Combined QA Document 4.27.23 Posting.xlsx

XLSX spreadsheet 17 KB Posted Apr 27, 2023

Attached to: Build America Bureau Legal Advisory Services
Solicitation number: 693JJ323R000013
Issued by: Department of Transportation Federal Highway Administration

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Other files

File	Type	Posted
Combined QA Document 5.1.23 Posting.xlsx	XLSX spreadsheet	May 1, 2023
693JJ323R000013_Amendment 2.pdf	PDF	May 1, 2023
693JJ323R000013_Amendment 1.pdf	PDF	Apr 27, 2023
Attachment J.1 Labor Rate Schedule.xlsx	XLSX spreadsheet	Apr 10, 2023
Attachment J.3 Subcontracting Plan.doc	DOC document	Apr 10, 2023
Attachment J.2 Standard Form LLL.pdf	PDF	Apr 10, 2023
693JJ323R000013 4.10.23.pdf	PDF	Apr 10, 2023
Question Submission Spreadsheet.xlsx	XLSX spreadsheet	Apr 10, 2023
Attachment J.4 Sample Sponsor Payment Letter.docx	DOCX document	Apr 10, 2023

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General

Build America Bureau - Legal Advisory Services - 693JJ323R000013
Solicitation reference, if applicable	Page #	Question	Answer

Section B.1 IDIQ Minimum and Maximum Contract Amounts - (2) No Cost to Government 2 The Solicitation mentions that "The Sponsor payment letter/agreement between the Contractor and the applicant (or its affiliate) will not be subject to the terms of this IDIQ contract or the FAR." (emphasis added)

(a) While the Contractor has not been awarded a Task Order that is an At Cost order, will the Contractor be required to satisfy any of the FAR provision incorporated into the IDIQ? or will the FAR provisions become applicable only after the Contractor has been awarded an At Cost Task Order?

