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to the retention of private counsel by the Department. However, it is clear that the retention agreements may be accomplished through negotiation and without advertising pursuant to the provisions of either 41 U.S.C. $256(c) (4), applicable to contracts "for personal or professional services", or 41 U.S.c. $252 (c) (10), applicable to procurement of "services for which it is impracticable to secure competition". Moreover, generally speaking, the federal procurement regulations do not pertain to the procurement of personal or professional services, which is the nature of the retention agreements in question. See, e.g., 41 C.F.R. $1-1.002, which states that the federal procurement regulations apply to the procurement of personal property and "nonpersonal services" and the lease of real estate. In addition, the statute which is the authority for the promulgation of such regulations, the Federal Property and Administrative Services Act of 1949, defines "nonpersonal services" as "such contractual services other than personal and professional services, as the Administrator [of General Services] shall designate." 41 U.S.C. $472(j).

QUESTION 13: Has the Department promulgated any of its own regulations on contracting out for private attorneys under Title 41 and, if so, please provide a copy?

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ANSWER: No.

QUESTION 14: Does Section 1-3. 406-1 of the Federal Procurement Regulations apply to Department contracts for private attorneys? If so, what provisions for "constant government surveillance" are exercised by the Department to control costs and what "ceiling price which the contractor exceeds at his own risk" has been established by the Department? ANSWER: 41 C.F.R. $1-3.406-1 does not apply to the retention agreements between the Department and private lawyers. See 41 U.S.C. $472 (j) and 41 C.F.R. $1-1.002. However, the retention letter currently used by the Department (1) requires the submission of detailed monthly bills; (2) provides for GAO audit of attorney time sheets; (3) places a maximum limit on billable hours per month; (4) limits the maximum hourly fee that may be charged; and (5) limits the services for which attorney's will be compensated to those directly associated with the litigation.

QUESTION 15: Who is the contracting party when the Department provides fees for private attorneys, the attorney or the employee?

ANSWER: The Department's retention letter is an agreement between the Department of Justice and the private attorney. The employee is not a party to such an agreement.

QUESTION 16: If the contract is with the employee how

do the provisions of 18 U.S.C. 205 (2) apply?

ANSWER: Not applicable.

QUESTION 17: If the contract is with the employee,

what are the terms of the contract and what services are

provided by the employee under the contract?

ANSWER: Not applicable.

QUESTION 18: If the contract is with the employee, can

the private attorney enforce the contract?

ANSWER: Not applicable.

QUESTION 19: If the contract is with the employee, on what basis, if any, can the Department supervise the activities of the private attorney?

ANSWER: Not applicable.

SCOPE OF THE ORDER

QUESTION 20: Will the Department provide private counsel to a federal employee sued in his official capacity for acts performed within the scope of his employment under the circumstances set forth in section 50.15(a)(2), (6), (9), and (10) and if not, why not?V

ANSWER: No. A suit against a federal employee in his official capacity as provided for by Rule 25 (d) of the Federal Rules of Civil Procedure, is, in essence, a suit against his office, a part of the United States Government. With regard to representation, the action may for all practical purposes be viewed as an action against a single defendant the government itself. The need for private counsel under the circumstances set forth in $50.15(a)(2), (6), (9), and (10), is premised upon the existence of actual or potential conflict either

1 All references are to the revised order (exhibit 2 at p. 31).

between a government position and a position which ought to

be asserted on behalf of the employee seeking department

representation; or between or among individual defendants in the lawsuit.

Because suits against federal officials in

their official capacities are in essence single defendant

lawsuits

with the only defendant being the government we cannot conceive of a situation where such conflicts would exist insofar as an action is brought against federal officers in their official capacity. To be sure, there will be situations where the various agencies represented by defendants sued in their official capacity may disagree on matters raised by the pending litigation. However, such disagreements should be resolved intra-governmentally and a single, consistent position presented by the government to the Courts, thus obviating the conflict and the resulting need for private counsel.

QUESTION 21: To what extent do the policies set forth in the policy statement describe the Department policy and practice in representing and in retaining private counsel to represent Members, officers, employees, and Committees of Congress and federal judges?

ANSWER: The Statement of Policy with respect to Department of Justice representation of present and former Executive Branch employees does, in general terms, reflect the Department's policy with respect to representation of Members, officers,

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employees, and Committees of Congress as well as federal judges.

QUESTION 22: By establishing a policy of hiring private attorneys to represent federal employees does the Department encourage judges to hold that the Department has a conflict of interests in itself representing such employees as has happened in the case of Allegheny Airlines, Inc. v. U.S.A., (Indianapolis) and as may happen in Aetna Casualty v. U.S.A., now pending in North Carolina?

ANSWER: It is the Department's position and belief

that the judiciary will not be influenced by the Department's policy of hiring private counsel in a very small percentage of the cases where individual federal employees are sued for money damages. On the contrary, we believe that the independence of the federal judiciary will enable the judges to evaluate the question of whether the department has a conflict of interest on the merits of that question and without regard to the somewhat extraneous consideration that the Department has hired private counsel in other instances. QUESTION 23: What types of suits other than civil suits alleging deprivation of constitutional rights have or may require retaining of private counsel?

ANSWER: Virtually any type of personal damage lawsuit, particularly tort actions, could require the retention of private counsel for individual defendants.

While we do not believe

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