A02.12 PWS CWIFP Legal Advisory Services dated 2023.12.15.docx

PERFORMANCE WORK STATEMENT

CORPS WATER INFRASTRUCTURE FINANCE PROGRAM:

LEGAL ADVISORY SERVICES

1.0 PURPOSE

The purpose of this award is to provide legal advisory services to the United States Army Corps of Engineers (USACE) Corps Water Infrastructure Finance Program (CWIFP), to support the underwriting, structuring, negotiating, and closing of loans and loan guarantees authorized under the Water Infrastructure Finance and Innovation Act (WIFIA).

The selected Contractor shall provide the level of effort, material, equipment, and facilities necessary to support the tasks listed in this performance work statement (PWS). Generally, this shall include assisting USACE in evaluating the existing debt structure of borrowers; drafting, reviewing, and negotiating the legal terms and conditions in the credit agreements and other loan documentation for Federal credit assistance; and providing post-closing legal support services as needed. The Contractor shall also assist USACE in providing other legal support to the CWIFP as needed to support the effective underwriting and servicing of CWIFP loans.

2.0 BACKGROUND

The WIFIA statute was enacted as Title V of the Water Resources Reform and Development Act (WRRDA) of 2014, as amended by Section 1445 of the Fixing America’s Surface Transportation Act of 2015, Section 5008 of the Water Infrastructure Improvements For the Nation Act of 2016, and by Section 4201 of America’s Water Infrastructure Act of 2018 (codified as 33 U.S.C. §§ 3901-3914).

USACE administers CWIFP, which provides direct loans and loan guarantees to eligible entities for eligible dam safety projects. The WIFIA statue also provides USACE authorization to provide loan products for other categories of projects including levees and dredging, but these activities have not been funded by Congress to date. Additional information about the CWIFP may be found on the Internet: usace.army.mil/Missions/Civil-Works/Infrastructure/revolutionize/CWIFP/

3.0 GENERAL REQUIREMENTS

This Performance Work Statement (PWS) shall present the scope of those areas of legal support and technical experience that shall be required of the Contractor. USACE may include both Firm-Fixed Price (FFP) and Cost Plus Fixed Fee (CPFF) contract line items. The CLIN type will depend on the demand for Federal credit assistance. Generally, tasks will include legal support services for one or more selected CWIFP projects and may include optional tasks for additional assistance for unforeseen circumstances relating to such projects. In addition, CWIFP may require the Contractor to research to assist in the underwriting and servicing of Federal credit instruments authorized under the WIFIA statute.

The Contractor is expected to interact with the USACE transaction teams, which will consist primarily of in-house attorneys and underwriters, but may also include engineers, and portfolio managers and loan officers, as well as other consultants assisting on the relevant project. The Contractor will also interact with borrowers and their consultants assisting on the relevant project. There may be instances where the Contractor may be required to contact industry, states, local entities, vendors, or the public directly for information or for follow up on USACE identified issues. In such cases, Contractor personnel will clearly identify themselves as a Contractor employee working under a USACE agreement.

After a prospective borrower applies for CWIFP credit assistance, USACE will conduct a detailed financial, legal, and technical capacity review in order to develop the terms and conditions for the project. The legal support services of the Contractor will ensure that the CWIFP loan documentation incorporates appropriate terms and requirements, most critically at the time of loan closing.

All products and materials prepared by the Contractor will be delivered to, reviewed and approved by USACE. The Contractor shall produce all deliverables by the due dates agreed upon with USACE. Key deliverables shall be provided in draft format to CWIFP for review. The Contractor shall address all USACE comments and edits and provide a final copy of the key deliverables to USACE within the time specified. Planned tasks and subtasks are subject to change as deemed necessary to support the USACE program’s requirements.

At the request of USACE, the Contractor will also be required to deliver a contract-level consolidated quarterly progress report to the Contracting Officer, Contract Administrator, Contract-Level COR and Alternate Contract-Level COR. These progress reports should identity the relevant task / project, describe the efforts expended and provide further details as directed by the CO. The Contractor will not engage in activities of an inherently Governmental nature, such as the development of Agency policy, the interpretation and execution of the laws of the United States, and the selection of Agency priorities. All policy-related determinations shall be made by USACE and all final drafts of deliverables shall be approved by USACE. The interpretation and execution of the laws of the United States shall be made by the Department of Army Counsel and not the Contractor.