(b) After the Contractor has been awarded a Task Order that is an At Cost order, will the Contractor be subject to FAR in any other respects under the IDIQ for Task Orders that are No Cost to Government?	The Sponsor Payment Letter and subsequent work between the Contractor and the Sponsor under a No Cost Task Order is not subject to the FAR. However, the IDIQ is the agreement between the Government and the Contractor and the FAR and other contract terms and conditions in the IDIQ related to contract administration apply to the Contractor upon IDIQ contract award. Accordingly (a) the Contractor is subject to the FAR and other contract terms and conditions at contract award and (b) award of an At Cost task order will not change the Contractor's responsbilities under any existing No Cost task orders.
	Section H.5 - Organizational Conflict of Interest	33-36	The firm regularly represents clients that are under regulation or supervision by the Department or the agencies under its supervision. These representations may include administrative proceedings related to the business and operations of those clients, and in some cases may result in challenges, enforcement proceedings or other disputes related to decisions by the Department or agencies under its supervision. Please clarify that the terms of the Conflict of Interest provision will not prevent Offeror from undertaking or continuing the representation of clients in such matters (including in litigation or arbitration adverse to the Department or agencies under its supervision), so long as those matters do not relate to the Credit Programs managed by the Build America Bureau. In particular refer to the first paragraph 4 of the referenced section of the Solicitation.	The Department is implementing its conflict requirements on a transactional (task order level) basis. Being on the IDIQ panel does not in itself require that the Contractor has to seek a waiver of the Department’s conflicts policy for representing clients that are under regulation or supervision by the Department or the agencies under its supervision. When the Contractor undertakes such representation and then wants to submit a proposal for a task order, such Contractor will need to include a disclosure of such existing representation in the proposal or otherwise disclose it to the Department. As part of the proposal evaluation process, determination of whether a conflict waiver is needed and/or appropriate is going to be made. If the Contractor is already working on a task order when they are approached about undertaking a representation involving a potential conflict, they will need to disclose it to the Department. A determination will be made at that point of whether there is a conflict, and whether a wavier is needed and/or appropriate. When such existing or proposed representation is limited to matters unrelated to the Credit Programs, paragraph 4 of the Conflict of Interest provision still applies. However, it is unlikely that nominally adverse proceedings (e.g, administrative proceedings) will result in finding of a conflict or a conflict that couldn’t be waived. We encourage Contractors to submit task order proposals even if they believe a conflict may exist, so that we can evaluate the potential conflict and make a case-by-case determination.
	H.5	35	Paragraph (4) of the Conflict provisions prevents a Contractor from representing parties “whose interests are adverse to those of the Department in any litigation, arbitration, action, suit, claim, proceeding, inquiry or investigation”. This prohibition extends from the Department to its operating administrations. This provision is more restrictive than (1) through (3) as those permit a Contractor to be adverse to the Bureau on particular matters (including, presumably, adversity with respect to enforcement of credit agreements). In its current form, paragraph (4) therefore precludes firms which specialist transportation experience in terms of interacting with the Department and its operating administrations from competing for this engagement. Such firms might otherwise offer valuable modal experience but such experience often involves occasional adversity, for example in connection with FAA Part 16 and enforcement actions. Conversely, a firm which solely engages with the Department through project financings, and has no broader relevant modal experience, would be able to submit a response even if it is occassionally advserse with respect to the Bureau programs. We suggest that the Department consider revising paragraph (4) to more closely align with the approach in paragraphs (1) through (3).	Paragraph 4 of the Conflicts provision should not preclude Contractors representing clients on matters involving the Department and its operating administrations from competing for, and being on, the IDIQ panel. The Department is implementing its conflict requirements on a transactional (task order level) basis. Being on the IDIQ panel does not in itself require that the Contractor has to seek a waiver of the Department’s conflicts policy for representing clients that are under regulation or supervision by the Department or the agencies under its supervision, including when such representation involves occasional adversity. When the Contractor undertakes such representation and then wants to submit a proposal for a task order, such Contractor will need to include a disclosure of such existing representation in the proposal or otherwise disclose it to the Department. As part of the proposal evaluation process, determination of whether a conflict waiver is needed and/or appropriate is going to be made. If the Contractor is already working on a task order when they are approached about undertaking a representation involving a potential conflict, they will need to disclose it to the Department. A determination will be made at that point of whether there is a conflict, and whether a wavier is needed and/or appropriate. It is unlikely that nominally adverse proceedings will result in finding of a conflict or a conflict that couldn’t be waived. We encourage Contractors to submit task order proposals even if they believe a conflict may exist, so that we can evaluate the potential conflict and make a case-by-case determination.
	Section H.8 - Contractor Liability	36	We are not in a position to agree to the indemnity language in H.8 because it could cause our liability insurance coverage to be voided by being considered a settlement or waiver of a potential claim or defense without input from the insurer. Can DOT remove this paragraph or amend it to be consistent with our insurance policy requirements?	The Government would require additional information to determine if a modification is possible. If the Contractor would like to make a change to this section, they should request this change with their proposal and this may be negotiated at time of a contract award.
	Section I - Contract Clauses	39	We are not in a position to agree to this IP Indemnity provision because it could cause our liability insurance coverage to be voided by being considered a settlement or waiver of a potential claim or defense without input from the insurer.

