AMENDMENT 4 008.doc

RFP DTFH61-08-R-00008 Amendment 4

AMENDMENT 4

RFP DTFH61-08-R-00008

Financial Advisory Services

The Conflict of Interest clause in Section V, Paragraph F on pages 18 through 20 is hereby DELETED and the following paragraph F is ADDED in lieu thereof:

F. CONFLICT OF INTEREST

The DOT is committed to providing high quality service to project sponsors seeking federal credit assistance that is free from bias, conflicts of interest or unprofessional conduct. The contractor’s strategic goals, corporate policies, management practices and culture must be designed to maintain the firm’s public responsibility of independence without regard to remuneration from other sources.

It is incumbent upon the contractor to promptly disclose in writing to the Contracting Officer and COTR any actual or apparent conflict of interest, or an interest or interests that may give rise to the appearance of a conflict that could affect the public’s confidence in Department’s execution of federal laws and regulations governing its programs. The DOT’s policy is to award contracts to only those offerors whose objectivity is not impaired due to any related past, present, or planned interest, financial or otherwise, in organizations regulated by DOT or in organizations whose interests may be substantially affected by Departmental activities. No member partner or key personnel of the contractor, or an immediate family member thereof shall have a financial interest in the project or a real property interest in either real property specifically acquired for or to be acquired for a project, or property that is adjacent thereto, for which the DOT is providing credit assistance.

The Department seeks financial advisors that will provide the highest caliber of advisory services commensurate with the complexity that these structured project financings present. The Department recognizes that advisory firms often represent a party and provide services to a party in one transaction and upon completion of a transaction may represent another party. Conflicts are viewed within the legal and financial profession on a transactional basis and subject to rules of professional responsibility or codes of conduct.

Therefore, the Department is implementing its conflict requirements on a transactional basis provided the firm maintains strict confidentiality and a firewall to guard against communications within the firm on matters that the firm is working on for the Department. The contractor shall be bound by, and strictly comply with, applicable Rules of Professional Responsibility or Code of Conduct requirements regarding ethical and conflict of interest issues that impact the delivery of advisory services provided to the Department, and the firm shall promptly disclose to the Contracting Officer and COTR, any relationship with an entity that might give rise to an actual or apparent conflict of interest.

Any other matter that could represent a potential conflict of interest must be promptly brought to the attention of the Contracting Officer who, after consulting with the COTR and the Office of Chief Counsel will make a final decision relative to the transaction for which the Department is seeking advisory services.

The Contracting Officer will determine whether the firm should be:

1. Placed in a “hiatus status” if the firm represents an entity whose interest the Department believes is at odds with the Department, or

2. Permitted to continue to respond to task orders not involving that particular client.

Key personnel identified in the task order or base ID/IQ contract shall not represent any applicant or borrower seeking assistance from a specific DOT Credit Program described herein. Key personnel may provide program information that is publicly available to non-key members such as the TIFIA statute, its implementing regulations, the TIFIA program guide and other information that has been disclosed to the public.

Other firm members not identified as key personnel may provide such services and representation provided that:

1. Such representation is promptly disclosed in writing to the Contracting Officer and COTR; and

2. Key personnel identified by the contractor to provide advisory services for the TIFIA program enter into a confidentiality agreement with the Contracting Officer that precludes any communication within the firm between key personnel to this contract and other firm members, associates and assistants that are representing a party in a proposed financing.

However, at no time may a firm represent both TIFIA and an applicant or borrower on the same transaction.

With each Task Order proposal, the contractor is required to certify compliance with the DOT’s conflict of interest policy as follows:

1. Based on the list of credit applicants to be provided by the Contracting Officer, the firm will determine whether any of the listed entities or any related entities are also clients of the contractor.

2. In accordance with Federal Acquisition Regulation (FAR) Subpart 9.5, and consistent with State Code of Professional Responsibility or the Model Rules of Professional Conduct (depending on which is applicable to the contractor) , the contractor shall conduct a conflict of interest analysis.

3. The contractor shall then certify that no actual or potential conflict exists with respect to the services to be provided in connection with the Task Order or that any actual or potential conflict of interest that does or may exist has been communicated in writing to the Contracting Officer.

4. Notwithstanding such certification and communication, the Contracting Officer reserves the right under 9.504 of the FAR to independently evaluate any potential conflict(s) of interest and take action to avoid, neutralize or mitigate the conflict(s) prior to award of a Task Order. If the contractor were aware of a potential or actual conflict of interest, prior to award of a Task Order or discovered an actual or potential conflict after award, and failed to disclose or misrepresented relevant information to the Contracting Officer, whether intentionally or not, the Government may terminate the contract for cause.

If at any time following execution of the contract or Task Order for financial advisory services, the contractor determines that it represents a Program applicant, a Related Party, in any capacity whether related to any of the Programs or not, the contractor shall: a) disclose the representation and (b) allow the contracting officer to make a determination under this section that there are adequate safeguards to protect the DOT’s interest.

The contractor agrees that if, after award of the contract or a Task Order, the contractor discovers any other organizational or personal conflict of interest, it shall make an immediate and full disclosure in writing to the Contracting Officer, including a description of the action the contractor has taken to remedy the conflict. The contractor shall take any action requested by the Contracting Officer to avoid, neutralize or mitigate the conflict.

END OF CLAUSE

Given the significant changes to the CoI clause, the Q & A in Amendment 2 should be disregarded. Except for the conflict of interest language, all other terms and conditions are unchanged and remain in full force and effect.