08-R-00009.doc

RFP DTFH61-08-R-00009

2. CONTRACT NO.

3. AWARD/EFFECTIVE DATE

4. ORDER NUMBER

5. SOLICITATION NO.

DTFH61-08-R-00009

6. SOLICITATION ISSUE DATE

4-10-2008

7. FOR SOLICITATION

INFORMATION:

a. NAME

Bob Prior

b. CONTACT INFORMATION bob.prior@dot.gov

8. OFFER DUE DATE/

LOCAL TIME

5-15-2008/4:00 PM

Department of Transportation

DESTINATION

Federal Highway Administration

Office of Acquisition Management

SETASIDE:__% FOR

Room E66-310, HAAM 30E

SMALL BUSINESS

13a. THIS CONTRACT IS A RATED ORDER

1200 New Jersey Ave., SW

SDB

UNDER DPAS (15 CFR 700

Washington, DC 20590

8(A)

14. METHOD OF SOLICITATION

SIZE STANDARD:

$7M

RFQ

FACILITY

TELEPHONE NO.

19.

ITEM NO.

20.

SUPPLIES/SERVICES

21.

QTY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

Legal counsel services for the Transportation Infrastructure

Finance and Innovation Act Program (TIFIA), and the

Maritime Guaranteed Loan Program (Title XI)

(Attach Additional Sheets as Necessary)

27b. CONTRACT/PURCHASE ORDER INCORPORATES FAR 52.212-1. FAR 52.212-5 IS ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED.

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN 1_ COPIES

_ _TO See Sec.A.3.12.1, CONTRACTOR AGREES TO FURNISH AND DELIVER ALL ITEMS

SET FORTH OR OTHERWISE IDENTIFIED ABOVE AND ON ANY ADDITIONAL

SHEETS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED HEREIN.

29. AWARD OF CONTRACT: REFERENCE __________________OFFER\

FORMCHECKBOX

DATED________________. YOUR OFFER ON SOLICITATION (BLOCK

5) INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN IS ACCEPTED AS TO ITEMS:

ACCEPTED, AND CONFORMS TO THE

CORRECT FOR

FORMCHECKBOX

RECEIVED

FORMCHECKBOX

INSPECTED

FORMCHECKBOX

CONTRACT, EXCEPT AS NOTED

PARTIAL

FINAL

COMPLETE

PARTIAL

FINAL

42a. RECEIVED BY (Print)

41a. I CERTIFY THIS ACCOUNT IS CORRECT AND PROPER FOR PAYMENT

STANDARD FORM 1449 (10-95)

Prescribed By GSA FAR (48CFR) 53.214(a)

SECTION I STATEMENT of WORK for U.S DEPARTMENT of TRANSPORTATION CREDIT PROGRAMS

A. PURPOSE

The Federal Highway Administration (FHWA), on behalf of the US Department of Transportation (DOT), intends to award multiple Indefinite Delivery/Indefinite Quantity (ID/IQ) contracts to provide legal advice and assistance to two DOT credit programs: the Transportation Infrastructure Finance and Innovative Act (TIFIA) Program and the Maritime Administration (MARAD) Title XI Program. Selected firms will assist the DOT to negotiate agreements for Federal credit assistance. Firms may propose to provide services to one or both programs.

The FHWA seeks well qualified firms with significant project finance expertise in the municipal bond, corporate bond, and commercial banking sectors, as well as specific experience in infrastructure financings resulting from public-private partnerships. This solicitation is open to all law firms. Outside counsel must be bar certified, in good standing, and have graduated from an accredited U.S. law school.

The contractor’s objectives under this contract are to assist the DOT in structuring its portion of the debt in a transaction, assure that the overall transaction protects the Federal interest, and assure consistency with the governing statutes and implementing regulations associated with the applicable DOT credit program.

The FHWA intends to award multiple ID/IQ contracts so that several firms will be available at any time to compete for task orders issued on behalf of the DOT credit programs. The number of task orders issued will depend on the demand for Federal credit assistance. Generally, each upcoming credit transaction will result in task orders for financial (including risk assessment) and legal advisors. In addition, the FHWA may issue task orders for research and other special legal advisory services to assist in carrying out DOT credit program requirements.

B. BACKGROUND

Transportation Infrastructure Finance and Innovation Act (TIFIA) Program

Administered by the TIFIA Joint Program Office (JPO), TIFIA provides secured (direct) loans, loan guarantees, and standby lines of credit to borrowers seeking to develop major surface transportation projects. (See 23 U.S.C. 601-609.

) Through TIFIA, the DOT can loan up to 33 percent of the cost of highway, transit, rail, and intermodal projects. Depending on the specifics of a project, a TIFIA credit agreement may require the participation of the Federal Transit Administration (FTA), the Federal Railroad Administration (FRA), the FHWA or MARAD. Additional information about the TIFIA program may be found on the Internet: http://tifia.fhwa.dot.gov.

