04. FFDG Special Terms and Conditions for Outside Counsel (Rev 01-25) - final.pdf

FFDG SPECIAL TERMS AND CONDITIONS FOR OUTSIDE COUNSEL (Rev 01/25) Page 1

ENCLOSURE 1

FERMI FORWARD DISCOVERY GROUP, LLC (FFDG)

SPECIAL TERMS AND CONDITIONS FOR OUTSIDE LEGAL COUNSEL

LEGAL MANAGEMENT REQUIREMENTS

These Special Terms and Conditions for Outside Counsel set forth billing, case management, and other requirements for the Law Firm (referred to herein as "the Firm") to represent

Fermi Forward Discovery Group, LLC (FFDG). FFDG is a not-for-profit entity that manages and operates the Fermi National Accelerator Laboratory (Fermilab) for the United States

Department of Energy (DOE) under prime contract number 89243024CSC000002.

FFDG’s prime contract with the U.S. Department of Energy became effective January 1, 2025 upon the December 31, 2024 expiration of the Fermi Research Alliance, LLC (FRA) prime contract to manage and operate the Fermi National Accelerator Laboratory. FFDG’s prime contract requires continuity of operations for Fermilab. FFDG is managing legal engagements relating to the now expired FRA prime contract and this engagement may relate to matters arising under the FRA prime contract.

As a prime contractor with DOE, FFDG is subject to the DOE Contractor Legal Management

Requirements prescribed at 10 CFR Part 719. FFDG is required to obtain DOE approval for such things as legal engagements, attorney staffing changes, attendance of multiple attorneys at meetings or events, legal services invoices, and certain settlements or legal positions.

Obtaining these approvals requires sufficient planning and advance communication between

FFDG and the Firm. By entering into this engagement, the Firm agrees to assist FFDG in complying with this regulation, including the cost and billing guidelines in subpart D of the rule and in any supplemental guidance distributed by DOE thereunder. FFDG expects the Firm to carefully review 10 CFR 719 and to provide its legal services, deliverables, and billings in compliance with those requirements.

FFDG also is subject to certain provisions of the Federal Acquisition Regulations (FAR) and the

Department of Energy Acquisition Regulations (DEAR). A number of the FAR and DEAR provisions apply to FFDG’s engagement of firms to provide services. The relevant requirements for legal services are incorporated into these Special Terms and Conditions for Outside Counsel.

Deliveries or notices required below are to be made to the Office of General Counsel's supervising attorney assigned to the matter (FFDG OGC). Required approvals or authorizations should be obtained from the supervising attorney prior to proceeding, and significant matters, such as settlements, should be approved in writing, signed by the cognizant FFDG attorney.

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GENERAL STATEMENT REGARDING LEGAL REPRESENTATION

It is FFDG’s policy to manage litigation and other legal matters in an efficient and cost-effective manner and to ensure that the interests of FFDG and the Government are appropriately protected. FFDG expects the Firm to be accountable for management decisions that are cost effective and in accordance with prevailing codes of professional conduct. Consequently, the

Firm will avoid:

• overstaffing a matter;

• shifting and rotating personnel assigned to a matter;

• inappropriately staffing a matter with overqualified or underqualified individuals;

• authorizing premature, peripheral or unfocused legal or factual research;

• holding unnecessary internal conferences about a matter;

• unnecessary revision of work;

• in the case of litigation, permitting routine digesting of documents or depositions, preparation of unnecessary motions or motions with low probability of being granted, and premature preparation for trial; and

• in the case of a corporate transaction, permitting the creation of 'due diligence' memoranda of unnecessary length or content.

FFDG’s philosophy with respect to litigation is to pursue an approach that is aggressive, but consistent with the policy above. Consequently, the Firm shall avoid extreme advocacy positions that are not likely to have a substantive impact on the outcome to the litigation, and avoid coercive, dilatory, or obstructive tactics. Dispute resolution methods other than litigation, and non-monetary settlement options, shall be given early, frequent, and thoughtful consideration.

