notice of termination, if the Contractor is the terminating party; provided, however, that a notice of termination shall not nullify or otherwise affect either party’s liability for pre-termination defaults under or breaches of this Agreement. The Contractor shall submit an invoice for such work within thirty (30) days of receiving or sending the notice of termination. Notwithstanding the foregoing, this Agreement may be terminated immediately upon written notice to the Contractor if the Contractor becomes unable to perform the



services contracted for, as determined by the Agency or if, during the term of this Agreement, the Contractor or any of its officers, employees or agents is indicted for fraud, embezzlement or other crime due to misuse of state funds or due to the Appropriations paragraph herein. THIS PROVISION IS NOT EXCLUSIVE AND DOES NOT WAIVE THE STATE’S OTHER LEGAL RIGHTS AND REMEDIES CAUSED BY THE CONTRACTOR'S DEFAULT/BREACH OF THIS AGREEMENT.”

B. Termination Management. Immediately upon receipt by either the Agency or the Contractor of notice of termination of this Agreement, the Contractor shall: 1) not incur any further obligations for salaries, services or any other expenditure of funds under this Agreement without written approval of the Agency; 2) comply with all directives issued by the Agency in the notice of termination as to the performance of work under this Agreement; and 3) take such action as the Agency shall direct for the protection, preservation, retention or transfer of all property titled to the Agency and records generated under this Agreement. Any non-expendable personal property or equipment provided to or purchased by the Contractor with contract funds shall become property of the Agency upon termination and shall be submitted to the agency as soon as practicable.

5. Appropriations. The terms of this Agreement are contingent upon sufficient fiscal year

appropriations and authorization being made by the Legislature of the State of New Mexico for the performance of this Agreement. If sufficient fiscal year appropriations and authorization are not made by the Legislature, this Agreement shall terminate immediately upon written notice being given by the Agency to the Contractor. The Agency's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. If the Agency proposes an amendment to the Agreement to unilaterally reduce funding, the Contractor shall have the option to terminate the Agreement or to agree to the reduced funding, within thirty (30) days of receipt of the proposed amendment.



6. Status of Contractor. The Contractor and its agents and employees are independent contractors

performing professional services for the Agency and are not employees of the State of New Mexico. The Contractor and its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits afforded to employees of the State of New Mexico as a result of this Agreement. The Contractor acknowledges that all sums received hereunder are reportable by the Contractor for tax purposes, including without limitation, self-employment and business income tax. The Contractor agrees not to purport to bind the State of New Mexico unless the Contractor has express written authority to do so, and then only within the strict limits of that authority.



7. Assignment. The Contractor shall not assign or transfer any interest in this Agreement or

assign any claims for money due or to become due under this Agreement without the prior written approval of the Agency.

8. Subcontracting. The Contractor shall not subcontract any portion of the services to be

performed under this Agreement without the prior written approval of the Agency.

9. Release. Final payment of the amounts due under this Agreement shall operate as a

release of the Agency, its officers and employees, and the State of New Mexico from all liabilities, claims and obligations whatsoever arising from or under this Agreement.

10. Confidentiality. Any confidential information provided to or developed by the Contractor in the

performance of this Agreement shall be kept confidential and shall not be made available to any individual or organization by the Contractor without the prior written approval of the Agency.

11. Product of Service -- Copyright. All materials developed or acquired by the Contractor under this Agreement

shall become the property of the State of New Mexico and shall be delivered to the Agency no later than the termination date of this Agreement. Nothing developed or produced, in whole or in part, by the Contractor under this Agreement shall be the subject of an application for copyright or other claim of ownership by or on behalf of the Contractor.

12. Conflict of Interest; Governmental Conduct Act. The Contractor warrants that it presently has no interest and shall not acquire

any interest, direct or indirect, which would conflict in any manner or degree with the performance or services required under the Agreement without the written consent by the Director of RMD. Prior disclosure of conflicts of interest shall be a condition precedent, and failure to disclose shall be grounds for subsequent contract termination. The Contractor certifies that the requirements of the Governmental Conduct Act, Sections 10-16-1 through 10-16-18, NMSA 1978, regarding contracting with a public officer or state employee or former state employee have been followed.

13. Amendment. This Agreement shall not be altered, changed or amended except by instrument

in writing executed by the parties hereto, except that amendments to Exhibits to the Agreement may be made by instrument in writing executed by the Agency and the Contractor.



14. Merger. This Agreement incorporates all the Agreements, covenants and understandings

between the parties hereto concerning the subject matter hereof, and all such covenants, Agreements and understandings have been merged into this written Agreement. No prior Agreement or understanding, oral or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement.

15. Penalties for violation of law. The Procurement Code, Sections 13-1-28 through 13-1-199, NMSA 1978,

imposes civil and criminal penalties for its violation. In addition, New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks.

16. Equal Opportunity Compliance. The Contractor agrees to abide by all federal and state laws and rules and

regulations, and executive orders of the Governor of the State of New Mexico, pertaining to equal employment opportunity. In accordance with all such laws of the State of New Mexico, the Contractor assures that no person in the United States shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with, or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed under this Agreement. If the Contractor is found not to be in compliance with these requirements during the life of this Agreement, the Contractor agrees to take appropriate steps to correct these deficiencies.

17. Applicable Law. The laws of the State of New Mexico shall govern this Agreement, without

giving effect to its choice of law provisions. Venue shall be proper only in a New Mexico court of competent jurisdiction in accordance with Section 38-3-1 (G) NMSA 1978. By execution of this Agreement, the Contractor acknowledges and agrees to the jurisdiction of the courts of the State of New Mexico over any and all lawsuits arising under or out of any term of this Agreement.

18. Workers Compensation. The Contractor agrees to comply with state laws and rules applicable to

workers compensation benefits for its employees. If the Contractor fails to comply with the Workers Compensation Act and applicable rules when required to do so, this Agreement may be terminated by the Agency.

19. Records and Financial Audit. The Contractor shall maintain detailed time and expenditure records that

indicate the date; time, nature and cost of services rendered during the Agreement’s



term and effect and retain them for a period of three (3) years from the date of final payment under this Agreement, or three (3) years after the close of the state fiscal year in which the payment was made, whichever is later. In no event shall any records be destroyed without the written approval of the Director of RMD. The records shall be subject to inspection by the Agency, the Department of Finance and Administration and the State Auditor. The Agency shall have the right to audit billings both before and after payment. Payment under this Agreement shall not foreclose the right of the Agency to recover excessive or illegal payments.

20. Indemnification. The Contractor shall defend, indemnify and hold harmless the Agency and the

State of New Mexico from all actions, proceedings, claims, demands, costs, damages, attorneys’ fees and all other liabilities and expenses of any kind from any source which may arise out of the performance of this Agreement, caused by the negligent act or failure to act of the Contractor, its officers, employees, servants, subcontractors or agents, or if caused by the actions of any client of the Contractor resulting in injury or damage to persons or property during the time when the Contractor or any officer, agent, employee, servant or subcontractor thereof has or is performing services pursuant to this Agreement. In the event that any action, suit or proceeding related to the services performed by the Contractor or any officer, agent, employee, servant or subcontractor under this Agreement is brought against the Contractor, the Contractor shall, as soon as practicable but no later than two (2) days after it receives notice thereof, notify the legal counsel of the agency and Contractor's RMD Supervising Attorney immediately.

