Nonjudicial Foreclosure Guam revised 2 page initials.doc

Solicitation

CONTRACT DOCUMENT No.

60-9282-0-C-0020

Notice to Quoters This service is being solicited as a commercial item and subject to availability of funds. Please refer to Federal Acquisition Regulations (FAR) Clauses 52.212-1 and 52.212-3 for further information you must submit as part of your quotation.

Background on Non-Judicial Foreclosure

The use of non-judicial process of foreclosure is when a power of sale clause exists in a mortgage or deed of trust. The power of sale allows the mortgagee or trustee to sell the real property as an alternative to the court foreclosure process.

USDA Rural Development or their representative (typically referred to as the trustee) has authorization to execute the “power of sale” clause when it exists in deeds of trust or mortgages. This gives USDA Rural Development the power to sell the property.

Outlined below is the "Power of Sale Foreclosure Guidelines":

If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, USDA Rural Development or their representative follow the specified procedure.

USDA Rural Development or their representative may proceed with the foreclosure as long as there is compliance with the Power of Sale Foreclosure Guidelines:

A notice of sale, containing the borrower and lender(s) name, the original loan amount and current amount of default, the date of the mortgage, a description of the property and the time, place and date of the foreclosure sale, recording of the property in the principality where the borrowers reside.

The attorney awarded the contract must conduct the sale on the date specified in the notice of sale.

Sale of the property is to the highest bidder, who will receive certificate of sale. Lenders may pursue a deficiency judgment, but it is limited to the amount of the fair market value of the property and the unpaid balance of the original loan. Borrowers have up to one (1) year to redeem the property by paying the past due amount on the loan.

Qualifications and Submittal Under a fixed-price contract, the offeror agree to deliver the service required at a price not in excess of the agreed-to maximum. All offerors must possess experience (minimum of five to seven years) in residential legal services for foreclosures with or without deficiency judgments, bankruptcy, and/or recover possession related to single family housing debts. Each offeror must also, provide evidence such as a certificate of license supporting their ability to practice legal services in the Territory of Guam. Offeror must attach a copy of their qualifications or resume with their submittal.

All submittals must be received in our Guam Area II Office, located at First Hawaiian Bank (FHB) Building, Suite 303, 400 Route 8, Hagatna, Guam 96910-2011, by close of business (COB), Tuesday, August 31, 2010.

Evaluation Factors and Significant Subfactors (FAR 15.304-5) USDA Rural Development Hawaii State Office will establish an evaluation panel tailored for this particular acquisition. Panel members will include, but not limited to, personnel from USDA Office of General Counsel Regional Office (OGC); Contracting Officer (CO); Contracting Officer Representative (COR); Housing Programs Director; Single Family Housing Specialists; and Guam Area II Office Area Director and Area Specialists.

The Government will award once contract resulting from this solicitation to the responsible Offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. Award will be made on a Best Value basis considering the following factors: 1) Experience; 2) Offeror’s past performance; and 3) Price. The Government will evaluate offers for award purposes by considering the total price. Price is approximately equal in weight to the technical evaluation criteria; however, the importance of price may become greater as the differences between technical offers decrease. Where technical offers are determined to be substantially equal, price may control award.

The Contractor’s proposed rate for the purpose of this service contract shall include all costs necessary to complete the specific task order.

PART I - THE SCHEDULE

SECTION B - SUPPLIES OR SERVICES AND PRICES/COSTS

B.1 SERVICES REQUIRED: The Contractor shall:

Provide legal services for foreclosures with or without deficiency judgments, judgments, bankruptcies, and/or actions to recover possession related to Section 502 SFH direct loan debts. This work is to be performed throughout Territory of Guam and as described in Section C of this solicitation and as ordered by specific Task Orders issued under this IDIQ Fixed-Price Contract.

B.2 CONTRACT LINE ITEMS AND CONTRACT SUBLINE ITEM NUMBERS

Bidders/Offerors shall enter unit prices and amounts for contract line items and contract sub line items as indicated in the schedules.

In the event there is a difference between a unit price and the extended total amount, the unit price will be held to be the intended bid and the total of the contract line item or contract sub line item will be recomputed accordingly. The contract line item which includes recomputed contract sub line items will also be recomputed to take into account the change in the contract sub line item. If the bidder/offeror provides a total amount for a contract line item or contract sub line item but fails to enter the unit price, the total amount divided by the contract line item or contract sub line item quantity will be held to be the intended unit price.

B.3 SCHEDULE OF PRICES

0001 BASE PERIOD: October 1, 2010, to September 30, 2011

(* See below and Section H.7.)

Total 0001 (0001AA-0001AH)

ENFORCEMENT PERCENTAGE IS TO BE OFFERED FOR PAYMENT PURPOSES ONLY. NO OBLIGATION OF FUNDS NECESSARY:

Enforcement of Judgment or Deficiency Judgment (pursuant to Section C.5.d.)