3.1 PLACE OF PERFORMANCE

All work under this contract will be performed at the contractor’s site and/or remotely.

3.2 PERIOD OF PERFORMANCE

The period of performance for is for eighteen months from date of award of the contract.

3.3 MATERIALS

All materials, minus expendable supplies, purchased by the Contractor with funds from this contract and used as part of this contract, become and remain the property of the Government.

3.4 TRAVEL

Travel may be required.

4.0 DESCRIPTION OF EACH CONTRACTOR TASK

In order to meet the purpose of this contract, the legal advisory services under the award are divided into the following tasks. In general, the Contractor shall prepare for in advance and be readily available to attend and participate in conference calls involving USACE and other external advisors or related parties of USACE, as well as the borrower and their advisors, as necessary in connection with all activities described below.

TASK 4.1: LEGAL DUE DILIGENCE

Conduct satisfactory legal due diligence on the borrower. This may include the review of the borrower’s application materials, existing senior and subordinated debt documents, intercreditor agreements, bond resolutions, operating and other project documents, as applicable, in order to provide advice to USACE on potential strengths and weaknesses of the borrower’s existing structure. The Contractor will advise USACE on issues (including risks and proposed mitigants) which could affect the legal standing of the borrower, WIFIA loan documentation, the repayment of the CWIFP loan, and the strength and quality of USACE’s loan security. The Contractor shall evidence this legal due diligence through an issues list, chart, or within initial transaction draft documents, unless otherwise directed by USACE.

TASK 4.2: LOAN DOCUMENTATION AND NEGOTIATION

a. Draft, review, modify, and facilitate negotiation of legal documentation between USACE and prospective borrowers relating to the CWIFP loans and projects. This may include the CWIFP credit agreement, CWIFP term sheet, CWIFP bond or note, borrower resolutions, ordinances, supplements, intercreditor agreements, collateral agency agreements, and other financing, security and/or project agreements, as applicable. USACE may provide a template for the CWIFP credit agreement and CWIFP term sheet to be modified as appropriate.

b. Ensure that the terms, conditions, covenants, defaults and remedies in the CWIFP credit agreement and the other legal documentation are appropriate for the particular transaction, provide adequate protection and security to USACE and the Government as a federal lender, and are consistent with the governing statutes and regulations implementing the CWIFP programs.

c. Provide advice and counsel to USACE on matters related to the CWIFP loan documentation as needed, such as the appropriateness of credit enhancements (e.g. reserve accounts or hedges) and the strength of the events of default and remedies available for the relevant transaction.

d. The Contractor may be required to prepare for in advance and attend meetings in Washington, D.C., or other locations within the United States (including its territories), if and as agreed with the relevant borrower. If meetings are held in Washington, D.C., the Contractor may be required to host negotiation meetings at a facility with capacity for up to 25 attendees. The Contractor shall be prepared to attend or host meetings on short notice.

TASK 4.3: CLOSING ACTIVITIES

a. Prepare closing checklist, closing memorandum and closing data room.

b. Review, negotiate and modify, as necessary, conditions precedent to the CWIFP loan closing, including but not limited to required schedules/exhibits, borrower organizational documents, resolutions, legal opinions and certificates.

c. Provide legal services, as appropriate, to USACE on tasks required for signing and closing of the transaction, including but not limited to the review and finalization of all transaction documentation and management of the closing process.

TASK 4.4: POST-CLOSING ACTIVITIES

a. Compile original signature pages and related documents. Prepare closing sets of final transaction documents (Closing Set).

b. Provide USACE, and if requested, the relevant borrower, with electronic copies of the Closing Set, as directed by USACE.

c. Provide USACE with final execution versions (in Microsoft Word) and fully compiled, executed versions (in PDF) of the CWIFP credit agreement, CWIFP term sheet, and other key financing documents, as directed by USACE.

d. Review and complete as necessary USACE’s internal post-closing checklist tracking the final terms and conditions of the relevant CWIFP loan.

