Attachment_1_-_Performance_Work_Statement.pdf

AG-0317-S-16-0005, Attachment 1

AG-0317-S-16-0005, ATTACHMENT 1

PERFORMANCE WORK STATEMENT

SECTION 1 GENERAL INFORMATION

1.1 General. This is a non-personal services contract to provide non-judicial foreclosure and related services. The Government shall not exercise any supervision or control over the contract personnel performing the services herein. Such contract personnel shall be accountable solely to the Contractor who, in turn, is responsible to the Government.

1.2 Introduction. Rural Development (an Agency of the United States Department of Agriculture herein called the “Agency” or “the Government”) provides loans to individuals to purchase single family homes.

These loans are made to individuals in the very low and low income categories in rural areas of Montana.

The loan security is a Deed of Trust and may be in a senior or junior lien position. Upon default of the loan terms, it is necessary for the Agency to complete the non-judicial foreclosure of the Deed of Trust in accordance with the Montana Code Annotated 2015, Title 71. Mortgages, Pledges, and Liens.

1.3 Objective. The objective of this contract is to retain a private licensed attorney or law firm (hereinafter called “Contractor”) to provide all legal and related services for non-judicial foreclosures, bankruptcies, and/or actions to recover possession related to 7 CFR 3550 Section 502/504 (Single Family Housing) debts to the United States of America, acting through the Agency.

1.4 Scope. Services will be obtained through the issuance of task orders. The Contractor must provide all facilities, materials, supplies, tools, equipment, personnel, travel arrangements and miscellaneous costs necessary to accomplish the performance of the contract requirements including:

• Non-judicial foreclosure

• Eviction/Possession

• Deed in Lieu

• Relief of Stay Orders in bankruptcy cases, including Chapter 7 and 13

• Associated Services

1.5 Case Assignment. The Agency retains the sole right to determine the cases to be assigned under this contract.

1.6 Place of Performance. The Contractor must provide services throughout the State of Montana, exclusive of tribal trust land. All actions must be filed in the county where the security property is located.

1.7 Contractor Personnel Qualifications.

1.7.1 Any trustee or attorney performing trustee and legal services under this contract, whether an individual contractor or a member of a contractor's firm, shall be duly licensed to practice law in the State of Montana.

1.7.2 The contractor must not employ any person who is an employee of the U.S. Government if employing that person would create a conflict of interest.

1.8 Insurance. The contractor must retain and upon request of the Contracting Officer provide evidence of professional liability insurance coverage for errors and omissions in the amount of at least $300,000 for the firm and its attorneys; and fidelity coverage in the amount of $300,000 for each individual who will have access to proceeds from the foreclosure actions under this contract.

1.9 Quality Control. The contractor is responsible for quality control to ensure services are performed in accordance with this PWS. The contractor shall 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.

1.10 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).

1.11 Confidentiality of Records. All case files and other information related to assigned cases shall be considered a system of records within the meaning of the Privacy Act and the contractor shall institute safeguards required by that Act. The contractor shall take all necessary steps to maintain and ensure the confidentiality of the information contained in each file and to protect against unwarranted disclosure of any such information.

1.12 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, monitor Contractor's performance and notifies both the Contracting Officer and Contractor of any deficiencies. 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.

The COR is not authorized to change any of the contract or order prices, delivery dates or terms and conditions.

1.13 Post Award Conference/Periodic Progress Meetings. The Contractor agrees to participate in any post award conference. The contracting officer, 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 meeting will be conducted by phone or at the contractor’s location and shall be at no additional cost to the government.

1.14 Conflict of Interest. The contractor shall be bound by Section 1.7 of the American Bar Association Model Rules of Professional Responsibility dealing with conflicts of interest. The contractor shall not, personally or through a third party, buy an Agency financed or acquired property covered under this contract. It is the responsibility of the contractor to determine if representing the Agency in any case assigned could or would be a conflict of interest or have the appearance of a conflict of interest. If the particular case assigned posses such a conflict or perceived conflict, the contractor shall notify the Contracting Officer in writing and return the borrower file to the COR prior to initiation of any action.

