Attachment A PWS.docx

Attachment A Performance Work Statement

PERFORMANCE WORK STATEMENT (PWS)

I. BACKGROUND:

The Federal Housing Finance Agency (FHFA or Agency) was created by the Housing and Economic Recovery Act of 2008 (HERA)[footnoteRef:2] to regulate and supervise: the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the 11 Federal Home Loan Banks (FHLBs) (jointly, the “Regulated Entities”). HERA combined three organizations, the Office of Federal Housing Enterprise Oversight, the Federal Housing Finance Board, and a group from the Department of Housing and Urban Development, which collectively, had regulated the Regulated Entities. The Regulated Entities play a critical role in supporting our nation’s housing finance system. Fannie Mae and Freddie Mac buy mortgages from lenders and either hold these mortgages in their portfolios or package the loans into mortgage-backed securities that may be sold. The FHLBs are a system of regional member-owned corporations that provide lending institutions in their region with a liquidity resource to finance housing and economic development activities. In 2008, FHFA placed Fannie Mae and Freddie Mac in conservatorships, where they remain. [2: HERA, Pub. L. No. 110-289, section 1101, 122 Stat. 2661 (codified at 12 U.S.C. § 4511) (2008). ]

On February 19, 2025, the Executive Office of the President issued Executive Order (E.O.) 14219: Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative. The E.O. requires Agency heads to “initiate a process to review all regulations subject to their sole or joint jurisdiction for consistency with law and Administration policy.”[footnoteRef:3] As such, through the work described in the sections below, FHFA will continue to review its regulations to be consistent with law and Administration policies. [3: E.O. 14219, section 2(a), (90 FR 10583 (Feb. 25, 2025)). ]

II. SCOPE:

Specifically referencing E.O. 14219 (and its corresponding Fact Sheet[footnoteRef:4]), the Independent Legal Opinions will discuss any constitutional difficulties, current or anticipated, that the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Harvard (Students for Fair Admissions)[footnoteRef:5] may have on any portion of FHFA’s (i) Minority and Women Outreach Program regulation (12 C.F.R. § 1207 (MWOP Rule))[footnoteRef:6], and its underlying statutory authorities provided by HERA and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and (ii) regulations or practices associated with the Fair Housing Act (FHA).[footnoteRef:7] The Contractor may also be requested to provide follow-on legal opinions, analyses, and/or briefings related to the Independent Legal Opinions described herein. [4: Fact Sheet: President Donald J. Trump Directs Repeal of Regulations That Are Unlawful Under 10 Recent Supreme Court Decisions (April 9, 2025). ] [5: 600 U.S. 181 (2023). ] [6: The statutory authority for the MWOP Rule is derived from: 12 U.S.C. § 4520 (Minority and women inclusion; diversity requirements); 12 U.S.C. § 4526 (Regulations and orders); 12 U.S.C. § 1833e (Equal opportunity); and E.O. 11478 (Equal employment opportunity in the Federal Government). See Minority and Women Outreach Program Final Rule, Authority for Part 1207, 82 FR 14992, 14994 (Mar. 24, 2017).] [7: 42 U.S.C. § 3601.]

III. OBJECTIVES:

The objective is for the Contractor to provide FHFA with two distinct Independent Legal Opinions. FHFA will use the first Independent Legal Opinion to aid in determining if the Agency’s MWOP Rule, and the statutory authorities for this regulation, are constitutionally sound. FHFA will use the second Independent Legal Opinion to aid in determining if the Agency’s Fair Lending Oversight and Equitable Housing Finance regulation (12 C.F.R. Part 1293 (Fair Lending Regulation)), and the statutory authorities for this regulation, [footnoteRef:8] are constitutionally sound. [8: The statutory authority for the Fair Lending Regulation is derived from: 12 U.S.C. 1456(c)(1) (Financial reports; submission to Director; contents); 12 U.S.C. 1723a(m)(1) (Mortgage data collection and reporting requirements); 12 U.S.C. 4511 (Establishment of the Federal Housing Finance Agency); 12 U.S.C. 4513 (Duties and authorities of Director); 12 U.S.C. 4514 (Authority to require reports by regulated entities); 12 U.S.C. 4517 (Examinations); 12 U.S.C. 4526 (Regulations and orders); and 42 U.S.C. 3608(d) (Cooperation of Secretary and executive departments and agencies in administration of housing and urban development programs and activities to further fair housing purposes). See Fair Lending, Fair Housing, and Equitable Housing Finance Plans Final Rule, Authority for Part 1293, 89 FR 42768, 42784 (July 15, 2024).]

