DraftPWSLegalServicesFBO.docx

AG-3187-S-12-0085

Legal Services Draft Performance Work Statement (PWS)

USDA Forest Service

February 27, 2012

1. INTRODUCTION

The U.S. Department of Agriculture (USDA) Forest Service (FS) seeks a qualified Contractor to provide legal services for employment-related litigation. Contractor support is to augment agency legal resources.

2. BACKGROUND

Established in 1905, the FS is a federal agency that manages public lands in national forests and grasslands under a founding principle, "To provide the greatest amount of good for the greatest amount of people in the long run". The agency’s mission is to “sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations”. The FS has the responsibility for stewardship of more than 193 million acres of the nation’s forests and grasslands; for developing and communicating scientific knowledge through research and development that leads to informed natural resource decision-making; for delivering technical assistance through state and private forestry programs; and for sharing knowledge and experience with others in the global community through international forestry.

With over 40,000 employees, the FS faces the same possibilities of employment-related litigation that other large federal agencies encounter. On average, the FS has between 130-175 cases open at any time with cases averaging 12-18 months. For the FS, employment-related litigation occurs before the Equal Employment Opportunity Commission (EEOC), the Merit Service Protection Board, Federal Labor Relations Authority (FLRA) (for arbitrations), and in some circumstances the U.S. Federal District Court. Within FS, the Office of Third Party Representatives is primarily responsible for defending the Agency in employment related litigation, either through direct representation or through managing the representation provided by the USDA Office of General Counsel and/or contract law firms.

The Forest Service seeks an experienced contractor for employment-related litigation support. In most circumstances, the work will be limited to cases involving novel, newsworthy fact patterns, highly situated defendants, and cases involving mixed allegations of due process and unlawful discrimination.

Additionally, efforts are underway at the Department-level to create efficiencies within all USDA. USDA and USDA agencies may use the resultant contract, if requested. Initially, only FS support is anticipated.

3. CONTRACT OBJECTIVES

Through expert employment-related legal services, the Contractor shall provide:

· Professional, timely, thorough and cost-effective legal services in defense of FS that result in favorable rulings to FS.

4. SCOPE

The Contractor shall provide the full gamut of legal services for employment-related litigation in accordance with EEOC, MSPB Acknowledgement Orders and USDA/FS regulations. As mentioned above, the scope of the resultant contract may include employment-related legal services for all USDA and USDA agencies. Initially, only FS support is anticipated. Specific tasks in providing professional, timely, thorough and cost-effective legal services include the following.

1.1 The Contractor shall be responsible for project management for this effort including, but not limited to:

a. Meeting:

i. PWS performance standards.

ii. Deadlines established by the jurisdictions/tribunals.

b. Managing personnel.

c. Coordinating and communicating with the FS COR and FS/USDA Legal as needed on specific cases, especially novel cases.

d. Monitoring and reporting on status.

e. Providing effective and responsive oversight, planning and execution of cases.

1.2 The Contractor shall ensure that all deliverables for all tasks under this contract are complete, accurate and delivered according to established schedules and are provided to the Government for review, comment, and acceptance.

Quality Assurance

1.3 The Contractor shall document and apply quality control procedures used throughout the performance of this contract for itself and any Subcontractors, in accordance with its proposed quality assurance plan.

1.4 The Contractor shall document and conform to quality standards and best practices.

1.5 The Contractor shall identify and remedy quality issues in a timely manner.

Reporting

1.6 The Contractor shall prepare and submit a monthly status report within 5 business days of the last business day of the month to the COR. The report shall contain the status of the case in the process, what has occurred in the past month and what will occur in the current month.

1.7 The Contractor shall participate in monthly meetings/conference calls to review cases and answer any questions that arise from the Office of Civil Rights and FS/USDA Legal.

1.8 The Contractor shall submit a detailed monthly invoice in accordance with rates and expenses included in its cost proposal. As part of the detail required in the monthly invoice, the Contractor shall show percentage expended for the month and cumulatively against the project ceiling. Invoices shall include FS job codes/override codes requested by the Contractor. One monthly invoice shall be submitted with client names and one without client names.