EA

__________% of collections

1001 OPTION PERIOD ONE: October 1, 2011 through September 30, 2012

(* See below and Section H.7.)

Total 1001 (1001AA-1001AH)

ENFORCEMENT PERCENTAGE IS TO BE OFFERED FOR PAYMENT PURPOSES ONLY. NO OBLIGATION OF FUNDS NECESSARY:

__________% of collections

2001 OPTION PERIOD TWO: October 1, 2012 through September 30, 2013

(* See below and Section H.7.)

Total 2001 (2001AA-2001AH)

ENFORCEMENT PERCENTAGE IS TO BE OFFERED FOR PAYMENT PURPOSES ONLY. NO OBLIGATION OF FUNDS NECESSARY:

__________% of collections

CONTRACT TOTAL (0001, 1001, and 2001) NTE:

$ 100,000.00

NOTES:

* Other Direct Costs for Associated Services: The USDA Rural Development will reimburse the Contractor for actual costs advanced by the Contractor, which are necessary to effect the legal actions under this contract. Costs for such associated services are payable upon final completion of the action; or if the action is not completed through no fault of the Contractor, upon return of the incomplete case to USDA Rural Development. All invoices for completed associated services shall be fully documented by including receipts evidencing payment by the Contractor and shall identify the foreclosure case and borrower with which the expenditure is connected.

Associated Services direct costs include:

Court costs and filing fees;

Advertising expenses with local newspaper that is published daily;

Auctioneer fees;

Fees for document service where required by law;

Marshal services;

Litigation Guarantee Report Recording fees; or other similar official legal fees; and other customary costs requisite to the litigation or judgment enforcement under this contract, not specifically mentioned above under a Contract Line Item Number (CLIN).

The following costs are not “Direct Costs – Associated Fees,” but are to be included within the basic flat fee:

Representation and other attorney fees

Travel, including parking, expenses

Lease or purchase of equipment or office space

Mailing, postage or delivery charges

Telephone service

Personnel

Reproduction/printing

The following costs are not to be paid by the Contractor and invoiced as “Direct Costs – Associated Services” or included within the basic fixed rate for any of the other CLINs AA through AG:

Prior and junior liens

Real estate property taxes

The following items of expense shall only be paid for by the Contractor and invoiced as “Direct Costs Associated Fees” if so directed by the Contracting Officer Representative (COR) (see Section G):

Appraisal of the property in foreclosure/bankruptcy

See Section H.7 for limitations on costs.

SECTION C - DESCRIPTION/SPECIFICATIONS/WORK STATEMENT

C.1 OBJECTIVE: The objective is to retain a private attorney or law firm (herein called “Contractor”) to provide legal services in connection with foreclosures with or without deficiency judgments, judgments, and/or actions to recover possession related to Section 502 SFH direct loan debts to the United States of America, acting through the United States Department of Agriculture (USDA). All suits will be filed in accordance with Guam laws for where the security property located or registered, unless specifically directed otherwise in writing by the Contracting Officer Representative (COR). This work is to be performed on cases throughout Guam.

C.2 BACKGROUND: Section 1045 of the Stewart B. McKinney Homeless Assistance Act of 1988 amended Section 510(d) of the Housing Act of 1949 [42 U.S.C. 1480(d)] to provide the Secretary of Agriculture, in the prosecution or defense of any litigation under Section 502, the discretion to use the services of U.S. Attorneys, the USDA Office of the General Counsel (OGC), or any other attorney with whom the Secretary enters into a contract, upon determining that the attorney will provide competent and cost-effective representation for USDA Rural Development. Nationwide, USDA Rural Development has a backlog of cases with U.S. Attorneys, some of which have been pending for several years; as well as from 4,000 to 5,000 new foreclosures which are initiated each year. Section 502 SFH direct loans are generally secured by first mortgages on modest dwellings located on non-farm tracts of one acre or less. In some instances, USDA Rural Development also holds subsequent mortgages on the security, usually without intervening liens.

C.3 SCOPE: The Contractor shall provide the following services: (1) all legal and related services, including Litigation Guarantee update, in connection with each case assign to complete the foreclosure; (2) obtain and enforce the deficiency and/or other judgment(s); (3) obtained as part of the non-judicial foreclosure process, notary services; (4) if applicable, sue for, obtain and enforce evictions to obtain possession of the property and/or preserve the value of the property; and/or recover possession of Government-owned property; and (5) act on behalf of USDA Rural Development in foreclosure sale by entering bid on behalf of the government and in bankruptcy proceedings as directed by the COR.

