Amendment_1_RFP_No._693JJ318R000030.pdf

The purpose of this document is to amend the RFP text. Amendments to the RFP include the following: Delete Attachment J.1 in its entirety and replace with new Attachment J.1. entitled “Revised Labor Rate Schedule; add new Attachment J.4 entitled “Sponsor Payment Letter Template; add new Attachment J.5 “Summary of Questions and Answers”; and REVISE the text of the RFP in the sections cited below.

For the RFP sections cited below, deleted text is shown in strikethrough and added text is underlined and highlighted (in yellow). If a Section or paragraph is not listed below, no text changes apply as a result of this amendment. See new Attachment J.5 for additional notes/clarifications to Offerors.

C.4 TASK REQUIREMENTS

TASK AREA I- AREA H- OTHER BUREAU MATTERS

G.9 NOTIFICATION OF EXPENDITURE OF FUNDS

For At Cost TM/LH TOs issued, the Contractor shall notify the Contract Specialist and COR in writing, within five (5) ten (10) calendar days, when costs incurred exceed 75% of the obligated funds.

H.5 ORGANIZATIONAL CONFLICT OF INTEREST

Definitions:

• “Key Personnel” refers to those few individuals that manage the IDIQ master contract and act as the points of contact for DOT on the same. These individuals are also considered Key Personnel as defined in TAR Clause 1252.237-73 in Section I.2.

I.2 CLAUSES INCORPORATED IN FULL TEXT

TAR 1252.237-73 KEY PERSONNEL. (APR 2005)

The Key Personnel under this Contract is:

• Program Manager

• Senior Modeler

These individuals are also considered Key Personnel as defined in Section H.5

SECTION J - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS

Attachment Number

Attachment Title Number of Pages

J.1 Revised Labor Rate Schedule

J.2 SF-LLL Lobbying Activities

J.3 Subcontracting Plan 5

J.4 Sponsor Payment Letter Template

J.5 Summary of Questions and Answers

L.4 WRITTEN PROPOSAL CONTENT AND CONFIGURATION

Each written proposal shall be broken out into two volumes and the parts as described below:

Volume I – Technical Capability– Not to exceed 15 pages

(a) Part I: Staffing Capability and Experience. Counts toward the 15-page limit.

(b) Part II: Resumes - No page limit to Part II, but individual resumes are limited to one page each. Resumes may be submitted as an appendix to Volume II Volume I.

(c) Part III: Letters of intent to participate from proposed subcontractors, consultants, partners, and proposed new hires – No page limit but letters of intent are limited to one page each. Letters of intent may be submitted as an appendix to Volume II Volume I.

(d) Part IV: Staffing Approach. Counts toward the 15-page limit.

Volume I – Technical Capability

Part I – Staffing Capability and Experience

A. Key Personnel: Provide a description for each proposed Personnel who will manage the IDIQ contract and act as the points of contact for USDOT. Specify the approximate percentage of time each Personnel will be available for this contract, and explain why the Key Personnel possesses the qualifications to perform the proposed position.

B. Bureau Team Members (defined in Section L.2 L.3 above and Section H.5): List proposed staff that will provide a significant portion of services under the IDIQ contract and task orders issued.

L.5 PROCUREMENT INTEGRITY ACT REQUIREMENTS

Offerors should put the following notice on the top of each copy cover page (i.e., first page of submission) of its each volume of the proposal:

M.1 BEST VALUE EVALUATION

(3) Phase III Evaluation. After the Phase II evaluation, the Government will conduct an evaluation of the Price, Past Performance, and Subcontracting Plan factors. The Small Business Subcontracting Plan (if applicable) will be evaluated on an “Acceptable/Unacceptable” basis. A proposal receiving a “Marginal” or “Unacceptable” rating in one or more factor(s), as applicable, may be removed from further consideration for award or continued evaluation and notified that no further proposal revision will be considered.

M.2 EVALUATION CRITERIA

A proposal receiving a “Marginal” or “Unacceptable” rating, as applicable, in one or more factor(s) may be removed from further consideration for award or continued evaluation. The Small Business Subcontracting Plan (if applicable) will be evaluated on an “Acceptable/Unacceptable” basis.

END OF RFP TEXT REVISIONS

Except as provided herein, all terms and conditions of the RFP, as heretofore changed, remains unchanged and in full force and effect.

Year Year Year Year Year 1 2 3 4 5

Billing Labor Category Rate Rate Rate Rate Rate 1 Program Manager (PM)- IDIQ Key Personnel* 2 Project Manager/Task Order Lead 3 Senior Financial Analyst 4 Junior Financial Analyst 5 Senior Modeler- IDIQ Key Personnel* 6 Junior Modeler 7 Subject Matter Expert 8 Administrative Support

*IDIQ Key Personnel as defined in Section H.5 and Secion I.2

No.