IV. TASK:

In compliance with section V. below, the Contractor must provide FHFA with two distinct Independent Legal Opinions, subject to the instructions below.

A. Independent Legal Opinion No. 1 – (MWOP Opinion):

1. Draft MWOP Opinion: To ensure that the Contractor is progressing in an efficient manner, the Draft MWOP Opinion will serve as a preliminary document to the Final MWOP Opinion; the Draft will follow the same formatting requirements, address the same issues, and provide a corresponding recommendation, as that of the Final; see item A.2.

2. Final MWOP Opinion: The Final MWOP Opinion will discuss any constitutional difficulties, current or anticipated, that the Supreme Court’s decision in Students for Fair Admissions, may raise with respect to the following: (i) FHFA’s MWOP Rule; (ii) 12 U.S.C. § 4520; (iii) 12 U.S.C. § 4526; (iv) 12 U.S.C. § 1833e; (v) E.O. 11478; and (vi) 12 U.S.C. § 5452 (Office of Minority and Women Inclusion). Last, the Final MWOP Opinion will recommend how FHFA should proceed if any of the aforementioned laws and orders (i–vi) are believed to be unconstitutional. The Final MWOP Opinion shall be in Times New Roman 12-point font; any footnotes shall be 10-point font. There is not a definitive page length for the Final MWOP Opinion.

B. Independent Legal Opinion No. 2 – (Fair Lending Opinion):

1. Draft Fair Lending Opinion: To ensure that the Contractor is progressing in an efficient manner, the Draft Fair Lending Opinion will serve as a preliminary document to the Final Fair Lending Opinion; the Draft will follow the same formatting requirements, address the same issues, and provide a corresponding recommendation, as that of the Final; see item B.2.

2. Final Fair Lending Opinion: Given the Students for Fair Admissions decision, the Final Fair Lending Opinion will discuss any constitutional difficulties, current or anticipated, with respect to the following: (i) FHFA’s Fair Lending regulation; (ii) 12 U.S.C. § 1456(c)(1); (iii) 12 U.S.C. § 1723a(m)(1); (iv) 12 U.S.C. § 4511; (v) 12 U.S.C. § 4513; (vi) 12 U.S.C. § 4514; (vii) 12 U.S.C. § 4517; (viii) 12 U.S.C. § 4526; (ix) 42 U.S.C. § 3608(d); (x) the FHA (42 U.S.C. § 3601 et seq);[footnoteRef:9] (xi) the Equal Credit Opportunity Act (ECOA) (15 U.S.C. § 1691 et seq);[footnoteRef:10] (xii) 12 U.S.C. § 4545 (Fair housing); and (xiii) FHFA’s pattern and practice of enforcing laws (x)–(xii), which in tandem, are colloquially known as the “fair lending laws.”[footnoteRef:11] Last, the Final Fair Lending Opinion will recommend how FHFA should proceed if any of the aforementioned laws (i)–(xii), or FHFA’s enforcement of the fair lending laws, are believed to be unconstitutional. The Final Fair Lending Opinion shall be in Times New Roman 12-point font; any footnotes shall be 10-point font. There is not a definitive page length for the Final Fair Lending Opinion. [9: Pub. L. No. 90-284, 82 Stat. 81 (1968). ] [10: Pub. L. No. 94-239, 90 Stat. 255 (1976).] [11: 12 C.F.R. § 1293.2 (Definitions). ]

C. Other Requirements:

1. The Contractor shall provide FHFA with routine updates on the progress being made on the Opinions. The frequency and manner in which these updates are to be provided will be agreed upon post award.

2. As requested, the Contractor shall provide Follow-on written work products or briefings related to the initial opinions. The due dates for any follow-on written work products or briefings will be based on mutual agreement between the Contracting Officer’s Representative (COR) and Contractor.

3. The Contractor shall avoid any actual or apparent conflicts of interest and immediately notify FHFA if any actual or apparent conflict arises. If there is a conflict of interest, the Contractor shall create a Conflict-of-Interest Mitigation Plan, which is to be updated throughout the life of this contract.