USDA Rural Development retains the sole right to determine the assignment of cases under this contract, and may elect not to use legal services under this contract for all cases arising during the term of the contract. The Contractor shall handle all litigation in accordance with Guam laws in which the USDA security or inventory property is located or registered unless specifically directed otherwise in writing by the COR.

C.3.1 If during the performance of the Litigation Guarantee update the Contractor discovers deficiencies in the title, the deficiency will be immediately reported to the COR. The COR will notify the USDA OGC attorney (see Section G.4.) of any deficiencies reported by the Contractor. The COR may request a Litigation Guarantee to be completed by issuance of a delivery order for the same. The cost for the Litigation Guarantee or update, as specified in Section B, will be invoiced upon completion of the action as specified in Section G.

C.3.2 The Contractor shall notify the COR in writing within five (5) working days of becoming aware of any injunction prior to sale, any bankruptcy filing, or any exceptions or objections filed after the sale, or any other challenge to the sale and provide a copy to the COR of the pleadings and documents that relate to the request for injunction, bankruptcy, exceptions or objections or any other challenge, after which the Contractor will take no further action until instructed by the COR.

C.3.3 The Contractor is expected to litigate standard defenses and challenges to foreclosure actions; however, USDA Rural Development retains the right to reclaim and assign to the U.S. Attorney any case, and will reclaim and reassign cases involving issues pertaining to civil rights, federal statutes, regulations or policy of USDA Rural Development. USDA Rural Development has sole authority to determine when a case will be reclaimed.

C.4 STANDARDS: All litigation, enforcement, and collection actions on the part of the Contractor shall be in compliance and consistent with all Federal, State, and local statutes, regulations and ethical standards which apply to the liquidation of loan security and collection of debts. These include but are not limited to the following:

The Privacy Act of 1974, as amended (5 U.S.C. 552a); the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.); the Debt Collection Act of 1982, as amended (P.L. 97-365); the Model Rules of Professional Responsibility as adopted in the District of Guam; and/or the Rules of Professional Responsibility of the Guam Bar.

These statutes and standards, as well as other applicable Federal and State laws and regulations pertaining to the Government as a whole are incorporated by reference into this Statement of Work and are considered a part of the contract. Violation of applicable law, regulation or ethical standards shall be cause for termination of the contract for default.

C.5 DESCRIPTION OF SERVICES TO BE PROVIDED

a. Foreclosure. The Contractor shall litigate standard defenses and challenges to foreclosure actions. If, during the course of the litigation, the defendant(s) file an Answer or any other pleading or motion that raises a significant question of law, or other issue, which could result in an adverse precedent or have an impact upon the Federal government’s rights or collection efforts, the Contractor shall, within three (3) calendar days, notify the COR and the OGC attorney prior to any written or oral argument of the issue. The Contractor shall fax to the COR and OGC a copy of any such pleading or motion filed by the defendant, which raises a counterclaim or affirmative defense, within five (5) working days after the Contractor receives same. The Government will decide how to proceed in the case. If the COR decides that the Contractor should retain the case, the Contractor shall submit any response to a counterclaim or answer before it is filed to the COR and OGC attorney for review and approval. If the COR directs, the Contractor shall return the case to the COR for further handling.

Within 15 working days after assignment of a foreclosure case, the Contractor shall commence legal action to foreclose the mortgage and bring the security property to public sale in the minimum time permitted by Guam law. Where State law permits, all foreclosure sales will be subject to any outstanding prior liens including real estate taxes and assessments; and all foreclosure complaints shall contain a prayer for possession of the property by the purchaser so a separate suit need not be brought to obtain possession. Execution of the portion of an order to eject occupants shall be undertaken only when specifically directed by the COR.

As soon as the foreclosure sale date and time is determined, the Contractor shall notify the COR. In addition, as soon as the sale ad is completed the Contractor shall provide a facsimile copy to the COR. The COR will determine USDA Rural Development’s bid amount and notify the Contractor at least 24 hours prior to the sale of the Government’s bid amount and the Contractor will enter the bid on behalf of the Government. The Contractor shall telephonically notify the COR with the results of the foreclosure sale within 24 hours and confirm said results in writing within seven (7) working days of the sale.

The Government shall consider a foreclosure sale complete under this contract as follows:

(1) The Government was effectively the purchaser, when the Contractor records the sales deed with the Recorder’s Office and the Contractor provides a final report on the foreclosure sale, provides a presentation stub and certification of clear title to USDA Rural Development. Any defects of the deed notified by the Recorder will be the responsibility of the Contractor; or

(2) The purchaser was other than the Government, when funds due USDA Rural Development have been delivered to the Contractor, the Contractor has disbursed the funds to USDA Rural Development within five (5) working days of receipt and the report on the sale, including name, address, telephone and fax numbers of the purchaser, is provided to the COR by the Contractor.