Based on the scope of work included in the Solicitation, as it relates to IP, patent or copyright matters, our role would be limited to the provision of legal advice and documentation related to IP, patent, and/or copyright issues in the projects financed by the Department. We note that ordinarily outside counsel will not provide or use IP, patent and/or copyrights to or of the Department as part of its scope of work, rather it will only provide legal advice. The scope of IP, patent and copyright matters covered by the indemnity do not appear to be part of the scope of work or materials to be provided by Contractor. Therefore, we ask the Department to strike the references to IP indemnity language (including incorporation by references).	The solicitation was revised to add a parenthetical to FAR 52.227-3 stating: This clause applies only to task orders that involve IP developed by the Contractor. The Bureau has not had such a task order (developing IP) in the past history of this requirement.
	Section L - Instructions, Conditions, and Notices to Bidders - Volume II - Technical Merit	59	Are letters of intent required for each of own employees that are nominated in the team? If so, is there any required format or content to the letter?	Solicitation language was revised to clarify when letters of intent are required. Letters of intent are required for non-employees of the Contractor (subcontractors and proposed new hires). For example, this could be an engagement letter between the contractor and local counsel. There is no required format or content but individual letters are limited to one page each.
	Section L.4 - Written Proposal Content and Configuration - Volume II - Technical Merit- Part I - Staffing Capability and Experience	61, 62, 73, 74, 75	Please clarify the definition of "Infrastructure" for purposes of the solicitation.	Offerors may use any infrastructure experience in their proposals (other than where the evaluation factor references a specific type of infrastrcture, i.e, rail infrastructure finance). Experience related to surface transportation infrastructure will be considered more relevant for the purposes of evaluation.
	Section L - Instructions, Conditions, and Notices to Bidders - Volume III - Business and Price Proposal	63 and Attachment J.1	Can we add additional labor categories to the table, to account for specialist legal practices, e.g., restructuring?	Yes. If a Contractor chooses to do this, they must add a row to Attachment J.1 showing the proposed labor rate for each year of performance. Contractors electing to add labor categories should also submit a description of each additional labor category (how the contractor is defining this labor category to include minimum years of experience and skills) and clarifying how this labor category differs from other labor categories based on seniority (e.g., how is a Senior Specialist differentiated from a Partner). This labor category information must be submitted with the Contractor's price proposal. If the Contractor elects to add any labor categories in Attachment J.1, the added labor categories will be included in the Blended Rate calculation used for the Government's price analysis.
	Section L.4 Written Proposal Content and Configuration - Volume III - Part IV - Subcontracting Plan	64, 65	As of the date of submission of the Proposal, we do not plan on entering into any subcontract in connection with the performance of the scope of work under the IDIQ. We envision that we would only enter into subcontracts for the provision of local law advice on a case by case basis, when instructed by the Department, which subcontracting would be made by identifying firms with the appropriate qualifications, rather than on the basis of firm size. Please confirm that the subcontracting plan required to be delivered in the form of Attachment J.3. may include a zero dollar goal, and that the need/adequacy of entering into subcontracting plans for specific task orders will be contemplated in the applicable TOPRs.	In the event you anticipate no subcontracting, please follow the instructions on page 65 of the solicitation for if the Offeror has no subcontracting plan, i.e,, submit form J.3 with "no plan identified" indicated on the form and submit a statement of circumstances supporting this documentation. In the statement of circumstances include your explanation on only entering into subcontracts on an as needed basis.
	L.4., M.1.B.1.	60, 69	Please consider construing the hosting capabilities flexibily to allow for the 25 seat minimum to be met with adding additional seating to a facility or providing for hosting across multiple rooms etc. Given post-COVID shifts to use of videoconferenceing, and to facilitate competition by smaller and mid-sized law firms, this change would be appreciated.	The language has been revised to require 15 attendees with additional capacity available through video conferencing.
	M	77, 78	Please provide any information on historical rates paid by the Bureau under the prior IDIQ. Legacy firms will have the benefit of knowing this information, which is not available to additional law firms looking to compete for this solicitation.	The Bureau generally pays market rates, which vary widely among firms.
	N/A	N/A	A new solicitation for a stand-alone RRIF contract was released on the 19th April. How does this cross-over with the RRIF component of this IDIQ? They both ask to demonstrate the same Corporate and Rail Infrastructure Finance experience.	The Government anticipates that the rail infrastructure work will be met with an award to one contractor under the standalone RRIF contract (solicitation number 693JJ323Q000026). However, the Government included an option for RRIF work under this IDIQ in the event the standalone contract is not able to meet the entirety of the Government's need.
	N/A	N/A	If a Contractor Key Personnel member serves on the firm's opinion committee, would that person be able to review legal opinions to be issued by the firm for a client who may be opposite the Bureau or the Department?	Yes, the Bureau does not view service on an opinions committee as representation of a client. However, service in other capacity would still need to comply with the conflicts policy in Section H.5 of the solicitation.

File details come from the government source that posted it. Updated Apr 27, 2023.