STAFFING AND MANAGEMENT

STAFFING

1. FFDG selects an attorney (or team of attorneys) personally even though technically FFDG may be engaging the services of the Firm. Thus, the lead attorney for the Firm shall personally exercise active control over all aspects of the assignment or litigation and be directly involved in all major decisions.

2. All tasks will be staffed at the most cost-effective level, i.e., the lowest billing rate consistent with required skills needed, efficiency, and quality. FFDG has a strong preference for use of senior level associates and mid-level partners to perform the majority of the work over arrangements pairing a senior level partner with new associates. Generally, assignment of first year associates, summer associates, summer clerks, or other personnel new to the Firm will not be approved.

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3. FFDG has retained the Firm because of its expertise, and accordingly does not pay for the training of the Firm's personnel. In particular, time spent educating junior lawyers in the substantive law applicable to the matter assigned should not be billed. Likewise, FFDG will not pay for the 'learning time' that may result from staffing changes.

4. Consistent with our objective to achieve cost-effective results, only attorneys knowledgeable concerning FFDG, the Fermilab Site, and DOE should be used, unless approved in writing by the FFDG OGC.

5. Intra-office conferences on FFDG matters should be kept to a minimum and held only when they are the most cost-effective way to convey information or discuss strategy.

6. Only one attorney or representative from the Firm may attend external meetings, depositions, and arguments unless the attendance of more than one is justified to, and approved in advance by, the FFDG OGC. It is important that the Firm request this permission sufficiently in advance for FFDG to consider and obtain any necessary DOE approval for multiple Firm attorneys to attend.

7. FFDG OGC pre-approval is required for any research project expected to take more than ten hours.

MANAGEMENT

1. The FFDG OGC retains primary responsibility for managing the legal assignment or litigation assumed by the Firm. This means all strategic or tactical decisions associated with an assignment or litigation must be approved by the FFDG OGC. The Firm will not look to any other

FFDG personnel for decisions, although the Firm may contact other personnel, with the approval of the FFDG OGC, as part of the fact-gathering process or pursuant to a deposition or other similar interaction.

2. For each matter assigned to the Firm, FFDG will:

• define the objectives to be achieved;

• outline the roles and duties expected of the Firm;

• develop in conjunction with the Firm, appropriate transaction/case management strategies and budget estimates;

• review invoices for compliance with the guidance set forth herein;

• approve changes in planning documents, staffing assignments, and fee schedules;

• provide appropriate and timely authorization of matters requiring pre-approval; and

• expedite necessary DOE approvals.

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3. If the matter covered by this engagement letter does not involve litigation, (e.g., "white paper studies, legal opinions, permit applications, etc.), FFDG may require the Firm to prepare a work plan that outlines the major areas of research for the assignment, the issues to be addressed, the actual product to be delivered and the time frame for when the product is to be delivered. The level of detail for each work plan will depend on the circumstances of each assignment.

4. If the matter involves litigation, as soon as practicable, but not later than the close of pleadings, the Firm will provide FFDG with an assessment of the case. FFDG also may require the Firm to prepare a litigation plan, identifying alternative strategies for disposing of the case, including appropriate alternative dispute resolution mechanisms. The plan shall outline the proposed course of litigation, including pretrial motions, dispositive motions, the scope of discovery, and a trial strategy. The scope and degree of detail included in the litigation plan is to be commensurate with the significance of the matter.

5. If the matter is a "significant matter" in litigation, as defined in DOE regulations at 10 CFR

Part 719.2 (i.e., involves significant issues as determined by DOE counsel, or legal costs over the life of the matter are expected to exceed $100,000), the Firm agrees to prepare a Staffing and Resource Plan (S&RP) in addition to a work plan or litigation plan. The S&RP shall be prepared in accordance with 10 CFR 7 19, Subpart B, section 719.15. The Plan shall be submitted within twenty days of the filing of an answer or a dispositive motion in lieu of an answer, or within twenty days of a determination that the cost of a matter is expected to exceed $100,000. The scope and degree of detail shall be commensurate with the significance of the matter.