Protection of Information

1.9 The Contractor shall be responsible for properly protecting all information used, gathered, or developed as a result of work under this contract.

1.10 The Contractor shall require that each member of its staff performing under this contract sign formal nondisclosure and/or conflict of interest agreements to guarantee the protection and integrity of Government information and documents.

1.11 The Contractor shall use any information that is subject to the Privacy Act in full accordance with the rules of conduct as applicable to Privacy Act information.

1.12 The Contractor shall ensure that appropriate administrative, technical, and physical safeguards are established to ensure that the security and confidentiality of FS information, data, and equipment are properly protected.

Task 2: Pretrial Docketing and Case Management Outcome: Cases are managed to ensure that all paperwork is completed and filed in accordance with established timeframes.

To initiate work, FS Contractor shall conduct all pretrial docketing and case management efforts, including:

2.1 Receive and record cases delivered from the Branch Chief of the Third Party Representatives.

2.2 Assign the case to a capable attorney

2.3 Prepare the trial calendar.

2.4 Meet all pretrial dates, including timelines for Designation of Agency Rep, Initial Discovery, Discovery, Pre-Trial Hearing and Hearing.

2.5 Comply with requests from Administrative Judges.

Task 3: Pretrial Case Preparation Outcome: All materials and witnesses needed for trial are professional, prepared in advance and support the Government’s case.

Contractor shall conduct all pretrial case preparation efforts, including:

3.1 Develop a case analysis outlining the strengths and weaknesses of the case, including recommendations on litigation or settlement, and provide it to the FS COR for determination in moving forward.

3.2 Gather evidence in support of the Government’s defense.

3.3 Prepare witnesses to testify at trial.

3.4 Develop defense strategies.

3.5 Prepare and respond to discovery motions.

3.6 Prepare all materials and witnesses needed for trial.

Task 4: Trial Presentation Outcome: All evidence and testimony necessary to support the Government’s case is included on the record.

Contractor shall conduct all trial presentation efforts, including:

4.1 Prepare and deliver opening statements.

4.2 Examine and cross-examine witnesses.

4.3 Present evidence.

4.4 Make and defend against objections.

4.5 Prepare and deliver closing arguments.

Task 5: Post-trial Briefing and Appeals Outcome: All legal documentation is provided to the trier of facts. FS is prepared for next steps regarding the case and lessons learned are documented.

Contractor shall conduct all post-trial briefing and appeals efforts, including:

5.1 Draft and submit post-trial legal briefs, legal research and legal composition.

5.2 Prepare to defend against an appeal, in the event of a win.

5.3 Recommend appeals or compliance alternatives.

5.4 Prepare an appeal in the event of a loss, after receiving agreement from FS.

5.5 Transfer all documentation to FS following closure of the case.

5. PERFORMANCE REQUIREMENTS

(AQL)

Monitoring Method

6. DELIVERABLES

Specific deliverables, as noted in the tasks above, are identified in the following table.

6.1. TABLE OF DELIVERABLES

The following table includes deliverables and expected due dates, but is not a comprehensive list of deliverables because of the nature of each case. Deliverables shall be provided electronically in one of the Microsoft Office suite products.

6.2. INSPECTION AND ACCEPTANCE

The Government will perform Inspection and Quality Assurance in accordance with the contract Quality Assurance Surveillance Plan (QASP). The Government has the right to perform periodic surveillance of the Contractor to ensure that the Contractor’s work products and QC processes are in compliance with the contract requirements. The Government and the Contractor will coordinate Government surveillance in a manner that will not unduly delay or disrupt the Contractor’s performance of the contract.

The COR will have five (5) business days to review draft deliverables and make comments. The Contractor will have five (5) business days to make corrections. Upon receipt of the final deliverables, the COR/designee will have five (5) business days for final review prior to acceptance or providing documented reasons for non-acceptance. Should the Government fail to complete the review within the review period the deliverable will become acceptable by default.