1.15 Proceeds from Actions. The contractor shall request that payment of any amounts due the Agency through the foreclosure action under this contract shall be drawn payable to “USDA Rural Development” and sent to the contractor for delivery to the Agency. However, if such payments are drawn payable to the contractor, the contractor shall endorse the item to “USDA Rural Development” before remitting it to the COR. The contractor shall make no deduction from such payments for costs which may be due the contractor under this contract. The contractor shall send or deliver all such payments to the Agency within seven calendar days after receipt. Delays in remitting payments to the Agency will be considered a breach of the contract and cause for termination of the contract for default.

1.16 Records of Contractor’s Activity. The contractor shall maintain records of all activities under this contract in a manner which describes the efforts of the contractor accurately to effect the action for which the case was assigned. The contractor shall make such records available for inspection by the Agency, its counsel, or other Government auditing agency, upon request.

1.17 Return of Cases to the Agency and Effect on Fee. The Agency reserves the right to reclaim a case for any reason. Return to the Agency means mailing or delivering the case file along with all supporting documents filed by the contractor, and pertinent records of the contractor’s activities to the COR. When a case is returned to the Agency upon written request of the COR pursuant to this subsection, the contractor shall be entitled only to any amounts which have actually been expended (such as reimbursement for filing fees or other allowable costs) before the date of the return or the request for return, whichever is earlier. No fee will be paid for work not completed except as provided in Section B.3 (proration of fee) of the terms and conditions. The contractor shall have no claim against the Government for any action taken by the Agency, its counsel, or the U.S. Attorney subsequent to return of the case, even though the action eliminates the fee to which the contractor might have been entitled had the case not been reclaimed. The return of the case shall not waive the contractor’s liability under the provisions of this contract or impair the Government’s right to terminate the contract for convenience or default.

SECTION 2 DEFINITIONS AND ACRONYMS:

2.1. DEFINITIONS:

2.1.1 Agency. The Rural Housing Service (RHS) within the Rural Development (RD) mission area of the U.S. Department of Agriculture or its successor agency, which administers 7 CFR 3550 Section 502 loans and Section 504 loans.

2.1.2 Borrower. A recipient who is indebted under 7 CFR 2550 Section 502 and 504 programs.

2.1.3 Case File. A file established for each application to contain all documents used for loan origination.

2.1.4 Centralized Service Center (CSC). The Agency branch located in St. Louis, Missouri that is responsible for servicing 7 CFR 3550 Section 502 and 504 loans.

2.1.5 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.

2.1.6 Contracting Officer (CO). 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.

2.1.7 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.

2.1.8 Deed in Lieu of Foreclosure. A method of liquidation by which title to the security property is conveyed to the Agency by the borrower.

2.1.9 Defective Service. A service output that does not meet the standard of performance associated with the Performance Work Statement.

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

2.1.11 Housing Director. Individual with the overall leadership providing direction for Housing Programs within the State.

2.1.12 Montana State Office Housing Staff. Responsible for oversight of the non-judicial foreclosure and other related processes.

2.1.12 Quality Assurance. The government procedures to verify that services being performed by the Contractor are performed according to acceptable standards.

2.1.13 Quality Assurance Surveillance Plan (QASP). An organized written document specifying the surveillance methodology to be used for surveillance of contractor performance.

2.1.14 Quality Control. All necessary measures taken by the Contractor to assure that the quality of an end product or service shall meet contract requirements.

2.1.15 Subcontractor. One that enters into a contract with a prime contractor. The Government does not have privity of contract with the subcontractor. Performance of work by subcontractors in accordance with the contract requirements is the responsibility of the Prime Contractor.

2.2. ACRONYMS:

AGAR Agriculture Federal Acquisition Regulation CFR Code of Federal Regulations CO Contracting Officer COR Contracting Officer’s Representative CPM Contract Program Manager CSC Central Servicing Center FAR Federal Acquisition Regulation HUD U.S. Department of Housing and Urban Development PRS Performance Requirements Summary PWS Performance Work Statement QA Quality Assurance QASP Quality Assurance Surveillance Plan QC Quality Control RD Rural Development RHS Rural Housing Service USC United States Code.

USDA United Stated Department of Agriculture.

3. SPECIFIC TASKS:

3.1 Services: The contractor shall provide non-judicial foreclosure and related services, such as eviction/possession, deed-in-lieu, postponements, and relief from stay.