21. New Mexico Employees Health Coverage.A. If Contractor has, or grows to, six (6) or more employees who work, or who

are expected to work, an average of at least 20 hours per week over a six (6) month period during the term of the contract, Contractor certifies, by signing this agreement, to:

(1) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than July 1, 2008 if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed one million dollars or;

(2) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than July 1, 2009 if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed $500,000 dollars or;



(3) have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees no later than November 1, 2011 if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed $250,000 dollars.

B. Contractor agrees to maintain a record of the number of employees who have (a) accepted health insurance; (b) declined health insurance due to other health insurance coverage already in place; or (c) declined health insurance for other reasons. These records are subject to review and audit by a representative of the state.

C. Contractor agrees to advise all employees of the availability of State publicly financed health care coverage programs by providing each employee with, as a minimum, the following web site link to additional information: http://insurenewmexico.state.nm.us/.

D. For Indefinite Quantity, Indefinite Delivery contracts (price agreements without specific limitations on quantity and providing for an indeterminate number of orders to be placed against it); Contractor agrees these requirements shall apply the first day of the second month after the Contractor reports combined sales (from state and, if applicable, from local public bodies if from a state price agreement) of $250,000, $500,000 or $1,000,000, depending on the dollar value threshold in effect at that time.

22. Invalid Term or Condition. If any term or condition of this Agreement shall be held invalid or

unenforceable, the remainder of this Agreement shall not be affected and shall be valid and enforceable.

23. Enforcement of Agreement. A party's failure to require strict performance of any provision of this

Agreement shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision. No waiver by a party of any of its rights under this Agreement shall be effective unless express and in writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights.

24. Notices. Any notice required to be given to either party by this Agreement shall be in

writing and shall be delivered in person, by courier service, or by U.S. mail, either first class or certified, return receipt requested, postage prepaid, as follows:


http://insurenewmexico.state.nm.us/


To the Agency:

Via Hand Delivery:Director, Risk Management Division NM Risk Management DivisionJoseph Montoya State Office Building(corner of Cordova Road and St. Francis Drive)1100 St. Francis Drive, Suite 1004Santa Fe, NM 87501

Via Mail:Risk Management Division DirectorNM Risk Management DivisionPO Box 6850Santa Fe NM 87502-6850

To the Contractor:

*3 [insert name]*4 [insert address]

25. Authority. If the Contractor is other than a natural person, the individual(s) signing this

Agreement on behalf of the Contractor represents and warrants that that individual has the power and authority to bind the Contractor, and that no further action, resolution, or approval from the Contractor is necessary to enter into a binding contract.

26. C ase/Claim Assignments . This Agreement does not constitute a grant to the contractor of any right to handle any specific case or any specific number of cases. RMD may, in its sole discretion, assign or reassign cases as it deems expedient. By signing this Agreement, RMD does not guarantee the Assignment of any cases or any payment under thin Agreement. Whenever the Contractor is assigned a case by RMD but decides it is unable or unwilling to accept the case assignment, the Contractor shall promptly enter an appearance and protect the rights of RMD and its insured until substitute counsel is assigned.

27. Dissolution of Contractor. If the Contractor law firm is dissolved, or if an attorney who is an employee or partner of the Contractor to whom RMD has assigned a case leaves the firm, RMD may, in its sole discretion, elect to: a) contract with the original attorney to continue handling the case; b) reassign the case to another attorney in the firm; or c) reassign the case to counsel of RMD's choosing. If the Contractor law firm is dissolved, RMD reserves the right to amend or refrain from amending the Agreement in RMD’s sole discretion.



28. Copies of Pleadings. The Contractor shall provide RMD with electronic copies (in a software format determined by RMD) of pleadings, briefs, legal memoranda or other documents prepared or received by the Contractor in the Contractor’s possession in every matter handled pursuant to this Agreement.

29. Recurring Documentation. For each and every matter, unless otherwise waived, the Contractor shall prepare and provide RMD with a Work Plan/Litigation Budget, a narrative Litigation Risk Analysis, Quarterly Reports, and a Root Cause Analyses according to the terms and procedures contained in Exhibit B (Billing Guidelines) to this Agreement, which is incorporated herein by reference. However, RMD reserves the right to amend all forms used for these purposes as determined by RMD.

30. Pro Bono Requirement. To reduce future risk, the Contractor shall provide, at the request of the Agency, four (4) hours of pro bono post-litigation root cause debriefing, training, or other legal advice or consultative services per case to the Agency, or to state agencies or others identified by the Agency.

31. Retention of this Agreement. An original copy of this Agreement with exhibits and any original written amendments hereto shall be retained by the Agency for six (6) years after the termination date of the Agreement. (Section D of rule 1.15.4.307 NMAC)

32. Additional Insurance Coverage. The Contractor shall procure and maintain in full force and effect during the terms of this Agreement additional insurance as required herein. Companies authorized to write such insurance in New Mexico shall write policies of insurance. The Contractor shall furnish RMD copies of certificates of required insurance in a form satisfactory to RMD (or copies of insurance policies if RMD so requests). All certificates of insurance (or policies) shall provide that thirty (30) days written notice be given to RMD before a policy is canceled, materially changed or not renewed. Various types of required insurance may be written in one or more policies.

i. Professional Liability Insurance. The Contractor shall procure and maintain during the term of this Agreement professional liability insurance in an amount of not less than $1,000,000 per occurrence, including defense costs. Such insurance shall have no greater than a $10,000 deductible unless a different form of security is specifically accepted in writing by RMD. The amount of any deductible shall be stated in writing.

ii. Comprehensive General Liability. The Contractor shall procure and maintain during the life of this Agreement a comprehensive general liability and automobile insurance policy with liability limits in amounts not less than $1,000,000 combined single limit of liability for bodily injury, including death, and property damage



in any one occurrence. Said policies of insurance shall include coverage for all operations performed for RMD by the Contractor.

iii. Possible Future Increase in Limit Amounts. If, during the term of this Agreement, the Legislature of the State of New Mexico increases the maximum limits of liability under the Tort Claims Act, Sections 41-4-1 through 41-4-27 NMSA 1978, RMD may require the Contractor to increase the maximum limits of any insurance required herein.

33. Legal defense contracts; renewal. As expressly permitted by New Mexico statutory Section 15-7-10 (A) NMSA 1978, but subject to the power of the Risk Management Advisory Board to approve a non-renewal of an existing contract according the procedures and provisions of New Mexico statutory Sections 15-7-10 (B) and (C) NMSA 1978, any valid contract between the risk management division and any law firm, to defend claims against the state or any of its public employees pursuant to Subsection B of Section 41-4-4 NMSA 1978, shall be automatically extended for the purpose of and as long as necessary for completing and concluding any matter in litigation, including appeals, referred to the firm for defense prior to the termination date stated in the contract or any applicable amendment thereto. Automatic renewal pursuant to this section applies only to matters which were in litigation and were referred to the law firm prior to the contract termination date and does not apply to regular contract renewals. This term does not affect the director's discretion to assign or to terminate a prior assignment and reassign any matter to any law firm.



IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date of signature by the DFA Contracts Review Bureau below.

