70FA6024I00000001 Attachment Draft PWS 9 Nov 2023.pdf

DRAFT Performance Work Statement (PWS) National Flood Insurance Program (NFIP)

Outside Counsel Advisory and Assistance Support

1.0 Introduction

1.1 Overview

This Performance Work Statement (PWS) stipulates the requirements for advisory and assistance (A&AS) support services pertaining to specialized legal counsel required by the Federal Emergency Management Agency’s (FEMA) Office of Chief Counsel (OCC).

Within the Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Resilience, Federal Insurance Directorate (“FID”) operates the National Flood Insurance Program (NFIP). The OCC is responsible for providing FEMA with legal advice, counsel, risk analysis, and dispute resolution services. Within OCC’s Operations Law Resilience Legal Division, Federal Insurance and Fund Management Branch provides these services to FID. This contract will directly support the OCC’s Federal Insurance and Fund Management Branch.

The Government intends to award a single time-and-materials type contract for these services. The Contractor, also referred to as outside legal counsel, shall be required to perform in accordance with the Quality Assurance Surveillance Plan (QASP).

1.2 Background

Through the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood Insurance Affordability Act of 2014, FEMA received authority to establish a federal-based program to secure reinsurance for the NFIP from the private reinsurance and capital markets to better manage losses incurred from major flood events. Having completed yearly reinsurance placements since 2017, FEMA is now working to further develop and mature the NFIP Reinsurance Program, again utilizing both the traditional reinsurance market and the capital markets. The NFIP Reinsurance Program’s initial purchases of reinsurance from the traditional and capital markets marked the first time the Federal government had secured reinsurance from private markets through a program of this nature.

The Program involves working with complex and specialized areas of reinsurance law, such as traditional reinsurance and insurance-linked securities (ILS). As a result, Resilience requires legal subject-matter-experts to advise and assist on matters related to reinsurance and securities laws and the reinsurance industry, including the private capital markets.

In 2017, FEMA completed its inaugural traditional reinsurance placement.

In 2018, FEMA completed a traditional reinsurance placement and its first ILS placement. As of Fiscal Year 2023, FEMA has completed a total of seven placements for annual traditional reinsurance and six ILS placements.

2.0 Scope

Technical direction will be utilized to further clarify certain aspects of the Objectives detailed in Section 2. This technical direction will be issued in writing by either the Contracting Officer (CO) or the Contracting Officer’s Representative (COR). Program guidance will delineate specific deliverables and time schedules in accordance with the requirements defined in the Objectives.

2.1 Description of Services

The contractor shall provide the necessary personnel to deliver the legal counsel services required by this Performance Work Statement. These contractor personnel shall have expertise in and experience with the reinsurance industry including the private capital markets. OCC requires the contractor to deliver support within four Objectives: 1) work related to reinsurance agreement terms and conditions including matters involving reinsurers, capital bond markets, and insurance-linked securities; 2) drafting memoranda of law on topics related to reinsurance including matters involving reinsurers, capital bond markets, and insurance-linked securities;

3) consulting on legal issues related to the management and operations of a Resilience-operated reinsurance program including matters involving reinsurers, capital bond markets, and insurance- linked securities; and 4) provide advice on potential disputes arising from reinsurance and other related agreements. The specifics required by each Objectives are explained in the subsections below.

2.1.1 Task 1: Reinsurance Agreement Terms and Conditions

The outside legal counsel shall be expected to be familiar with the NFIP through experience and background research, for example, on the National Flood Insurance Act of 1968, as amended, NFIP regulations in Title 44 of the Code of Federal Regulations, NFIP process and procedures, the Write Your Own Program, customary insurance practices, and the practices of other governmental entities ceding risk to private markets.

Upon the request of FEMA, the outside legal counsel shall draft reinsurance agreement terms and conditions for NFIP reinsurance agreements as required. Upon the request of FEMA, the outside counsel shall also be required to analyze, review, and provide comments on reinsurance agreements, as required.

Upon the request of FEMA, the outside legal counsel shall participate in meetings with FID’s broker, DHS, OCC, and reinsurers, as required, for example, to develop or customize the terms and conditions of reinsurance-related agreements.

Upon the request of FEMA, the outside legal counsel shall draft other types of agreements, including, but not limited to, trust agreements, sidecar agreements, catastrophe bond agreements, or other agreements to secure reinsurance including insurance-linked securities from the private reinsurance and capital markets, as required.

2.1.2 Task 2: Drafting of Legal Memorandum

Upon the request of FEMA, the outside legal counsel shall research and draft memorandum of law on issues related to the FEMA’s securing reinsurance from the private reinsurance and capital markets, including matters involving reinsurers, capital bond markets, and insurance- linked securities on behalf of the NFIP.

2.1.3 Task 3: Consulting on Reinsurance Program

The outside legal counsel shall consult with OCC to enable it to advise the NFIP as it develops an operations protocol defining and/or refining the NFIP Reinsurance Program’s processes and procedures (i.e., administrative, accounting, legal, etc.), governance (includes roles and responsibilities), reporting, documentation, and audits.

Upon the request of FEMA, the outside legal counsel shall review and provide comments on the NFIP Reinsurance Program’s operational protocols, including processes and procedures, governance, reporting, documentation, and audits process, as required.

2.1.4 Task 4: Advice on Potential Disputes

Upon the request of FEMA, the outside legal counsel shall provide advice to OCC on potential disputes arising from reinsurance and other related agreements involving the private reinsurance and capital markets.

