A03 Draft IDIQ PWS Legal Services.pdf

PERFORMANCE WORK STATEMENT (PWS)

Office of the Under Secretary of Defense for Research and Engineering Department of Defense Office of Strategic Capital

Legal Services Multiple Award Indefinite Delivery Indefinite Quantity Contract Date: March 15, 2025

PART 1 GENERAL INFORMATION

1. General: This is a non-personal services contract to provide non-inherently governmental Legal Support Services focused on the support of the Department of Defense Office of Strategic Capital (OSC) Credit Program. The Government shall not exercise any supervision or control over the contract service providers performing the services herein. Such contract service providers shall be accountable solely to the Contractor who, in turn is responsible to the Government.

1.1 Description of Services/Introduction: The Contractor shall provide all personnel, equipment, supplies, facilities, transportation, tools, materials, supervision, and other items and non-personal services necessary to perform Legal Support Services focused on support of the credit program as defined in this PWS, except for those items specified as government furnished property and services under this contract. The Contractor shall perform to the standards in this contract.

1.2 Background: In December of 2022 the Secretary of Defense established OSC to attract and scale private capital into technologies critical to United States national security. To execute this mission, OSC has launched a series of financial products to invest in areas important to national security.

One of these products is the credit program. On September 30, 2024, OSC released its first Notice of Funding Availability (NOFA), the first OSC application call to accelerate commercialization and scaling of production for critical technologies by providing financing for the construction, expansion, or modernization of commercial equipment in the United States. Processing of applications for the OSC’s first and subsequent NOFAs will employ a complex application process. To effectively execute the credit program and other OSC programs, the OSC requires non-personal and non-inherently governmental Legal Support Services in highly specialized areas in PWS section 1.4 and in Part 5- “Specific Tasks” of this document.

1.3 Objectives: To accomplish the objectives of OSC requires non-personal and non-inherently governmental Legal Support Services to support a series of financial products to invest in areas important to national security. Contract service providers must be familiar with non-personal and non-inherently governmental legal services focused on the operation of a federal credit program. The objective of this Performance Work Statement (PWS) is to define the non-personal and non-inherently governmental legal services required to support the successful operation of the OSC.

1.4 Scope: This effort requires the contractor to provide Legal Support Services to OSC financial products. The contractor shall provide the following support areas:

1.4.1 General Due Diligence, Document Review and Risk Assessment.

1.4.2 General Due Diligence, Advisory Services.

1.4.3 General Due Diligence, Reporting and Deliverables.

1.4.4 Legal Document Drafting and Negotiation, Legal Document Support.

1.4.5 Advising on the Collateral Package.

1.4.6 Closing.

1.4.7 Portfolio Management.

1.4.8 Other OSC Matters; and

1.4.9 Corporate Loan Template and Ancillary Documents Work

1.5 Period of Performance: The period of performance shall be for a five-year ordering period.

1.6 General Information:

1.6.1 Quality Control: The Contractor shall develop and maintain an effective quality control program to ensure services are performed in accordance with this PWS. The Contractor shall develop and implement procedures to identify, prevent, and ensure non-recurrence of defective services. The Contractor’s quality control program is how it assures itself that the work performed complies with the requirement of the contract. The QCP shall be delivered via electronic mail within 30 days after contract award. Amendments/changes to the QCP shall be delivered to the Contractor Officer’s Representative (COR) and Contracting Officer (KO) within three (3) business days following any change.

1.6.2 Quality Assurance: The Government shall evaluate the Contractor’s performance under this contract in accordance with the Quality Assurance Surveillance Plan. This plan is primarily focused on what the Government must do to ensure that the Contractor has performed in accordance with the performance standards. It defines how the performance standards will be applied, the frequency of surveillance, and the minimum acceptable defect rate(s).

1.6.3 Recognized Holidays: Government personnel observe Federal Holidays listed in 5 USC § 6103. Additionally, the Government observes days designated by Federal Statute, Executive Order, or by the President’s Proclamation. Contractor personnel are not customarily expected to work on holidays, but holiday work is possible, subject to and may be scheduled in advance scheduling with the Contractor. In the event contractor personnel work during a holiday, no form of holiday pay or other premium compensation will be reimbursed by the Government to the contractor either as a direct or indirect cost, other than normal compensation for the time worked as set forth within the contract. The Contracting Officer has sole discretion through the COR to determine the required work during a holiday. Recognized Federal holidays are as follows:

New Year’s Day Martin Luther King Jr.’s Birthday President’s Day Memorial Day Juneteenth National Independence Day Independence Day

Labor Day Columbus Day Veteran’s Day Thanksgiving Day Christmas Day

1.6.4 Hours of Operation: The Contractor is responsible for conducting business, between the core hours of 8:00 AM to 5:00 PM, arriving no earlier than 6:30 AM and departing no later than 6:30 PM Monday thru Friday, except Federal holidays or when the Government facility is closed due to local or national emergencies, administrative closings, or similar Government directed facility closings. For other than firm-fixed-price contracts, the Contractor will not be reimbursed when the government facility is closed for the above reasons. The Contractor must always maintain an adequate workforce for the uninterrupted performance of all tasks defined within this PWS when the Government facility is not closed for the above reasons. When hiring personnel, the Contractor shall keep in mind that the stability and continuity of the workforce are essential. Hours of operation deviating from core hours will be identified at the task order level.