Loaded Labor Rates/Hour RFP No. 693JJ318R000030

Revised Attachment J.1: Revised Labor Rate Schedule

RFP No. 693JJ318R000030 Attachment J.4

SPONSOR PAYMENT LETTER TEMPLATE

[Place on Sponsor/Borrower Letterhead]

[Date]

[Name and Address of Contractor/Outside Financial Advisory Firm]

RE: Sponsor Payment Letter for the Financial Advisory Services to be Provided to the Build America Bureau (the “Bureau”), an office within the Office of the Under Secretary for Policy of the U.S.

Department of Transportation (“DOT”) in Connection with the Proposed Financing of [Project Name] (the “Transaction”)

Dear [______]:

We understand that the Bureau, which administers the Transportation Infrastructure Finance and Innovation Act (TIFIA) credit program and the Railroad Rehabilitation and Improvement Financing (RRIF) credit program (together, the “Credit Programs”), requires the engagement of outside financial advisors to represent it in connection with the Transaction.

We further understand that:

(1) pursuant to a series of indefinite delivery indefinite quantity contracts (the “IDIQ Contracts”), DOT has retained contractors/firms that DOT can designate as transaction advisors to provide financial advisory services to the Bureau in connection with its administration of the Credit Programs, and [Name of Contractor] is one of such retained firms;

(2) the Bureau requires an outside financial advisor to represent it in the Transaction due to the complexity of the proposed financing structure and timetable on which the Transaction is expected to close;

(3) with certain exceptions, DOT requires the borrowers or sponsors seeking financing from DOT in circumstances such as those described above to pay all documented fees and expenses of the Bureau’s outside financial advisors;

(4) DOT has selected [Name of Contractor] as transactional financial advisor for the

Transaction (the “Transaction Financial Advisor”), and the Transaction Financial Advisor has agreed to represent DOT and the Bureau in connection with the Transaction and related matters (the “DOT Representation”); and

(5) the Transaction Financial Advisor may require the services of other sub-contractors in connection with the DOT Representation (each, a “Sub-contractor”, and together with the Transaction Financial Advisor, the “DOT Financial Advisor”).

[Name] is the sponsor of the project for which we are seeking DOT financing (the “Project Sponsor”), and [Name] will be the borrower for purposes of the Transaction (the “Borrower”).1

By our execution of this Sponsor Payment Letter, each of the Project Sponsor and the Borrower [and][please include all entities who will be responsible for Financial Advisor fees] (collectively, the “Responsible Parties”) agrees that:

(1) it shall be jointly and severally responsible for the payment of all documented fees and expenses of the DOT Financial Advisor in connection with the DOT Representation, regardless of (a) when incurred, (b) whether DOT ultimately provides credit assistance to the Borrower, and (c) whether Sub-contractors enter into a sponsor payment letter with the Responsible Parties;

(2) it shall not seek reimbursement from the United States of America, its departments or agencies, including DOT and the Bureau, or any of their employees or agents (the “Government”), for any fees and expenses of the DOT Financial Advisor, and the Government shall not be liable to the Responsible Parties, the DOT Financial Advisor or any other person for such fees and expenses;

(3) it shall pay all fees and expenses charged by the DOT Financial Advisor (a) promptly

(and, in any event, no later than [30 days] after receipt of each invoice by the Responsible Parties from the DOT Financial Advisor), (b) in U.S. dollars in immediately available funds in [New York, NY], and (c) without any deduction or withholding;

(4) the correctness, completeness and reasonableness of the fees and expenses invoiced by the DOT Financial Advisor shall be reviewed by DOT through the voucher statements submitted to and verified by DOT; and

(5) upon a failure by either or both of the Responsible Parties to comply with the terms and conditions of this Sponsor Payment Letter, DOT, in its sole discretion, in addition to all of its other rights, may (a) direct the Transaction Financial Advisor to stop all work on the Transaction, and/or (b) instruct the Transaction Financial Advisor to direct all Sub-contractors to stop all work on the Transaction. Upon a failure by the Responsible Parties to make any payment of invoiced fees and expenses as provided in this Sponsor Payment Letter, the DOT Financial Advisor may, as directed by DOT, stop all work on the Transaction.