FFDG and the Firm shall review the S&RP semi-annually. Changes in strategy and variances more than 10% of budget require prior FFDG approval. Updates will be prepared by the Firm each succeeding year or within 30 days of any significant change in the matter. The annual update is due in August to conform to FFDG’s budgeting cycle and to assist in preparing its annual budget.

6. For litigation matters, the Firm shall prepare a comprehensive analysis of the case at the close of discovery, including any recommendations for settlement or additional dispute resolution mechanisms. Settlement terms other than the payment of money should be considered (e.g., the resumption of a business relationship on favorable terms).

7. Any documents not otherwise routine or insignificant that are to be provided to third parties, including a court or administrative agency, should be sent to FFDG in draft with enough time for meaningful review by FFDG’s supervising attorney. Some items may also require DOE concurrence or approval. All final copies of documents and memoranda for which

FFDG is charged will be sent to FFDG.

USE OF EXPERTS AND CONSULTANTS

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1. The Firm may not retain experts or consultants on behalf of FFDG without prior authorization. If the Firm proposes to retain an employee of another contractor of the DOE, FFDG will attempt to furnish the expert directly through the contractor that currently employs the potential consultant.

2. Any retention of outside experts or consultants will be through a meaningful competitive bidding procedure, or on such other terms that are acceptable to FFDG, if fees are anticipated to exceed $2,000.

3. All experts and consultants will be required to submit a billing statement like the format for outside counsel. The Firm shall provide FFDG’s billing guidelines to the experts and/or consultants prior their commencement of work and their invoices must be reviewed for compliance with these billing guidelines prior to payment by the Firm or submission to FFDG for approval.

BILLING RATES

1. Before assigning a lawyer or paralegal to an FFDG matter, the Firm will identify the individual, his/her billing rate, and years in practice or service to the Firm, and obtain the FFDG

OGC’s approval.

2. In negotiating compensation rates at the outset of a particular matter, FFDG will consider the number of engagements FFDG is able to offer the Firm and the current competitiveness of other law firms as to both quality and rates, as well as the factors listed in 10 CFR 719.10(c).

Notwithstanding the foregoing, the billing rates charged to FFDG will be the lowest billing rates charged to any of the Firm's commercial clients with a similar volume of work. Billing rates will apply for periods of no less than two years. Proposed changes to rates (whether by general increase or by virtue of a professional progressing to the next level) will be provided to

FFDG for approval 60 days before they are to become effective.

3. FFDG may agree to an alternative fee arrangement (e.g., contingency, fixed fee, blended rate) for a particular matter if such arrangement would result in overall efficiencies and cost savings. Regardless of the billing arrangement used, all fee arrangements must be clearly understood and approved in writing by FFDG prior to the rendering of services.

4. The Firm understands that FFDG will apply the standard for cost reasonableness contained in the FAR at 48 CFR 31.201-3 as one criterion for allowability of fees and costs. The

Firm also understands that various categories of expenses identified in 48 CFR Part 31 are un-allowable under government regulations, e.g., entertainment and alcohol expenses, or interest charges on unpaid bills.

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INVOICES AND DISBURSEMENTS

INVOICES

1. The Firm should submit invoices monthly. If the Firm represents FFDG in multiple matters, a separate billing statement must be submitted for each matter, if possible on the same date.

2. All invoices must comply with the Model Bill Format of 10 CFR 719. Failure to comply with these billing requirements or to include the required certification for each invoice will be cause for FFDG to reject the invoice.

3. Each invoice must set forth the project number, as well as the following in summary form:

• current fees and disbursements;

• aggregate fees and disbursements to date;

• status of a matter (e.g., pending, closed);

• FFDG supervising attorney; and

• name, status (e.g., partner, associate or paralegal), and billing rates of each.