1.6.5 Place of Performance: Specific work locations will be specified at the task order level.

1.6.6 Type of Contract: The Government will award a multiple award Indefinite Delivery / Indefinite Quantity (IDIQ) contract with Firm-Fixed-Price (FFP), Labor Hour, and Time and Materials task orders.

1.6.7 Security Requirements: Classified work is not anticipated. The Contractor shall comply with all security policies and procedures that apply to DOD and OSC. Security procedures shall be made available to Contractor personnel.

1.6.7.1 Physical Security: The Contractor shall be responsible for safeguarding all government equipment, information and property provided for Contractor use. At the close of each work period, government facilities, equipment, and materials shall be secured.

1.6.7.2 Key Control: The Contractor shall establish and implement methods of making sure all keys/key cards issued to the Contractor by the Government are not lost or misplaced and are not used by unauthorized persons. NOTE: All references to keys include key cards. No keys issued to the Contractor by the Government shall be duplicated. The Contractor shall develop procedures covering key control that shall be included in the Quality Control Plan. Such procedures shall include turn-in of any issued keys by personnel who no longer require access to locked areas. The Contractor shall immediately report any occurrences of lost or duplicate keys/key cards to the Contracting Officer.

1.6.7.2.1. In the event keys, other than master keys, are lost or duplicated, the Contractor shall, upon direction of the Contracting Officer, re-key or replace the affected lock or locks; however, the Government, at its option, may replace the affected lock or locks or perform re-keying. When the replacement of locks or re-keying is performed by the Government, the total cost of re-keying or the replacement of the lock or locks shall be deducted from the monthly payment due the Contractor. In the event a master key is lost or duplicated, all locks and keys for that system shall be replaced by the Government and the total cost deducted from the monthly payment due the Contractor.

1.6.7.2.2. The Contractor shall prohibit the use of Government issued keys/key cards by any persons other than the Contractor’s employees. The Contractor shall prohibit the opening of locked areas by Contractor employees to permit entrance of persons other than Contractor employees engaged in the performance of assigned work in those areas, or personnel authorized entrance by the Contracting Officer.

1.6.7.3 Lock Combinations: The Contractor shall establish and implement methods of ensuring that all lock combinations are not revealed to unauthorized persons. The Contractor shall ensure that lock combinations are changed when personnel having access to the combinations no longer have a need to know such combinations. These procedures shall be included in the Contractor’s Quality Control Plan.

1.6.8 Special Qualifications: Contractor personnel supporting a task order shall be required to sign a Non- Disclosure Agreement (NDA) and adhere to government Organizational Conflicts of Interest (OCI) controls (see section 1.6.16) once that order is awarded. Contractors may not perform inherently governmental functions, as defined in the FAR Subpart 7.5 and clarified in the Office of Management and Budget (OMB) Circular A-76 encl. A. In general, these include the discretionary exercise of governmental authority and monetary transactions. The contractor shall sign a Non-Disclosure Agreement (NDA) five

(5) days after IDIQ contract and Task Order award and within 24 hours of new personnel beginning work on Task Order(s). All NDAs shall be submitted to the Contracting Officer Representative (COR) as specified in this section.

1.6.8.1 Workforce Sufficiency (within 10 Business Days): The Contractor shall maintain an adequate workforce suitable for the uninterrupted performance of all tasks defined within a task order’s PWS. Similarly, the Contractor agrees that all tasks shall be performed by qualified, trained, educated, and experienced personnel. In cases where a suitable individual becomes unavailable (e.g., staff member retires), then the Contractor agrees to assign suitable personnel to perform the gapped task within 10 business days.

1.6.9 Post Award Conference/Periodic Progress Meetings: The Contractor agrees to attend any post award conference convened by the contracting activity or contract administration office in accordance with Federal Acquisition Regulation Subpart 42.5. The Contracting Officer (KO), Contracting Officers Representative (COR), and other Government personnel, as appropriate, may meet periodically with the Contractor to review the Contractor's performance. At these meetings the KO will apprise the Contractor of how the Government views the Contractor's performance and the Contractor will apprise the Government of problems, if any, being experienced. Appropriate action shall be taken to resolve outstanding issues. These meetings shall be at no additional cost to the Government.

1.6.10 Contracting Officer Representative (COR): The COR will be identified by separate letter.

The COR monitors all technical aspects of the contract and assists in contract administration. The COR is authorized to perform the following functions: assure that the Contractor performs the technical requirements of the contract; perform inspections necessary in connection with contract performance;

maintain written and oral communications with the Contractor concerning technical aspects of the contract; issue written interpretations of technical requirements, including Government drawings, designs, specifications; monitor Contractor's performance and notifies both the Contracting Officer and Contractor of any deficiencies; coordinate availability of government furnished property; and provide site entry of Contractor personnel. A letter of designation issued to the COR, a copy of which is sent to the Contractor, states the responsibilities and limitations of the COR, especially about changes in cost or price, estimates or changes in delivery dates. The COR is not authorized to change any of the terms and conditions of the resulting order.

