Synopsis_-Presolicitation_No._16PBGC20R0003_-__NDA_Form.pdf

Solicitation Number: 16PBGC20R0003

Title: Single-Employer Pension Plan Sponsor Valuation and Restructuring Financial Advisory Services Engagement 2020

INTENT TO BID

Submitting this Intent to Bid and Nondisclosure Agreement (collectively the “NDA Form”) form does not commit the interested Offeror to complete the proposal process. Submitting the NDA Form allows Offeror to receive certain sensitive information pertinent to your proposal. Offerors interested in obtaining such information related to the Single-Employer Pension Plan Sponsor Valuation and Restructuring Financial Advisory Services Engagement 2020 RFP specifications must complete and sign this Intent to Bid form along with the Nondisclosure Agreement (collectively the “NDA Form”) in order to receive the RFP and the Attachment. Please see pre-solicitation/synopsis for NDA Form submission instructions. The Offeror shall confidentially maintain all applicable information released by PBGC in connection with this requirement, and not allow said information of any type to pass to unauthorized parties.

Offeror to Complete:

Company or Organization: ____________________________________ Contact Name: ____________________________________ Contact Signature: ____________________________________ Contact Title: ____________________________________ Mailing Address: ____________________________________ Phone: ____________________________________ E-mail Address of Contact Person: ____________________________________

NONDISCLOSURE AGREEMENT

THIS NONDISCLOSURE AGREEMENT (this “Agreement”), effective as of November __, 2019 (the “Effective Date”), is entered into between the Pension Benefit Guaranty Corporation (“PBGC”), and __________________________________________ with its principal address at _______________________________________________________________, (the “Offeror”, and collectively with PBGC, the “Parties”).

Recitals

A. PBGC is planning to disclose certain confidential information to Offerors who wish to submit a proposal in response to request for proposal associated with Solicitation No.

16PBGC20R0003 (the “RFP”) subject to the terms herein.

B. Each Offeror who wishes to submit a response to the RFP must have access to certain Confidential Information (as defined below) in order to construct a response to the RFP, including a proposal.

C. PBGC requires each Offeror wishing to receive the RFP to sign this Agreement and return it to PBGC as a condition of receiving the RFP and

D. The Offeror wishes enter into this Agreement and receive the RFP on the conditions and terms herein below.

NOW THEREFORE, in consideration of the promises and of the mutual promises and agreements herein contained, the Parties agree as follows:

1. Offeror agrees that all information, documents, data, and materials disclosed to, or accessed by, Offeror in connection with, or related to, the RFP or the RFP process, in any form whether oral or written, or in any medium, including but not limited to any of the following, is “Confidential Information” under the terms of this Agreement:

(a) the subject matter described in, and referred to, in the RFP; its associated Performance Work Statement (“PWS”), Proposal Submission Instructions (“PSI”) or any other attachments; or during the RFP process (collectively, the “Evaluation Materials”), including but not limited to any information regarding the identity of, or related to the plan sponsor that is the subject of the RFP (the “Plan Sponsor”, the “Company”).

(b) all RFP documents (including all attachments), their content, and all supporting data, materials, and other information provided to Offeror in any form or medium in or in relation to the RFP; and

(c) any information, data, document or material concerning or related to the

Evaluation Materials, including but not limited to the information described in the RFP, PWS, PSI, and all subsequent information, data, documents or materials that may be provided to Offeror from time to time during the RFP process, including but not limited to any information, data, documents or materials provided during or in response to any questions from Offeror or any other RFP recipient.

(d) any information, data, document or material that PBGC is required by any agreement with the Plan Sponsor or applicable law to treat as confidential commercial or financial information.

Provided, however, that Confidential Information shall not include any information disclosed by PBGC that is: (v) already properly known to Offeror at the time of its disclosure as shown by the Offeror’s files and records immediately prior to the time of disclosure by PBGC to Offeror; (w) publicly known through no action or inaction of Offeror; (x) received from a third party free to disclose it to Offeror; (y) independently developed by the Offeror without use of or reference to information, documents, data, or materials provided by PBGC, as shown by documents and other competent evidence in the Offeror’s possession; or (z) communicated to a third party with express prior written consent of PBGC.