By: Date:______________Ed Burckle, SecretaryState of New Mexico General Services DepartmentAGENCY

By: __________________________________ Date:______________Jay Hone, General Counsel State of New Mexico General Services Department(Certifying legal sufficiency)

By: Date:______________Jay Hone, DirectorRisk Management Division

By: Date: _______________*3*2CONTRACTOR

The records of the Taxation and Revenue Department reflect that the Contractor is registered with the Taxation and Revenue Department of the State of New Mexico to pay gross receipts and compensating taxes.

ID Number: [ 00-000000-00-0]

By: Date:_______________Taxation and Revenue Department

This Agreement has been approved by the DFA Contracts Review Bureau:

By: Date:_______________



DFA Contracts Review BureauGoals and Performance Measures

The following Performance Measures are required by paragraph 1 ("Scope of Work"), subparagraph C ("Performance Measures") of this Agreement and are incorporated therein by reference. These Performance Measures may be amended from time to time by RMD upon written notification to the Contractor. In light of the mission contained in the Risk Management Division's strategic plan "To protect and conserve the State of New Mexico's . . . financial assets by providing . . . legal defense", the Contractor must provide professional and competent legal representation of governmental entities, educational institutions, public employees and others within RMD’s scope of responsibilities as set forth in the New Mexico Tort Claims Act, NMSA 1978, Sections 1-4-1 et seq.

Objectives

The purpose of the criteria contained in the "Activities" section, below, is to evaluate the Contractor to determine whether the Contractor is providing the best legal services ("protecting" financial assets) at a reasonable cost ("conserving" financial assets).

Activities

An evaluation of the Contractor's services that have been delivered under this Agreement will be undertaken by the RMD Supervising Attorney from time to time in the discretion of the RMD Legal Bureau. The Contractor's evaluation will be based on the quality of performance undertaken in one or more closed case(s) that are chosen in the discretion of the RMD Supervising Attorney in accord with RMD procedures. The following factors will be evaluated:

1. Does the Contractor have sufficient staff to provide the best legal services on this case? This item is evaluated by reviewing:(a) the number of attorneys listed on Exhibit A; (b) the number of attorneys who work on RMD cases; and (c) the current number of RMD cases that are pending with law firm.

2. Does the Contractor have a particular expertise with the covered entity/individual employee being sued or with the type of case?

3. What is the type of case being litigated (primary cause of action), e.g., administrative (SPO, EEOC or HRC); assist; police liability; civil rights; highway/maintenance; medical malpractice; jail; premise liability; and general tort?



4. How many motions were filed, including motions to dismiss or motions for summary judgment? Was there a favorable result from the motions?

5. How much money was spent on trial, if any? Was there a favorable result at trial?

6. Was the case appealed, and if so, was the appellate decision favorable?

7. What was the total amount spent on attorney’s fees?

8. What was the total amount spent on discovery costs?

9. What was the final settlement amount? What was the approved settlement authority amount? If the case settled for less than the approved settlement authority amount, what was the savings to the public liability fund?

10. Did the Contractor comply with the terms of the Agreement and were any exceptions noted during the pendency of the case?

Factors to be evaluated in this area include:

* Submitting adequate, accurate, and timely work plans, litigation risk analyses, litigation budgets, quarterly reports, and root cause analyses according to the deadlines and procedures contained in the contract.

* Keeping RMD Claims Administrators and RMD Supervising Attorneys informed about the status of assigned cases, and comply with the case-specific requirements and procedures communicated to the Contractor by RMD.

* Abiding by the billing practices and procedures of RMD, and cooperating with RMD staff in the review of all bills or invoices for services delivered and submitted for payment.

* Keeping RMD Claims Administrators and RMD Supervising Attorneys timely informed of all scheduled settlement conferences, hearings, and trials.

* Routinely providing RMD Claims Administrators and RMD Supervising Attorneys with electronic copies (in a software format determined by RMD) of pleadings, briefs, legal memoranda or other documents prepared or received by the Contractor in the Contractor’s possession in any matter handled pursuant to this Agreement.



EXHIBIT Ato Professional Services Agreement

CONTRACTOR AUTHORIZED BILLING RATES

NAME TITLE HOURLY RATE

RISK MANAGEMENT DIVISION: CONTRACTOR:

By:______________________ By:_______________________[printed name] [printed name]RMD Director Contractor

Date:____________________ Date:_____________________

(For the procedures to amend an existing Exhibit A, refer to Section VII.A.2. of Exhibit B, supra.


EXHIBIT B to the Professional Services Agreement

BILLING GUIDELINES

I. INTRODUCTIONThis Exhibit B contains the billing practices and procedures that must be used by the Contractors. RMD continually reviews and updates billing practices and procedures, and general guidelines and welcomes any suggestions from a Contractor to further limit and control costs. The Contractor must follow these guidelines in all respects.

A. These billing practices and procedures also govern RMD expert witnesses, consultants and other third parties hired by the Contractor to perform services on an RMD-assigned case. In such instances, the references in these guidelines to attorneys, law firms, and the like, apply to such third parties. (Note: out-of-state third party law firms hired by the Contractor pro hac vice and solely for purposes of allowing the Contractor to mount a defense in a foreign jurisdiction may be exempt from this vicarious application of the billing practice and procedures, in the discretion of the RMD Supervising Attorney.)

B. RMD maintains effective partnerships by staying actively involved with its Contractors throughout the entire course of the representation. RMD reserves the right to add to, delete from, and/or modify these practices and procedures at any time. Any such modifications become effective upon Contractor's receipt of written notification from RMD.

II. GENERAL PRINCIPLES

A. For purposes of contract oversight, one partner must be identified as the principal contact with RMD, who shall be responsible for RMD contract matters.

B. With rare exception, the same lawyer(s) must handle a matter from beginning to end, avoiding the need for reeducation and creating a team with an enhanced knowledge of RMD matters. Exception from this principle must be obtained from the RMD Supervising Attorney.

C. The Contractor must use the most appropriate and most cost-effective staffing (attorneys, paralegals, clerks, etc.) for all cases. Keep in mind that in some cases, it may be more cost-effective for a partner to undertake a task, making sure that other tasks are appropriately delegated down to personnel with the requisite experience.


EXHIBIT Bto Professional Services Agreement

BILLING GUIDELINES (Continued)

D. The Contractor should utilize RMD expertise and resources available including the use of RMD Claims Administrators, RMD Supervising Attorneys, and RMD-contracted investigators and adjusters. With regard to legal research, RMD research memoranda on various topics may be available for use by Contractors during the course of the representation. Prior to undertaking any major research requiring more than three hours of professional time, Contractors are asked to consult with its RMD Supervising Attorney to obtain any RMD research memoranda on the topic, if any.

E. With regard to discovery, no documents should be produced without a thorough review by the Contractor and without due consideration being given to the preparation of a protective order or stipulation, if appropriate.

F. With regard to pleadings, if the Contractor has previously drafted a substantially similar pleading, RMD will pay only for the amount of time necessary to modify the pleading, not the time incurred to draft the original document.

G. RMD requires that all work product and financial records substantiating the Contractor's billed tasks, including research notes, memoranda and pleadings, be retained for a period of ten (10) years. If requested, all time sheets, pre-bills, billing memoranda, and other documentation associated with any billing statement shall be submitted to RMD.

III.COMMUNICATION

A. With rare exceptions, RMD requires e-mail communication due to its quick, efficient and paperless nature. All e-mailed correspondence sent to RMD must display the RMD claim number.