1.6.11 Required Personnel qualifications:

1.6.11.1 Partner

1.6.11.1.1 A Partner must provide leadership, vision, deep industry or subject matter expertise, and strategic direction to the transaction team and client stakeholders. A Partner acts as the liaison between stakeholders, with overall responsibility for managing the delivery, quality and risk of each transaction. A Partner acts as the team lead who plans, conducts, manages, and supervises projects and loan transactions, necessitating advanced knowledge and the ability to originate and apply new and unique methods and procedures. A Partner supplies technical advice and counsel to other professionals. A Partner operates with wide latitude for un-reviewed action.

1.6.11.1.2 Minimum/Required Experience:

1.6.11.1.2.1 Eight years of legal experience.

1.6.11.1.2.2 Licensed to practice law in good standing in one or more U.S. states and/or the District of Columbia.

1.6.11.1.2.3 Superior knowledge of the relevant law and excellent writing and oral skills.

1.6.11.1.2.4 Supervisory skills to manage complex legal matters and transactions, and oversee the professional performance of associates, counsel and paralegals/legal assistants.

1.6.11.1.2.5 Experience in communicating with individuals at all levels, both orally and in writing.

1.6.11.1.3 Minimum Education: Juris Doctorate or equivalent

1.6.11.2 Senior Associate

1.6.11.2.1 A Senior Associate provides professional skills necessary to undertake complex legal matters. A Senior Associate aids stakeholders utilizing premium writing and oral skills. A Senior Associate manages projects and loan transactions efficiently with general supervision by PM or Partner, and coordinates communication and deliverables. A Senior Associate estimates and schedules work to meet completion dates. A Senior Associate plans, conducts, manages, and supervises projects and loan transactions, necessitating advanced knowledge and the ability to originate and apply new and unique methods and procedures. A Senior Associate supplies technical advice and counsel to other professionals.

A Senior Associate directs junior attorneys and paralegals/legal assistants, reviews progress, and evaluates results, makes changes in methods or documentation as necessary. A Senior Associate generally operates with wide latitude for un-reviewed action.

1.6.11.2.2 Minimum/Required Experience:

1.6.11.2.2.1 Six years of legal experience.

1.6.11.2.2.2 Licensed to practice law in good standing in one or more U.S. states and/or the District of Columbia.

1.6.11.2.2.3 Has supervisory skills to manage complex legal matters and transactions, and oversee the professional performance of associates, counsel and paralegals/legal assistants.

1.6.11.2.2.4 Has superior knowledge of the relevant law and excellent writing and oral skills.

1.6.11.2.3 Minimum Education: Juris Doctorate or equivalent

1.6.11.3 Mid-Level Associate

1.6.11.3.1 A Mid-Level Associate provides professional skills necessary to undertake complex legal matters. A Mid-Level Associate aids stakeholders utilizing premium writing and oral skills. A Mid-Level Associate manages projects and loan transactions efficiently with supervision by PM, Partner and/or Senior Associate, and coordinates communication and deliverables. A Mid-Level Associate estimates and schedules work to meet completion dates. A Mid-Level Associate directs junior attorneys and paralegals/legal assistants, reviews progress, and evaluates results, makes changes in methods or documentation as necessary. A Mid-Level Associate operates with some latitude for un-reviewed action.

1.6.11.3.2 Minimum/Required Experience:

1.6.11.3.2.1 Three to five years of legal experience.

1.6.11.3.2.2 Licensed to practice law in good standing in one or more U.S. states and/or the District of Columbia.

1.6.11.3.2.3 Has supervisory skills to manage complex legal matters and transactions, and oversee the professional performance of associates, counsel and paralegals/legal assistants.

1.6.11.3.2.4 Has superior knowledge of the relevant law and excellent writing and oral skills.

1.6.11.3.3 Minimum Education: Juris Doctorate or equivalent

1.6.11.4 Junior Associate

1.6.11.4.1 A Junior Associate provides professional skills necessary to undertake legal matters. A Junior Associate aids stakeholders utilizing premium writing and oral skills. Under the supervision of PM, Partner and/or senior associates, a Junior Associate carries out work assignments associated with specific projects and transactions. A Junior Associate translates technical guidance received from supervisors into usable data applicable to the assignment; coordinates the activities of paralegals/legal assistants. Junior Associate work assignments are varied, and some originality and ingenuity are expected with supervision.