V. CONTRACTOR PERSONNEL:

The Contractor shall designate a primary Partner and a primary Associate who shall provide the required services. These individuals shall be designated as key personnel. FHFA expects proposed personnel to work together to perform the required work. Personnel must meet the requirements specified below. FHFA may request that additional labor categories identified in Attachment C be utilized when appropriate. Upon request, the Contractor shall provide a certificate of good standing in a bar for each attorney who provides legal services under this contract.

a. Partner

Description and Responsibilities: Responsible for ensuring work is completed in a timely and professional manner. Oversees work of more junior attorneys as needed to ensure that it is high quality and reflects requisite attention to detail. Reviews draft written work products of more junior attorneys where appropriate before they are submitted to FHFA OGC. Ensures that urgent matters are given the highest priority and attention. Individuals proposed to serve as Partner may have the title of Senior Partner, or Partner, or other title within the law firm so long as the proposed individual meets the minimum experience requirements.

Experience and Other Qualifications: At least ten (10) years of relevant experience. Have and maintain active membership in good standing in a bar of a state, territory of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, and meet and maintain all applicable requirements of that bar.

b. Counsel

Description and Responsibilities: Responsible for ensuring work is completed in a timely and professional manner. Oversees work of more junior attorneys as needed to ensure that it is high quality and reflects requisite attention to detail. Reviews draft written work products of more junior attorneys where appropriate before they are submitted to FHFA OGC. Ensures that urgent matters are given the highest priority and attention. Individuals proposed to serve as Counsel may have the title of Senior Counsel, or Counsel, or other title within the law firm so long as the proposed individual meets the minimum experience requirements.

Experience and Other Qualifications: At least six (6) years of relevant experience, unless otherwise approved by FHFA. Have and maintain active membership in good standing in a bar of a state, territory of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, and meet and maintain all applicable requirements of that bar.

c. Associate

Description and Responsibilities: Responsible for completing required tasks in a timely and professional manner. Work products are high-quality and reflect attention to detail. Ensures that urgent matters are given the highest priority and attention. Individuals proposed to serve as Associate may hold the title of Senior Associate, Associate, Junior Associate, or other title within the law firm so long as the proposed individual meets the minimum experience requirements.

Experience and Other Qualifications: At least four (4) years of relevant experience, unless otherwise approved by FHFA. Have and maintain active membership in good standing in a bar of a state, territory of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, and meet and maintain all applicable requirements of that bar.

d. Other Personnel

The Contractor shall identify additional labor categories that may be required to perform the work required under this Performance Work Statement (e.g., staff attorney, paralegal, administrative assistant) in Attachment C.

VI. DELIVERABLES:

For any written deliverables, FHFA will provide notification of acceptance or rejection in accordance with FHFA clause 6.216, Review and Ownership of Deliverables.

For any written deliverables, the Contractor must ensure they are in an electronic format (e-documents)—either in a Microsoft Office product format (Word/PowerPoint/Project/ Excel) or an Adobe Acrobat PDF format and are in compliance pursuant to section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing standards and guidelines.

Unless otherwise directed by the COR, all written deliverables must be marked as Controlled Unclassified Information (CUI) in accordance with FHFA’s CUI Policy and CUI Procedures. If you do not have access to FHFA’s CUI Policy and Procedures via FHFA’s intranet, you must request a copy from the COR. Generally, CUI markings require that a document 1) be marked with the word “CONTROLLED,” centered at the top of the document, and 2) include identification of FHFA as the designating agency on the first page of the document. Examples of an agency designation include having the Agency logo or Agency letterhead on the first page or placing “Controlled by FHFA” in the center of the footer of the first page.

All deliverables are to be given to OGC and will be subject to attorney-client privilege.

VII. GOVERNMENT-FURNISHED INFORMATION:

In performing this contract, the Contractor may be provided with FHFA information (e.g., memoranda, staff analyses, opinions, email communication, etc.).

VIII. SECURITY:

The Contractor shall ensure the security of FHFA Controlled Unclassified Information (CUI) as set forth in FHFA Clause 6.205, Nondisclosure of Controlled Unclassified Information, including FHFA Non-Public Information. FHFA Non-Public Information (defined at 12 C.F.R. 1214.1) is a type of CUI and shall be handled accordingly.

