JOFOC_Redacted.pdf

GRAND TOTAL

4. The statutory authority permitting other than full and open competition.

41 U.S.C. Section 3304 (a)(1), as implemented by FAR 6.302-1, “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements”.

5. A statement demonstrating the unique qualifications of the proposed contractor or the nature of the action requiring the use of the authority.

The Robert Rabalais Team is the only qualified law firm without a conflict of interest with the DOE that can meet the OIG’s requirements. The OIG review is to be an independent review of the LPO process; utilizing a vendor who is currently providing support to LPO would not allow for sufficient independence. Having a vendor who is currently supporting LPO in a similar capacity would create an Organizational Conflict of Interest which could lead to a vendor providing a biased opinion or skewed results, undermining the intent of the OIG effort. Due to these concerns, the vendor must be completely independent and not have any current requirements within LPO. As further addressed in Section 6, below, regarding the DOE’s market research and efforts to locate firms capable of supporting this requirement, there are no other firms with the capability to support the OIG’s requirement that can maintain the necessary independence and be free of a conflict of interest. The Robert Rabalais Team is uniquely qualified as they are the only law firm with the level of experience required to support this effort while being able to maintain the necessary independence. The team lead at The Robert Rabalais Team has 35 years of experience in complex energy financing transactions on the borrower and lender sides of the transactions. The OIG is particularly impressed by his experience with borrowers, lenders, and institutional investors – this multi-dimensional awareness will be particularly valuable for oversight as it ensures an ability to assess the transaction from several vantage points. Overall, the Rabalais response is exactly what the OIG sought in the Request for Information (RFI) and would meet the OIG’s oversight requirements.

The Team will include the following subject matter experts:

- Mr. Rabalais who has over 25 years in managing and supervising large and diverse teams of attorneys and financial, accounting, and technical experts in different legal and professional disciplines to coordinate work streams, timelines and work product on complex energy financings involving multiple contemporaneous and related transactions.

- A lending attorney having over 30 years of experience with specialized expertise in project finance who has worked at major New York and Houston law firms.

The lending attorney was a project manager at a major international engineering and procurement company for over 20 years prior to attending law school.

- A pool of energy finance attorneys having decades of combined experience are available to assist and support the team as needed. These individuals range from senior attorneys to midlevel attorneys.

- Subject matter experts (SMEs) in financial and technical disciplines to function as subcontractors on Project 1 and Project 2. These include a senior energy loan investor, structurer and underwriter who has over thirty years’ experience as an energy investment and finance professional, including raising and managing six private equity/credit funds and completing more than 230 debt, equity, M&A & derivative-linked energy transactions. Seventy percent of those transactions were completed as lead lender/principal investor. The Financial and Technical SME has underwritten scores of loans in both FDIC regulated/insured deposit lending institutions and non-bank environments (in which he created prudent energy lending policies). The Financial and Technical SME’s prior firms include Angelo Gordon, Jefferies, The Chase Manhattan Bank and Chemical Bank. The Financial and Technical SME holds a BBA, MBA, and a CFA. This individual has associates readily available to support his work streams having decades of combined energy finance experience in investment banking, lending, private equity, and surety bonding.

In addition, Mr. Rabalais may subcontract with other technical experts in the insurance, engineering, construction and O&M areas. One expert is a mechanical engineer having more than 25 years of experience evaluating, conducting diligence, and supporting energy finance transactions as an engineer and technical team member. He was a senior team member at Angelo Gordon, Apollo Management, Royal Bank of Scotland and several other energy lending and investment management firms.

6. A description of efforts to ensure that offers were solicited from as many potential sources as is practicable. Include whether or not an announcement was made on the System for Award Management (www.sam.gov) and what response, if any, was received, and include the exception under FAR 5.202 when not synopsizing.

Describe whether any additional or similar requirements are anticipated in the future. (This may not be included as an addendum. It must be in the body of the

JOFOC.)

In 2023, the OIG began conducting market research via internet searches, while the OIG was also acquiring funding to conduct the required oversight of the LPO. As these efforts continued, the OIG also acquired a list of the law firms already retained by the LPO.