1.6.11.4.2 Minimum/Required Experience:

1.6.11.4.2.1 One to two years of legal experience.

1.6.11.4.2.2 Licensed to practice law in good standing in one or more U.S. states and/or the District of Columbia.

1.6.11.4.2.3 Skills to manage complex legal matters.

1.6.11.4.2.4 Has superior knowledge of the relevant law and excellent writing and oral skills.

1.6.11.4.3 Minimum Education: Juris Doctorate or equivalent

1.6.11.5 Paralegal

1.6.11.5.1 A Paralegal works under close supervision of Partner, Senior Associate, and/or other attorneys to perform research and file management and provides other support when needed. A Paralegal analyzes data and oversees computer processing of large, complex data sets. A Paralegal independently establishes case/project files. A Paralegal determines data to be entered and identifies and retrieves pertinent data from various databases. A Paralegal conducts validation and verification of case files. A Paralegal gathers and correlates basic data and performs routine analyses. A Paralegal prepares post-closing binders and delivery of original documents. A Paralegal works on less complicated assignments where little to no originality is required.

1.6.11.5.2 Minimum/Required Experience:

1.6.11.5.2.1 Minimum of one year of law firm experience.

1.6.11.5.2.2 Has professional skills to aid partners, counsel and associates in their respective undertaking of legal matters.

1.6.11.5.2.3 Has coordination skills to arrange legal project teams when appropriate.

1.6.11.5.3 Minimum Education: Bachelor’s Degree or equivalent, and/or recipient of paralegal certification with training and experience

1.6.12 Identification of Contractor Employees: As applicable, all Contractors attending meetings, answering Government telephones, and working in other situations where their contractor status is not obvious to third parties are required to identify themselves as such to avoid creating an impression in the minds of members of the public that they are Government officials. They must also ensure that all documents or reports produced by Contractors are suitably marked as Contractor products or that Contractor participation is appropriately disclosed. Contractor personnel will be required to obtain, use, and display a Common Access Card in the performance of this service.

1.6.13 Contractor Travel: All travel within the National Capital Region, as defined in 10 USC§ 2674, is included in the price of this contract. Specific travel requirements will be identified at the task order level. The contractor shall provide a written request to the Contracting Officer Representative (COR) for approval prior to making any travel arrangements. Requests for travel shall include the name of the person(s) traveling, travel destination, dates of travel, mode of transportation, and estimated costs for travel. All travel must be pre-approved in writing by the COR prior to purchase of any tickets and commencement of travel. The Contractor shall be reimbursed for actual allowable, allocable, and reasonable travel cost incurred during performance efforts in accordance with FAR 31.205-46. All travel requirements will be identified at the task order level.

Note. Travel to and from the contractors’ normal place of duty will not be covered by the Government under this contract. Parking expenses at the normal place of duty, commuter lots, or metro parking garages will not be paid by the Government under this contract.

1.6.14 Other Direct Costs: This category includes travel (outlined in 1.6.13), reproduction, and shipping expenses associated with training activities and visits to Contractor facilities.

1.6.15 Data Rights: Refer to FAR Clause 52.227-14 “Rights in Data – General” and DFARS 252.227- 7013. The contractor agrees to assume responsibility for protecting the confidentiality of Government records, which is not considered public information. Each contractor or employee of the contractor to who information may be made available or disclosed shall be notified in writing by the contractor that such information may be disclosed only for purposes and to the extent authorized herein.

The contractor shall not release any information related to this contract to the public, media or other unauthorized persons or organizations unless the Government has conducted the appropriate security review and granted written approval (e.g., posting information to a public website).

1.6.16 Organizational Conflict of Interest (OCI): Contractor and subcontractor personnel performing work under this contract may receive, have access to or participate in the development of proprietary or source selection information (e.g., cost or pricing information, budget information or analyses, specifications or work statements, etc.) or perform evaluation services which may create a current or subsequent Organizational Conflict of Interests (OCI) as defined in FAR Subpart 9.5. The Contractor shall notify the Contracting Officer immediately whenever it becomes aware that such access or participation may result in any actual or potential OCI and shall promptly submit a plan to the Contracting Officer to avoid or mitigate any such OCI. The Contractor shall notify the Contracting Officer immediately whenever it becomes aware that such access to or participation in the development of property or source selection information may result in any actual or potential conflict of interest and shall promptly submit the ADAP Form 209-506-1 Contractor Conflict of Interest Disclosure Form to the Contracting Officer to avoid or mitigate any such conflict.

The contractor’s mitigation plan will be reviewed and accepted/rejected solely at the discretion of the Contracting Officer, and in the event the Contracting Officer unilaterally determines that any such conflict cannot be satisfactorily avoided or mitigated, the Contracting Officer may affect other remedies as he or she deems necessary, including prohibiting the contractor from participation in subsequent contracted requirements which may be affected by the conflict.

In addition, contractors shall conduct internal reviews as necessary to identify financial interests and determine if any personal conflicts of interest exist or may arise. The contractor shall ensure that the organization has analyzed each financial disclosure to determine whether actual or potential conflicts exist. Information should be gathered and analyzed for all governing body members (e.g., board of directors, trustees, etc.) and principals of the organization as defined by FAR 52.203-13 and for each manager and key personnel who would be or are involved with the performance of the contract.

