$80K spent so far for legal fees over test kit dispute

WEST CHESTER >> Chester County has paid the Philadelphia law firm hired by the commissioners to review the problematic procurement of antibody test kits meant to determine the presence of COVID-19 in participants from an East Whiteland biotech company more than $80,000 for its work, according to a copy of the bill obtained by MediaNews Group.

The invoice, which was paid last month, shows that three attorneys and one paralegal from the firm of Brown, McGarry, and Nimeroff, spent 310 hours over three months on the review, which cost the county a total of $82,035.

The three attorneys involved — partners Mary

Kay Brown, Raymond McGarry, and Jami Nimeroff — each billed the county $375 an hour for their work, while paralegal Coleen Jones billed the county $185 per hour. Brown spent more than 116 hours on the review, while McGarry spent 134 hours.

The invoice, delivered on Dec. 9 and paid by the county within its 30-day time period, was provided to MediaNews Group after a Right-to-Know request. It was heavily redacted, with county Solicitor Nicole Forzato contending that much of the information included fell under exemptions in the state’s Open Records law because it related to a “non-criminal investigation” made by the county.

A county spokeswoman said Friday that the bill was paid using federal Coronavirus Aid, Relief, and Economic Security (CARES) act funds, and not county tax dollars.

The review was commissioned by the county in September to go over not only what occurred in the county’s purchase of 1 million antibody test kits from Advaite, the biotech firm that developed the kits in response to the coronavirus pandemic that overtook the county, state, nation, and world in early 2020 and the resulting COVID-19 infections, but also to offer suggestions on how to better manage such purchases in the future.

The county believed that the test kits could show the presence or absence of coronavirus antibodies and ordered 1 million of the kits from Advaite at a cost of $20 million. However, the county now contends that Advaite never delivered the number of kits it said it would in the time period specified in the purchase order, and canceled the contract in the early summer. Questions about the validity of the test kit results were raised by county Health Department officials later, and the county discontinued using the kits sometime prior to September.

The county has sued Advaite to recover $11 million of the $13 million it has paid the firm, while attorneys for the company have said they believe the county still owes about $7 million in unpaid fees, and have pressed back against refunding the amount already paid.

In a presentation given in January by McGarry about the law firm’s review, no blame was laid at the feet of any county officials or employees for the multi-million dollar fiasco, which has drawn criticism from county politicians and some citizen-advocates.

One of those, West Goshen resident Marge Swart, whose efforts helped uncover the problems with the test kits, said after reviewing the legal bill, however, that, “if the county implements and executes the recommendations outlined in the final report, $82,000 will be money well spent.”

The review cited the unique, urgent and unforeseen nature of the pandemic as its spread across the county and region in early 2020 for precipitating the decision to purchase the test kits, whose effectiveness was later called into question, leading, in part, to the county’s decision to cancel the final payments for the kits.

“Our overall impressions are that the county staff and administration were dealing with an unprecedented situation,” said McGarry during a 10-minute virtual report on the findings his firm arrived at. “Obviously, none of the key players involved had ever been involved in an emergency on the scale or a worldwide pandemic.

“Our review found that nobody acted inappropriately at any time. There was nothing criminal or unethical in the way any county employee conducted themselves in association with the Advaite matter,” he said. “It was a fast-paced, emergent, and constantly changing and evolving situation, in which we believe that everybody involved worked with the best interest of the county citizens in mind.”

Both the Brown firm and county Controller Margaret Reif, whose office is conducting its own internal review of the matter, provided the commissioners with a set of recommendations and suggestions as to how to rework the county’s procurement system not only so it would be more effective and transparent, but also so it could respond efficiently in future emergencies.

Those suggestions from McGarry include a centralized purchasing system under the authority of the county’s Procurement and General Services Department; a comprehensive purchasing policy reviewed on an annual basis to assure it follows all legal requirements; and regular review of all terms and conditions contained on purchase orders and contracts by the county Solicitor’s Office.

In addition, the counsel’s review recommended “a written policy and clear procedures on how to integrate and coordinate the work of the Health Department and the work of (the Department of) Emergency Services, with clearly defined roles and reporting structures. They also said that the Public Health Physician of the county Health Department needs to be a full-time, rather than parttime position.

On Friday, county Communications Director Rebecca Brain said county Administrator Bobby Kagel is working with county department heads and staff to enact many of the firm’s recommendations, and is expected to provide an update on actions at the next commissioners’ public work session, on Feb. 17.

In addition to this, Brain said the county Solicitor’s Office has reviewed purchase order terms and conditions and contract templates; acquired an inventory management software solution, installation and configuration of which are in process; completed a resource management and logistics annex and a stockpile annex as part of the county’s Emergency Operations Plan; and, for the first time ever, moved the county’s Public Health Physician to a fulltime position.

In addition, in 2020, the commissioners approved the county’s first Ethics Policy governing staff and officials, she noted.

The seven-page bill from the Brown firm lists 97 charges to the county, for review of documents, discussions with Forzato and between the firm partners, and interviews with various people whose identities have been blacked out for confidentiality purposes. It also charges the county with the time McGarry sent preparing for the Jan. 21 presentation to the commissioners.

Fees charged ran from a low of $37 for a Sept. 23 session between Forzato and Jones, the paralegal, to highs of $3,262 for more than eight hours of interviews of individuals by McGarry and Brown on Oct. 14.

In all, the firm charged the county $50,550 for McGarry’s work, $43,650 for Brown’s, $7,687 for Nimeroff’s, and $7,492 for Jones’ work.