TASK 4.5 MONITORING AND REQUISITION ACTIVITIES

a. Assist USACE in post-closing monitoring items relating to the CWIFP loans and projects, as needed, including but not limited to reviewing monitoring documents from the borrower and refiling security filings or other ongoing lien maintenance to ensure USACE’s lender security package remains in full force and effect.

b. Assist USACE in the disbursement process of the relevant CWIFP loan, as needed, including review of conditions precedent to disbursement and related documents and preparation of closing checklist.

TASK 4.6: AMENDMENTS AND MODIFICATIONS

a. Draft, review, support the negotiation of, and assist USACE in closings for CWIFP loan amendments, modifications, consents and waivers, restatements, re-executions, transfers, restructurings, and work-outs, as may be required.

b. Counsel USACE on any issues relating to the activities described in the immediately preceding clause, including analysis of possible courses of action in addressing noncompliance with credit agreement terms as they may arise.

TASK 4.7: STRATEGIC LEGAL SUPPORT

Provide strategic legal support to USACE in the form of research and analysis of specific legal issues relating to the field of municipal and project finance as they may arise. Provide support to USACE in developing template CWIFP loan agreements, term sheets and ancillary financing documents, including in response to changes in program authority that result from legislative mandates. The Contractor may be asked to prepare and provide presentations, memos, and trainings on specific legal issues relating to the field of municipal and project finance to assist USACE to underwrite and service CWIFP loans.

5.0 CONFLICT OF INTEREST

USACE recognizes that legal advisory firms often represent a party and provide services to a party in one transaction and may, at the same time, seek to represent USACE involving that same party on an unrelated matter. Under this AWARD, USACE is employing its conflict requirements on a transactional basis; provided the Contractor maintains strict confidentiality and a firewall to guard against communications within the Contractor’s firm on matters that the Contractor is working on for USACE. In addition, the Contractor shall comply with applicable Rules of Professional Responsibility or Code of Conduct regarding ethical and conflict of interest issues that also impact the delivery of legal services provided to USACE, and the Contractor shall promptly disclose to the Contracting Officer and contract level contracting officer’s representative (CL-COR), any relationship that might give rise to an actual, potential or apparent conflict of interest. In order to prevent organizational conflicts of interest from arising during the period of performance, the Contractor will be required to adhere to the following conflict of interest limitations:

5.1 The Contractor shall not represent both USACE and an applicant or borrower (or their affiliates) on the same CWIFP program matter. For instance, if the Contractor assisted in the preparation of a particular CWIFP application, or in the analyses or other information used to support that application, or if the Contractor otherwise represents a CWIFP applicant or borrower with respect to a particular application or transaction before USACE, the Contractor will not be eligible to provide legal services to USACE with respect to that particular application or transaction.

5.2 If the Contractor is not representing USACE on a particular CWIFP program matter, then the Contractor (excluding Key Personnel, defined below) may represent an applicant or borrower (or their affiliates) in connection with that same CWIFP program matter; provided that, the Contractor is in compliance with all other stipulations set out in this Section 5.0; provided, further, that the Contractor shall not represent any client (other than USACE) in any litigation, arbitration, or other similar proceeding that directly involves or adversely affects the CWIFP program.

5.3 Key personnel identified in the contract or otherwise notified by the Contractor as providing a significant portion of the legal services on CWIFP matters (Key Personnel) shall not: (1) be involved in the preparation of, or advice to others within the Contractor’s firm relating to, CWIFP applications (including the analyses or other information used to support CWIFP applications); (2) represent any applicant or borrower seeking assistance from the CWIFP programs; or (3) represent any entity in any matter in which USACE is a party; or (4) represent any entity in any matter in which USACE is not a party that involves the CWIFP programs, applicants or projects. Key Personnel may provide program information that is publicly available, such as the CWIFP statute, its implementing regulations, the CWIFP program handbook, and other information that has been disclosed to the public, to non-key personnel.

5.4 No member partner or key personnel of the Contractor, or immediate family member of a member partner or key person, may have a financial interest in a CWIFP project, or a real property interest in real property specifically acquired for, or to be acquired for a project, or otherwise affected by a project, for which the Contractor is providing legal assistance support for USACE. In addition, no member partner or key personnel of the Contractor may have a financial interest in a CWIFP applicant, borrower or other stakeholder involved in any project for which the contractor is providing legal or support for USACE.