B. In the RMD Letter of Representation, RMD will appoint an RMD Claims Administrator and an RMD Supervising Attorney as the Contractor’s RMD contacts. This RMD Claims Administrator has the ultimate responsibility for the assigned claim and will be the person with whom attorneys will have their primary claims adjuster working relationship in terms of approval of costs, settlement authority requests, and other day-to-day claims adjuster issues. Questions of legal import, litigation strategy, attorney impressions, work product, and contract oversight and administration should be directed to the RMD Supervising Attorney.




C. The Contractor must routinely provide RMD Claims Administrators and RMD Supervising Attorneys with electronic copies of pleadings, briefs, legal memoranda or other documents prepared by or received by the Contractor in the Contractor’s possession in every matter handled pursuant to this Agreement. If the Contractor possesses only the hard copy, the document must be scanned and then transmitted to RMD electronically. Sending duplicate hard copies of electronically transmitted documents is strongly discouraged.

IV. CONFLICTS OF INTEREST

Since the State of New Mexico has a broad array of interests, it is required to identify direct conflicts of interest posed by your representation of the State, its entities and employees. It is equally important that you be concerned with indirect, but nevertheless serious, conflicts that may arise from your firm’s advocacy of positions conflicting with important State interests.

A. A conflict of interest check must be performed by the Contractor on each matter assigned to it. RMD requires a prompt investigation and resolution of all potential conflicts, including any issue conflicts that could compromise the State’s position. A written email confirming that a conflict of interest check has been performed must be sent to the RMD Supervising Attorney for every claim assigned to the Contractor.

B. Conflicts of interest must be disclosed to RMD immediately upon discovery of the conflict, and waived, in writing, if possible, prior to beginning work on the matter.

C. The Contractor is further required to disclose any changes to the conflict of interest status during the pendency of representation, and must inform it RMD Supervising Attorney of any activity, which might be viewed as, or trigger, a conflict of interest.

V. MEDIA RELATIONS AND PROMOTION

A. Any RMD-related media inquiry, including RMD’s relationship with the Contractor, must be referred immediately to the Contractor's RMD Supervising Attorney. The Contractor shall not make statements to the media regarding RMD matters without securing advance approval from the General Services Department's Public Information Officer. If time is of the essence and neither the RMD Supervising Attorney nor the General Services Department's Public Information Officer can be reached, call, in the following order, the RMD




Director, the GSD Deputy Cabinet Secretary, or the GSD Cabinet Secretary to discuss the matter prior to making any statement to the media. The telephone number for the RMD Director is (505) 827-0476, and the telephone number for the General Services Department's Office of the Secretary (for the Public Information Officer, the Cabinet Secretary, and the Deputy Cabinet Secretary) is (505) 827-2000.

B. RMD does not authorize the Contractor to advertise or promote its relationship with RMD or the State of New Mexico, other than listing RMD as a client.

VI. ORIGINATION OF LEGAL WORK

All RMD legal work must originate with RMD. In the event any public entity or public employee contacts the Contractor directly, the Contractor shall immediately contact its RMD Supervising Attorney for instructions. Such direct contact is discouraged, and such public entity or public employee must be directed to contact the RMD Property and Casualty Bureau at (505) 827-0440 to request a claim assignment according to normal RMD claim procedures.

VII. BILLING REOUIREMENTS

A. Hourly Billing Rates - General Requirements1. Monthly Due Date and 90-Day Limit. Bills must be submitted monthly on

or before the 10th day of the month following the month that the legal services were rendered or expenses were incurred. (If the 10th day falls on a weekend or a holiday recognized by the State of New Mexico, then bills may be submitted on the next consecutive business day.) RMD reserves the right to refuse payment of bills or invoices that have been submitted over 90 days after the date that the services were rendered or the expenses were incurred.

2. Exhibit A and Amendments Thereto. Per Paragraph 2.B. of the Professional Services Agreement, compensation and hourly billing rates for all personnel who work on a matter are as agreed in the approved Exhibit A. Each individual timekeeper (attorney, law clerk, paralegal or legal assistant) must be listed on Exhibit A. The hourly rate for each timekeeper shall not be revised upward during the course of the Professional Services Agreement. A request to add or delete persons to or from Exhibit A shall be made in an original writing in a letter addressed to the RMD Director and delivered to the RMD Director’s office. The request letter shall provide a business reason that would enable a reasonably




prudent business professional to agree that the request to amend Exhibit A is sufficiently justified. The RMD Director has the sole authority to determine whether the reason to add or delete personnel is sufficiently justified, and may deny the request if deemed insufficient in justification. The RMD Director may not unreasonably withhold approval of sufficiently justified amendment requests, and requests will be considered during the ordinary course of RMD business. When adding new personnel, the request letter must enclose a copy of a resume for each person proposed to be added to the Exhibit A. The RMD Director shall not permit the addition of new professionals to an Exhibit A for the purpose of training an attorney or paralegal to perform RMD legal work. Requests to remove persons from an Exhibit A shall be made in accordance with these procedures, except that no resumes are required. However, a reason shall be given to support the deletion of personnel from Exhibit A. Additions and deletions may and should be made in the same request letter. A substitute proposed Exhibit A shall be prepared by the requesting Contractor firm in original form, signed and dated by the Contractor's authorized representative, and must be submitted as an enclosure to the request letter. The proposed amended Exhibit A shall not become effective unless and until signed by the RMD Director or a representative who may be delegated by her to act on her behalf for this particular purpose. The Contractor shall not automatically bill for work performed by persons who do not currently appear on a firm’s current Exhibit A; such requests for reimbursement shall be denied. The version of the Exhibit A that is actually in effect at the time the work is performed controls.

3. Overhead Included. Hourly billing rates include all items of overhead. Overhead includes all administrative or general costs incidental to the operation of the firm. Overhead expenses shall not be separately reimbursable.

4. One-Tenth Hour Increments. All time records shall represent the actual time required to perform the tasks or activity and shall be kept in time increments of 0.10 (one-tenth) hour.

B. Limitations1. Nine-Hour Per Day Maximum. Unless previously approved by your RMD

Supervising Attorney, and except for trials, hearings, critical depositions, emergency situations, or travel time, no individual who is authorized to work on a matter may bill more than nine (9) hours per day.




2. One-Half Travel Time. Authorized billing personnel may only bill for one-half (1/2) travel time. No travel time will be figured into the "Nine-Hour Per Day" maximum contained in Section VII, Paragraph B.1., above.

3. Per Diem and Mileage. Personnel traveling on RMD business must bill their expenses pursuant to the Department of Finance and Administration rules governing per diem and mileage reimbursement, 2.42.2 NMAC, as may be amended from time to time.

4. In-Firm Conferences not Billable. Unless attended in person or telephonically by the RMD contact, RMD will not pay for intra-office conferences.

5. One-Attorney per Meeting Rule. RMD generally requires that only one attorney attend meetings, conferences, depositions, hearings, trials, and other events, unless otherwise pre-approved by the RMD Supervising Attorney. Without such prior approval, RMD will pay for the attendance of only one attorney at any event.

C. Billing Format, Presentation and The Need for Separately Described Tasks1. RMD Claim Numbers Required. Failure to include the RMD claim number

on invoices may result in delayed payment.