4. Invoices must reflect the detailed time journal entries of each timekeeper (attorney, paralegal or others), organized by date and by individual timekeeper. Detailed time records are to be prepared on the day services were performed for FFDG and should be completed throughout the day rather than at the end of the day. Timekeepers will not bill in increments greater than six (6) minutes. The detailed time journal entries must be separately itemized for each task and for each timekeeper, showing the date performed, the timekeeper performing the task, a descriptive explanation of the task performed, and the time spent. “Block billing” is not acceptable. Time journal entries must identify each task in a manner that permits the FFDG OGC to ascertain the benefit derived from such services. For example, time entries that simply show

"telephone conference" or "draft correspondence" will not suffice. Time entries for conferences and telephone calls will identify the participants and the substance of the communication. Time entries for drafting or reviewing correspondence will identify the subject matter of the correspondence. Time entries for drafting or reviewing other documents will identify the document by title or subject matter, as applicable.

5. The following certification must accompany any invoice for services and expenses:

"Under penalty of law, this law firm acknowledges the expectation that the bill will be paid by the contractor and that the contractor will be reimbursed by the Federal Government through the US. Department of Energy and, based on personal knowledge and a good faith belief,' certifies that the bill is truthful and accurate, that the services and charges set forth herein comply with the terms of engagement and policies set forth the Department of Energy’s regulation and guidance on contractor legal management requirements, and the costs and charges set forth herein are appropriate and related to the client.”

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We acknowledge that the Department of Energy and the General Accounting Office have the right, upon request, at reasonable times and at reasonable locations, to inspect, copy and audit all records documenting billable fees and costs under the terms of engagement, the systems employed to capture, record, and bill the fees and costs, and any other records relevant to the representation under the terms of the engagement."

6. FFDG will make every effort to ensure that each invoice is processed for approval promptly. Questioned charges will be expeditiously resolved but will not be paid by FFDG until resolution. In addition, the Firm should be aware that litigation matters require approval by the DOE prior to payment of fees and costs, which may cause some delay.

DISBURSEMENTS

1. All disbursements must be separately itemized. Each disbursement must identify the date incurred and the attorney who authorized it. FFDG will not reimburse expenses described merely as "miscellaneous" or "other".

2. Copies of original source receipts must be included with the invoice for disbursements more than $75.00. For internal copying charges, itemization, e.g., ## pages@ .10/pg. is sufficient. Without a receipt, the disbursements will not be paid by FRA.

3. FFDG will pay only the actual out of pocket expense for disbursements and will not reimburse the Firm for any mark up, allocation of overhead, or other internal charges associated with the Firm's practice. Without limiting the generality of the foregoing, FFDG will not pay for:1

• secretarial, word processing, proofreading, filing, office machine attendants

(photocopy, or fax "tending"), librarian or other clerical services (normal, temporary, or overtime);

• internal photocopying expenses at more than 15 cents per page;

• computer time (other than computer legal research billed at cost);

• air conditioning, lighting, conference rooms, office supplies, or other costs associated with the maintenance of the Firm;

• parking, other than while on travel representing FFDG;

• local telephone expenses;

• local meals, other than expenses incurred while away from the Firm on travel representing FFDG;

• local travel, other than that required in directly representing FFDG a matter;

• any incoming or outgoing fax (only the actual long-distance telephone charge may be billed);

1 Specific categories of unallowable costs are contained in the cost principles at 48 CFR Part 31.

(See also, 41 U.S.C § 256(e).)

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• client development and related activity, including providing clients with social meals, hosting receptions, giving tickets to entertainment or sporting events, and gifts;

• trade publications, books, treatises, background material and similar documents;

• professional educational seminars and conferences;

• fines or other penalties for illegal conduct;

• any other expenses for internal operations or where properly chargeable to overhead or as a capital expense;

• alcoholic beverages;

• entertainment;

• interest or penalties on outstanding statements;

• charges for air travel more than the coach rate; and

• time spent in preparation of bills or responding to questions about bills from either the contractor or representatives of the government.