Third party purchasers will pay in cash or equivalent on the day of the sale.

(The Contractor shall note that except for services rendered under CLINS 0001AE through 0001AH, 1001AE through 1001AH, 2001AE through 2001AH, and 3001AE through 3001AH; the Contractor shall not bill for foreclosure services prior to delivery of the deed and certification of title to purchaser, the report of sale to the COR and disbursement of funds to USDA Rural Development which shall be accomplished within five (5) working days of receipt by the Contractor.

The Contractor may bill for services rendered under CLINS 0001AE through 0001AH, 1001AE through 1001AH, 2001AE through 2001AH, and 3001AE through 3001AH on a quarterly basis.)

Foreclosure Actions: The Contractor shall provide the COR with certification and supporting documentation, within seven (7) days after the foreclosure sale is held, that the foreclosure was completed in accordance with Guam law.

Latent Title Defects: The Contractor is advised that if any title defect is later discovered for property acquired by the Government, which resulted from any error or omission on the part of the Contractor, the Contractor shall correct the defect without additional cost to the Government. The Contractor will not be responsible for any title defect that may have existed prior to the creation of USDA Rural Development’s lien or failure of USDA Rural Development to obtain a valid lien prior to assignment to the Contractor.

Multiple Agency Interest - If the foreclosure action, or title search, or any other information available to the Contractor reveals an interest in the borrower’s property by any Federal agency other than the client agency that referred the debt to the Contractor, or an interest of the client agency other than the interest being foreclosed upon, such as a junior lien, the Contractor shall, within 30 calendar days, notify the COR and OGC attorney and seek advice from them on how to proceed.

b. Recovering Possession: When directed by the COR, the Contractor shall take the necessary action pursuant to applicable laws to recover possession of property which USDA Rural Development has acquired. Within 30 calendar days of recovering possession of the property, the Contractor shall effect eviction, remove personal effects from the property, secure the property with appropriate locks, and deliver the keys to the COR.

c. Bankruptcy - Phase I and Phase II. The Contractor shall be involved with bankruptcy when a borrower whose case has been assigned to the Contractor for foreclosure files a petition, or when the borrower files a petition after acceleration of the account but before assignment to the Contractor, or at any other time a borrower files a petition or is operating under the terms of a confirmed Plan and the loan is in default. Assignment to the Contractor under any of these circumstances will be at the sole discretion of the COR.

If a borrower files bankruptcy under Chapter 7 after a case has been assigned to the Contractor for foreclosure, the Contractor shall keep the foreclosure file open pending final dispositions of the bankruptcy proceeding. Final disposition of a Chapter 7 proceeding includes notification that the case has been dismissed, the property abandoned or the borrower has received a discharge. Upon final disposition, the Contractor shall continue with the foreclosure. The Contractor will fax the notification to the COR immediately.

If a borrower files bankruptcy under Chapter 11, 12 or 13 after a case has been assigned to the Contractor for foreclosure, the Contractor shall keep the foreclosure file open pending final disposition of the bankruptcy proceeding. Final disposition of Chapter 11, 12 or 13 proceedings includes case dismissal notification, confirmation of a Plan or the Contractor has obtained relief from the automatic stay pursuant to Phase II. Upon dismissal of a bankruptcy or lifting of an automatic stay, the Contractor shall continue with the foreclosure case. The case will be reclaimed from the Contractor upon notification that the Plan has been confirmed, the borrower has made at least 3 consecutive post confirmation payments to USDA Rural Development. And a copy of the Order of Confirmation is provided to the COR and the OGC attorney.

Phase I The Contractor shall, within seven (7) calendar days advise the COR and OGC when he/she becomes aware that a borrower whose case has been assigned has filed a petition in bankruptcy. If the COR receives notice that a borrower has filed a petition in bankruptcy the COR will immediately notify the Contractor. These notifications shall be by telephone or fax, and confirmed in writing, by the COR, within seven (7) days. The COR reserves the right to assign to the Contractor the duty of representing USDA Rural Development in the bankruptcy proceeding. If the bankruptcy case is assigned to the Contractor, the COR will advise the Contractor whether USDA Rural Development wishes to object to a proposed bankruptcy Plan, petition for lifting of the automatic stay or request abandonment in order to continue liquidation. To protect the Government’s interest, the Contractor shall prepare and file all required documents within necessary timeframe or take other action as requested. The USDA Centralized Servicing Center will prepare Proof of Claims and send these documents directly to the Bankruptcy Court for filing. The Contractor will obtain a copy through the PACER system. USDA authorizes the Contractor to represent USDA Rural Development at hearings when necessary and to execute bankruptcy related documents on behalf of USDA Rural Development. The COR will provide the Contractor with account balances and other information for completing documents when requested to the COR. A bankruptcy Phase I action is deemed to be completed when the case is confirmed, dismissed, or the debtor is discharged by the Bankruptcy Court, or the automatic stay is lifted or USDA Rural Development has acquired title to the property.