2. Monthly Billing Summary template. A summary template shall be provided to the Contractor by the RMD Supervising Attorney. This coversheet shall be submitted monthly with the Contractor's monthly per-claim invoices, and shall be signed by the authorized representative of the Contractor. The original monthly billing summary document, along with copies of the monthly per-claim invoices, must be submitted via U.S. mail to the RMD Legal Bureau for processing and payment.

3. Invoice Summary. All per-claim monthly invoices shall include a summary thereon listing the name, title, hourly billing rate, and hours billed for each law firm timekeeper. For example a chart such as

Name Title Rate Hr FeeAndy First PTNR $150 10 $1,500.00Beatrice Second ASSOC $ 90 20 $1,800.00

should be included on every claim's monthly invoice.




4. Electronic Invoices/Electronic Monthly Billing Summaries. Electronic copies of monthly Invoices and Monthly Billing Summaries shall be submitted in Microsoft Excel format and shall be sent as an attachment to an e-mail addressed to the Contractor's RMD Supervising Attorney.

5. Invoice Format. All invoices shall indicate the date of the service, a detailed description of the task, the number of hours expended by the authorized timekeeper, and the total amount billed for each item.

a. Descriptions shall identify each task in such a manner as to permit RMD to ascertain the benefit derived from such legal service.

b. Time entries for conferences and telephone calls shall identify the participants and the substance of the communication. For example:

“Conference with F.T.E. Jones to prepare for her deposition on 5/19/94.” – 2.3 hours

c. Time entries for drafting documents shall identify the document by title, subject matter and, where necessary, identify the document by date. For example:

“Draft answers to plaintiffs interrogatories of 4/15/94.” -3.10 hours

d. Time entries for review of documents shall identify the author, title, matter and when necessary, the date. For example:

“Receipt and review of plaintiffs’ reply to RMD’s motion to compel production of documents of 4/30/94.”- 0.60 hours

e. Without more information, generic descriptions such as the following are not acceptable for billing purposes:

attention to matter review case and issues conferencereview correspondencemade arrangements telephone call discoverymotion work




work on project or case pleadingwork on fileprepare for meeting work on discovery receive/review documents

6. Blocked or Lumped Billing Discouraged. RMD greatly discourages the use of blocked or lumped hourly billing except where minimal time is spent on a related activity. Blocked or lumped billing is a billing entry that assigns one amount of time to more than one task.

Examples of blocked billing entries are:

“Prepare for and attend deposition of Professor Smith.” – 4.50 hours.

“Receipt and review of plaintiffs reply to defendant’s motion to compel production of documents of 4/30/94; Conference with F.T.E. Jones to prepare for her deposition on 5/19/94; Draft answers to plaintiffs’ interrogatories of 4/15/94.” - 6.00 hours.

D. Expenses and Costs1. Documentation Required. Copies of documentation for every expense or

cost must accompany every invoice submitted for reimbursement. Failure to submit proper documentation may result in a reduction in a firm’s payment due to unsubstantiated expenses, or may delay monthly payments.

2. Direct Payment of Third-Party Vendor Expenses or Costs. Unless other arrangements are made with the Contractor's RMD Supervising Attorney, RMD will pay directly third-party vendor (investigator, expert witness, consultant, court reporter, printing service, etc.) expenses or costs that have been authorized by RMD and incurred in the defense of a claim. Such expenses or costs shall be paid directly by RMD when the Contractor submits the third-party vendor invoice to the RMD Claims Administrator for payment on the RMD claim. For these expenses or costs, appropriate documentation consists of actual vendor receipts rather than charge account receipts (except for restaurant charges). In connection with this direct payment of third-party vendor costs, the Contractor shall work with the RMD Claims Administrator or RMD Supervising Attorney to ensure that a current original W-9 is on file at RMD for the third-party vendor. If a W-9




is needed, the Contractor shall ensure that the W-9 is sent to the RMD Claims Administrator in due course.

3. Passed-Through Expenses or Costs. If a Contractor determines that it will pay an expense or cost and then later invoice for reimbursement of this expense or cost, each expense or cost item must be separately itemized, showing the date the expense or cost was incurred, a descriptive explanation of the charge, the amount of the charge, and the timekeeper incurring the charge. Other than per diem expenses more specifically addressed below, other reimbursable expenses or costs will be compensated at actual cost. Actual cost is defined as the amount paid, net of any discounts, to a third-party provider of goods or services. Appropriate documentation for reimbursable internal expenses (long distance calls, photocopy charges) shall consist of a daily entry log for long distance telephone calls, including the date, number or person called, the charge for the call, or number of photocopies made. RMD will reimburse for the actual cost incurred for long distance telephone calls including long distance facsimile transmissions. Local travel expenses, such as parking fees, will be reimbursed at actual cost.

4. Expert Witness and Extraordinary Expense Pre-Approval. The Contractor's RMD Claims Administrator and/or RMD Supervising Attorney shall be consulted prior to the retention of any expert. In addition, the RMD Claims Administrator and/or the RMD Supervising Attorney must pre-approve extraordinary expenses such as computerized litigation support services, videotaping depositions, or extraordinary travel. The RMD Claims Administrator approves or rejects request to retain any expert and may approve or reject any request for extraordinary expenses.

5. Courier Services Discouraged. Charges for overnight delivery and courier services shall not be routine and, if utilized, must be authorized by your RMD Supervising Attorney in writing. In this regard, RMD strongly prefers the use of the U.S. Postal Service’s Priority Mail or next day mail.

6. In-Firm Copying Costs. Routine in-firm copying costs will be reimbursed at a rate or 10 cents per copy, black and white or color. Internal documentation of these copy charges must be maintained and provided to RMD upon request.




7. Audit. RMD reserves the right to audit billing statements submitted to RMD by the Contractor and the Contractor shall comply with such an audit request.

E. Non-Reimbursable Expenses1. No Overhead Expenses or Costs. Items of expense considered overhead are

part of the timekeeper's hourly rate, and are not reimbursable. Such overhead expenses include, but are not limited to:a. office rent, b. in-firm conference room rental, c. equipment rental, d. computer software, e. computerized research fees (including, but not limited to, computer

legal research and investigation database access time, downloading or copying fees),

f. office supplies, g. word processing and secretarial time and overtime, h. utilities, i. local transportation, j. local telephone, k. local facsimile transmissions, l. books, m. routine postage, andn. courier fees

2. No Clerical or Administrative Expenses or Costs. The following clerical and administrative costs are also not reimbursable:a. Time spent on routine copying, faxing, filing or retrieving from files,

organization or indexing of pleadings, correspondence or other documents you prepare or receive.

b. Time spent on initial review, listing or copying of incoming mail to determine appropriate routing, filing, etc.

c. Time spent on scheduling appointments, depositions, or meetings, including travel or court reporter arrangements.

d. Surcharged rates by paralegals or other personnel.e. Preparation and review of monthly billing statements.f. More than two hours responding to RMD-ordered auditor inquiries on

any individual matter.g. Time associated with compliance to these practices and procedures or to

any legal audit, either internal or external, of bills and expenses.




h. Unnecessary or unapproved trial preparation (considering imminence of trial, complexity of case, and likelihood of trial).

i. Summer associate time.j. Maintenance of a calendar or tickler system.k. The review of third party billing statements.l. Unauthorized or “we thought you would like to know”

communications.m. Time expended on “canned” research.n. Time associated with investigating conflicts.o. Marketing.p. Clerical time related to reviewing, opening or closing files.q. Charges once a matter is closed or terminated.