3.2 Foreclosure (Line Items 111, 211, 311, 411, 511).

3.2.1 Within 15 calendar days after assignment of a case through the issuance of an order for non-judicial foreclosure, the contractor shall commence a non-judicial action to foreclose and bring the security property to public sale in the minimum time permitted by State law. All foreclosure sales will be subject to any outstanding prior liens including, but not limited to, real estate taxes and assessments; and all foreclosure actions shall contain an order for possession of the property by the purchaser. Execution of the portion of the order to evict occupants shall be undertaken only when specifically directed by the Contracting Officer as a part of the order.

3.2.2 As soon as the foreclosure date and time are set, the contractor will notify the COR. In addition, as soon as the sale ad is completed it is to be faxed to the COR. The COR will provide the contractor specific bidding instructions which establish the maximum bid the contractor can enter on behalf of the Agency. The contractor shall enter the bid on behalf of the Agency. In the event the contractor is bidding at a senior lien holder’s trustee sale, the Agency will provide bidding instruction and funds to support the Agency’s bid. The results of the foreclosure sale must be reported in writing to the COR and CO within 24 hours.

3.2.3 A foreclosure is deemed to be completed under this contract and payment will be made:

3.2.3.1 If property becomes Real Estate Owned by the Agency, when the Trustee’s Deed has been recorded transferring legal title to the Agency, and a final report on the foreclosure and certification of clear title is provided to the Agency by the contract; or

3.2.3.2 If the purchaser was another party other than the Agency, when funds due the Agency have been received by the Agency and the report on the sale, including the name and address of the purchaser is provided to the Agency by the contractor.

3.2.4 In all foreclosure actions, the contractor shall provide the Agency with certification and supporting documentation, within 30 calendar days after the foreclosure sale is held, that the foreclosure was completed in accordance with Montana state law. If any title defect is later discovered for property acquired by the Agency which resulted from any error or omission on the part of the contractor, the contractor shall correct the defect without additional cost to the Agency.

3.2.5 The contactor shall perform all services required to obtain security property title. A typical transaction is itemized below. Transactions may require more or less steps to complete a non-judicial foreclosure action in accordance with Federal, State, and local laws, regulations, instructions, policy, practices, and procedures.

3.2.5.1 Within 15 calendar days of a file assignment, commence a non-judicial foreclosure action.

3.2.5.2 Order and review a Trustee’s Sale Guarantee title report to assure the Agency’s lien position and that of senior and junior lienholders. Send a copy to the COR.

3.2.5.3 Prepare all documentation necessary and required by State law to record, publish, post, mail and serve.

3.2.5.4 Record, publish, post, mail and serve all documents required under State law. Provide the Agency a copy of the Notice of Sale. The Contractor is only authorized to postpone a sale if they are notified of a bankruptcy filing by the borrower or if approved by the Agency in writing.

3.2.5.5 Communicate with debtors, senior lien holders and junior lien holders alternative resolution proposals. The Contractor is not authorized to obligate the Agency to any alternative resolution proposals. Communicate all proposals to the Agency within 72 hours of receipt. The Agency will provide the contactor with written instructions and authorization to either reject said offers or consummate said offers. An example would be a short sale request.

3.2.5.6 Request the bidding instructions from the Agency. The Contractor is not authorized to bid on behalf of the Agency without written bidding instructions from the Agency. Bidding instructions provided by the Agency will include any funds required to carry out said instructions.

3.2.5.7 Attend the Trustee’s Sales and enter the bid on behalf of the Agency.

3.2.5.8 Report to the Agency within 48 hours of the sale who the successful bidder was and the successful bid. This can be done via the telephone or e-mail.

3.2.5.9 The Contractor must then provide the Agency with a written report summarizing the Trustee’s Sale outcome and the original recorded Trustee’s Deed. Any proceeds due the Agency shall be returned to the Agency within 5 working days of receipt by the Contractor.

3.3 Eviction/Possession (Line Items 112, 212, 213, 313, 413, 513). The Agency will notify the Contractor if they are to engage in the eviction process. If the Contractor is to conduct an eviction, they are to prepare all documentation, record, post, mail, publish and serve said documentation in accordance with State law. The Contractor will notify the Agency once the home is vacant. If necessary, the contractor shall represent the agency in any court proceedings.