All contractor and subcontract employees supporting this contract shall sign the ADAP Form 209-506-6 Contractor NDA Form. Any contractor and subcontractor employees supporting an acquisition or procurement preparation related task/activity under this contract shall sign the ADAP Form 209-506-5 Contractor NDA and COI Form instead of ADAP Form 209-506-6.

1.6.17 Reserved.

1.6.18 Phase In/Phase Out: Phase In/Phase Out requirements will be identified in specific task orders.

PART 2

DEFINITIONS AND ACRONYMS

2. DEFINITIONS AND ACRONYMS:

2.1 DEFINITIONS:

2.1.1 CONTRACTOR. A supplier or vendor awarded a contract to provide specific supplies or service to the government. The term used in this contract refers to the prime.

2.1.2 CONTRACTING OFFICER. A person with authority to enter into, administer, and or terminate contracts, and make related determinations and findings on behalf of the government. Note: The only individual who can legally bind the government.

2.1.3 CONTRACTING OFFICER'S REPRESENTATIVE. An employee of the U.S.

Government appointed by the KO to administer the contract. Such appointment shall be in writing and shall state the scope of authority and limitations. This individual has authority to provide technical direction to the Contractor if that direction is within the scope of the contract, does not constitute a change, and has no funding implications. This individual does NOT have authority to change the terms and conditions of the contract.

2.1.4 DEFECTIVE SERVICE. A service output that does not meet the standard of performance associated with the PWS.

2.1.5 DELIVERABLE. Anything that can be physically delivered but may include non-manufactured things such as meeting minutes or reports.

2.1.6 KEY PERSONNEL. Contractor personnel that are evaluated in a source selection process and that may be required to be used in the performance of a contract by the Key Personnel listed in the PWS. When key personnel are used as an evaluation factor in best value procurement, an offer can be rejected if it does not have a firm commitment from the persons that are listed in the proposal.

2.1.7 NATIONAL CAPITAL REGION. The geographic area located in the following boundaries: District of Columbia and Montgomery and Prince George’s Counties in the State of Maryland and all cities now and hereafter existing in the geographic area bounded by the outer boundaries of the combined areas of these counties. Arlington, Fairfax, Loudoun, and Prince William Counties in the Commonwealth of Virginia, and all cities now and hereafter existing in the geographic area bounded by the outer boundaries of the combined areas of these counties and other units of government within the geographic areas of such district, counties, and city.

2.1.8 PHYSICAL SECURITY. Actions that prevent the loss or damage of Government property.

2.1.9 QUALITY ASSURANCE. The government procedures to verify that services being performed by the Contractor are performed according to acceptable standards.

2.1.10 QUALITY ASSURANCE SURVEILLANCE PLAN (QASP). An organized written document specifying the surveillance methodology to be used for surveillance of Contractor performance.

2.1.11 QUALITY CONTROL. All necessary measures taken by the Contractor to assure that the quality of an end product or service shall meet contract requirements.

2.1.12 SUBCONTRACTOR. One that enters into a contract with a prime Contractor. The Government does not have privity of contract with the subcontractor.

2.1.13 WORKDAY. The number of hours per day the Contractor provides services in accordance with the contract.

2.1.14 WORK WEEK. Monday through Friday, unless specified otherwise.

2.2 ACRONYMS:

Acronym Definition

ADR Alternative Dispute Resolution

C.F.R Code of Federal Regulations

CONUS Continental United States

COR Contractor Officer’s Representative

DCIA Debt Collection Improvement Act

DFARS Defense Federal Acquisition Regulation Supplement

DoD Department of Defense

DoDD Department of Defense Directive

DoDI Department of Defense Instruction

DOL Department of Labor

EIA Environmental Impact Assessments

EPA Environmental Protection Agency

FAR Federal Acquisition Regulation

FCRA Federal Credit Reform Act

FFP Firm-Fixed-Price

GFE Government Furnished Equipment

HSPD Homeland Security Presidential Directive

InfoSec Information Security

IDIQ Indefinite Delivery / Indefinite Quantity

JD Juris Doctorate

KO Contracting Officer

NDA Non-Disclosure Agreement

NIST SP National Institute of Standards and Technology Special Publication

NLRB National Labor Relations Board

NOFA Notice of Funding Availability

OCI Organizational Conflict of Interest(s)

OCONUS Outside Continental United States

OMB Office of Management and Budget

OOXML Office Open XML

OPSEC Operations Security

OSC Office of Strategic Capital

OSHA Occupational Safety and Health Administration

PDF Portable Document Format

PM Project Manager

PRS Performance Requirements Summary

PWS Performance Work Statement

QASP Quality Assurance Surveillance Plan

QCP Quality Control Program

SEC Securities and Exchange Commission

UCC Uniform Commercial Code

U.S.C United States Code

2.2.1 See the DAU Glossary of Defense Acquisition Acronyms and Terms at https://www.dau.edu/glossary for additional acronyms that are not expressly defined in the text of this

PWS.