3. Reductions to Monthly Invoices. RMD reserves the right to reduce monthly invoices or billings for non-reimbursable expenses, and any challenges to such reductions must be made in writing within 45 days from the date the Contractor receives written notice from RMD of such reduction(s). If no written challenge is made within this 45 day time limit, the reduction(s) shall be deemed acceptable to the Contractor and no further challenge to the reduction(s) may be made.

VIII. STAFFING

Staffing levels shall be appropriate for the complexity of the issues and the expertise of the Contractor. The Contractor shall provide controls so that RMD is not billed for unnecessary work.

A. Attorneys1. Attorney in Charge. One (1) experienced attorney shall have ultimate

responsibility for making staffing and other decisions for every assigned matter. The level of expertise of every attorney working on a matter shall be appropriate to the complexity of the tasks required. Partners shall not bill for tasks that can be performed by associates at a lower cost. Similarly, associates shall not bill for tasks that can be more economically accomplished by paralegals. RMD will not compensate the Contractor firm for one timekeeper redoing the work of another. The Attorney in Charge shall identify to the RMD Supervising Attorney any other of the Contractor's attorneys that will work on the matter. The number of additional lawyers may depend on the number, and complexity, of the issues. RMD matters shall not be used for the purpose of training inexperienced professionals. RMD requires that the attorneys selected for




the representation team possess the requisite knowledge of the general legal concepts associated with the issues existing in the matter. The Attorney in Charge shall explain the role of each proposed additional attorney, and the RMD Supervising Attorney shall approve or reject same. The Attorney in Charge shall be aware of what work is being done, who is doing the work, personally approve the work, and track how much time is being spent on the work. The Attorney in Charge shall ensure that all work is useful and efficiently performed. Research shall be related to specific issues and shall not be of a general or background nature. Copies of all research memoranda shall be forwarded to the RMD Supervising Attorney. The Attorney in Charge shall review and be able to explain all invoice charges and expense and cost reimbursement requests.

2. Amendments or Revisions to Exhibit A. Firms may submit written requests to amend or revise Exhibit A during the term of the Agreement, following procedures determined by the RMD Director. Requests to add personnel shall include resumes and indicate the hourly rate at which the firm intends to bill any such individual’s time. Requests cannot be made to increase the hourly rates of extant personnel listed on an already existing Exhibit A; hourly rates must remain unchanged during the term of the Agreement. RMD will review all requests to amend or revise an Exhibit A, and will decide whether an amendment is approved.

B. ParalegalsThe appropriate use of paralegals is encouraged; however, payment for paralegal time is limited to those activities requiring their special expertise and does not extend to clerical tasks, unless approved in advance. Paralegals must be pre-approved and listed in Exhibit A.

C. Other PersonnelRMD will pay only for the substantive legal services of lawyers and paralegals. RMD will not pay for the services of law clerks or summer associates without prior written approval, nor will it pay for the services of librarians, file clerks, data entry clerks, secretaries, word processing operators, computer personnel, or messengers.

D. Getting Up-to-SpeedRMD will not pay for time spent familiarizing a new lawyer with the case if occasioned by a staffing change within the Contractor law firm. RMD will not pay for substituted personnel or reeducation costs due to law firm attrition.




E. Changes in Contractor Personnel; Retention of the Firm1. Attorneys Leaving the Firm. Whenever an attorney leaves the

Contractor law firm, the Contractor law firm shall notify RMD immediately. RMD reserves the right to keep assigned cases with the departing attorney or with the Contractor law firm. No attorney or other professional should assume that any RMD matter would move to their new law firm.

2. RMD Controls Claim Assignments. RMD reserves the right to discontinue any retention of any assigned matter at any time, with or without cause. RMD’s sole obligation upon discontinuing any assigned matter with the Contractor shall be to reimburse the Contractor, in accordance with these billing practices and procedures, for work previously completed and costs actually incurred. The Contractor hereby agrees to cooperate, and assist, with RMD in the transition of any matter including the forwarding of files and other materials.

IX. RECURRING DOCUMENTATION

RMD must be able to discern the contribution made to a matter by each task appearing on the billing statement from your law firm. In that vein, the Contractor shall submit via email attachments to both its RMD Claims Administrator and its RMD Supervising Attorney the following recurring documentation:

A. Work PlanThe Contractor shall submit a Work Plan within sixty (60) days of assignment of the case. The Work Plan shall detail the litigation strategy to be undertaken to defend the matter, including dispositive motions, discovery, and settlement procedures. Early settlement is strongly encouraged whenever practical. Timely and meaningful settlement evaluations shall be included as part of the Contractor's Work Plan. A sample Work Plan/Litigation Budget (Form 1) is attached to this Exhibit B.

B. Litigation BudgetWhen, in the estimation of the Contractor, legal fees are anticipated to exceed $25,000.00, a Litigation Budget shall be submitted. For matters expected to proceed to trial, the budget must include a briefing plan for dispositive, partially dispositive, or in limine motions as well as a draft pretrial preparation schedule. Once the budget has been submitted, the Contractor shall notify the RMD Supervising Attorney contact well in advance if there is a possibility that legal fees will exceed the budget. Without prior approval, fees in excess of the




Contractor's budget may not be paid. The Litigation Budget shall be submitted along with the Work Plan within sixty (60) days of case assignment. A sample Work Plan/Litigation Budget (Form 1) is attached to this Exhibit B.

C. Narrative Litigation Risk AnalysisA narrative Litigation Risk Analysis ("LRA") shall be submitted at least 3 calendar weeks (21 calendar days) before any settlement proceeding. (If this day falls on a weekend or a holiday recognized by the State of New Mexico, then the LRA may be submitted on the next consecutive business day.) The LRA narrative will detail the key issues to be addressed, minimizing unnecessary and inappropriate steps which will not further overall goals. The LRA is for internal RMD use only and shall not be provided by the Contractor to any other person or entity, including real parties in interest. Because the LRA contains privileged and confidential attorney impressions and litigation strategy, it is intended that the LRA be protected from disclosure by the applicable attorney work product rules. A sample Litigation Risk Analysis (Form 2) is attached to this Exhibit B.

D. Quarterly Reports For each matter, and based on the State of New Mexico fiscal year beginning on July 1 each year, the Contractor shall submit quarterly reports within 20 days of the fiscal quarters ending October 1, January 1, April 1, and July 1 of each year. These Quarterly Reports assist RMD in evaluating cases and adjusting reserves. Quarterly reports may repeat important information submitted in prior reports, and shall provide updates as to the most recent activity and shall advise RMD of any important upcoming events. A sample Quarterly Report (Form 3) is attached to this Exhibit B.

E. Root Cause AnalysisTo reduce future risk, a Root Cause Analysis ("RCA") must be prepared and submitted via email within 10 days of the filing of a final order of dismissal and under the following circumstances: (1) a threshold settlement amount of $10,000.00 is reached, exclusive of attorneys fees and costs/expenses; and (2) the represented party is a public entity, not an individual public employee. In addition to providing the RCA to the RMD Claims Administrator and the RMD Supervising Attorney, the RCA must also be provided to the executive head of the public entity and to the general/chief counsel of the public entity, if any. A sample Root Cause Analysis (Form 4) is attached to this Exhibit B.