3.4 Deed in Lieu of Foreclosure (Line Items 113, 213, 313, 413, 513).

3.4.1 The Contractor shall negotiate a deed in lieu of foreclosure after the borrower posts case assignment. Final approval must be sought from the Agency. The Contractor must obtain the following items from the borrower: (1) a Quit Claim Deed; (2) Form RD 1955-1, Offer to Convey Security; (3) Form RD 1944-3, Budget and/or Financial Statement; (4) Form RD MT 465-5 Estoppel Affidavit and (5) copies of any leases or other documents affecting the title to the property. The borrower must be informed that the deed will not be recorded unless the conveyance is accepted. The Contractor must coordinate with the borrower to vacate the premise, remove all personal property and leave the home in a clean, habitable condition.

3.4.2 Generally, borrowers will be required to satisfy liens and real estate taxes or assessments before conveyance is accepted. However, if the borrower is unwilling to do so, the Contractor shall notify the Contracting Officer’s Representative. The Agency may elect to satisfy or settle these debts if it is in the best interest of the Government.

3.4.3 A deed in lieu of foreclosure does not automatically release the borrower from liability for any outstanding debt. The borrower’s account will be credited with the actual net recovery value. If the actual net recovery value does not satisfy the debt, the remaining debt must be debt settled by the Agency’s Centralized Servicing Center. The Contractor shall notify the borrower that under a deed in lieu of foreclosure:

3.4.3.1 Foreclosure action will not be suspended while the offer for a deed in lieu of foreclosure is considered;

3.4.3.2 All costs related to conveyance paid by the Agency will be added to the debt;

3.4.3.3 A credit equal to the actual net recovery value will be applied to the debt;

3.4.3.4 If the borrower does not satisfy the debt, the borrower will not automatically be released from liability; and

3.5 Bankruptcy After Assignment (Line Items 114, 115, 214, 215, 314, 315, 414, 415, 514, 515): The contractor will be involved with bankruptcy only when the borrower files a petition after acceleration of the account.

3.5.1 The contractor must immediately advise the Agency when he/she becomes aware of a bankruptcy on assigned cases and forward bankruptcy filing notifications upon receipt. If the agency receives notices relative to cases assigned to the contractor, the Agency will immediately notify the contractor. If these notifications are made by telephone, the contractor must follow up in writing.

3.5.2 The COR will advise the contractor whether the Agency wishes to object to a proposed bankruptcy plan, or petition for lifting the automatic stay in order to continue liquidation.

3.5.3 The contractor must prepare and file all required documents within the time frame necessary to protect the Agency’s security interest or take other action as required. The contractor is authorized to represent the Agency at hearings when necessary and to execute proofs of claim or other bankruptcy-related documents on behalf of the Agency as its Agent.

3.5.4 The Agency, through the COR, will provide the contractor with account balances and other information for completing documents.

3.5.5 The Contractor must file the motion for relief from stay and notify the Agency once a relief from stay has been granted.

3.5.6 A bankruptcy action is deemed to be completed when the case is closed or dismissed by the bankruptcy court or the automatic stay is lifted and the Agency can pursue acquiring title to the property.

3.6 Associated Services. These are services that the contractor must perform and are related to the performance of the legal services specifically identified elsewhere in the contract. See Section B.4 of the contract.

3.7 Unusual Situations: The Contactor must report all situations that arise outside of the normal process to the Contracting Officer and Contracting Officer’s Representative within 3 calendar days after the situation comes to the Contractors attention.

4. INDIVIDUAL ORDER PERIOD OF PERFORMANCE

4.1 Time Frame for Completion. Orders placed with the Contractor will specify the time frame for completion.

Type of Action Completion

Time Frame Non-judicial Foreclosure Case – Non-bankruptcy1 6 Months Eviction/Possession 3 Months Deed in Lieu of Foreclosure 2 Months Foreclosure Case – Chapter 7 Bankruptcy - complete Reaffirmation Agreement and Order from Relief

5 Months

Foreclosure Case – Chapter 13 Bankruptcy - obtain Order from Relief

3Months

4.2 Delays. In the event the Borrower files bankruptcy the Contractor must notify the Contracting Officer and the Contracting Officer’s Representative within five business days. The timeframe for completion of the foreclosure will be modified as appropriate.