These law firms would be conflicted from working for the OIG. The OIG discovered that many of the law firms that might have been qualified to assist the OIG had already been retained by the Department. The already small number of qualified firms was therefore further reduced. The OIG also noted that a handful of potentially qualified firms were advertising on websites to assist borrowers to acquire loans and guarantees from the LPO.

The law firms already assisting borrowers would also be conflicted from assisting the

OIG.

As market research continued, the Inspector General contacted Vinson & Elkins, LLP, a Houston based law firm with the requisite expertise to discuss the market for such services. This law firm did not appear on the list of firms already retained by the LPO.

This firm, however, was already representing LPO borrowers and was therefore not available to assist the OIG.

Following the conversation with the Houston based firm, the OIG expanded its market research to five additional law firms – Milbank LLP, Simpson Thacher, Bracewell LLP, Burke Law Group, and Sidley Austin LLP. The OIG’s Chief Counsel contacted all five firms via email to gauge interest in participating in market research. Of the additional five law firms, two firms explicitly declined the offer for a phone call and one did not respond. Only two firms remained on the OIG’s market research list.

The OIG continued its market research via online and Westlaw secondary searches to attempt to locate additional firms. Only one additional firm was identified as potentially having the requisite expertise. This brought the total to only three firms as potential candidates to assist the OIG.

On April 3 and April 5, the Inspector General held market research calls with the three firms to discuss the market for these services. All three firms agreed that it would be difficult for the OIG to retain a firm for these services due to the prevailing landscape for conflicts.

To further the market research, an RFI was posted on April 24, 2024 and closed on May 8, 2024. Two firms responded to the RFI, ConductorAI and Robert Rabalias. Upon review of the capabilities statements, it was determined ConductorAI did not have the requisite capabilities to complete the work and was merely a statement suggesting how to use AI in loan searches. As a result, only one capable vendor has been identified.

In addition, this effort was synopsized on 6/11/2024 in the System for Award Management (http://www.sam.gov) in accordance with the requirements for FAR 5.2.

The closing date for this synopsis was 6/25/2024 and no responses were received.

7. Cite the anticipated dollar value of the proposed acquisition including options if applicable and a determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable. When exceptional circumstances exist that require the period of performance to exceed one year, the JOFOC shall state priced option period(s) will be included and that a determination and findings is being prepared for the Senior Procurement Executive’ approval.

The total estimated value of the contract is approximately with a one-year period of performance with four option years. The independent government cost estimate (IGCE) was developed using one or more of the techniques defined in FAR Part 15 in order to determine whether it was fair, reasonable, and complete.

Reasonableness is established through cost and price analysis techniques as described in FAR Subpart 15.404. A comparison of the proposed prices with costs or prices for similar services, especially those currently performing various litigation services for contracts with DOE, specifically LPO, was performed to ensure the IGCE captured a fair and reasonable cost. The CO will conduct a similar review once a final price proposal is received.

8. Provide a description of the market research conducted and the results or a statement of the reason market research was not conducted. Do not simply refer to the sources sought synopsis.

See section 6.

9. Any other facts supporting the use of other than full and open competition.

No additional information

10. A listing of the sources, if any, that expressed a written interest in the acquisition.

The following companies expressed a written interest in this acquisition:

Company Company Size (Large, Small, SDVOSB, etc)

1. Robert Rabalias Large Business

2. ConductorAI Large Business

ConductorAI specifically expressed they did not have interest in bidding on this requirement but instead offered an alternative solution for searching for loans by using Artificial Intelligence technology. This does not meet the requirement of conducting a review of due diligence and policies. If OIG has a need in the future to conduct searches, market research will include ConductorAI.

11. A statement of actions the agency may take to remove or overcome any barriers to competition if subsequent acquisitions are anticipated.

Presently OIG does not anticipate a similar acquisition will be required subsequent to this contract action. However, if subsequent acquisitions are determined to be needed, the OIG will work with the Contracting Officer to publish a Request for Information, which will allow interested parties to provide their ability to satisfy the requirements.