X. CONDUCT OF ASSIGNMENTS

A. Early Settlement Evaluations and Motion PracticeEarly settlement is strongly encouraged whenever practical. Timely and meaningful settlement evaluations shall be included as part of the Contractor's Work Plan. Early settlement or other expedited, dispositive resolution activities shall be undertaken wherever possible while protecting the State of New Mexico’s interests. The Contractor shall refrain from motion practice unless there is a clear, tactical advantage to the filing of the motions. Questions related to litigation strategy shall be directed to the RMD Supervising Attorney.

B. Alternatives to Costly, Protracted LitigationWhenever possible, the Contractor shall engage in alternative dispute prevention and resolution procedures and other settlement, mediation, or arbitration alternative to litigation. A Contractor undertaking early and successful resolution of a dispute may reap greater rewards in terms of firm evaluation by RMD.

C. Ethical ImproprietiesAny ethical improprieties which may have been committed by RMD personnel, other public employees or the Contractor's employees counsel must be reported immediately to the RMD Supervising Attorney or the RMD Director, as appropriate.

D. Firm EvaluationsFrom time to time, the RMD Legal Bureau may conduct Firm Evaluations of the Contractor to evaluate the quality of Contractor compliance with the terms and conditions of the Professional Services Agreement. If requested, the Contractor shall cooperate with RMD Legal Bureau staff during this evaluation process.

APPENDIX B to RFPProfessional Services Agreement Sample

FORM 1 to Exhibit B of the Professional Services AgreementSAMPLE WORK PLAN/LITIGATION BUDGET

The Contractor shall submit a Work Plan and Litigation Budget (if required) within sixty (60) days of the Contractor's assignment of the case.

WORK PLAN AND LITIGATION BUDGET

CONFIDENTIAL COMMUNICATIONATTORNEY/CLIENT AND WORK PRODUCT PRIVILEGES

Case Name:____________________________________________________________

Date Prepared:____________________________________________________________

Please estimate the costs to execute your plan for this matter by completing the following:

Cost by Attorney

Cost by Paralegal

A. Investigation and Preparation of Litigation Risk Analysis (e.g. Witness Interviews; Document Review)

________ ________

B. Initial Pleadings & Amendments (e.g., Answer; Client Contacts) ________ ________

C. Discovery (e.g., Interrogatories; Requests to Produce; Request for Admissions; Preparation for and conduct of Depositions; Responses to Discovery Requests; Discovery Motions) ________ ________

D. Legal Research ________ ________

E. Pre-Trial Motions ________ ________


FORM 1 to Exhibit B of the Professional Services AgreementSAMPLE WORK PLAN/LITIGATION BUDGET

F. Preparation of Expert Witnesses and Meetings With (e.g., Locating and/or Interviewing) ________ ________

G. Settlement Activities ________ ________

H. Pre-Trial Conference ________ ________

I. Trial ________ ________

J. Miscellaneous Services (e.g., Client Contact; Miscellaneous Memos and Correspondence; General Case Administration; etc.) ________ ________

K. Actual Expert Witness Costs ________ ________

L. Costs/Expenses ________ ________

TOTAL ANTICIPATED BILLINGS ________ ________


FORM 2 to the Professional Services AgreementSAMPLE LITIGATION RISK ANALYSIS NARRATIVE

A narrative Litigation Risk Analysis ("LRA") shall be submitted via email to both the RMD Claims Administrator and the RMD Supervising Attorney at least 3 calendar weeks (21 calendar days) before any settlement proceeding. (If this day falls on a weekend or a holiday recognized by the State of New Mexico, then the LRA may be submitted on the next consecutive business day.)

PRIVILEGED AND CONFIDENTIALATTORNEY WORK PRODUCT / ATTORNEY CLIENT PRIVILEGE

DATE: [Date]

TO: RMD Claims Administratorand RMD Supervising Attorney

RE: Confidential Litigation Risk AnalysisLegal Case Name:RMD Claim Number:

Dear [Name(s)]:

I. INTRODUCTION AND RECOMMENDATION

This report describes the status of the above-referenced litigation and furnishes our preliminary evaluation of the liability and damage potential. Based on this analysis, it is recommended that the following action be taken:

II. STATUS OF PROCEEDINGS

Suit was filed in _____________ Court, in ____________ County, on __________, 200_. We are propounding [list discovery, such as “written interrogatories and requests to produce documents”].

III. SUMMARY OF THE FACTS

This case involves . . .

IV. LIABILITY COMMENTS

Our preliminary research indicates that . . .

V. STRENGTHS AND WEAKNESSES OF DEFENSE POSITION

Strengths:



The position of ____________ in this case is strengthened by the following:

1.2.3.4.

These factors should enable us to make a strong case for _________ in . . .

Weaknesses:

___________’s position in this matter is potentially weakened by the following factors:

1.2.3.4.

VI. STRENGTHS AND WEAKNESSES OF CLAIMANT'S POSITION

Strengths:

The position of ____________ in this case is strengthened by the following:

1.2.3.4.

These factors should enable us to make a strong case for _________ in . . .

Weaknesses:

___________’s position in this matter is potentially weakened by the following factors:

1.2.3.4.



VII. ANTICIPATED DISCOVERY

Plaintiff’s Discovery:

We foresee that the Plaintiff will want to depose all _____________ personnel who were involved in . . .

Defense Discovery:

It can be anticipated that _________________’s defense will require extensive discovery and investigation. This will include interviewing and deposing all witnesses, Plaintiff’s experts, etc. Our discovery will include preparation of appropriate interrogatories and requests for production as well as an analysis of Plaintiff’s responses.

VIII. PLAINTIFF’S COUNSEL

Plaintiff’s attorney is from the law firm of _____________________. Their experience is __________________________.

IX. DAMAGE ANALYSIS

The plaintiff is claiming special, general and exemplary damages (as appropriate) in the amount of $_________________ (if stated or quantifiable).

Possible Results and Probabilities:

Attorney fees and costs (both sides):

X. OTHER

XI. CONCLUSION

[Monetary amount requested; other relief requested.]

Very truly yours,

_________________ Attorney at Law


FORM 3 to the Professional Services AgreementSAMPLE QUARTERLY REPORT



QUARTERLY REPORT

JOHN DOE (Plaintiff) v. ROB ROE (Defendant)

RMD CLAIM NO. 1234567-000

As of October 1, 20__ (1st Quarter for FY 20__)

I. CAPTION OF CASE :

II. CASE HISTORY : (In this space, please provide a synopsis of the history of the case).

III. CASE DESCRIPTION : (In this space, please provide a synopsis of the current status of the litigation and a description of all pressing matters. Please emphasize by underlining or marking in bold, all changes per quarter).

First Quarter-Date:

Second Quarter-Date:

Third Quarter-Date:

Fourth Quarter-Date: EVALUATION OF CASE:

(Please explain any significant variation between quarters)

1. Current Quarter Settlement Value:

2. Last Quarter Settlement Value:



3. What is the likelihood of a total defense verdict for this current

quarter?

4. What was the likelihood of a total defense verdict for last

quarter?