PART 3

GOVERNMENT FURNISHED PROPERTY, EQUIPMENT, AND SERVICES

3. GOVERNMENT FURNISHED ITEMS AND SERVICES:

3.1 Services: The Government will provide basic services to phones, desks, utilities, information technology, and general office supplies) while working in Government facilities.

3.2 Facilities: Basic facilities such as workspace and its associated operating requirements (i.e., phones, desks, utilities, information technology, and general office supplies) will be provided while working in Government facilities.

3.3 Equipment: The Government will provide access to phones, desks, utilities, information technology, and general office supplies while working in Government facilities. Teleworkers shall use government furnished equipment (GFE) to remotely access the DoD network.

PART 4

CONTRACTOR FURNISHED ITEMS AND SERVICES

4. CONTRACTOR FURNISHED ITEMS AND RESPONSIBILITIES:

4.1 General: The Contractor shall furnish all supplies, equipment, facilities and services required to perform work under this contract.

4.2 Please see paragraph 1.6.7, above, for facility security requirements.

4.3 Equipment/Facilities: Not applicable.

PART 5

SPECIFIC TASKS

5.0 Specific Tasks. The contract shall provide non-personal legal services required to support the successful operation of the OSC Credit Program.

5.0.1 The contractor shall provide the following support areas:

5.0.1.1 General Due Diligence, Document Review and Risk Assessment.

5.0.1.2 General Due Diligence, Advisory Services.

5.0.1.3 General Due Diligence, Reporting and Deliverables.

5.0.1.4 Legal Document Drafting and Negotiation, Legal Document Support.

5.0.1.5 Advising on the Collateral Package.

5.0.1.6 Closing.

5.0.1.7 Portfolio Management.

5.0.1.8 Other OSC Matters; and

5.0.1.9 Corporate Loan Template and Ancillary Documents Work

5.0.2 Below each area is addressed as a discrete category of legal services, and additional information is provided about the outcomes to be provided to the recipients of the services.

5.0.3 Task orders issued under this indefinite delivery indefinite quantity contract shall provide additional specificity on the tasks to be performed.

5.1 General Due Diligence, Document Review and Risk Assessment

5.1.1 The Contractor shall draft project contracts, including but not limited to construction agreements and concession agreements, for potential risks. This review shall include (a) evaluating identified risks, (b) providing written comments and recommendations, and (c) drafting comprehensive issue lists detailing concerns and potential mitigation strategies.

5.1.2 The Contractor shall review previously negotiated or executed legal documents produced in the financing review due diligence process, including:

5.1.2.1 Third party financing agreements and debt agreements (senior and subordinated, e.g., Credit Agreement, Intercreditor Agreement, Security Agreement, and ancillaries), such as existing indentures.

5.1.2.2 Project agreements, including concession agreements, construction contracts, operations and maintenance contracts, and related documentation.

5.1.2.3 Organizational documents of the borrower and potentially its affiliates.

5.1.2.4 Enabling legislation and other legislation related to the project and the operations of the borrower. This review shall include:

5.1.2.4.1 Evaluating identified risks.

5.1.2.4.2 Providing written comments and proposing mitigation strategies.

5.1.2.4.3 Drafting comprehensive issue lists detailing concerns.

5.1.3 The Contractor shall review any litigation or litigation risk issues related to the project.

This review shall include evaluating the potential risks posed by the litigation on project construction, financing, and other relevant aspects.

5.2 General Due Diligence, Advisory Services

5.2.1 The Contractor shall advise OSC on matters identified in the due diligence process that could affect OSC's position and decisions regarding the terms of OSC loan documents.

5.2.2 The Contractor shall advise OSC on any structural or legal limitations affecting the Borrower's (or an ancillary party's, such as a public grantor's) power and authority. This advice shall address limitations such as state sovereign immunity constraints, long-term commitment prohibitions, and other unique legal limitations affecting the transaction structure.

5.3 General Due Diligence, Reporting and Deliverables

5.3.1 The Contractor shall deliver a comprehensive due diligence report to OSC prior to financial close. This report shall:

5.3.1.1 Review all material contracts and agreements

5.3.1.2 Summarize all documents reviewed.

5.3.1.3 Detail the issues identified in each document.

5.3.1.4 Explain how identified issues were addressed (if at all) in OSC loan documentation.

5.3.1.5 Provide a full voting analysis of the applicant.

5.3.1.6 Address any other relevant items related to the Contractor's due diligence activities.

5.3.2 The Contractor shall provide other memoranda to OSC on specific issues arising during the due diligence phase as directed by the COR.

5.4 Legal Document Drafting and Negotiation, Legal Document Support

5.4.1 The Contractor shall review, draft, negotiate, and amend/modify legal documents as necessary. These documents may be based on templates and precedents or may be produced by third parties. Examples include, but are not limited to:

5.4.1.1 Financing agreements (e.g., term sheets, bonds, notes, loan agreements, indentures/resolutions, guarantee agreements, lines of credit, master credit agreements, hedging agreements).