Within seven (7) days, the Contractor shall provide OGC attorney and the COR with a copy of the Court Order. The Court Order shall provide details of the Repayment Plan with an explanation of the payments made inside and outside of the Plan, a copy of the Court Order dismissing the case, the notice of discharge or the order vacating the automatic stay before receiving payment for Phase I work.

Phase II - The COR will notify the Contractor when a borrower is delinquent three (3) months or more in payments under the terms of a confirmed Plan or when any other circumstances exist which provide a basis for a Motion to Vacate the Automatic Stay. The delinquency may arise from a borrower’s failure to make payments inside the Plan or outside the Plan. USDA Rural Development reserves the right to assign to the Contractor the duty of representing USDA Rural Development at hearings in the bankruptcy proceeding. If the bankruptcy case is assigned to the Contractor, the COR will advise the Contractor when USDA, Rural Development wishes to petition for vacating the automatic stay. The Contractor shall complete all bankruptcy documents along with the necessary information provided by the COR. A Phase II bankruptcy action is complete when the Motion to Vacate Stay is granted or denied or when the case is closed or dismissed by the bankruptcy court. The Contractor shall, within 15 calendar days, provide OGC attorney and the COR with a copy of the filed Motion to Vacate Stay, the court order granting or denying the Motion, the notice of dismissal or closing.

d. Enforcement of Judgments: The Contractor shall take immediate action to ensure that any judgment entered is perfected as a lien in the Municipality in which the security property is located or registered and in the Municipality where the debtor currently resides, if different. The COR may also direct that the judgment also be recorded in another Municipality or jurisdiction where the borrower is known or believed to own real property. If during the handling of the case the Contractor becomes aware of property owned by the debtor other than where the security is located, the Contractor shall inform the COR of same and have the judgment recorded in that Municipality or jurisdiction. The Contractor shall fax a copy of any judgment entered to the COR within five (5) working days after its entry. Contractor shall employ all enforcement methods permitted by applicable Territory, State and Federal law to effect collection. The Contractor shall handle collections from execution of judgments (from sale of assets or garnishments) in accordance with Section C.6. In the event a judgment is vacated, written notice shall be faxed by the Contractor to the COR within five (5) working days after its occurrence.

Associate Services: These are services that the Contractor will perform and are related to the performance of the legal services specifically identified elsewhere within Section C, unless specifically excluded. Associate Services include court filings; arranging for advertising; arranging for auctioneer services; service of process or other document service where required by law; marshal services or other similar official legal requirements customarily performed that are requisite to the litigation or judgment enforcement under this contract, if not specifically mentioned under another CLIN. Associate services do not include representation and other attorney services; travel; lease or purchase of equipment or office space; mailing, postage or delivery charges; telephone service; personnel services; and/or reproduction/printing. Property appraisal, if directed by the COR (See Section G), is an associate service.

C.6 Unique Issues: The Contractor shall notify the CO or consult with (OGC whenever any intervening issue is raised. These issues, when related to the foreclosure actions under the contract may require additional actions which can be assigned to the contractor. These actions will have the sanction of OGC and the price for services will be negotiated separately.

C.7 Proceeds from Legal Actions: The Contractor shall request and receive payments of any amount due USDA Rural Development through foreclosure or enforcement of judgments under this contract. All instruments of payment shall be made payable to “USDA Rural Development.” However, if in the event such payment are made payable to the Contractor, the Contractor shall endorse the item to “USDA Rural Development” before remitting to the COR.

The Contractor shall make no deductions from such payments for costs due the Contractor. The Contractor shall send or deliver all such payments to the COR within one (1) business day after receipt. Delays in remitting payments to the COR will be considered a breach of the contract and cause for termination of the contract for default.

C.8 Approval of Documents: Within 15 calendar days of award of contract, the Contractor shall provide to the COR document formats proposed for use in each of the actions outlined in Section C.5 for review by OGC. Contractor shall make any changes in the formats deemed necessary by OGC prior to use with assigned cases.

C.9 Records of Contractor Activity: The Contractor shall maintain records of all activities under this contract in a manner that describes the efforts of the Contractor accurately to effect the actions taken for which the assign case.

The Contractor shall provide the COR with copies of Notice of Default and Notice of Sale Under Mortgage as they are filed. On a quarterly basis, the Contractor shall provide the COR with a complete report of Contractor activity (See Section H.6). These reports shall contain the status of each task order assign to the Contractor, and shall include details regarding the non-judicial foreclosure. Upon filing of a bankruptcy petition, the Contractor report shall include the filing date of the petition, motions filed by the debtor, the date of confirmation or dismissal, and information regarding relief from stay. The Contractor shall make such records available for inspection by USDA Rural Development, OGC or any Government audit agency upon request.

