A03 Legal Consultation Svs PWS rev 101923.pdf

PERFORMANCE WORK STATEMENT

(JAN 2023)

Financial Policy and Strategy Legal Consultation Services

Revised 10/19/2023

PART 1

GENERAL INFORMATION

1. GENERAL: This is a non-personal services contract to provide advisory and assistance services under FAR Part 37.2. 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 the financial legal review services as defined in this Performance Work Statement except for those items specified as government furnished property and services. The contractor shall perform to the standards in this contract.

1.2 Background: DSCA was delegated to develop and implement process improvements that support the Administration's desire for more competitive financing options for our international partners. Such improvements will enhance the Foreign Military Sales (FMS) process, ensuring access to U.S. defense exports in favor of enhanced alliances and partnership, and support the U.S. Defense Industrial Base and the U.S. economy.

This effort supports the Conventional Arms Transfer Policy, as well as the National Defense Strategy, by strengthening relationships with foreign partners and allies. By increasing the number of banking options available to FMS partners, this may increase competition in the banking market, making financing options more attainable at a lower cost.

The Financial Policy (FP) Division is responsible for the formulation, development, and implementation of financial policies related to all SC programs and missions that are managed, executed, and overseen by

DSCA.

1.3 Objectives: The Defense Security Cooperation Agency (DSCA), Financial Policy Division seeks an expert opinion and regulatory guidance related to Paragraph 1.2 above, including but not limited to, the use of Standby Letters of Credit (SBLC).

1.4 Scope: DSCA requires an expert opinion to provide a comprehensive statement on definitive questions in a white paper and/or other product as designated by the government.

1.5 Period of Performance: The period of performance shall be for one (1) Base Year of 12 months and four (4) 12-month option years. The Period of Performance reads as follows:

Base Year 1 Nov 2023 – 31 Oct 2024 Option Year I 1 Nov 2024 – 31 Oct 2025 Option Year II 1 Nov 2025 – 31 Oct 2026 Option Year III 1 Nov 2026 – 31 Oct 2027 Option Year IV 1 Nov 2027 – 31 Oct 2028

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 the means by which he assures himself that his work complies with the requirement of the contract. After acceptance of the quality control plan the contractor shall receive the contracting officer’s acceptance in writing of any proposed change to his QC system.

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: [Reference 5 U.S.C. §6103.]

New Year’s Day, January 1.

Martin Luther King Jr.’s Birthday, the third Monday in January.

President’s Day, the third Monday in February.

Memorial Day, the last Monday in May.

Juneteenth National Independence Day, June 19.

Independence Day, July 4.

Labor Day, the first Monday in September.

Columbus Day, the second Monday in October.

Veterans Day, November 11.

Thanksgiving Day, the fourth Thursday in November.

Christmas Day, December 25.

1.6.4 Hours of Operation: The contractor is responsible for conducting business, between the hours of 900- 1700 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 at all times 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.

1.6.5 Place of Performance: The work to be performed under this contract will be performed at the contractor’s facility.

1.6.6 Type of Contract: The government will award a labor hour contract.

1.6.7 Security Requirements: N/A

1.6.7.1 Physical Security: N/A

1.6.7.2 Key Control: N/A

1.6.8 Special Qualifications: N/A

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, 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 contracting officer 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 with regard to 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 Key Personnel: The follow personnel are considered key personnel by the government: The contractor shall provide a contract manager who shall be responsible for the performance of the work. The name of this person and an alternate who shall act for the contractor when the manager is absent shall be designated in writing to the contracting officer. The contract manager or alternate shall have full authority to act for the contractor on all contract matters relating to daily operation of this contract. The contract manager or alternate shall be available between 8:00 a.m. to 4:30p.m. Monday thru Friday except Federal holidays or when the government facility is closed for administrative reasons. Qualifications for all key personnel are listed below:

Labor Category

Education Requirement Experience Requirement

Duties

Letter of Credit Lawyer

The Lawyer must be a graduate of an ABA accredited Law school; have a Juris Doctor degree; and have experience working in a private law firm, in-house corporate office, and/or for a government agency. The Lawyer must have in depth experience and expertise in U.S. and international commercial finance law and related litigation.

A minimum of twelve (12) years’ experience.

Provide expert opinion on banking questions and legal issues pertaining to the requirement and tasks listed in 1.3, 1.4 and Part 5 of the PWS

1.6.12 Identification of Contractor Employees: N/A

1.6.13 Contractor Travel: N/A

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

1.6.15 Data Rights: N/A

1.6.16 Organizational Conflict of Interest: 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’s mitigation plan will be determined to be acceptable solely at the discretion of the Contracting Officer and in the event the Contracting Officer unilaterally determines that any such

OCI 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 OCI.

1.6.17 Phase in Phase out Period: N/A

PART 2

DEFINITIONS & 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 (COR). An employee of the U.S. Government appointed by the contracting officer 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 as long as 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 Performance Work Statement.