In connection with the DOT Representation, the Transaction Financial Advisor, by its execution of this Sponsor Payment Letter, acknowledges and agrees that:

1 This form should be modified as necessary in the event that (a) the sponsor and borrower are the same entity, in which case the term “Responsible Party” will refer to such entity throughout this Sponsor Payment Letter or (b) the sponsor is a contracting authority in connection with a public-private partnership (P3) transaction, in which case (i) the term “Responsible Party” will refer to the contracting authority throughout this Sponsor Payment Letter and (ii) the sponsor will be permitted to assign its rights and obligations under this Sponsor Payment Letter to the members of the consortium comprising the preferred bidder for the procurement following bid award, as described in the second-to-last paragraph of this Sponsor Payment Letter.

(1) it shall only look to the Responsible Parties for any payment of fees and expenses and it does not and shall not have any expectation of payment from the Government for any of the services that it renders, or expenses that it incurs, including the fees and expenses of any Sub-contractors, in connection with the Transaction.

(2) it assumes the related credit risk of the Responsible Parties and, accordingly, shall not seek payment from the Government for such fees and expenses, and further acknowledges and agrees that the Government shall not be liable to the DOT Financial Advisor for any such fees or expenses.

(3) it shall closely coordinate its efforts with the DOT Contracting Officer’s

Representative (the “COR”), and other designated representatives of DOT and the Bureau, and focus its efforts on those tasks required by DOT and the Bureau to achieve their objectives, which tasks and objectives are set forth in the task order [insert the applicable task order number] issued by DOT to the Transaction Financial Advisor under the IDIQ Contract between the Transaction Financial Advisor and DOT (the “Task Order”);

(4) during the course of the DOT Representation, it shall promptly respond to inquiries from the Government regarding past and expected fees and expenses;

(5) it shall retain any Sub-contractors only with the prior written consent of DOT;

(6) each engagement letter or other arrangement with its Sub-contractors shall contain provisions in form and substance similar to the foregoing clauses (1) through (5);

(7) its fees and the fees of any Sub-contractors shall be based upon (a) the hourly rates agreed with DOT in the Task Order, which are listed on Appendix A, or, in the case of any Sub-contractor retained after execution of the Task Order, the hourly rates agreed with DOT as part of DOT’s consent to such retention, and notice of such rates shall be provided to the Responsible Parties by the Transaction Financial Advisor promptly after retention of such Sub-contractor, and (b) the time it actually devotes to the DOT Representation, as reflected in the invoices of the DOT Financial Advisor;

(8) attached hereto as Appendix B are the names of the individual advisors who will (subject to any subsequent adjustments approved by DOT) constitute the team handling the DOT Representation (such team, the “DOT Team,” and each member of such team, a “DOT Team Member”), and the financial advisor who will have primary responsibility for the DOT Representation (the “Team Leader”);

(9) on a monthly basis, unless otherwise agreed to by DOT, it shall provide to the COR for concurrence, prior to sending the summary invoice statement described in paragraph (10) below to the Responsible Parties, one copy of each invoice, together with a detailed description of services rendered, fees and expenses incurred, and required supporting documents, as specified in more detail in the IDIQ Contract between the Transaction Financial Advisor and DOT; and

(10) upon DOT’s review and verification of such monthly invoice submissions, the Transaction Financial Advisor shall promptly submit a summary invoice statement to the Responsible Parties that consists of (a) a brief summary description of the services rendered, (b) a list of reimbursable expenses itemized by category, and (c) the total amount of fees and expenses billed by the DOT Financial Advisor on the DOT Representation for the relevant month, and all outstanding amounts, if any, for the previous billing period.

Each of the Responsible Parties and the Transaction Financial Advisor understands and agrees that the Government has no obligation to, and shall not, pay any of the DOT Financial Advisor’s fees, costs and expenses for the DOT Representation. Pursuant to the terms of this Sponsor Payment Letter and in consideration of the fees that have been paid or are to be paid to the DOT Financial Advisor by the Responsible Parties, the Transaction Financial Advisor and Responsible Parties release and discharge the Government from all financial obligations, claims and liabilities arising out of, or in connection with, the DOT Representation.

The Responsible Parties understand that, notwithstanding their obligation to pay the fees and expenses of the DOT Financial Advisor with regard to the services rendered and expenses incurred in respect of the DOT Representation, the professional advisory relationship is solely between the Bureau and DOT, and the DOT Financial Advisor. The Responsible Parties hereby specifically disclaim any inference of any such relationship between the DOT Financial Advisor and themselves as a result of this arrangement.

Accordingly, the Responsible Parties acknowledge, in particular, that the DOT Financial Advisor’s duties of confidentiality and loyalty in the Transaction run exclusively to DOT and the Bureau, and there shall be no inference of confidentiality, fiduciary, or other client relationship between the DOT Financial Advisor and the Responsible Parties as a result of this Sponsor Payment Letter. The Responsible Parties further agree that they will not interfere with DOT’s or the Bureau’s relationship with the DOT Financial Advisor. The Responsible Parties agree that the foregoing provisions of this paragraph shall apply to all Sub-contractors for the Transaction.

