REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
June 27, 2023
FROM
LEONARD X. HERNANDEZ, Chief Executive Officer, County Administrative Office
SUBJECT
Title
Contract with Jenner & Block LLP for Federal Legislative Advocacy Services
End
RECOMMENDATION(S)
Recommendation
Approve the contract, including non-standard terms, with Jenner & Block LLP, to provide federal legislative advocacy services on behalf of the County, in the amount of $360,000, plus $10,000 in travel expenses, for a total amount not-to-exceed $370,000, for the period of June 27, 2023 through June 26, 2025, with two one-year options to extend.
(Presenter: Brad Jensen, Director of Legislative Affairs, 387-4821)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Promote the Countywide Vision.
Ensure Development of a Well-Planned, Balanced, and Sustainable County.
Provide for the Safety, Health and Social Service Needs of County Residents.
Pursue County Goals and Objectives by Working with Other Agencies and Stakeholders.
FINANCIAL IMPACT
Approval of this contract for federal legislative advocacy services in an amount not to exceed $360,000, plus $10,000 in travel expenses, for a total not-to-exceed $370,000, will not result in the use of additional Discretionary General Funding (Net County Costs). Sufficient appropriation is included in the County Administrative Office recommended 2023-24 budget.
BACKGROUND INFORMATION
The County relies on advocacy services to advance the County’s legislative agenda in Congress and with federal agencies. Approval of this item will authorize the County to enter into a contract with a federal advocacy firm, Jenner & Block LLP (Jenner & Block). The contract with Jenner & Block is for a term of two years at a cost of $370,000 for federal legislative advocacy services, with the option to extend for two additional one-year periods.
Jenner & Block is a national government affairs and law firm with expertise in litigation, investigations, legislative advocacy, and the federal regulatory process. The recommended contract will allow Jenner & Block to perform federal legislative advocacy services and conduct extensive research to identify federal funding opportunities for County departments to pursue and authorize the firm to assist County staff to prepare in advance to apply for federal grants.
The contract with Jenner & Block contains non-standard or omitted terms from the standard County contract. The non-standard and missing terms include the following:
1. Jenner & Block is a law firm but the services to the County will not include legal services and no attorney-client relationship will be formed with the County.
• County standard contracts with law firms generally form attorney-client relationships.
• Potential Impact: There will be no attorney-client privilege regarding any communications between the County and Jenner & Block.
2. All work product prepared by Jenner & Block will be considered the property of Jenner & Block, although the County may request a copy. Jenner & Block does agree to maintain certain information as confidential and not to disclose it to a third party, except if required by law and with notice to the County.
• The County standard contract provides that work product produced by a contractor is owned by the County.
• Potential Impact: The County will not own the work product prepared by Jenner & Block, which could limit the County’s use of the work product for future projects.
3. Jenner & Block can provide legal services to clients in unrelated matters that are adverse or potentially adverse to the County and the County agrees Jenner & Block may continue to represent existing clients or represent new clients in any matter, including litigation, even if adverse to the County, that is not substantially related to the lobbying work. The exception is if Jenner & Block obtained proprietary or confidential information due to its work under this contract.
• County standard contracts with law firms generally require the County’s prior approval of any representation of clients adverse to the County.
• Potential Impact: The law firm may represent clients adverse to the County without the County’s prior approval.
4. Jenner & Block limited its indemnification of the County to only losses judicially determined to have resulted directly from the negligence or intentional misconduct of Jenner & Block.
• The County standard contract indemnity provisions require the contractor to indemnify, defend, and hold the County harmless from third party claims arising out of the acts, errors, or omissions of any person.
• Potential Impact: The limit of the indemnification obligation to judicially determined negligence or intentional misconduct by Jenner & Block means that any claim that does not meet these requirements are excluded from the indemnification obligations.
5. The contract does not include the standard County insurance requirements for waiver of subrogation, deductibles and self-insured retention, and the severability of interests is limited to policies where the County has been named as an additional insured.
• The County standard contract requires contracts to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: No waiver of subrogation may allow Jenner & Block’s insurer to sue the County and the other revisions could result in expenses that exceed the total contract amount.
The County Administrative Office recommends approval of this contract, including the non-standard terms, to allow Jenner & Block to provide federal legislative advocacy services to the County.
PROCUREMENT
On August 26, 2022, Request for Proposal (RFP) No. CAO123-CAO5-4697 was released for federal legislative advocacy services. The RFP was posted on the County’s Electronic Procurement Network (ePro) and distributed to federal advocacy and government affairs firms. Responses to the RFP were received from Potomac Partners DC, Innovative Federal Strategies, and Jenner & Block. Following a thorough interview and evaluation process, Potomac Partners DC and Jenner & Block were selected based on their prior expertise in federal advocacy and their capacity to advance the County’s legislative priorities. No protests were received.
The contract with Potomac Partners DC was approved by the Board of Supervisors (Board) on February 28, 2023 (Item No. 28). Due to a delay in contract negotiations, the Jenner & Block is now being provided separately for the Board’s approval.
REVIEW BY OTHERS
This item has been reviewed by the Office of Legislative Affairs (Brad Jensen, Director of Legislative Affairs, 387-4821) on June 15, 2023; County Counsel (Julie Surber, Principal Assistant County Counsel, 387-5455) on June 14, 2023; Risk Management (Victor Tordesillas, Director, 386-8623) on June 15, 2023; Finance (Erika Rodarte, Administrative Analyst, 387-4919) on June 14, 2023; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on June 15, 2023.