B02 Attachment 2 - PWS Legal Services 053024.pdf

Legal Services

Performance Work Statement (PWS)

USDA Office of the General Counsel

30 May 2024

1. INTRODUCTION

The U.S. Department of Agriculture (USDA) seeks a qualified law firm to provide legal services for employment-related litigation, including class actions. Contractor support is to augment agency legal resources provided by the Office of the General Counsel (OGC).

2. BACKGROUND

With over 100,000 employees, USDA faces the same possibilities of employment-related litigation that other large federal agencies encounter. On average, USDA has between 750 – 800 administrative cases that are either pending hearing or appeal before the U.S. Equal Employment Opportunity Commission

(EEOC) or are pending the expiration of time for a complainant to appeal a decision or ensure full implementation of the terms of a settlement agreement. Cases generally average an open period of litigation of 24 months (with additional time at the end for implementation or expiration of appeal time). However, many cases also remain with a decision-maker for months or years prior to a determination. For cases filed in District Court, OGC remains the liaison with the Department of Justice, which represents USDA in all judicial actions. The majority of employment-related litigation occurs before the EEOC, but matters may also arise before the Merit Systems Protection Board, Federal Labor

Relations Authority (FLRA) (for arbitrations), Office of Special Counsel, and Foreign Service Grievance

Board.

Currently, OGC has a team of 25 Attorneys and 3 legal staff dedicated to handling matters that arise before the EEOC. Other OGC attorneys provide some support for EEO matters as the workload of the

Office allows. However, the maximum caseload for this team cannot reasonably exceed 400 cases at any given time. In order to supplement the work of this team, as well as to support other USDA agencies with non-EEOC employment-related litigation, OGC seeks an experienced contractor defending depositions and taking matters to hearing before an Administrative Judge or judicial judge or jury.

In most circumstances, the work will involve novel, newsworthy fact patterns, highly situated management representatives, cases involving mixed allegations of due process and unlawful discrimination, and newly-certified administrative class actions.

3. CONTRACT OBJECTIVES

Through expert employment-related legal services, the Contractor shall provide:

• Professional, timely, thorough, and cost-effective legal services in defense of USDA that result in favorable rulings to the Department.

4. SCOPE

The Contractor shall provide the full gamut of legal services for employment-related litigation in accordance with EEOC Initial Orders, MSPB Acknowledgement Orders and USDA regulations. The contractor shall employ at minimum 5 full time attorneys who have relevant litigation experience before the EEOC. The contractor shall possess superior experience with the EEOC, preferably as a former EEOC attorney or Administrative Judge and demonstrate a record of successful dispositions before that administrative body. As mentioned above, the scope of the resultant contract may include employment-related legal services for all USDA and USDA agencies. Specific tasks in providing professional, timely, thorough, and cost-effective legal services include the following:

Task 1 – Project Management

Outcome: The highest quality project management support is provided to ensure an efficient and effective project execution.

1.1 The Contractor shall be responsible for project management for this effort including, but not limited to:

a. Meeting:

i. PWS performance standards.

ii. Deadlines established by the jurisdictions/tribunals.

b. Managing personnel.

c. Coordinating and communicating with the OGC COR and Assistant General Counsel as needed on specific cases, especially novel cases.

d. Monitoring and reporting on status.

e. Providing effective and responsive oversight, planning and execution of cases.

1.2 The Contractor shall ensure that all deliverables for all tasks under this contract are complete, accurate and delivered according to established schedules and are provided to the Government for review, comment, and acceptance.

Quality Assurance

1.3 The Contractor shall document and apply quality control procedures used throughout the performance of this contract for itself and any Subcontractors, in accordance with its proposed Quality Control Plan (QCP).

1.4 The Contractor shall document and conform to quality standards and best practices.

1.5 The Contractor shall identify and remedy quality issues in a timely manner.

1.6 The Contractor shall attend quarterly review meetings to evaluate technical performance and cost control.

Reporting

1.7 The Contractor shall prepare and submit a monthly status report within 5 business days of the last business day of the month to the COR. The report shall contain the detailed status of each open case in the process, what has occurred in the past month and what will occur in the current month.