2.2 Timeline for Deliverables

Resilience intends to implement the NFIP Reinsurance Program through placements following its Fiscal Year 2023 reinsurance placements. As a result, FEMA anticipates most of the work under the period of performance of this contract will occur on a rolling basis with periods of greater activity in the months leading up to the placements in order to assist Resilience with meeting deadlines necessary to accomplish the desired placements as well as to address issues arising from any claim collection.

2.3 Deliverables

Item Due Date

Reinsurance agreement terms and conditions

Upon request

Legal Review of Agreements Upon request Memoranda of law and legal opinions

Upon request

Consulting with Reinsurance Program

Upon request

Provide advice on potential disputes

Upon request

2.4 Billing of Hours

The contractor shall only invoice for hours expended on required deliverables. Before the contractor performs work related to any of the fourtasks, they shall receive advance direction from the contract’s authorized personnel. The contractor shall, upon request by the contract’s authorized personnel, submit an estimate of hours prior to work performed on specific assignments. Based on the spacing of deliverables (reference section 3.2), there may be months where the contractor’s services are not required, and as a result, no invoice for that month shall be submitted.

The contractor’s proposed labor rates for each labor category shall be fully burdened. A fully burdened labor rate is inclusive of: wages, overhead, general and administrative expenses, and profit for each category of labor.

Additionally, this contract shall not authorize payment for the following activities:

Clerical or administrative tasks, such as: time spent photocopying, collating, and faxing; arranging travel; data entry, document scanning, and document conversion to other electronic formats; scheduling and arranging meetings, etc.;

Billing-related time (i.e., invoices, accounting, or bookkeeping); and

Time spent on review or clearing of conflicts or opening a file.

2.5 Handling of Information

Due to the attorney-client relationship all communication is privileged and confidential. Therefore, Resilience does not require the contractor to take any specialized IT security measures when receiving, transmitting, or communicating, in any form, information related to work under this contract.

4 Qualifications and Key Personnel

This contract will require both key and non-key personnel.

The personnel performing work under this contract shall have completed a four (4)-year undergraduate degree from an accredited college or university and have a Juris Doctor from a law school accredited by the American Bar Association (ABA). Additionally, all legal personnel shall be an active member of the bar in any U.S. jurisdiction.

4.1 KEY PERSONNEL

Of-Counsel or Partner

Experience: Licensed attorney must be a partner or off-counsel with a minimum of 20 years of experience as an attorney in a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least eight (8) years of specialized experience in reinsurance law. Specifically, the attorney must have experience working with a cedent to draft, review, and revise the terms and conditions of a traditional reinsurance agreement. The attorney must also have experience drafting, reviewing, and revising other types of agreements, such as trust agreements, side car agreements, catastrophe bond agreements, and other agreements to secure reinsurance from the capital markets. The attorney must have experience advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities).

The attorney should have experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer. Previous experience working with the Federal government, and specifically with the National Flood Insurance Program is also highly desirable.

4.2 NON‐KEY PERSONNEL

Associate

Experience: Licensed attorney with a minimum of six (6) years of experience with a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least three (3) years of specialized experience in reinsurance law.

Specifically, the attorney must have experience working with a cedent to draft agreements to secure reinsurance from the private and capital markets.

The attorney should have experience researching and writing memorandum of law on issues related to reinsurance. The attorney should also have experience related to advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities).

Experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer, and experience working with the Federal government, specifically with the National Flood Insurance Program, are also highly desirable.

5 Place of Performance

Work performed under this contract shall take place primarily at the contractor’s place of business. The majority of communications for work performed under this contract shall take place via electronic and telephonic means – email, conference call, video conference, and computer screen share.

When the contractor has staff located in the DC metro area that allows for convenient and affordable travel to the Resilience headquarters office, then by invitation from an authorized FID employee, the contractor may be asked to travel to FID’s office in order to complete a task within one of the work areas.

FEMA-FID headquarters is located at: 400 C St SW, Washington, DC 20024.

6 Period of Performance

The period of performance of this contract shall include a 12 month base period and four (4) 12 month option periods.

7 Applicable Documentation

The work performed under this contract does not require compliance with any DHS, FEMA, or FID specific regulations, policies, memorandums, or directives.

8 Other Direct Costs

8.1 Material Expenses

Material expenses are not anticipated under this contract. Specifically, the following charges related to overhead costs and internal charges shall not be reimbursed, including but not limited to:

Office supplies;

Charges for local and long distance telephone service, teleconference lines, and facsimile;

Imaging or scanning service costs;

Document file/storage and retrieval costs;

Electronic legal research annual or monthly fees (i.e., Lexis, Westlaw, or other cost-based providers);

Rent for office space, equipment, or software;

Charges for case management systems;

Charges for meeting rooms;

Catering; and Postage.

8.2 Travel

Out of area travel is not allowed unless the contractor is given advance authorization and approval by the contract’s designated CO and/or COR.

FEMA does not anticipate the need for regular travel in order to perform this work; however, the need for travel may arise so the contractor can attend in-person meetings with FEMA, its reinsurers, brokers, and any other reinsurance and insurance-linked securities-related agents related to the design of a reinsurance agreement and/or other agreements necessary for obtaining reinsurance through private reinsurers and the capital markets. If this situation occurs, FEMA will give the contractor advance notice.

If travel costs are incurred by the contractor, then they shall comply with the Federal Travel Regulations (FTR) and Federal Acquisition Regulations (FAR) Subpart 31.205-46, Travel costs, when billing for travel expenses.

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