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

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

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

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

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

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

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

2.2. ACRONYMS:

CONUS Continental United States (excludes Alaska and Hawaii) COR Contracting Officer Representative COTR Contracting Officer's Technical Representative DFARS Defense Federal Acquisition Regulation Supplement DSCA Defense Security Cooperation Agency DOD Department of Defense FMS Foreign Military Sales FP Financial Policy FAR Federal Acquisition Regulation KO Contracting Officer OCI Organizational Conflict of Interest ODC Other Direct Costs PIPO Phase In/Phase Out POC Point of Contact PRS Performance Requirements Summary PWS Performance Work Statement QA Quality Assurance QAP Quality Assurance Program QASP Quality Assurance Surveillance Plan QC Quality Control QCP Quality Control Program SLOC Standby Letter of Credit TE Technical Exhibit WHS Washington Headquarters Services

PART 3

GOVERNMENT FURNISHED PROPERTY, EQUIPMENT, AND SERVICES

3. GOVERNMENT FURNISHED ITEMS AND SERVICES:

3.1 Services: N/A

3.2 Facilities: N/A

3.3 Utilities: N/A

3.4 Equipment: N/A

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 that are not listed under Section 3 of this PWS.

PART 5

SPECIFIC TASKS

5. Specific Tasks:

5.1. Basic Services. The contractor shall provide services for Financial Policy and Strategy Legal Consultation Services.

5.2. Financial Policy and Strategy Legal Consultation Services. The contractor shall utilize its expert knowledge in the U.S., state, and foreign laws, regulations, and policies affecting the provision of Standby Letters of Credit and other forms of financing to/by foreign governments to provide an expert opinion on the questions set forth below.

5.2.1 Task 1: The contractor will answer and provide supporting documentation for its conclusions via a formalized document.

Provide an expert opinion on the following:

1. Assuming a bank is licensed by the State of NY, what is the order of precedence for payments in the case of a default? Where does the federal government fall in this hierarchy?

2. What differences exist between federal and NY state banking regulations regarding liquidity requirements and solvency for commercial financial institutions? More broadly, are there any other key differences between federal and NY state banking regulations that DSCA should consider in its establishment of criteria for bank eligibility to offer SBLCs to foreign countries?

3. Does the fact that a financial institution is Federally or state-regulated determine which forum would have jurisdiction over any legal claims arising under a financing arrangement involving such financial institution? In other words, does the fact that a financial institution is New York state-regulated automatically confer jurisdiction to the courts of New York versus federal courts or can the financial arrangement itself identify the appropriate forum for claims?

4. Describe the costs and benefits of making financing arrangements between the U.S. Government and other foreign governments subject to Courts of the District of Columbia versus Courts of New York state.

Work includes, but is not limited to, reviewing an updated policy drafted by DSCA that expands and clarifies appropriate regulatory standards, processes, and roles and responsibilities related to the offering of SBLCs to/by foreign governments.

5.2 Task 2: The contractor will answer and provide supporting documentation for its conclusions via a formalized document.

1. Support the government in conducting research and analysis related to its SBLC or other arrangements that rely on commercial financing.

2. Analyze problems and advise on solutions to help achieve DSCA objectives related to developing and implementing financing options for foreign country purchasers of U.S. defense articles and services.

3. Provide advice on strategies for ensuring legal compliance with federal, state, and foreign financial laws and regulations, as required.

PART 6

APPLICABLE PUBLICATIONS

6. APPLICABLE PUBLICATIONS (CURRENT EDITIONS)

6.1 The Contractor shall abide by all applicable regulations, publications, manuals, and local policies and procedures.

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

The contractor service requirements are summarized into performance objectives that relate directly to mission essential items. The performance threshold briefly describes the minimum acceptable levels of service required for each requirement. These thresholds are critical to mission success.

Performance Objective (The Service required— usually a shall statement)

Standard Performance Threshold (This is the maximum error rate. It could possibly be “Zero deviation from standard”)

Method of Surveillance

PRS # 1.

The contractor shall provide services for Financial Policy and Strategy Legal Consultation Services.

Develop and submit all required deliverables.

Performance is acceptable when: 90% of deliverable requirements are satisfied.

No more than one customer complaint per report.

100 percent inspection

TECHNICAL EXHIBIT 2

DELIVERABLES SCHEDULE

Deliverable Frequency # of Copies Medium/Format Submit To

The contractor will answer and provide supporting documentation for its conclusions via a formalized document per Task 1 of the PWS

Deliverables 30 days from effective date

One

MS Word

POC Information will be incorporated after award

The contractor will answer and provide supporting documentation for its conclusions via a formalized document per Task 2 of the PWS

As needed

One

MS Word

POC Information will be incorporated after award if needed.

TECHNICAL EXHIBIT 3

ESTIMATED WORKLOAD DATA

BASE YEAR

Item Labor Category FTEs Hours 1 Letter of Credit Lawyer .09 170

OPTION YEAR 1

OPTION YEAR 2

OPTION YEAR 3

OPTION YEAR 4