6.0 GOVERNMENT FURNISHED PROPERTY (GFP)

At this time, the Contractor will not be provided GFP.

7.0 CONTRACTING OFFICER REPRESENTATIVE AND/OR TECHNICAL POINT OF CONTACT (TPOC)

A COR and/or TPOC will be appointed on this contract. The COR and TPOC have no authority to direct the Contractor in any way to alter the contractual obligation. The Contracting Officer is the only individual authorized to make changes to the contract.

8.0 GENERAL SECURITY REQUIREMENTS

The security requirements described below apply to all contract personnel (including employees of the prime Contractor and all subcontractor employees) supporting the performance requirements of this contract. The Contractor is responsible for compliance with these security requirements. Questions regarding security matters shall be addressed to the COR or other designated Government representative. Contract personnel are critical to the overall security and safety of USACE installations, facilities, and activities and security awareness training contributes to those efforts. The Department of Defense (DoD) and Army security training requirements specified below are performance requirements. All applicable contract personnel shall complete initial training within 30 days of contract award or the date new contract personnel begin performance on the contract. Within five (5) business days from the completion of training, the Contractor shall provide written documentation (e.g., e-mail or memorandum) to the COR. The documentation shall include the names of contract personnel trained and which training they completed; the Contractor shall maintain training records as part of their contract files and be prepared to provide copies of training certificates to the COR. The Contractor shall ensure all contract personnel are aware of their security responsibilities, including any site-specific requirements identified in local policies or procedures.

8.1 COMMON ACCESS CARD (CAC) AND NETWORK ACCESS

Contractor employees will not require CAC or network access to Government information systems.

8.2 E-VERIFY PROGRAM

Contractors shall comply with the requirements set forth in FAR clause 52.222-54 Employment Eligibility Verification and FAR Subpart 22.18 in using the E-Verify Program (https://www.e-verify.gov/), website subject to change, to meet the contract employment eligibility requirements. Contractors are encouraged to cooperate with Federal and State agencies responsible for enforcing labor requirements to include eligibility for employment under United States immigration laws in accordance with FAR 22.102-1(i). An initial list of verified, eligible candidates shall be provided to the COR no later than three (3) business days after the initial contract award.

8.3 OPERATIONAL SECURITY (OPSEC)

The Contractor shall develop an OPSEC Standard Operating Procedure (SOP)/Plan within 90 days of contract award. The OPSEC SOP/Plan shall be reviewed and accepted by the designated Government representative. This plan will include a process to identify critical information, where it is located, who is responsible for it, how to protect it, and why it needs to be protected. In accordance with Army and DoD regulations, the Contractor shall ensure OPSEC compliance during contract performance.

8.4 SECURITY TRAINING REQUIREMENTS

All contract personnel with access to critical information (as identified in the Requiring Agency’s OPSEC Program) shall complete initial and annual refresher OPSEC Level I Awareness training, which is available at the following websites: https://www.iad.gov/ioss, or http://www.cdse.edu/catalog/operations-security.html (websites subject to change). All contract personnel with access to Controlled Unclassified Information (CUI) shall complete initial and annual refresher CUI training in accordance with applicable Army policies.

9.0 SECTION 508

As applicable, the Contractor shall adhere to the standards of accessibility as outlined in Section 508 of the Rehabilitation Act.

10. QUALITY ASSURANCE (QA)

The Government shall monitor the Contractor's performance under this contract. The Government has the right to conduct inspections and performance evaluation at any time and at any place where contract performance occurs. If any aspect of the performance is not in conformance with the requirements of this contract, the Government has the right to issue to the Contractor a Contract Discrepancy Report (CDR). The Contractor shall explain in writing why performance was not in conformance with the requirements of the contract, how performance will be returned to conformance, and how recurrence of the problem will be prevented in the future. The Contractor shall complete and return the CDR to the Contracting Officer and COR within five workdays after receipt of the CDR. The Contractor shall maintain copies of all inspection and evaluation reports. Government review of Contractor deliverables will be guided by the Quality Assurance Surveillance Plan (QASP). The QASP will be based on the requirements in the PWS.