C.10 Effect of Contractor’s Fees Upon Return of Cases to USDA: USDA Rural Development reserves the right to reclaim a case for any reason and have the case returned for handling by a Government attorney. Return to USDA Rural Development means mailing or delivering the case file along with all pleadings and other documents filed by the Contractor and the borrowers, and pertinent record of Contractor activities to the COR.

When a case is returned to USDA Rural Development upon written request of the COR pursuant to this subsection, the Contractor shall be entitled only to any amounts which have actually been expended (such as reimbursement for filing fees or other allowable costs) before the date of the return or the request for return, whichever is earlier. (See Section G.7.)

The Contractor shall have no claim against the Government for any action taken by USDA Rural Development, OGC attorney or a U.S. Attorney subsequent to return of the case, even though that action eliminates the fee to which the Contractor might have been entitled had the case not be reclaimed.

C.11 Pending Cases at Contract Expiration: The Contractor shall complete cases assign prior to expiration date of this contract within the terms and conditions of the task order.

Where enforcement of judgment involves garnishment or collection of periodic payments, the Contractor shall continue to receive and transmit collection payments to USDA Rural Development until paid in full. The Contractor will continue to submit a quarterly invoice in connection with pending cases until their completion.

C.12 Notary Public Services: These services shall be provided by the Contractor when preparing deeds, affidavits, and any other legal document needed, including its format and as required by civil code to ascertain that the documents are properly prepared and recorded at the Registry of the Property.

SECTION E - INSPECTION AND ACCEPTANCE

E.1 INSPECTION OF SERVICES – FIXED PRICE (FAR 52.246-4) (AUG 1996)

E.2 INSPECTION AND ACCEPTANCE (AGAR 452.246-70) (FEB 1988)

a. The Contracting Officer or the Contracting Officer’s duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.

b. Inspection and acceptance will be performed by the COR, at the USDA Rural Development Area II Office, in the Territory of Guam in which the performance of work was completed.

(END OF CLAUSE)

E.3 For purposes of the Inspection and Acceptance clause (AGAR 452.246-70)(Feb 1988) above for this contract only, the place of inspection and acceptance shall be the Hawaii State Office.

SECTION F - DELIVERIES/PERFORMANCE

F.1 PERIOD OF PERFORMANCE (AGAR 452.211-74) (FEB 1988)

The period of performance of this contract is from the effective date of the contract award to September 30, 2010, and all option periods, if awarded.

(END OF CLAUSE)

F.2 STOP-WORK ORDER (FAR 52.242-15) (AUG 1989)

F.3 QUARTERLY PROGRESS REPORTS. See Section H.6 for contents of report, which is due on or before the 7th calendar day after the end of the preceding quarter.

SECTION G - CONTRACT ADMINISTRATION DATA

G.1 CONTRACTING OFFICER (CO) designated for this requirement is:

Name:

Stephen Case/Alvin M. Okamoto, Contracting Officer

Address:

USDA Rural Development

Hawaii State Office

Room 311, Federal Building

154 Waianuenue Avenue

Hilo, Hawaii 96720

Phone:

(808) 933-8314 Fax:

(808) 933-8327 E-Mail:

alvin.okamoto@hi.usda.gov G.2 Contract administration will be performed by the Administrating Contracting Officer (ACO). The issuance and execution of task orders prepared during the effective period of the contract and acceptance for payment will be made by the ACO. The ACO designated for this requirement is: [To Be Determined].

G.3 CONTRACTING OFFICER’S REPRESENTATIVE (COR) will be:

Name:

Patricia M. Garcia/Steven L. Cruz, Area Specialist

USDA Rural Development

Area II Office

First Hawaiian Bank Building, Suite 303

400 Route 8

Hagatna, Guam 96910-2011

(671) 472-7361 Fax:

(671) 472-4366 Email:

patricia.garcia@pb.usda.gov or steven.cruz@pb.usda.gov In no event will, any understanding, agreement, modification, change order or other matter deviating from the terms of the contract be effective or binding upon the Government unless formalized by proper contractual documents executed by the Contracting Officer. The COR will monitor all technical aspects and assist in administering the contract. After contract award, the COR designation letter will be provided to the Contractor that clarify the responsibilities. On matters that pertain to the contract terms, the Contractor must communicate with the ACO. Whenever the COR requests the Contractor to perform effort outside the scope of the contract, the Contractor shall so advise the Contracting Officer in writing.