The COR will have the right to reject or require correction of any deficiencies found in the deliverables that are contrary to the information contained in the Contractor’s accepted proposal. In the event of a rejected deliverable, the Contractor will be notified in writing by the COR/designee of the specific reasons for rejection. The Contractor shall have five (5) workdays to correct the rejected deliverable and return it per delivery instructions.

7. PERIOD OF PERFORMANCE

Anticipated Contractor Start Date: August 8, 2012

The contract period shall extend for one calendar year from the date of award. At the option of the Government, the contract may be renewed for additional one year periods, not to exceed one option period, provided the Contracting Officer serves notice of renewal at least 60 days prior to contract expiration.

8. PLACE OF PERFORMANCE

The contractor shall perform tasks at its facilities utilizing its own equipment and personnel.

9. TRAVEL

Local travel (within 50 miles of the contractor’s facilities) shall not be reimbursed. Travel may be required depending on cases filed. All travel shall be approved by the Contracting Officer Representative (COR) in coordination with the Contracting Officer prior to reserving accommodations and the commencement of travel. Travel shall be reimbursed in accordance with the Federal Travel Regulation.

10. GOVERNMENT FURNISHED PROPERTY AND INFORMATION

FS shall provide necessary information on each case. All Contractor personnel working on this project and having access to FS provided information must sign a FS Non-Disclosure Agreement.

11. KEY PERSONNEL

The Contractor shall employ and maintain personnel in the management and key staff positions who meet the minimum requirements for each of the skill levels to which they are assigned, and shall be capable of performing the functions described in a competent and professional manner.

Project Manager: The Contractor shall designate a Project Manager (PM) as the single point of contact (POC) with FS for communications issues, concerns, or problems that arise on the contract and on all task awarded under this contract. The PM shall have the authority to commit the Contractor and make decisions for the Contractor, and shall be the single Contractor representative responsible for all issues, concerns, or problems. The PM shall readily respond to FS questions, concerns, and comments. The PM shall proactively alert FS to potential contractual issues. The PM must be available during normal duty hours, as specified herein to meet (either in person or by phone) with Government personnel within 24 hours to discuss problems.

The Contractor shall submit resumes to the Government COR for coordination and review prior to formally adding new employees to this effort. The contractor is responsible to hire and retain individuals of the highest ability who are appropriate for the assigned task. The COR will raise performance issues to the CO and a meeting will promptly be scheduled to discuss with the contractor.

The Contractor agrees that no Key Personnel substitutions or additions will be made unless necessitated by compelling reasons including, but not limited to, illness, death, maternity leave, or termination of employment. In such event, the Contractor must promptly provide the information required below to the COR for approval prior to any substitution or addition of Key Personnel. Proposed substituted must have qualifications that meet, or exceed the qualifications of the persons replaced. Whenever possible, fully compliant requests for substitutions or additions must be submitted, in writing to the COR for approval at least fifteen business days in advance of the proposed change. The COR will notify the Contractor within fifteen business days after receipt of all required information of the decision on substitutions or additions. All disapprovals will require re-submission of another substitution or addition within fifteen days by the Contractor.

Request for Key Personnel changes must provide a detailed explanation of the circumstances necessitating the proposed substitutions or additions, a complete resume for the person to be substituted or added, and any other information requested by the COR.

Noncompliance with the provisions of this clause will be considered a material breach of the terms and conditions of the contract for which the Government may seek any and all appropriate remedies, to include termination for default.

12. SECURITY REQUIREMENTS

12.1. Privacy and IT Security

By accepting this contract/agreement, the Contractor and its affiliates (hereafter called Contractor) providing legal services to FS agrees to comply with the applicable IT security policy as outlined in this document. The Contractor and other external organizations will be responsible for IT security for all systems connected to the FS network or operated by the Contractor and other external organizations for the FS, regardless of location. This clause is applicable to all or any part of the contract that includes IT resources or services in which the Contractor and other external organizations must have physical or electronic access to FS sensitive information that directly support the mission of the FS. The term 'information technology', as used in this clause, means any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. This includes both major applications and general support systems as defined by OMB Circular A-130.

