OCED Sources Sought Notice - Final.pdf

Department of Energy Sources Sought: OCED Transaction Counsel Opportunity FY25

This is a Sources Sought Notice for Market Research only. DOE is interested in responses from Small and Large Businesses to this Sources Sought Notice.

The United States Department of Energy (DOE), Office of Clean Energy Demonstrations (OCED) has a need for outside counsel to provide Legal Support Services. The proposed NAICS code is 541110 and the size is $13.5 million.

SERVICE DESCRIPTION

DOE seeks advisory services from outside counsel with senior level experience to serve as Transactional Counsel, with respect to the portfolio of programs (the “Programs”) administered by OCED, including but not limited to:

1. The industrial demonstrations program;

2. The advanced nuclear programs;

3. The regional clean hydrogen hubs program;

4. The carbon management programs; and

5. The renewables and grid programs.

Information about the programs currently administered by OCED is available at https://www.energy.gov/oced/office-clean-energy-demonstrations.

In some cases, OCED has already selected recipients of awards and executed financial assistance agreements that fund planning activities with these recipients. In these cases, as set forth in the financial assistance agreement, OCED will determine whether to continue to fund the award in subsequent phases, to include development, permitting, and financing; installation or construction; and operations. As part of its continuation decision, OCED will negotiate with the recipient as to the scope of work and specific terms applicable to the subsequent phase(s).

The legal advice and services that DOE anticipates that the Transactional Counsel would be required to perform, often on a quick turnaround basis, include the following:

1. Undertake due diligence review of selectees, recipients, subrecipients, and awardees of DOE funding and other key entities necessary for successful completion of projects and awards that is customary in areas including but not limited to any material agreements related to the project, such as offtake agreements, feedstock agreements, energy attribute credits, and power purchase agreements; construction agreements; financing documents; corporate formation and governance documents; material litigation; regulatory approvals; and use of tax credits and tax equity structures.

2. Advise on issues that may arise in connection with DOE’s interest in tangible property acquired or improved under the award or contributed by the recipient as cost-share, including on DOE agreements with creditors of recipients, subrecipients, and awardees regarding tangible property.

3. Provide other legal advice and expertise in the following practice areas as may be needed from time to time: corporate matters; debt financings, particularly project finance; contracts; tax;

https://www.energy.gov/oced/office-clean-energy-demonstrations bankruptcy and debt restructuring; secured transactions; inter-creditor arrangements; real estate;

mortgage banking; energy; environmental and natural resources; intellectual property; labor and employment; and other specific practice areas as identified by DOE.

4. Analyze legal issues, including compliance with applicable statutory, regulatory, contractual, and policy requirements in connection with DOE’s consideration and evaluation of a project and its impact on DOE’s financial interests.

5. Provide counsel, or cause counsel to be provided, on all matters of local law, local security documentation, or jurisdiction-specific legal issues such as local land use, permitting, tax, and real property laws and effectuate security interests contemplated; advise DOE and prepare documentation that may be required in connection with all local law matters, including tax matters arising out of the project.

6. Consult promptly with DOE on all material policy and legal issues that may arise in the course of a project.

7. Review legal opinions and related correspondence, documents, pleadings, filings, and other representations on issues arising from projects or proposed projects.

8. Draft and deliver to DOE from time to time at the request of DOE, “due diligence” memoranda, describing all transaction documents reviewed, identifying all material issues identified therein;

analyzing such issues; and, if appropriate, explaining how such issues were or could be addressed, mitigated, or resolved.

9. From time to time, as requested and required by DOE, advise on the drafting of applicable transaction documents and participate and represent DOE in certain aspects of project documentation and negotiations.

10. Provide legal advice to support DOE, as needed, in all aspects of a bankruptcy process under applicable federal and state law in consultation, as appropriate, with other U.S. Government agencies, such as the U.S. Department of Justice, and other DOE agents or advisors.

11. Prepare for, and participate in, meetings in respect of the work, to include (a) meetings at DOE with DOE personnel, (b) meetings between DOE personnel and other Government agencies, and

(c) meetings between DOE personnel and recipients and key entities to a project, including legal counsel or other consultants hired by recipients or other key entities to a project.

12. Provide assistance to support DOE, as needed, in responding to audits, investigations of, or inquiries by Governmental agencies that concern any recipient, subrecipient, awardee, ultimate parent, or a project, as well as with agency documentation concerning any recipient, subrecipient, awardee, ultimate parent or a project.

13. Conduct analysis and provide oral and written advice and recommendations. Such written analysis, advice and recommendations may include legal briefs, memoranda, letters and other documentation to support such analysis, advice and recommendations. Any such written analysis, advice and recommendations shall be delivered in paper and/or electronic media as DOE shall deem appropriate.