With respect to the information technology (IT) security, the Contractor shall comply with FHFA Clause 6.208e, FHFA-Provided Secure Document Management System. Contractor personnel will access the secure document management system using an application on their device. FHFA will provide support in setting up access, but FHFA will not provide the device. For any tasks performed by the Contractor involving FHFA CUI and using an electronic information system (e.g., a computer, laptop, portable electronic device), the Contractor must perform all such work only in the secure document management system. For example, electronic documents containing CUI shall be created, edited, and stored only in the secure document management system. The Contractor will be provided an FHFA email account, which will be used for transmitting emails containing FHFA CUI to FHFA staff.

IX. INFORMATION COMMUNICATION TECHNOLOGY (ICT) ACCESSIBILITY (SECTION 508):

Section 508 of the Rehabilitation Act, as amended by the Workforce Investment Act of 1998 (P.L. 105-220) requires that when Federal agencies develop, procure, maintain, or use information and communication technology (ICT), it shall be accessible to people with disabilities. Federal employees and members of the public who have disabilities must have access to, and use of, information and data that is comparable to people without disabilities. As such, the following requirements apply to this contract:

1. Products, platforms and services delivered as part of this work statement that are ICT, or contain ICT, must conform to the Revised 508 Standards, which are located at 36 C.F.R. § 1194.1 & Apps. A, C & D, and available at https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/final-rule/text-of-the-standards-and-guidelines.

The following items are identified as containing ICT: Electronic Documents.

Applicable Functional Performance Criteria: All functional performance criteria apply when using an alternative design or technology that achieves substantially equivalent or greater accessibility and usability by individuals with disabilities than would be provided by conformance to one or more of the requirements in Chapters 4-6 of the Revised 508 Standards, or when Chapters 4-6 do not address one or more functions of ICT.

Applicable requirements for electronic documents and/or support services:

1. E205 – WCAG Level A & AA Success Criteria,

2. E302 – Functional Performance Criteria,

3. E602 – Support Documentation, and

4. E603 – Support Services.

X. PLACE OF PERFORMANCE:

This contract is to be performed at the Contractor’s place of business.

XI. PERIOD OF PERFORMANCE:

The Contractor must be available to start performance immediately upon award. The estimated timeframe to complete this contract in its entirety is six months from the date of award. At FHFA’s discretion, as situations arise, an extension of time to complete this contract may be granted.

XII. TRAVEL:

Travel is unlikely but may be required in performance of the contract. Travel shall be approved in advance by the COR. All travel costs for transportation, lodging, meals, and incidental expenses incurred by contractor personnel on official company business are allowable subject to FAR Subsection 31.205-46 Travel costs. These costs will be considered reasonable and allowable only to the extent they do not exceed the daily maximum per diem rates in effect at the time of travel as set forth in the Federal Travel Regulation.

XIII. FUNDING STATUS:

The contractor shall comply with Alt I of FAR 52.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services.

The Contractor shall notify the FHFA Contracting Officer and COR in writing whenever incurred cost or actual incurred cost of any of contract line items number will exceed 85% of its funding amount.

The contractor is cautioned that performance of work above the funded amount of the contract is at the contractor's own risk.

XIV. BILLING AND INVOICE REQUIREMENTS:

a. Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315. Refer to Alt I of FAR 52.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services and FHFA Specialty Clause 6.206a Invoicing via Invoice Processing Platform in Attachment B, for further details.

b. Allowable Billing for Professional Services

i. The Contractor shall not charge for attorneys performing paralegal duties such as checking dockets or cite checking.

ii. Intra-office communications and conferences that are administrative, supervisory, or training-related shall not be billed. Contractor should limit intra-office communications to those that are strictly necessary for the work being performed. Billing for intra-office communications should specify the topic and purpose. Attendance versus active participation at a conference should not be billed.

iii. The Contractor should avoid billing for unnecessary overlap of activities or duplication of effort by timekeepers. Descriptions of the same activities performed by multiple timekeepers should describe the difference in the work performed by each timekeeper. Activities should be performed by timekeepers with the skill level required to competently perform the task.

iv. The Contractor should not bill for activities by timekeepers who are reviewing and editing work of inexperienced attorneys where those activities are for teaching or training.