1.8 The Contractor shall prepare and submit an annual report that lists the costs for each case that closed during that annual performance period. The detail shall include the case number, date that the case was assigned to the contractor, the number of days it took to close the case, a breakout of the total hours and costs by labor category, total costs for travel and the grand total costs charged for each case. In addition, the spread sheet shall include the total costs for all cases closed during the period, the number of cases closed, the average total costs per case closed, and the average number of days to close all cases for the period. The deliverable shall be submitted in an electronic spread sheet using a format readable by

Microsoft excel in which the formulas can be verified. This report is to be submitted to the

CO and the COR.

1.9 The Contractor shall participate in monthly meetings/conference calls to review cases and answer any questions that arise from the Office of Civil Rights and OGC.

1.10 The Contractor shall submit a detailed monthly invoice in accordance with rates and expenses included in its cost proposal. As part of the detail required in the monthly invoice, the Contractor shall show percentage expended for the month and cumulatively against the project ceiling. Invoices shall include FS job codes/override codes requested by the

Contractor. One monthly invoice shall be submitted with client names and one without client names.

Protection of Information

1.11 The Contractor shall be responsible for properly protecting all information used, gathered, or developed as a result of work under this contract.

1.12 The Contractor shall require that each member of its staff performing under this contract sign formal nondisclosure and/or conflict of interest agreements to guarantee the protection and integrity of Government information and documents.

1.13 The Contractor shall use any information that is subject to the Privacy Act in full accordance with the rules of conduct as applicable to Privacy Act information.

1.14 The Contractor shall ensure that appropriate administrative, technical, and physical safeguards are established to ensure that the security and confidentiality of USDA information, data, and equipment are properly protected.

Task 2: Prehearing Docketing and Case Management

Outcome: Cases are managed to ensure that all paperwork is completed and filed in accordance with established timeframes.

To initiate work, Contractor shall conduct all prehearing docketing and case management efforts, including:

2.1 Receive and record cases delivered from the Assistant General Counsel or his or her designee.

2.2 Assign the case to a capable attorney

2.3 Prepare the hearing calendar.

2.4 Meet all prehearing dates, including timelines for Designation of Agency Representative, Initial Discovery, Discovery, Filing Dispositive motions, Trial motions & Implementation memos, Pre-Hearing and Hearing.

2.5 Comply with requests from Administrative Judges.

Task 3: Prehearing Case Preparation

Outcome: All materials and witnesses needed for hearing are professional, prepared in advance and support the Government’s case.

Contractor shall conduct all pretrial case preparation efforts, including:

3.1 Develop a written case assessment outlining the strengths and weaknesses of the case, including recommendations on litigation or settlement, and provide it to OGC for determination in moving forward.

3.2 Gather evidence in support of the Government’s defense.

3.3 Prepare witnesses to testify at hearing.

3.4 Develop defense strategies.

3.5 Prepare and respond to discovery motions.

3.6 Prepare all materials and witnesses needed for hearing.

Task 4: Hearing Presentation

Outcome: All evidence and testimony necessary to support the Government’s case is included on the record.

Contractor shall conduct all trial presentation efforts, including:

4.1 Prepare and deliver opening statements.

4.2 Examine and cross-examine witnesses.

4.3 Present evidence.

4.4 Make and defend against objections.

4.5 Prepare and deliver closing arguments.

Task 5: Post-Hearing Briefing and Appeals

Outcome: All legal documentation is provided to the trier of facts. FS is prepared for next steps regarding the case and lessons learned are documented.

Contractor shall conduct all post-trial briefing and appeals efforts, including:

5.1 Draft and submit post-trial legal briefs, legal research, and legal composition.

5.2 Prepare to defend against an appeal, in the event of a win.

5.3 Recommend appeals or compliance alternatives.

5.4 Prepare an appeal in the event of a loss, after receiving agreement from FS, OGC, and the

Office of the Assistant Secretary for Civil Rights.