Each Sub-contractor is an intended third-party beneficiary of the Responsible Parties’ undertakings set forth in this Sponsor Payment Letter in respect of amounts owed to each such Sub-contractor.

The parties agree that this Sponsor Payment Letter shall be subject to review and approval by DOT for all purposes and shall not be amended, modified, altered, or changed in any way without DOT's prior consent. All proposed amendments, modifications, alterations, or other changes shall be submitted to the DOT’s Contracting Officer (the “CO”) and the COR identified below, or their respective successors.

All invoices, supporting documentation, and notices provided to DOT hereunder shall be sent by email to the COR at the following address: [Insert COR’s email], with a cc to the CO at: [Insert CO’s email].

This Sponsor Payment Letter shall be governed by the law of the State of New York, and may be executed in counterparts, all of which together shall constitute a single instrument. Additionally, any signatory may execute this Sponsor Payment Letter by electronic means, and any counterpart so executed shall be treated for all purposes as the original signature of the relevant party.

This Sponsor Payment Letter, and the rights and obligations hereunder shall not be assignable by the mailto:%5BInsert%20COR's%20email%5D, Responsible Parties (or either of them) without the prior written consent of each of the Transaction Financial Advisor and DOT, and any purported assignment in violation of this sentence shall be null and void; [provided that, with the prior written consent of the Transaction Financial Advisor (which shall not be unreasonably withheld), the Responsible Parties shall be permitted to assign their rights and obligations hereunder to the members of the consortium that is selected as the preferred bidder by the Responsible Parties (or either of them) in connection with the competitive bidding process for the concession to design, build, finance, operate and/or maintain [Project Name]].2

Please sign and return a copy of this Sponsor Payment Letter to confirm your understanding of, and agreement with, the foregoing.

Very truly yours, [Signature Page to Follow]

2 To be inserted as necessary in connection with a P3 transaction.

[NAME OF SPONSOR]

By:

Name:

Title:

[NAME OF SPONSOR AFFILIATES RESPONSIBLE FOR FINANCIAL ADVISOR FEES] 3

[NAME OF BORROWER]

ACCEPTED AND AGREED:

[NAME OF TRANSACTION FINANCIAL ADVISOR]

Attachments

Appendix A Appendix B cc: [____], Contracting Officer, U.S. Department of Transportation

[____], Contracting Officer's Representative, U.S. Department of Transportation

3 This form should be modified as necessary to reflect the parties responsible for payment of Financial Advisor fees.

Appendix A Billing Rates

Appendix B DOT Team Members

ATTACHMENT J.5

RFP ATTACHMENT J.5

“Summary of Questions and Answers”

The purpose of this document is to summarize Questions & Answers regarding RFP No.

693JJ318R000030 received from potential Offerors. Questions may have been organized into sections, paraphrased and/or combined for clarity. FAR 52.215-8 Order of Precedence – Uniform Contract Format (OCT 1997) applies.

NOTE TO OFFERORS: This Amendment 0001 extends the proposal due date from 12:00pm ET on 9/11/2018 to 12:00pm ET on 9/13/2018. As a result of this extension, the Government estimates hosting oral presentations between October 3 -17, 2018. Dates are subject to change. See Section L3.1 for additional information on oral presentations.

GENERAL QUESTIONS

1. Question: Can the proposer elect not to be considered for one or more of the task areas A - I, as described on pages 4 and 5 of the RFP?

FHWA Response: No. A proposal shall demonstrate that the Contractor’s team can perform in all Task Areas. The Contractor’s team includes the prime Contractor and any subcontractors, as applicable.

2. Question: Would the Contracting Officer consider a part of this procurement as a set aside for small businesses?

FHWA Response: No.

3. Question: Would a common law joint venture be allowed to respond to this RFP?

FHWA Response: The RFP allows for a firm to serve as a prime contractor with subcontractors. Prime Offerors may use subcontractors in its provision of services. Therefore, an Offeror may respond to this RFP as the prime contractor and include a firm(s) as a subcontractor(s).

4. Question: If the offeror is proposing as a Joint Venture, should the required information under Volume II, Part II – Other Financial/Organization Information, be submitted for all the parties that form the JV?

FHWA Response: The RFP allows for a firm to serve as a prime contractor with subcontractors. Prime Offerors may use subcontractors in its provision of services. Therefore, an Offeror may respond to this RFP as the prime contractor and include a firm(s) as a subcontractor(s).