QUALIFICATIONS CRITERIA

Interested vendors shall carefully review the Qualifications Criteria attached to this notice. A written Capability Statement response to the Qualifications Criteria must provide clear and unambiguous evidence to substantiate the capacity to fulfill this requirement as described in the attached Qualifications Criteria. Please include the following information in your Capability Statement:

A. Identifying information:

1. Name of Company, Address and Unique Entity Identifier (UEI) Number.

2. Point of Contact and Phone Number.

3. Capabilities/Qualifications: A short description of the capabilities and qualifications of the institution to perform the criteria described above.

4. Other contracting vehicle for the required services (i.e., GSA or OACIS contracts).

5. Business size applicable to the NAICS Code:

□ Small business □ HUBZone □WOSB □ EDWOSB

□ 8(a) □ VOSB □ SDVOSB

□ Small Disadvantaged Business □ Other than Small Business

B. Documentation of firm’s ability/experience:

1. Statement of your firm’s ability to perform the work outlined above;

2. Staff expertise, including their availability, experience, and formal and other training;

3. Current in-house capability and capacity to perform the work;

4. Prior completed projects of a similar nature as those outlined above;

5. Experience representing recipients of federal financial assistance;

6. Examples of prior completed Government contracts, references, and other related information; and

7. Disclosure of any known actual or potential conflicts of interest or other ethical conflicts that may limit your firm or certain staff members of your firm from rendering the services described above to DOE.

FORMAT OF RESPONSES

Please provide a synopsis of your company’s capabilities and contact information with no more than fifteen (15) single-sided pages, 12-point font, minimum one-inch margins, in Microsoft Word format with a “.docx” or “.doc” extension or in Adobe format with a “.pdf” extension. To the extent possible, all responses should be unclassified and for general access by the Government. Any proprietary information submitted must be clearly and separately identified and marked and will be appropriately protected. The Government will NOT be responsible for any proprietary information not clearly marked. Any material provided may be used in development of future solicitations.

SUBMISSION INSTRUCTIONS

The DOE Office of Headquarters Procurement Services (MA-64) employs a secure, web-enabled acquisition and financial assistance system, which is known as the Strategic Integrated Procurement Enterprise System (STRIPES). Capability Statements shall be submitted through STRIPES. In order to use STRIPES, all interested vendors must be registered with Compusearch's FedConnect portal, which can be located at https://www.fedconnect.net/. To get more information about STRIPES and to register your company, within your Internet browser, go to https://www.fedconnect.net/. To view the Sources Sought Notice, either directly access your Fedconnect account and search for Solicitation Number 89243625NCD000008 or visit www.sam.gov. Each respondent must ensure that their SAM registration is current and active prior to the submission of capabilities statement in response to this Sources Sought Notice.

All submissions must be received by DOE by January 24, 2025 at 12:00pm EST.

THIS IS A SOURCES SOUGHT NOTICE ONLY. This Sources Sought Notice is a means of obtaining feedback from contractors concerning the requirements stated below, under Qualifications Criteria, which is part of the acquisition planning and market research phase for this procurement. The industry input received from this Sources Sought Notice will aid in determining available sources that can meet the Government’s below stated requirements and may be considered in the preparation of an official solicitation package.

This Sources Sought Notice does not constitute a solicitation.

Qualifications Criteria

Transactional Counsel Legal Support Services

The vendor must demonstrate that it meets all of the following criteria:

1. The vendor acted as primary outside legal transaction counsel on three to five (3-5) limited or non-recourse “project finance” transactions with the following parameters:

A. Each transaction closed on or after January 1, 2019;

B. Each transaction involved an energy or energy-related project;

C. Each transaction had project costs of not less than $100 million;

D. For each transaction:

1. The client was an agency or instrumentality of the U.S. Government (for example, without limitation, DOE’s Loan Programs Office (LPO), the U.S. International Development Finance Corporation, the U.S. Export-Import Bank, the Department of Agriculture’s Rural Utilities Service, or the Department of Transportation’s Transportation Infrastructure Finance and Innovation Act (TIFIA) program), or

2. The client was the lender, guarantor, or borrower in a transaction that was a comparable “project finance” transaction.

E. Legal services provided by the vendor to its clients in each of the transactions included due diligence, structuring, drafting, and negotiating financing documents.

F. Legal services provided by the vendor to its clients in each of the transactions included experience with structuring, drafting, and negotiating project documents, including construction contracts, offtake agreements, feedstock agreements, and operating agreements.

Please provide a description of the comparable nature of the transaction and client, as well as how the vendor would further develop the capacity to provide legal advice and counsel with respect to the federal financial assistance requirements and policies applicable to the OCED programs.

2. On or after January 1, 2019, the vendor represented a lead or senior lender or guarantor in connection with a borrower’s bankruptcy, insolvency, reorganization, or debt restructuring, for financing the principal amount of which was not less than $100 million.

3. The vendor has offices, or access to offices, in Washington, DC.