5.5 Transfer all documentation to FS following closure of the case.

4.1 Geographic Coverage/Scope

The Geographic scope of this IDIQ contract award is TBD. However, the Government reserves the right to assign any individual legal case to any award recipient if it determines that it is in the best interest of the Government to do so.

5. PERFORMANCE REQUIREMENTS SUMMARY

Perf Std # Required Services Performance Standards Acceptable Quality Level (AQL)

Monitoring Method

PS-1 Case Management All documents and filings will be submitted in strict adherence to the judge’s scheduling orders.

No deviation. OGC review of monthly project reports and invoices.

PS-2 Prehearing Case

Preparation

All documents and witnesses are professionally prepared for the trial in accordance with best legal services practices.

No deviation. OGC review of judges’ decisions.

PS-3 Hearing Presentation Opening and closing remarks, as well as presentation of all evidence and witnesses, are provided in accordance with best legal services practices.

No deviation. OGC observations conducted randomly for trial presentations.

PS-4 Post-Hearing Briefing All documentation is thorough, professional, free of errors, and documents lessons learned for future cases.

No deviation. OGC review of documentation.

6. DELIVERABLES

Specific deliverables, as noted in the tasks above, are identified in the following table:

6.1 Table of Deliverables

The following table includes deliverables and expected due dates, but is not a comprehensive list of deliverables because of the nature of each case. Deliverables shall be provided electronically to the COR in one of the Microsoft Office suite products (note that task #1.8 also is to be submitted to the CO)

PWS

Task #

Deliverable Due Date Deductions for Late Deliverables

1.3 Quality Control Plan (Final) Within 15 days of the start of the contract’s base period of performance. Resubmit QCP whenever it has been updated.

$200.00 for every week that

Final QCP is late.

1.7 Monthly Status Report Within 5 business days after the

last business day of the previous month

$100.00 a day after the 9th business day of the previous month.

1.8 Annual Cost Report – Total

Cost Incurred for Each Closed

Case

Within 15 business days after the end of each annual performance period

$100.00 a day for each day that the report is late.

2.5 Acknowledgement of Requests

from Administrative Judges

By date set in order $100.00 a day for each day that the acknowledgement is late.

3.1 Preliminary Case Analysis Within 10 business days of

receiving the case.

$100.00 a day for each day that the report is late.

5.1 Post-Hearing Debriefing Report Within 10 business days of the trial closing

$100.00 a day for each day that the report is late.

5.3 Appeals or Compliance

Alternatives Recommendations

Within 10 business days from the date of Agency request of a negative trial, administrative hearing or arbitration outcome.

$100.00 a day for each day that the report is late.

5.5 Transfer all Documentation to

OGC for Record-keeping

Within 30 days of closing the case $100.00 a day for each day that the documentation is late.

6.2 Inspection and Acceptance

The Government will perform Inspection and Quality Assurance in accordance with the contract Quality

Assurance Surveillance Plan (QASP). The Government has the right to perform periodic surveillance of the Contractor to ensure that the Contractor’s work products and QC processes are in compliance with the contract requirements. The Government and the Contractor will coordinate Government surveillance in a manner that will not unduly delay or disrupt the Contractor’s performance of the contract.

The COR will have five (5) business days to review draft deliverables and make comments. The

Contractor will have five (5) business days to make corrections. Upon receipt of the final deliverables, the COR/designee will have five (5) business days for final review prior to acceptance or providing documented reasons for non-acceptance. Should the Government fail to complete the review within the review period the deliverable will become acceptable by default.

The COR will have the right to reject or require correction of any deficiencies found in the deliverables that are contrary to the information contained in the Contractor’s accepted proposal. In the event of a rejected deliverable, the Contractor will be notified in writing by the COR/designee of the specific reasons for rejection. The Contractor shall have five (5) workdays to correct the rejected deliverable and return it per delivery instructions.