The Contractor shall be responsible for properly protecting all information used, gathered, or developed as a result of work under this task. The Contractor shall also protect all unclassified Government data, equipment, etc., by treating information as sensitive business, confidential information, controlling and limiting access to the information, and ensuring the data and equipment are secured within their facility.

The contractor and other external organizations will agree to establish and follow security precautions considered by the FS to be necessary to ensure proper handling of data and information. As may be identified elsewhere in this contract, the Contractor agrees that:

· The draft and final deliverables and all associated working papers and other materials deemed relevant by the COR that have been generated by the Contractor in the performance of this contract are the property of the U.S. Government and must be submitted to the COR at the conclusion of the tasks.

· All documents produced for this project are the property of the U.S. Government and cannot be reproduced or retained by the Contractor.

To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity, and confidentiality of Government data, the Contractor will afford the Government access to the Contractor's or other external organization’s facilities, installations, technical capabilities, operations, documentation, records, and databases. The Contractor will cooperate with Federal agencies and their officially credentialed representatives during official inspections or investigations concerning the protection of FS information. Cooperation may include providing relevant documentation showing proof of compliance with federal and agency requirements, and rendering other assistance as deemed necessary.

If new or unanticipated threats or hazards are discovered by either the Government or the Contractor or other external organization, or if existing safeguards have ceased to function, the discoverer will immediately bring the situation to the attention of the other party. The Contractor will report real or suspected incidents or violations to the FS Computer Incident Response Team (CIRT), by e-mail, at CIRT@fs.fed.us.

The Contractor shall insert these clauses in all subcontracts when the subcontractor is required to have routine physical access to a Federally-controlled facility and/or routine access to a Federally-controlled information system. Failure to comply with said requirements will constitute cause for termination.

The Contractor Agrees To –

(a) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies—

(i) The systems of records; and

(ii) The design, development, or operation work that the contractor is to perform;

(b) Include the Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a system of records on individuals that is subject to the Act; and

(c) Include this clause, including this paragraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a system of records.

In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a system of records on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a system of records on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a system of records on individuals to accomplish an agency function, the Contractor is considered to be an employee of the agency.

Definitions of the clause:

(a) “Operation of a system of records,” as used in this clause, means performance of any of the activities associated with maintaining the system of records, including the collection, use, and dissemination of records.

(b) “Record,” as used in this clause, means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the person’s name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint or voiceprint or a photograph.

(c) “System of records on individuals,” as used in this clause, means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

Background Investigations: All non-government employees with unescorted access to FS facilities, computer systems and/or FS information must have background investigations commensurate with the level of risk and magnitude of loss or harm. FS will determine the level of background investigation and position classification needed.

13. ADMINISTRATIVE CONSIDERATIONS

13.1. Designation of Contracting Officer’s Representative (COR)

The COR is responsible for the technical direction of the contract work. In no event, however, will any understanding, agreements, modification, change order, or other matter deviating from the terms of this contract be effective or binding upon the Government unless formalized by proper contractual document executed by the Contracting Officer prior to completion of the contract.

The Contracting Officer shall be informed as soon as possible of any actions or inactions by the contractor or the Government which may affect the price, required delivery or completion times stated in the contract, so that identified desired changes and outside influences on the contract may be modified as necessary. Whenever, in the opinion of the contractor, the COR requests efforts outside the scope of the contract, the contractor shall advise the COR. If the COR persists and there still exists a disagreement as to proper contractual coverage, the Contracting Officer should be notified immediately, preferable in writing if time permits. Proceeding with work without proper contractual coverage could result in non-payment.

A copy of the COR delegation letter shall be provided to the Contractor five days after award.

13.2. Contract Administration

The Contracting Officer is the only person authorized to approve changes. This authority remains solely with the Contracting Officer. In the event that the Contractor affects any changes at the direction of any person other than the Contracting Officer, the changes will be considered to have been made without authority and no adjustment will be made in the contract price to cover any increase incurred as a result thereof.

Legal Services PWS 1