2. The Offeror shall:

(a) undertake all necessary and appropriate steps to ensure the secrecy of the Confidential Information in its possession and hold all Confidential Information in strict confidence;

(b) protect and safeguard the Confidential Information against unauthorized use, publication or disclosure;

(c) treat the Confidential Information with the same degree of care and confidentiality with which it treats its own confidential information, but in no event less than a reasonable level of care;

(d) only give access to the Confidential Information to those of its employees and contractors who have a need to know for the purpose of evaluating the RFP, determining whether there is a conflict of interest with respect to the work described in the RFP, or preparing the Offeror’s response to the RFP;

(e) prior to disclosure of Confidential Information to any such employees and contractors, inform them of the confidential nature of the information, and require an agreement by each of them to receive and use the Confidential Information on a confidential basis on the same conditions as contained in this Agreement and to otherwise comply with the terms hereof;

(f) be responsible for any and all breaches of this Agreement by its employees and contractors;

(g) not use any portion of the Confidential Information for any purpose except to evaluate the RFP, ascertain the existence of conflicts of interest, or prepare its response to the RFP;

(h) not disclose the Confidential Information or any part of it to any third party without PBGC’s prior written consent; and

(i) promptly upon, but in no event later than 1 calendar day after, becoming aware of any unauthorized or potentially unauthorized disclosure of Confidential Information, deliver to PBGC a written notice of such unauthorized or potentially unauthorized disclosure.

3. To the extent the Offeror is required to disclose any Confidential Information to any governmental agency or is otherwise required to disclose such information by law, the Offeror shall (a) provide PBGC with prompt notice in advance of such disclosure, but in no event later than 1 calendar day after actual knowledge of such disclosure requirement; (b) provide PBGC adequate opportunity and assistance to seek a protective order, interpose an objection, or take any other course of action to assure confidential handling of such Confidential Information, and cooperate with PBGC in pursuing any such course of action; and (c) in the event that such protective order or other remedy is not obtained, furnish only such information as the Offeror is legally required to disclose, and exercise its best efforts to obtain assurance that confidential treatment will be accorded to such information.

4. Except as otherwise provided in any future agreement, at any time, Offeror shall return to the PBGC upon request all documents, records, notebooks, computer media or other stored information of any form or type whatsoever containing any Confidential Information, including all copies thereof, then in its possession or control (directly or indirectly), whether prepared by it or others and it shall at such time immediately discontinue all use of the Confidential Information.

5. For the breach of any of the above provisions, including the unauthorized disclosure of any Confidential Information, PBGC may, in addition to any and all other remedies it may have, refer such matters to the PBGC Suspending and Debarring Official (“SDO”) in accordance with Federal Acquisition Regulation Subpart 9.4. The SDO will assess the present responsibility of the Offeror and its affiliates, and may ultimately prohibit such entities from contracting with the entire federal government for a prescribed period of time. The Offeror acknowledges and agrees that the Confidential Information and rights related thereto being protected by PBGC hereunder are of a special, unique, unusual and extraordinary character, which gives them a peculiar value, the loss of which may not be adequately or reasonably compensated for in damages in an action at law, and further agrees that the breach by Offeror of any of the provisions of this Agreement shall cause PBGC irreparable injury and damage. In such event, PBGC, in addition to any and all other remedies it may have, shall be entitled, as a matter of right, without further notice, to require of the Offeror specific performance of all of its acts and undertakings required of it hereunder and to obtain injunctive and other equitable relief in any competent court to prevent the violation or threatened violation of any of the provisions of this Agreement by the Offeror. The Offeror shall be deemed to have consented to specific performance in respect of any such violation and to have waived any objection to the granting of such relief (provided that the Offeror is found to have been in violation of any provision of this Agreement), to the greatest extent permitted by law. Neither this provision nor any exercise by PBGC of its rights to equitable relief or specific performance herein granted will constitute a waiver by it of any other rights which it may have to, damages or otherwise. No remedy described in this Agreement is intended to be exclusive of any other right, power, or remedy, and any such remedy shall, to the extent permitted by law, be cumulative and in addition to every other right, power, and remedy given PBGC under this Agreement, now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right, power, or remedy hereunder, or otherwise, by PBGC shall not prevent the concurrent or subsequent assertion or exercise of any other appropriate right, power or remedy. For the avoidance of doubt, no delay or omission of PBGC to exercise any right, power, or remedy will impair any such right, power, or remedy or constitute a waiver of any such right, power, or remedy or an acquiescence in or waiver of any breach. Every right, power, and remedy given by this Agreement or by law or equity to PBGC may be exercised from time to time, and as often as may be deemed expedient, by PBGC. If PBGC successfully brings suit to enforce the terms of this Agreement, then in such suit it shall be entitled to receive all of its reasonable costs of litigation, including attorneys’ fees.