5. Question: Can Offerors include additional subcontractors after award of the IDIQ contract, when proposing on specific task orders and can USDOT confirm that firms will not be downscored for not including such specialty technical subcontractors at this proposal stage?

FHWA Response: A Contractor can propose new subcontractors at the Task Order level. A proposal in response to this RFP shall demonstrate that the Contractor’s team can perform in all Task Areas. The Contractor’s team includes the prime Contractor and any subcontractors.

6. Question: Section C.2. of the statement of work refers to restructuring and portfolio management. In November 2017, DOT issued separate RFIs for Financial Advisory Services and Restructuring Advisory services related to Transportation Infrastructure Financing for the Build America Bureau. Does DOT still intend to issue a separate RFP for restructuring advisory services?

FHWA Response: The Government anticipates, but does not guarantee, issuing a separate RFP for restructuring advisory services. At this time, the Government has made no decision with regards to this separate requirement and does not have any additional information on an acquisition strategy or timeframe for releasing the RFP.

QUESTIONS ON SECTION C-STATEMENT OF WORK

7. Question: First paragraph in Task Area A: We note the review of project economics potentially includes various specialist categories, including potentially traffic and revenue and cost estimation. The reasonableness of cost estimates, etc, might typically involve input from a lender’s technical advisor. Please clarify if those services are in fact being sought through this RFP or if the scope required is that the Financial Advisor will apply general industry experience in looking at technical matters.

FHWA Response: The scope of this requirements and the resulting IDIQ is that the Financial Advisor apply general industry experience in looking at technical matters and not for lender’s technical advisor.

8. Question: Page 6, paragraph 2: The proposal does not include a Tasks Area H. Please confirm that this reflects a numbering error and not an inadvertent omission of a task area.

FHWA Response: Correct, it is a numbering error. See revised RFP text.

9. Question: For a No Cost task order for a P3, does the Government anticipate that the Contractor will have to negotiate one contract with the Sponsoring state or local entity to cover all stages, or two contracts, the second with the Preferred Proponent?

FHWA Response: Because the only agreement is the sponsor payment letter, for which the Government has developed a template that Contractors will be required to use, the Government does not anticipate any negotiation between sponsors and Contractors. For two staged P3 processes, the Government anticipates the public sponsor will sign the sponsor payment letter and then, upon preferred bidder selection, assign the sponsor payment letter to the preferred bidder. The sponsor payment letter template contemplates such assignment.

10. Question: The required contents of the IDIQ Progress Reports referenced in RFP Section C.5.2 are task order specific. Please confirm that this IDIQ reporting requirement only becomes effective upon award of each IDIQ Contractor’s first task order.

FHWA Response: The IDIQ Progress Report is required for active task orders only. The IDIQ Progress Report requirement is applicable to both task order types, At Cost and No Cost. In the event a Contractor does not have any active task orders (i.e., none have been awarded or performance is complete), a progress report will not be required.

QUESTION ON SECTION G- CONTRACT ADMINISTRATION DATA

11. Question: When TOPRs are issued, will it be clear if each Task Order is a no-cost task order or an at-cost task order?

FHWA Response: Yes. TOPRs will indicate whether the Government intends to award an At- Cost or No-Cost task order as a result of the respective TOPR.

12. Question: For No Cost T&M task orders, because the Federal government receives advantageous pricing on almost all services and because payment for the no cost task orders are pursuant to direct agreements with applicants that are outside of the Federal government, for whom higher, commercially-determined rates would only be available, would the government consider removing the requirement that pricing for No-Cost Task orders be subject to the Rate Ceilings in the IDIQ.

13. Question: When evaluating TOPR responses for No Cost Task orders will there be a price submission and analysis of value, or just a level of effort proposal? If there is a price proposal, will the applicant be required to take the price, or does the government anticipate that being subject to negotiation?

FHWA Responses: For No-Cost TOPRs, the Government may ask for a cost proposal to evaluated the estimated cost. The TOPR estimated cost will be based on multiplying the fully burdened hourly rate for each proposed labor category/staff by the estimated level of effort.

Additionally, sponsors will not be able to negotiate the hourly rates charged by a firm for any specific task order. When submitting cost proposals for no-cost task orders the Contractor will be asked to include hourly rates in the cost section of the proposal, which shall be in line with the rates in the IDIQ contract. At a task order level, the Contractor can offer lower rates but shall not exceed the IDIQ rates. The resulting no-cost task order will include the approved rates. The rates approved for that one transaction/task order will be the rates charged to the sponsor for that transaction. The Government will convey this practice/information to the sponsors as applicable.