5.4.1.2 Security documents (e.g., collateral agency agreements, security agreements, mortgages, pledge agreements).

5.4.1.3 Equity contribution or other private funding agreements.

5.4.1.4 Intercreditor agreements.

5.4.1.5 Public private partnership concession agreements; and

5.4.1.6 Project contracts (e.g., direct agreements, construction agreements, operating agreements, lease agreements, real estate development documentation).

5.4.2 The Contractor shall review comments and markups on relevant documentation received from third parties.

5.4.3 The Contractor shall advise OSC on the pros and cons of any open issues in the documentation. This advice shall include feedback on comments and markups received from third parties.

5.5 Advising on the Collateral Package

5.5.1 The contractor shall advise on collateral packages to determine deficiencies in ownership, sufficiency of the package, and process for creation and perfection of liens.

5.5.2 The contractor shall, where applicable, review state or local legislation to assess statutory lien requirements.

5.5.3 The contractor shall review existing documentation, including legislation, related to any collateral, including real property or asset collateral as well as special revenue pledges, such as sales taxes revenues, and revenues derived from real property proposed to be pledged to OSC and advise OSC on issues and risks related thereto.

5.5.4 The contractor shall review, provide comments to, and draft issues lists for previously negotiated and/or executed legal documents. Examples include purchase agreements, bills of sale, mortgages, and security filings.

5.5.5 The contractor shall review, draft, negotiate, and amend/modify as necessary legal documents. Examples include purchase agreements, assignment agreements, Uniform Commercial Code (UCC) filings, Surface Transportation Board filings, mortgage agreements, insurance agreements, survey and appraisals.

5.5.6 The contractor shall ensure the perfection of liens on collateral (e.g., UCC filings, mortgage filings).

5.5.7 The contractor shall, in certain cases, provide formal opinions to OSC regarding the validity and enforceability of the security granted to OSC on physical assets.

5.6 Closing

5.6.1 The contractor shall provide OSC electronic copies of the final, execution-ready versions (in Office Open XML (OOXML) file format (.docx)) and fully compiled, executed versions (in Portable Document Format (.pdf)) of the credit agreement and all key financing documents no later than 10 business days after OSC’s execution of the credit agreement.

5.6.2 The contractor shall provide OSC a closing binder in electronic format no later than five calendar days after OSC’s execution of the credit agreement.

5.6.3 The contractor shall, if included in the relevant task order, prepare and deliver to OSC (in the form designated by OSC) a post-closing report identifying departures from OSC’s standard terms and conditions, summarizing key commercial and legal terms and conditions and the drivers therefore as well as any relevant negotiation history, and including any other information as directed by the COR no later than 60 calendar days after OSC’s execution of the credit agreement.

5.7 Portfolio Management

5.7.1 The contractor shall advise on, review, draft, and provide assistance regarding all legal aspects of loan portfolio management, including negotiation of amendments, waivers, consents, and lien releases, and providing advice regarding the exercise of rights and remedies under the loan documents.

5.8 Other OSC Matters

5.8.1 The contractor shall ensure that terms, conditions, covenants, and remedies in OSC credit agreements and related transaction agreements are appropriate for the particular transaction, provide adequate security to the Government, and are consistent with the governing statutes and regulations implementing the OSC Credit Programs.

5.8.2 The contractor shall furnish analysis that could be incorporated into briefing memoranda making recommendations regarding the OSC Credit Program credit instruments.

5.8.3 The contractor shall provide special technical and legal advice relating to the OSC Credit Programs, including research and the issuance of legal opinions or memoranda not related to a specific credit transaction. This advice shall include issues that may involve significant, little, or no precedent, and general legal advice (ad hoc basis).

5.9 Corporate Loan Template and Ancillary Documents Work

5.9.1 The Contractor must, in close coordination with agency counsel and OSC staff identified by the COR, complete the corporate loan agreement template to be used for OSC Credit Program loans that are financed based on the overall financial health of the borrower and, if applicable, the value of specific assets. In addition, to strengthen the OSC Credit Program corporate loan agreement template, identify structural and legal enhancements related to the specific underwriting and oversight and monitoring concerns applicable to OSC Credit Program borrowers who develop projects utilizing financing structures that are based on revenues not generated by such projects. Finally, the Contractor must provide legal services in connection with the development of ancillary documents related to the OSC Credit Program corporate loan agreement, as may be requested by the Government, such as security agreement and mortgage templates. The Contractor will work with agency counsel and OSC staff to identify and prepare such ancillary documents.

5.9.1.1 The OSC Credit Program corporate loan agreement template shall include, inter alia, the following:

5.9.1.1.1 Standard loan agreement provisions (e.g., conditions precedent to closing and disbursement, representations and warranties, covenants, events of default) applicable to corporate financings for discrete projects.

5.9.1.1.2 Alternative provisions or language (e.g., in bracketed language, footnotes, or a separate exhibit) to address loan variations, such as alternative borrower structures (including the joint venture/holding company structure), and other features identified by the Contractor and OSC to facilitate maximum utility of the template for common structural permutations, including to address supporting asset pledges of typical physical collateral (rail cars, real estate, and other hard assets);

5.9.1.1.3 Terms that reflect the issues, risks and concerns applicable to a loan provided to an ongoing operating entity (as opposed to a special purpose vehicle).