G.4 LEGAL CONSULTATION: The field staff of OGC shall be the contact for the Contractor for any legal consultation necessary in connection with cases assigned under this contract. The primary contact person is:

Name:

Jeff Moulton, Regional Attorney

Office of General Counsel

Pacific Region

33 Montgomery Street, 17th Floor

San Francisco, California 94105-4511

(415) 744-3011 Fax:

(415) 744-3170 Email:

jef.moulton@ogc.usda.gov

G.5 ISSUANCE AND EXECUTION PROCEDURES FOR TASK ORDERS

The ACO shall issue the Task Order to the Contractor. Each Task Order shall set forth the name of the borrower and type of action requested.

G.6 PAYMENT PROCEDURES

a. Invoices: The Contractor shall submit, to the COR, an invoice quarterly for actions completed during the quarter, as well as for incomplete cases reclaimed by USDA Rural Development during the quarter. An invoice must include:

1. Name and address of Contractor (mailing address for check);

2. Vendor Express Number (VXP #) for Electronic Funds Transfer,

3. Contract Number

4. Task Order Number;

5. Invoice Number and Date;

6. List of actions completed or incomplete cases reclaimed (property address and borrower name);

7. CLIN/SubCLIN quantity and amount;

8. Total amount due.

b. The expenses claimed shall be by CLIN. All invoices for completed associated services shall be fully documented with attached receipts evidencing payment by the Contractor and shall identify the borrower and case identification number with which the expenditure is connected.

G.7 PRORATION FOR INCOMPLETE CASES IN WHICH FAILURE TO COMPLETE IS NOT THE FAULT OF THE CONTRACTOR.

USDA, Rural Development will prorate the attorney’s cost for incomplete, ceased, bankruptcy or reclaimed foreclosure cases. The Contractor’s price is listed in Section B shall be prorated as follows:

1. If the Task Order letter has been received by the 20% of the price for this type Contractor prior to foreclosure sale.

of action

2. Twenty five (25) days prior to sale and statements 60% of the price for this type of fees and expenses were issued.

of action

3. If bankruptcy is filed 25 days prior to the sale date 75% of the price for this type under mortgage and prior to the sale under of action mortgage

SECTION H - SPECIAL CONTRACT REQUIREMENTS

H.1 RESTRICTIONS AGAINST DISCLOSURE (AGAR 452.237-75) (FEB 1988)

a. The Contractor agrees, in the performance of this contract, to keep all information contained in source documents or other media furnished by the Government in the strictest confidence. The Contractor also agrees not to publish or otherwise divulge such information in whole or in part, in any manner or form, nor to authorize or permit others to do so, taking such reasonable measures as are necessary to restrict access to such information while in the Contractor’s possession, to those employees needing such information to perform the work provided herein, i.e., on a “need to know” basis. The Contractor agrees to immediately notify in writing the Contracting Officer, named herein, in the event that the Contractor determines or has reason to suspect a breach of this requirement.

b. The Contractor agrees not to disclose any information concerning the work under this contract to any persons or individual unless prior written approval is obtained from the Contracting Officer. The Contractor agrees to insert the substance of this clause in any consultant agreement or subcontract hereunder.

(END OF CLAUSE)

H.2 CONFLICT OF INTEREST: The Contractor shall be bound by Section 1.7 of the American Bar Association Model Rules of Professional Responsibility (1983) and/or the Rules of Professional Responsibility for Guam dealing with conflicts of interest, whichever is most applicable. The Contractor will not, personally or through a third party, buy a USDA Rural Development financed or acquired property covered by this contract. It shall be the responsibility of the Contractor to determine if representing the Government in any case assigned could or would be a conflict of interest or have the appearance of a conflict of interest. If a particular case assigned poses such a conflict or perceived conflict, the case shall be returned to the Contracting Officer prior to initiation of any action.

H.3 INSURANCE AND BONDING: Within 15 days after award of this contract but before assignment of any case, Contractor must present to the Contracting Officer evidence of professional liability insurance coverage for errors and omissions in the amount of at least $250,000 with a deductible not to exceed $5,000, and a fidelity bond in the amount of $125,000 for each individual who will have access to proceeds from the legal actions under this contract.

H.4 CONFIDENTIALITY OF INFORMATION (AGAR 452.224-70) (FEB 1988)

(a) Confidential information, as used in this clause, means --

(1) Information or data of a personal nature, proprietary about an individual, or

(2) Information or data submitted by or pertaining to an organization.

(b) In addition to the types of confidential information described in (a) (1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.

(c) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the Contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the “Disputes” clause.

(d) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

(e) Confidential information, as defined in (a) (1) and (2) above shall not be disclosed without the prior written consent of the individual, institution or organization.

(f) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor’s intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45 day period, the Contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the “Disputes” clause.

(g) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.

(h) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.