14. Question: RFP Section G.5, Task Orders Issued at No Cost to the Government, indicates that on each No Cost TO, Contractors will execute their own engagement letters with applicants, however Contractors are also required to provide a draft of the “sponsor payment letter” to the

COR and CO for comment prior to execution. First, are engagement letter and sponsor payment letter used interchangeably in this section? Second, how much time will be budgeted for review, negotiation and execution of such letters?

FHWA Response: Yes, engagement letter and sponsor payment letter are used interchangeably. For No-Cost Task Orders, the Contractor and the entity/ies responsible for the payment of legal fees shall have entered into a Sponsor Payment Letter within 5 business days of Task Order award, unless otherwise agreed by the COR and the CO. The Contractor shall provide a copy of the final draft of the Sponsor Payment Letter, as agreed between the Contractor and the sponsor, to the COR and CO for comment prior to execution. See Attachment J.4 of the RFP for a template Sponsor Payment letter.

15. Question: We note the RFP suggests “It is anticipated that most TOs issued under the IDIQ contracts will be issued at no-cost to the Government.” We are concerned that the contracting and payment mechanism, whereby the Contractor agrees payment and contract directly with the applicant/ borrower, for services to be provided to the Government, creates the potential for at least the perception of a conflict of interest for the Contractor and/or intersections with other regulation and professional obligations (such as applicable to municipal advisors, accountancies, etc) – however we have not had time to fully analyze these matters prior to the question deadline.

FHWA Response: The Contractor is not contracting directly with the applicant/borrower for the services. The Government will contract directly with the Contractor through the issuance of a No Cost task order under the resulting IDIQs. The IDIQ contracts create privity and duty of care between the Contractor and the Government. The sponsor payment letter is a payment arrangement whereby the sponsor agrees that, as part of its application process with the Government, it will directly pay for the services of the Government’s contractors, as opposed to reimbursing the Government for such services (which is the existing arrangement). As such, there is no ambiguity as to privity or duty of care.

16. Question: Can the Government clarify its objectives in developing the contracting mechanism for no cost task orders, and whether it would consider alternative contracting approaches which may also meet those objectives if the No Cost approach does ultimately give rise to other challenges?

FHWA Response: As opposed to the borrower/sponsor reimbursing the Government for such services, which is the existing arrangement, No Cost task order are intended to ensure seamless delivery of services without interruption and to expedite retention of advisors.

Given the volume of task orders open within the Bureau at any given time, we believe using sponsor payment arrangements is the best path to achieving these goals.

17. Question: Can the government clarify what is meant in the following statement: “In The Contractor assumes the credit risk and dispute risk of the applicant (or its affiliate).” For example, we are unsure how the applicant could dispute our work if the work is done on behalf of USDOT. We also wish to confirm whether it is meant to imply the contractor would be taking risk with respect to the loan actually being made or not (ie to the credit risk of the loan).

FHWA Response: Neither of the latter two statements (applicant/sponsor disputing the work done or Contractors assuming risk of loan being made) reflect our intention, or, for that matter, are our expectation. The sponsor payment letter template clarifies that it is the Government that reviews an invoice is adequate for payment, at which point the sponsor shall pay under the terms of the contract. It is noted that the review and concurrence of the COR does not equate payment approval for the Contractor’s invoice/bill. Further, the Bureau’s guidance and application materials clearly specify that sponsors are responsible for the cost of the Government’s advisors whether or not a loan closes. The original statement was meant as a disclosure that, should a sponsor fail to pay an invoice (as reviewed by the Government), the Government will not cover this invoice; i.e., the Contractor is assuming the risk of a sponsor breaching the terms of the sponsor payment letter. This is a risk that we wanted to disclose to potential contractors. However, if a sponsor fails to pay a due an invoice, the Government may direct the Contractor to stop work on the transaction until the sponsor is current on invoices.

18. Question: RFP Section G.5, Task Orders Issued at No Cost to the Government, indicates that sponsor payment letter(s) shall, “(v) state that the correctness and completeness of the costs and expenses invoiced by the Contractor shall be determined through statements submitted to and verified by the Bureau.” Please clarify the “statements” that need to be submitted? Does this reference point to the requirement that appears later in this RFP section for the Contractor to provide one copy of each bill to the COR (with supporting details) for concurrence? Will the Bureau and applicants be under separate agreement that such Bureau verification of/concurrence with “statements” equates to payment approval for Contractor bills?

FHWA Response: Yes, statement refers to the Contractor’s invoice. The Contractor shall provide one copy of each invoice/bill to the COR (with supporting details) for concurrence prior to submitting to the sponsor for payment. The review and concurrence of the COR does not equate payment approval for the Contractor’s invoice/bill. The Government has no obligation to, and shall not, pay any of the DOT Financial Advisor’s fees, costs and expenses for the DOT Representation.