5. DELIVERABLES

5.1 Acknowledgement of Assigned Cases. Within 3 working days after physical acceptance of a borrower case file, the contractor shall acknowledge receipt by written memorandum to the COR. A single memorandum may acknowledge receipt of multiple cases. Memorandums may be delivered via e-mail, fax, or mail.

5.2 Communication. The contractor shall document all communication with the borrower in writing and provide a copy to the Contracting Officer’s Representative.

5.3 Status Report. The contractor shall provide a quarterly case status report by the 10th calendar day after completion of the quarter. Reports must include: Order number, Name of borrower, loan number, property address, date of order, date of Trustee’s Sale Guarantee, date Notice of Sale was recorded, date of sale, time of sale, address of sale, and outcome of sale. Additional information for Eviction/Possession, Bankruptcy, motions for Relief of Stay and Deed in Lieu shall be provided that includes all pertinent dates.

5.4 Trustee Sales Guarantee. Copy of the Trustee’s Sale Guarantee within 30 calendar days of receipt.

5.5 Notice of Sale. Copy of the recorded Notice of Sale within 30 calendar days of receipt.

5.6 Order of Eviction. Copy of Order for Eviction and notice to borrower within 30 calendar days of receipt.

5.7 Relief of Stay. Copy of Order for Relief of Stay within 30 calendar days of receipt.

5.8 Deed in Lieu. Original, recorded Deed in Lieu immediately upon receipt.

5.9 Trustee’s Deed. Original, recorded Trustee’s Deed immediately upon receipt.

6 STANDARDS

6.1 Statutes, Regulations and Regulations. All legal, enforcement and collection actions on the part of the contractor must be in compliance and consistent with all Federal, State and local statutes, regulations and ethical standards which apply to the liquidation of real estate collateral and collection of debt. These include but are not limited to:

• Montana Code Annotated 2015, Title 71. Mortgages, Pledges, and Liens

• Privacy Act of 1974, as amended (5 U.S.C. 552a)

• The Fair Debt Collection Practices Act (15 U.S.C. 1692 st seq.)

• The Debt Collection Act of 1982, as amended (P.L. 97-365)

• The American Bar Association Model Rules and Professional Responsibility

6.1.1 These statutes and standards, as well as other applicable Federal, State and local laws and regulations pertaining to the Government as a whole are incorporated by reference in this Performance Work Statement and are considered as a part of the contract and any subsequent orders. Violation of applicable law, regulation or ethical standards shall be cause for termination of the contract for default.

6.1.2 Rural Development will provide, upon request, any regulation and discussion of the same necessary to execute the duties under this agreement. FmHA/Rural Development Instructions/Regulations are available for review, on request, at the Rural Development Area Office nearest the contractor’s office and online at http://www.rurdev.usda.gov/RegulationsAndGuidance.html.

7 PERFORMANCE ASSESSMENT

7.1.1 Performance Evaluation

The Government will monitor the contractor’s compliance with the Performance Work Statement by one hundred percent inspection of output. The Contractor shall be aware that in the absence of any contract requirement from the Performance Requirements Summary does not detract from its enforceability nor limit the rights or remedies of the Government under any other provision of the contract.

7.1.2 Performance Requirements Summary

The following standards of performance will be monitored:

Requirement Standard Acceptable Quality Level Timely submission of Quarterly Status Reports

Report delivered by the 10th calendar day after completion of the quarter

90%

Completion of Foreclosure – Non-Bankruptcy

6 Months ARO 90%

Requirement Standard Acceptable Quality Level Eviction/Possession 3 Months ARO 90% Complete Deed in Lieu 2 Months ARO 90% Foreclosure – Obtain Relief from Stay–Chapter 7 Bankruptcy

5 Months ARO 90%

Foreclosure – Obtain Relief from Stay - Chapter 13 Bankruptcy

3 Months ARO 90%

ARO = After Receipt of Order http://www.rurdev.usda.gov/RegulationsAndGuidance.html