IV. CASE INFORMATION :

1. File Date:

2. Area of Law:

3. Court Filed In:

4. Judge(s):

5. Jury Information:

6. Statute of Limitations:

V. RELATED CONTACTS :

1. Opposing Counsel: (Include law firm, address, & phone number)

2. Contract Law Firm: (Include responsible attorney, paralegal, law firm’s address, and phone number)

3. GSD/RMD Supervising Attorney:

4. GSD/RMD Adjuster:

5. Insured Agency: (Include contact, address, and phone number)

6. Investigator: (Include firm, address, and phone number, if applicable)

VI. BILLING INFORMATION :

1. Fees Incurred to Date:



2. Expenses Incurred to Date: (Include travel)

3. Estimated Future Fees:

4. Estimated Future Costs:

NOTE: For numbers 3 & 4, please refer to the figures in the Work Plan and Litigation Budget previously submitted to RMD. If there is a 10% variation from those figures or if there is an anticipated change in those figures please explain.

VII. PLEADINGS, MOTIONS, DISCOVERY, ETC. :(Please attach a current docket sheet.)

Have all hard copies and/or electronic copies of the above documents filed with the Court been submitted to RMD? If not, please attach said documents to this Quarterly Report.

VIII. IMPORTANT DATES

1. Deadlines: (Discovery/Pleadings)

2. Settlement Conferences/Mediations:

3. Trial Dates:

4. Deposition Dates:

To reduce future risk, a Root Cause Analysis ("RCA") must be prepared and submitted via email within 10 days of the filing of a final order of dismissal and under the following circumstances: (1) a threshold settlement amount of $10,000.00 is reached, exclusive of attorneys fees and costs/expenses; and (2) the represented party is a public entity, not an individual public employee. In addition to providing the RCA to the RMD Claims Administrator and the RMD Supervising Attorney, the RCA must also be provided to the executive head of the public entity and to the general/chief counsel of the public entity, if any.



Attached is a sample "Root Cause Analysis Closing Memorandum" that shall be used, along with RCA instructions for your reference.


FORM 4 to the Professional Services AgreementSAMPLE ROOT CAUSE ANALYSIS

ROOT CAUSE ANALYSIS CLOSING MEMORANDUM

PRIVILEGED & CONFIDENTIALATTORNEY WORK PRODUCT

ATTORNEY/CLIENT PRIVILEGE

TO: RMD SUPERVISING ATTORNEYEXECUTIVE HEAD OF PUBLIC ENTITYGENERAL/CHIEF COUNSEL OF PUBLIC ENTITY

FROM: CONTRACTOR LAW FIRM

DATE:

RE: CASE NAME AND CLAIM NUMBERSTATE ENTITY AND/OR STATE EMPLOYEE(S)

As you are aware, RMD settled the above-referenced case for $ . Enclosed is a copy of Judgment dated ____________from Judge _________________.

The following is the Root Cause Analysis for this matter:

PROBLEM:

ROOT CAUSE (and other contributing factors if applicable): This situation would not have occurred had it not been for...



ROOT CAUSE ANALYSIS INSTRUCTIONS

I. INTRODUCTION

The purpose of a root cause analysis is to help guide state entities in thinking about the root causes of the litigation and to help them avoid future legal difficulties. To reduce future risk, a Root Cause Analysis ("RCA") must be prepared and submitted via email within 10 days of the filing of a final order of dismissal and under the following circumstances: (1) a threshold settlement amount of $10,000.00 is reached, exclusive of attorneys fees and costs/expenses; and (2) the represented party is a public entity, not an individual public employee. In addition to providing the RCA to the RMD Claims Administrator and the RMD Supervising Attorney, the RCA must also be provided to the executive head of the public entity and to the general/chief counsel of the public entity, if any.

The following is a simple process for conducting a root cause analysis.

II. TERMINOLOGY

Immediate Cause: The immediate cause of a situation is the action, or action sequence which caused the deviation from the expected behavior or performance.

Root Cause: The root cause is the single, most basic causal factor which, if corrected or removed, will prevent the recurrence of the situation. The root cause creates the setting for the immediate cause to occur. The five key areas that are factors in causing problems are personnel, procedures, equipment, material and the environment.

Contributing Factors: Sometimes there are factors which contribute to the immediate cause. While they may not be the root cause of the problem, they may contribute to the cause and should be identified if possible.

Root Cause Analysis: Root cause analysis is a structured questioning process to identify the basic causal factor. There are a variety of tools to help structure the questioning process.

III. FINDING THE ROOT CAUSE

In some cases, the root cause will be simple to identify. In other cases, it might be hidden and require some investigation. In certain circumstances, it may be



useful to schedule a “post-litigation” meeting with key people to assist in identifying possible causes.

Searching for the root cause is a questioning process. Effective questioning defines the problem and narrows the scope of possible causes by describing, in specific, quantifiable terms, what the problem is, where it exists, when it occurs, what is affected and what has happened. You will know when you have gone too far in your analysis, when you start getting into theology.

Once the root cause of a problem is known, appropriate countermeasures can be chosen to provide a permanent solution.

IV. COMMON TOOLS FOR ROOT CAUSE ANALYSIS

The three most common tools are Questioning to the Void, Event and Causal Analysis and Barrier Analysis.

A. Questioning to the Void

This is a process of asking the question, “why?,” over and over again. You ask, “What is the immediate cause? What caused this? What caused that? Why is this so?” You continue to ask why until your answer brings you to a root cause category.

B. Event and Causal Analysis

An Event and Causal diagram establishes a chronological sequence of events leading to the problem. This diagram provides a visual tool for analyzing the actions back to their roots.

Start by establishing the chronological sequence of thoughts and events which led to the deviation. It is usually best to do this by putting each event on a post-it note and placing these on a wall. This allows you to add or reorder your information with ease.

Once the relevant events have been identified and placed in their proper sequence, you look at each step or action and ask, “What allowed this to happen?”



At each step in the sequence, identify on your diagram, above or below, the additional factors. Continue this process until you have analyzed every block on the diagram and pursued your questioning into categories of root cause.

C. Barrier Analysis

Barriers are administrative and physical controls which will remove or reduce hazards, enforce compliance to requirements, or make targets invulnerable to hazards. Barriers can be physical, such as seat belts and holding dikes, or administrative, such as design controls, drawing controls, procurement controls, training or procedures.

Start by identifying the source of the problem and the target or victim in the situation. Then identify the various barriers that could have or should be protecting the target or victim.

After you have identified the barriers which would have protected the victim or target, assess each to determine where the weakness existed in the system which was the fundamental root cause of the deviation. Other contributing factors may easily come to light.

V. WHICH TOOL TO USE?

In general, Questioning to the Void is effective in almost all situations, and especially for human resources cases, such as affirmative action charges.

Event and Causal Analysis will be the best tool to use in analyzing litigation related to personal injury and property damage.

Barrier Analysis is the most effective tool for dealing with environmental and OSHA related cases.

VI. CATAGORIES OF ROOT CAUSES

The following categories are the most likely to be encountered in your analysis. This list is by no means all-encompassing.

1. Lack of understanding or knowing.2. Failure to follow policy/procedure.3. Inadequate planning and/or review of plans.



4. Inaccurate corporate strategy.5. Lack of communication.6. Lack of preventive maintenance.7. Inadequate design of equipment or system.8. Inadequate assurance of quality of materials used.9. Inattention to detail by people performing a task.10. Placing cost concerns ahead of quality or safety.11. Placing schedule concerns ahead of quality or safety.12. Beliefs ingrained in organization’s culture.13. Extrinsic factors.

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