Procurement procedures or ADR?

Having just recently taken part in a Department of Interior, Office of Insular Affairs conference on Alternate Dispute Resolution in the Insular Areas, and in particular in government contracting, I was attracted to the following story.

The facts are not entirely clear from the article, but don't need to be for the analytical purposes of this blawg. Let's just assume that the jurisdiction in question offered an ADR process in its local courts which could be availed of in lieu of normal litigation. And let's assume that the law firm in the article was seeking to direct the dispute to that arbitration process rather than go through the legal processes otherwise applicable to the dispute.

Now let's look at the article.

http://www.azcentral.com/arizonarepublic/local/articles/2011/05/21/20110521phoenix-law-firm-bills-for-audit.html

Over the past several years, Maricopa County has paid the law firm $3 million to $4 million to counsel the Sheriff's and County Attorney's offices.

Last September, County Manager David Smith alleged that Ogletree may have improperly expanded the scope of assignments, leading to duplication of legal services and billings. He claimed the firm refused to stop working certain cases, excessively subcontracted with attorneys, acted antagonistically and unprofessionally, promised to pay an expert $1,500 a month whether or not the expert provided any legal services, lacked transparency in billings and did not comply with county policies.

The county held up about $1.1 million in payments to Ogletree until a professional auditor could review its billings. County officials said the firm would not turn over the billings, so the county sued.

An attorney representing the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., had argued that the detailed billing records were protected by attorney-client privilege and asked the judge to order the parties into arbitration or dismiss the case.

A Maricopa County Superior Court judge has ruled that a law firm that represented both the County Attorney's and Sheriff's offices during their battles with county management is required by law to submit its billing records for audit. Judge John Buttrick refused to dismiss the case and ruled that the dispute was not subject to arbitration but rather was subject to the county's procurement rules.

"Did Ogletree perform services outside the scope of their contract?" asked Julie Pace, one of the attorneys for the county.

John Doran, an attorney representing Ogletree, said in a hearing this week that the county was merely trying to obtain information to bolster various investigations into the Sheriff's Office and former County Attorney Andrew Thomas.

"They're deeply involved in this Department of Justice matter, and they would love to force me to open the door," Doran said.

Read more: http://www.azcentral.com/arizonarepublic/local/articles/2011/05/21/20110521phoenix-law-firm-bills-for-audit.html#ixzz1NVX4fD2h

As was examined in the DOI OIA conference, there is a place for ADR in the procurement process, but generally only in post-award contract controversies.

Here, it would appear that the dispute in controversy arises from the scope of the contract, which is a matter examining the solicitation itself, not the performance of the contract properly awarded. If the contract was to provide particular services, the services actually rendered pursuant to the contract would have to be examined, and that inquiry is best handled as a procurement dispute. This is not the usual attorney-client context, it is a principal-contractor context.

Interesting.