6. This Agreement shall survive until such time as all Confidential Information disclosed or accessed hereunder becomes publicly known and made generally available through no action or inaction of Offeror. Notwithstanding any termination of this Agreement, all rights and obligations of Offeror hereunder shall survive with respect to Confidential Information disclosed or accessed hereunder prior to such termination.

7. Except to any extent preempted by federal law, the laws of the District of

Columbia (without giving effect to its principles of conflicts of law) govern all matters relating to this Agreement. Each Party (a) consents to the exclusive jurisdiction of the U.S. District Court for the District of Columbia and its appellate courts for all matters relating to this Agreement, (b) consents that any action or proceeding relating to this Agreement may be brought in any such court, and (c) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. Nothing in this Agreement shall affect the Offeror’s ability to file a pre-award or post-award protest with the PBGC, the Government Accountability Office, or the Court of Federal Claims.

8. This Agreement constitutes the entire and final agreement between the Parties with respect to the matters provided for herein and no other agreement or understanding exists between the Parties with respect to such matters. This Agreement may not be altered, amended, modified, or otherwise changed in any respect except by an instrument in writing executed by both Parties.

9. If any provision of this Agreement shall be invalid, inoperative, or unenforceable, the remaining provisions thereof shall remain in effect if both the economic and legal substance of the transactions contemplated thereby are not materially affected in any manner adverse to either Party. Otherwise, the Parties shall negotiate in good faith to rewrite any such provision so as to, as nearly and fairly as possible, approach the economic and legal substance originally intended.

10. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. Nor will any rule of construction that favors a non-draftsman be applied. A reference to any statute will be deemed also to refer to all rules and regulations promulgated under the statute, unless the context requires otherwise. Unless specifically otherwise provided in this Agreement or the context otherwise requires, the singular includes the plural and the plural the singular; the word “or” is deemed to include “and/or”, the words “including”, “includes” and “include” are deemed to be followed by the words “without limitation”; the words “herein,” “hereof,” “hereby,” “hereunder,” “herewith,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited;

and references to sections, exhibits or schedules are to those of this Agreement.

11. This Agreement and all rights and obligations hereunder shall inure to and be binding upon the Parties hereto and their respective successors, affiliates, agents, employees and assigns. Neither Party may assign any of its rights or obligations hereunder without the prior written consent of the other Party.

12. Each Party represents and warrants to each other that it is authorized to enter into this Agreement. Each signatory represents and warrants that he or she is authorized to execute this Agreement on behalf of the Party for whom he or she has signed.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

Name of Offeror: __________________________________

Signature: __________________________________ Date: __________________________________

Name of Signatory: __________________________________ Title of Signatory: __________________________________

Pension Benefit Guaranty Corporation

Signature: __________________________________ Date: __________________________________

Name of Signatory: __________________________________ Title of Signatory: Contracting Officer, Procurement Department