SANCTIONS FOR MISFEASANCE/MALFEASANCE

In the event the contractor fails to perform its representational duties in a manner consistent with established legal/industry standards and the Agency incurs damages as a result of such failure the

Agency will seek complete restitution from the contractor and/or its malpractice carrier for such loss.

Such exigencies include, but are not limited to: missing statutes of limitations and/or filing deadlines, failure to state all reasonable affirmative defenses, inadequate/incomplete discovery, failure to abide by orders from judges, receiving avoidable sanctions, and unlawful or unethical conduct.

7. PLACE OF PERFORMANCE

The contractor shall perform tasks at its facilities utilizing its own equipment and personnel.

8. TRAVEL

Local travel (within 50 miles of the contractor’s facilities) shall not be reimbursed. Travel may be required depending on cases filed. See Schedule B of the contract for additional details/requirements for travel.

9. GOVERNMENT FURNISHED PROPERTY AND INFORMATION

All Contractor personnel working on this project and having access to FS provided information must sign a USDA Non-Disclosure Agreement.

10. KEY PERSONNEL

The Contractor shall employ and maintain personnel in the management and key staff positions who meet the minimum requirements for each of the skill levels to which they are assigned, and shall be capable of performing the functions described in a competent and professional manner.

Project Manager: The Contractor shall designate a Project Manager (PM) as the single point of contact

(POC) with OGC for communications issues, concerns, or problems that arise on the contract and on all task awarded under this contract. The PM shall have the authority to commit the Contractor and make decisions for the Contractor, and shall be the single Contractor representative responsible for all issues, concerns, or problems. The PM shall readily respond to OGC questions, concerns, and comments. The

PM shall proactively alert OGC to potential contractual issues. The PM must be available during normal duty hours, as specified herein to meet (either in person or by phone) with Government personnel within 24 hours to discuss problems.

The Contractor shall submit resumes to the Government COR for coordination and review prior to formally adding new employees to this effort. The contractor is responsible to hire and retain individuals of the highest ability who are appropriate for the assigned task. The COR will raise performance issues to the CO and a meeting will promptly be scheduled to discuss with the contractor.

The Contractor agrees that no Key Personnel substitutions or additions will be made unless necessitated by compelling reasons including, but not limited to, illness, death, maternity leave, or termination of employment. In such event, the Contractor must promptly provide the information required below to the COR for approval prior to any substitution or addition of Key Personnel. Proposed substitutes must have qualifications that meet, or exceed the qualifications of the persons replaced. Whenever possible, fully compliant requests for substitutions or additions must be submitted, in writing to the COR for approval at least fifteen business days in advance of the proposed change. The COR will notify the

Contractor within fifteen business days after receipt of all required information of the decision on substitutions or additions. All disapprovals will require re-submission of another substitution or addition within fifteen days by the Contractor.

Request for Key Personnel changes must provide a detailed explanation of the circumstances necessitating the proposed substitutions or additions, a complete resume for the person to be substituted or added, and any other information requested by the COR.

Noncompliance with the provisions of this clause will be considered a material breach of the terms and conditions of the contract for which the Government may seek any and all appropriate remedies, to include termination for default.

11. SECURITY REQUIREMENTS

11.1 Privacy and IT Security

By accepting this contract/agreement, the Contractor and its affiliates (hereafter called Contractor) providing legal services to USDA agrees to comply with the applicable IT security policy as outlined in this document. The Contractor and other external organizations will be responsible for IT security for all systems connected to the USDA network or operated by the Contractor and other external organizations for the USDA, regardless of location. This clause is applicable to all or any part of the contract that includes IT resources or services in which the Contractor and other external organizations must have physical or electronic access to USDA sensitive information that directly support the mission of USDA.

The term 'information technology', as used in this clause, means any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. This includes both major applications and general support systems as defined by OMB

Circular A-130.