19. Question: RFP Section G.8, Payment, only speaks to FFP payment for At Cost TOs. Does the Bureau anticipate that any No Cost TOs will be issued on a FFP basis?

FHWA Response: No Cost Task Order will be issued on a Time and Material/Labor Hour (T&M/LH) basis.

20. Question: RFP Section G.5 (vi) sets forth the requirements for Contractor’s “bills” under Task Orders Issued at No Cost to the Government and details what information such bills must contain when submitted to the applicant (or its affiliate). As the IDIQ provides for both T&M/LH and FFP type orders, we respectfully request that the language in Section G.5 (vi) be updated to distinguish between the information required for T&M/LH “bills” and FFP “bills.” As currently written, this section requires details on staff names with labor rates and hours worked which, while appropriate for T&M/LH type work, is not appropriate for FFP work.

FHWA Response: Task Orders issued at No Cost to the government will be on a T&M/LH basis and not FFP.

21. Question: Would the government entertain the notion of monthly retainer-based task orders, particularly for no-cost task orders? For projects that experience significant delays, this could assist in minimizing disruptions to deal teams and payment risk to Contractors.

FHWA Response: Task Orders issued at No Cost to the government will be on a T&M/LH basis and not FFP. For No Cost task order, Contractors can invoice on a monthly basis, unless otherwise approved in the Sponsor Payment Letter.

22. Question: RFP Section G.9, Notification of Expenditure of Funds, requires that the CS and COR be notified within 5 calendar days when costs incurred under At Cost TOs exceed 75% of the obligated funds. Will the Bureau consider increasing the notification timeframe to 10 calendar days or just deferring to the notification requirements in the T&M Payments clause (52.232-7)? The T&M Payments clause already provides for 30 days advance notification when costs incurred are expected to exceed 85% of obligated funds.

FHWA Response: See revised RFP text.

QUESTION ON SECTION H- SPECIAL CONTRACT REQUIREMENTS

23. Question: RFP Section H.9, Contractor Liability, includes a broad general indemnity provision which is not typically included in federal contracts. Would the Government considering removing that provision? To the extent the provision cannot be removed in its entirety, we respectfully request that the current provision be replaced with a more narrow limited infringement indemnity. We reference the FAR commercial item patent indemnity (52.227-3 or 52.212-4(h)) as an example.

FHWA Response: Comment noted.

24. Question: Page 27 Section H.9 of the RFP – Would TIFIA consider including a liability cap (i.e., the advisor's fee or $100,000, whichever is greater) for cases other than gross negligence?

QUESTIONS ON SECTION L - INSTRUCTIONS, CONDITIONS, AND NOTICES TO

BIDDERS

25. Question: Page 46 of the RFP states that resumes may be submitted as an appendix to Volume

II. Should it say Volume I instead of II?

FHWA Response: Correct. See revised RFP text.

26. Question: Page 46 of the RFP states that letters of intent may be submitted as an appendix to

Volume II. Should it say Volume I instead of II?

FHWA Response: Correct. See revised RFP text.

27. Question: In L.4 Written Proposal Content and Configuration, there is a reference to “Team Members (defined in Section L.2 above)”. The definition of Team Members is actually in Section L.3. Can you confirm, and correct that reference?

FHWA Response: See revised RFP text. The reference is to Section L.3. This is also defined in Section H.5

28. Question: Section L.4, Volume 1, Part I. A. includes the terms "Personnel" and "Key

Personnel"; however, only the term "Key Personnel" is defined. Does the term Personnel in Part I.A. mean Key Personnel?

FHWA Response: See revised RFP text. The reference is to Key Personnel as defined in Section L.3 and in Section H.5

29. Question: Page 51 Section L.5 of the RFP states that offeror should put the following notice (regarding procurement integrity act requirements) on the top of each copy of its proposal. Can you advise if it is acceptable to include this notice at the bottom of the table of content or if it must be placed on the proposal cover (first page of submission).

FHWA Response: Offerors should put the notice on the cover page (i.e., first page of submission) of each volume of the proposal. See revised RFP text.

30. Question: If a small business (SB) responds to the RFP, are they still obligated to meet the subcontracting plan targets for other small businesses like SDVOSB, HUBz, WOSB, SDB, VOSB as listed in attachment J.3?

FHWA Response: A Small Business Subcontracting Plan is required by all Prime Offerors not qualifying as a “Small Business” entity for the NAICS industry subsector identified in Section K, FAR clause 52.204-8(a).

31. Question: Would the team's experience on an executed CTA (contractor teaming arrangement FAR 9.6) count towards reference or past performance for the prime offeror as described in page 51 of the RFP?