5.9.1.1.4 Terms that reflect the issues, risks and concerns inherent to a corporate financing.

5.9.1.1.5 Terms that reflect the oversight and monitoring concerns inherent to a corporate financing by a Government lender.

5.9.1.1.6 The legal, regulatory and policy requirements for the OSC Credit Program.

5.9.1.1.7 Forms of exhibits as referenced in the template; and

5.9.1.1.8 Other terms and requirements customary for similar loan agreement templates.

5.9.2 The Contractor shall perform the following ancillary tasks:

5.9.2.1 Meet with OSC staff, agency counsel and other Department staff, as needed, to discuss specific OSC Credit Program requirements and credit and policy concerns. The Government anticipates virtual meetings (e.g., telephone conference calls).

5.9.2.2 Review precedent OSC Credit Program loan agreements and templates provided to it by the agency counsel.

5.9.2.3 Consult (as the Contractor deems appropriate) internal and external resources (e.g., precedent corporate financing loan documents and templates).

5.9.2.4 Advise OSC on market standards for corporate financings of similar nature and identify whether any proposed terms for the OSC Credit Program corporate loan agreement template differ from such standards and the rationale for such deviations.

5.9.2.5 Complete drafting the OSC Credit Program corporate loan agreement template and ensure that it addresses the issues, risks and concerns inherent to a corporate financing. Prepare alternative provisions and/or descriptive language addressing different borrower structures and supplemental asset pledges.

5.9.2.6 Identify structural and legal enhancements related to the specific underwriting and oversight and monitoring concerns applicable to OSC Credit Program corporate borrowers to strengthen the OSC Credit Program corporate loan agreement template.

5.9.2.7 Prepare an indicative term sheet template (to be used in the early stages of negotiation of commercial terms) to reflect the key commercial terms of the corporate loan agreement template.

PART 6

APPLICABLE PUBLICATIONS

REFERENCE TITLE

DoD 5200.1-R InfoSec Program DoD 5200.2-R Personnel Security Program DoDD 5205.02E DoD OPSEC Program DoD 5205.02-M OPSEC Program Manual DoDI 5220.22 NISP DoD 5220.22-M NISPOM DoDD 5400.11 DoD Privacy Program DoD 5400.11-R DoD Privacy Program DoD 6025.18-R Implementation of the Health Insurance Portability and Accountability Act Privacy

Rule in DoD Health Care Programs DoDD 8140.01 Cyberspace Workforce Management DoDI 8500.01 Cybersecurity DoDI 8510.01 Risk Management Framework for DoD Information Technology DoD 8570.01-M Information Assurance Workforce Improvement Program HSPD-12 Homeland Security Presidential Directive NIST SP 800-137 InfoSec Continuous Monitoring NIST SP 800-171 Protecting CUI in Nonfederal Information Systems and Organizations 5 U.S.C. § 552a Privacy Act of 1974

2 C.F.R. Part 200 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Often referred to as the "Uniform Guidance" or "Super Circular")

31 U.S.C. Chapter 37, Subchapter II

Claims of the United States Government (Specifically sections related to debt collection, including 31 U.S.C. §§ 3711-3720E)

31 C.F.R. Part 5 Treasury Department Regulations, including regulations on offset of Federal payments to collect debts.

OMB Circular A-129 (Revised) Policies for Federal Credit Programs and Non-Tax Receivables

OMB Circular A-11 Preparation, Submission, and Execution of the Budget (Specifically, sections related to credit programs and financing accounts)

Federal Credit Reform Act of 1990 (FCRA) (Pub. L. 101–508, title XIII, subtitle B)

Federal Credit Reform Act of 1990 (This Act significantly changed how the cost of federal credit programs is accounted for in the budget, moving to a subsidy cost basis.)

Debt Collection Improvement Act of 1996 (DCIA) (Pub. L.

104–134, title III, chapter 10)

Debt Collection Improvement Act of 1996 (Provides tools and requirements for federal agencies to improve debt collection, including administrative wage garnishment, tax refund offset, and credit bureau reporting.)

PART 7

ATTACHMENT/TECHNICAL EXHIBIT LISTING

7. ATTACHMENT/TECHNICAL EXHIBIT LIST:

7.1. Attachment 1/Technical Exhibit 1 – Performance Requirements Summary

7.2. Attachment 2/Technical Exhibit 2 – Deliverables Schedule

7.3 Attachment 3/Technical Exhibit 3 – Estimated Workload Data

TECHNICAL EXHIBIT 1

Performance Requirements Summary (PRS)

Performance requirements will vary by task and will be defined in specific task orders.

TECHNICAL EXHIBIT 2

DELIVERABLES SCHEDULE

Deliverables schedule will vary by task and will be defined in specific task orders.

TECHNICAL EXHIBIT 3

ESTIMATED WORKLOAD DATA

The estimated workload data will be provided in specific task orders.