Travel time may be billed at the full rate for that portion of time the individual actually performs work for which the Firm was retained by FFDG; any remaining travel time during normal working hours during which counsel is not working shall be reimbursed at 50 percent, except that in no event shall travel time be billed to FFDG during which work was performed for other clients. FFDG will not pay fees for an attorney's or paralegal's time in travel during non-business hours during which no work on an FFDG matter is being performed. Travel-time billings may only include time en route and may not include idle or vacation time away from the office or home. Also, only the expense equivalent to the overall fastest mode of transportation will be considered reasonable.

4. Pre-approval by the FFDG OGC is required for:

• billing of more than eight hours in a day

• attendance by more than one person from the law firm at a deposition, court hearing, interview, or meeting;

• any disbursement or series of disbursements in a single category more than $500;

• meal, lodging, and incidental expenses substantially more than the applicable U.S.

Government per diem rate in effect at the time of travel;2 (See, https://www.gsa.gov/travel/plan-book/per-diem-rates)

• computers or general application software, or non-routine computerized databases specifically created for a particular matter;

• charges for materials or non-attorney services exceeding $5,000;

• expert witnesses and consultants; and

• pro hac vice admissions.

2 Travel and related expenses must at a minimum comply with the restrictions set forth in 48 CFR § 31.205-46 to be reimbursable.

https://www.gsa.gov/travel/plan-book/per-diem-rates

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5. The Firm will consider need, economy and good sense when determining the mode of document delivery. The FFDG OGC prefers that the Firm utilize electronic mail for communications to it. If that is not feasible, then facsimile transmission may be utilized (unless time is not an issue and the document can be sent regular mail). Facsimile should not be used if the document is voluminous (exceeds 25 pages). If correspondence has been sent electronically or by facsimile, no hard copy shall be delivered unless specifically requested by

FFDG. Use of local and overnight messenger services shall be limited to those documents that must be received quickly and are too long to be sent electronically or by facsimile.

AUDITS AND RECORDS

1. FFDG reserves the right to conduct a review and audit of all billable hours and costs of outside counsel, as well as the system(s) employed by the Firm to capture and record costs billed to FFDG. All records of the engagement must be retained by the Firm for a period of six

(6) years and three (3) months after the final payment or after final case disposition, whichever is later. The exact scope and timing of the audit will be discussed prior to the audit performed. Areas of concern that are developed in the audit will be identified by FFDG to the

Firm and resolved by the parties to their mutual satisfaction. In the performance of the audit, FFDG reserves the right to utilize the services of consultants or individuals outside the FFDG

OGC Department.

2. DOE and the General Accounting Office have the right, upon reasonable notice and at reasonable times and/or locations, to inspect, copy and audit all records documenting billable fees and costs.

3. The provision of records to DOE and/or the General Accounting Office is not intended to constitute a waiver of any applicable legal privilege, protection, or immunity with respect to disclosure of those records to a third party.

CONFLICTS OF INTEREST

FFDG recognizes that the Firm may also be called upon to provide professional services to clients with adverse competitive interests. There may even be situations in which the Firm is requested to represent another client in a matter that is directly adverse to FFDG. Any potential or actual conflict must be resolved to FFDG’s satisfaction prior to representation or continued representation. The Firm shall immediately notify FFDG of any actual or apparent conflict of interest. The notification shall include the following information: a complete list of the legal matters currently being handled for FFDG, the identity of each FFDG component involved, and the designated Contact Person for each matter. Based on the information submitted, FFDG will determine how the actual or apparent conflict will be addressed.

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MEDIA RELATIONS

The Firm is not authorized to comment publicly on FFDG matters. All media inquiries shall be directed to the FFDG OGC.

(END OF FFDG SPECIAL TERMS AND CONDITIONS FOR OUTSIDE COUNSEL)