FHWA Response: Cited past performance and experience must be directly related to the Prime Offeror or subcontractor(s), if applicable.

32. Question: Page 51, Part V Do past performance references have to be related with team members (or subcontractors) or for the firm only?

FHWA Response: Cited past performance and experience must be directly related to the Prime Offeror (i.e., firm) or subcontractor(s) (i.e., firms), if applicable.

33. Question: One of the required submittals for Volume II – Business and Price Proposal is a completed Standard Form LLL. However, in accordance with the form’s instructions it appears that the Standard Form LLL only needs to be completed and submitted with the proposal if federal officials were lobbied in connection with this opportunity/contract by one or more federally registered lobbyists. Are offerors required to submit blank forms if they have no lobbying activity to report, or may offerors include a statement in their proposals indicating that this form is not applicable?

FHWA Response: If there are no lobbying activities to report, the Offeror shall complete the form and indicate “Not Applicable” on block 10 of SF LLL. The offeror may also include a statement in Volume II- Price Proposal indicating that this form is not applicable.

34. Question: Page 2, B.2, paragraph 1: Does the Government have any requirements for the labor categories identified in Attachment J.1?

FHWA Response: No. The Program Manager and the Senior Moduler are deemed critical to performing the work under the resulting IDIQ and, as such, are deemed Key Personnel as defined in Section H.5 and in Section I.2. The Program Manager will be responsible for overall management of the IDIQ contract, including quality control and assurance for all products delivered to the government and availability of resources to complete all task orders. There will be one Program Manager for the resulting IDIQ. The Project Manager/Task Order Lead will be responsible for technical direction and supervision of a task order. Project Manager/Task Order Lead may vary by task order.

35. Question: The pricing structure only indicates two labor categories. In the interest of providing the most attractive pricing to the government, can we propose additional labor categories, which will enable the use of less expensive junior resources to support analytical tasks? For example, additional Labor Categories for Subject Matter Expert, Project Manager, Lead Modeler, and Senior Financial Analyst might enable greater flexibility in pricing and staffing.

FHWA Response: See revised Attachment J.1. for additional labor categories. On a task order basis, the Contractor may propose additional labor categories which will be subject to review and approval.

36. Question: Page 61, Attachment J.1; page 49, NOTE TO OFFERORS: The Labor Rate Schedule identifies only two required labor categories. However, the most effective and economical execution of this scope of work would require personnel possessing a mix of experience and expertise. Consider permitting offerors to propose additional labor categories or propose more than one level of financial analyst depending on years of experience and other qualifications.

FHWA Response: See revised Attachment J.1. for additional labor categories. In response to this RFP, Offerors should not propose additional or different labor categories. On a task order basis, the Contractor may propose additional or different labor categories which will be subject to review and approval.

37. Question: In order to provide better value and flexibility to staffing future tasks to the Government, would the Government consider allowing Offerors to bid additional labor categories?

FHWA Response: In response to this RFP, Offerors should not propose additional or different labor categories. On a task order basis, the Contractor may propose additional labor categories which will be subject to review and approval.

QUESTIONS ON SECTION M - EVALUATION FACTORS FOR AWARD

38. Question: Section M, Evaluation Criteria, mentions such ratings/determinations as Acceptable/Unacceptable in relation to Phase I, Technical Capability; Marginal/Unacceptable ratings as a result of Phase II Evaluations, or in one or more factor(s), and;

Acceptable/Unacceptable in relation to Small Business Subcontracting Plans. We respectfully request that objective definitions be provided for all adjectival ratings and determinations that the government intends to use for evaluations, specific to each phase or proposal section as appropriate.

FHWA Response: For the Phase I Evaluation, Technical Capability factor of Volume I- Technical Proposals will be evaluated on a “Acceptable/Unacceptable” basis. For the Phase II evaluation the Government will use an adjectival rating scheme. The Government will not disclose other source selection sensitive information.

39. Question: Page 60, (c) Price Evaluation, paragraph 2: Could the Government provide the estimated quantities of use over the life of the contract?

FHWA Response: The Government estimates that approximately 10-15 At Cost task orders will be issued per year across all multiple-award contracts resulting from this RFP. Per Section B.1 of the RFP, the maximum amount of all At Cost task orders issued by the Government shall not exceed a ceiling of $11,250,000 in total cumulative value across all multiple-award contracts awarded by the Government over the five-year period of performance. No minimum or maximum values are established for No Cost task orders.

40. Question: How will the Government evaluate whether a Subcontracting Plan is "Marginal" or "Unacceptable"?

FHWA Response: The Small Business Subcontracting Plan (if applicable) will be evaluated on an “Acceptable/Unacceptable” basis. The Government will not disclose other source selection sensitive information.