(END OF CLAUSE)

H.5 KEY PERSONNEL (AGAR 452.237-74) (FEB 1988)

(a) The Contractor shall assign to this contract the following key personnel:

Managing Attorney/Project Manager

Attorney(s)/Lawyer(s)

Secretary/Technician

(b) During the first 90 days of contract performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90 day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions.

(c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Substitute personnel replacing key personnel should have comparable qualifications. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The Contracting Officer will modify the contract to reflect any approved changes of key personnel.

(END OF CLAUSE)

H.6 PROGRESS REPORTING (AGAR 452.237-76) (FEB 1988)

The Contractor shall submit a progress report quarterly (Section F.3), covering work accomplished during that period of the contract performance. The progress report shall be brief and factual and shall be prepared in accordance with the following format:

A cover page containing:

(1) Contract number and title;

(2) Type of report, sequence number of report, and period of performance;

Contractor’s name and address;

Author(s); and

Date of report.

SECTION I – An introduction covering the purpose and scope of the contract effort. This shall be limited to one paragraph in all but the first and final month’s narrative.

SECTION II – A description of overall progress plus a separate description of each task or other logical segment of work wherein the Contractor’s expended efforts during the report period. The description shall include pertinent data and/or graphs in sufficient detail to explain any significant results achieved.

SECTION III – A description of current technical or substantive performance, and any problem(s), which may impede performance along with proposed corrective action.

SECTION IV – A planning schedule shall be included with the first progress report for all assigned tasks required under the contract, along with the estimated starting and completion dates for each task. The Contractor’s planning schedule shall be updated and submitted with each subsequent technical progress report; including an explanation of any difference between actual progress and planned progress, why the differences have occurred, and if behind planned progress what corrective steps are planned.

SECTION V – If applicable, Contractor shall submit financial information for each major task or line item cost.

The data shall include the following:

(1) The total estimated cost budgeted (fee excluded).

The estimated cost expended during the current reporting period.

If applicable, the Contractor shall identification direct labor hours of prime Contractor and sub-Contractor and/or consultant.

Total project expenditures to date.

Total remaining funds.

(END OF CLAUSE)

H.7 Limitation of Other Direct Costs – Associated Services (CLINS 0001AH, 1001AH, 2001AH, and 3001AH)

The Government estimates that actual other direct costs the Contractor maybe reimbursed under these CLINS will not exceed the estimated costs specified in the Schedule.

The Contractor shall obtain prior written approval from the COR before procuring or incurring costs for a single item costing $500 or more and shall obtain prior written approval for expending more than $1,500 for any one case.

The Contractor shall notify the Contracting Officer in writing whenever it has reason to believe that the costs the Contractor expects to incur under these CLINS in the next 60 days, when added to all costs previously incurred under these CLINS, will exceed 75 percent of the estimated cost specified in the Schedule.

As part of the notification, the Contractor shall provide the Contracting Officer a revised estimate of the additional costs for the performance period.

Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause; (1) the Government is not obligated to reimburse the Contractor for costs incurred in excess of these estimated costs specified in the Schedule; and (2) the Contractor is not obligated to continue to incur these costs until the Contracting Officer modifies the contract and increases the estimated costs under these CLINS.

If the estimated cost specified in the Schedule is increased, any costs the Contractor incurs before the increase that are in excess of the previously estimated cost shall be allowable to the same extent as if incurred afterward, unless the Contracting Officer issues a termination or other notice directing that the increase is solely to cover termination or other specified expenses.

H.8 FLUENCY IN ENGLISH LANGUAGE

Contractor personnel that interact and/or communicate with the Contracting Officer, Administrative Contracting Officer, COR and/or OGC attorney must be fluent in the English language orally and in writing in order to avoid any miscommunications and/or misunderstandings regarding performance under the contract.

PART II

SECTION I - CONTRACT CLAUSES

I.1 CLAUSES INCORPORATED BY REFERENCE (FAR 52.252-2) (FEB 1998)

This contract incorporates one or more clauses by reference with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this address: www.arnet.gov/far

(END OF CLAUSE)

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES

CLAUSE

NUMBER

DATE

TITLE

52.202-1

JUL 2004

DEFINITIONS

52.203-3

APR 1984

GRATUITIES

52.203-5

APR 1984

COVENANT AGAINST CONTINGENT FEES

52.203-6

JUL 1995

RESTRICTIONS ON SUBCONTRACTOR SALES TO THE

GOVERNMENT

52.203-7

JUL 1995

ANTI-KICKBACK PROCEDURES

52.203-8

JAN 1997 CANCELLATION, RESCISSION AND RECOVERY OF

FUNDS FOR ILLEGAL OR IMPROPER ACTIVITY

52.203-10

JAN 1997

PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR

IMPROPER ACTIVITY

52.203-12

JUN 2003

LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN

FEDERAL TRANSACTIONS

52.204-4

AUG 2000

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