The Contractor shall be responsible for properly protecting all information used, gathered, or developed as a result of work under this task. The Contractor shall also protect all unclassified Government data, equipment, etc., by treating information as sensitive business, confidential information, controlling and limiting access to the information, and ensuring the data and equipment are secured within their facility.

The contractor and other external organizations will agree to establish and follow security precautions considered by USDA to be necessary to ensure proper handling of data and information. As may be identified elsewhere in this contract, the Contractor agrees that:

• The draft and final deliverables and all associated working papers and other materials deemed relevant by the COR that have been generated by the Contractor in the performance of this contract are the property of the U.S. Government and must be submitted to the COR at the conclusion of the tasks.

• All documents produced for this project are the property of the U.S. Government and cannot be reproduced or retained by the Contractor.

To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity, and confidentiality of Government data, the Contractor will afford the

Government access to the Contractor's or other external organization’s facilities, installations, technical capabilities, operations, documentation, records, and databases. The Contractor will cooperate with

Federal agencies and their officially credentialed representatives during official inspections or investigations concerning the protection of USDA information. Cooperation may include providing relevant documentation showing proof of compliance with federal and agency requirements, and rendering other assistance as deemed necessary.

If new or unanticipated threats or hazards are discovered by either the Government or the Contractor or other external organization, or if existing safeguards have ceased to function, the discoverer will immediately bring the situation to the attention of the other party. The Contractor will report real or suspected incidents or violations to OGC’s Information Technology Team.

The Contractor shall insert these clauses in all subcontracts when the subcontractor is required to have routine physical access to a Federally-controlled facility and/or routine access to a Federally-controlled information system. Failure to comply with said requirements will constitute cause for termination.

The Contractor Agrees To –

(a) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the

Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies—

(i) The systems of records; and

(ii) The design, development, or operation work that the contractor is to perform;

(b) Include the Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a system of records on individuals that is subject to the Act; and

(c) Include this clause, including this paragraph, in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records.

In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a system of records on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a system of records on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a system of records on individuals to accomplish an agency function, the Contractor is considered to be an employee of the agency.

Definitions of the clause:

(a) “Operation of a system of records,” as used in this clause, means performance of any of the activities associated with maintaining the system of records, including the collection, use, and dissemination of records.

(b) “Record,” as used in this clause, means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the person’s name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint or voiceprint or a photograph.

(c) “System of records on individuals,” as used in this clause, means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

Background Investigations: All non-government employees with unescorted access to USDA facilities, computer systems and/or USDA information must have background investigations commensurate with the level of risk and magnitude of loss or harm. USDA will determine the level of background investigation and position classification needed.

12. ADMINISTRATIVE CONSIDERATIONS

12.1 Designation of Contracting Officer’s Representative (COR)

The COR is responsible for the technical direction of the contract work. In no event, however, will any understanding, agreements, modification, change order, or other matter deviating from the terms of this contract be effective or binding upon the Government unless formalized by proper contractual document executed by the Contracting Officer prior to completion of the contract.

The Contracting Officer shall be informed as soon as possible of any actions or inactions by the contractor or the Government which may affect the price, required delivery or completion times stated in the contract, so that identified desired changes and outside influences on the contract may be modified as necessary. Whenever, in the opinion of the contractor, the COR requests efforts outside the scope of the contract, the contractor shall advise the COR. If the COR persists and there still exists a disagreement as to proper contractual coverage, the Contracting Officer should be notified immediately, preferable in writing if time permits. Proceeding with work without proper contractual coverage could result in non-payment.

A copy of the COR delegation letter shall be provided to the Contractor five days after award.

12.2 Contract Administration

The Contracting Officer is the only person authorized to approve changes. This authority remains solely with the Contracting Officer. In the event that the Contractor affects any changes at the direction of any person other than the Contracting Officer, the changes will be considered to have been made without authority and no adjustment will be made in the contract price to cover any increase incurred as a result thereof.