Title XI Guaranteed Loan Program

Administered by MARAD, Title XI provides a full faith and credit guarantee by the U.S. Government of debt obligations issued by (1) U.S. or foreign ship owners for the purpose of financing or refinancing either U.S. flag vessels or eligible export vessels constructed, reconstructed, or reconditioned in U.S. shipyards; and (2) U.S. shipyards for the purpose of financing advanced shipbuilding technology and modern shipbuilding technology (Technology) of a privately owned general shipyard facility located in the United States. Additional information about the Title XI program may be found on the Internet: www.marad.dot.gov/titleXI/.

C. CONTRACTOR TASKS

In accordance with the terms of this contract and specific task orders awarded, the contractor shall assist the applicable DOT credit program to negotiate and document individual credit transactions. Typical, but not exclusive, lists of the documents required for TIFIA transactions are attached as Attachments 1 and 2.

For TIFIA, the contractor will work with the Chief Counsel of the applicable operating administration (i.e., FHWA, FTA, or FRA). For Title XI, the contractor will work with the Chief Counsel of MARAD. In most instances, the contractor will receive guidance from the staff attorneys assigned as in-house counsel to the applicable DOT credit program. During a transaction, all communication with related parties outside of DOT shall occur only with the participation or approval of DOT counsel.

The contractor shall perform tasks as set forth in its task orders that will typically include, but are not limited to:

1. Providing advice and counsel to DOT regarding all legal aspects of the proposed credit transaction.

2. Reviewing, drafting, negotiating and amending DOT credit agreements including, but not limited to, term sheets, secured (direct) loan agreements, guaranteed loan agreements, and line of credit agreements.

3. Reviewing, negotiating, and amending related transaction agreements including, but not limited to, lease agreements, pledge agreements, bond indentures, hedge agreements, swap termination agreements, and inter-creditor agreements among the DOT and selected lenders and third parties, as appropriate.

4. Drafting modifications to existing legal documents, and additional documents, which are particular to a transaction.

5. Ensuring that terms, conditions, covenants, and remedies in the DOT credit agreements and related transaction agreements are appropriate for the particular transaction, provide adequate security to the Government, and are consistent with the governing statutes and regulations implementing the applicable DOT credit program.

6. Issuing formal opinions related to its specific advice and consultation as well as formal legal opinions regarding the validity and enforceability of the security granted to DOT and the DOT representations.

7. Note: For the Title XI program, this may involve issuing opinions that take into account foreign jurisdictions and foreign laws including foreign bankruptcy law.

8. Reviewing, negotiating, and modifying, as appropriate, all legal opinion letters required for closing a transaction including, but not limited to, borrower’s counsel, lender’s counsel, and/or bond counsel, as appropriate.

9. Providing special technical and legal advisory services relating to a specific credit program including research and the issuance of legal opinions not related to a specific project.

10. Furnishing legal memoranda that could be incorporated into a briefing memorandum making recommendations with regard to the Department’s execution of the DOT credit agreement.

11. Representing, as appropriate, the DOT on all tasks required for financial close of the credit transaction including, but not limited to, the preparation of the closing memorandum, the review of all final documentation, and handling of all closing activities. Such closing is often held simultaneously with the senior project loan (if any) and other agreements related to the transaction.

12. Attending meetings in Washington, D.C. and participating in conference calls involving the DOT lender (including credit program staff, DOT in-house counsel and outside financial advisor) and the borrower, as necessary. The DOT anticipates that each credit negotiation will require several meetings in Washington, D.C. or a location convenient to the borrower. The contractor must be prepared to attend meetings on short notice.

13. Providing DOT both printed and electronic copies of the final transaction documents (the “closing binder”) no later than 60 days after DOT’s execution of the credit agreement.

14. Providing ongoing advice and counsel to DOT, after financial close, regarding all legal aspects of proposed amendments, waivers and modifications of the credit transaction.

15. Reviewing, drafting, and negotiating amendments to (or restatements of) credit agreements and related transaction agreements.

Additional Task Orders

The contractor may be required to provide research and other special legal advisory services, as needed, to assist in carrying out credit program requirements. These may include research and the issuance of legal opinions on matters unrelated to a specific project transaction.

SECTION II ISSUANCE OF CONTRACTOR TASKS

A. TASK ORDER ISSUANCE

Issuance of task orders will depend on the level of demand for credit program assistance and other circumstances. As needed, for each approved credit application, DOT will engage one firm to perform the required legal counsel analysis. (See the detailed procedures for soliciting Task Order proposals and the evaluation and award of Task Orders below.) In addition, the firm may be requested to provide assistance in reviewing, drafting, negotiating and modifying credit instruments including: term sheets, secured (direct) loan agreements, guaranteed loan agreements, line of credit agreements, and related documents including lease agreements, pledge documents, bond indentures, hedge agreements, swap termination documents, and intercreditor agreements to be entered into between the DOT and selected borrowers and third parties as appropriate. The contractor may also be required to review, draft, and modify amendments or amended and restated agreements. As required, DOT may engage the firm prior to approval of a credit application to address specific legal issues related to the application.

The firm must be able to attend working conferences and meetings at DOT headquarters in Washington, D.C. as well as participate in telephone conference calls.

The firms selected may be asked to provide advice and counsel to DOT in analyzing the legal aspects of the financing for the project; review and modify as appropriate opinion letters of borrowers’ counsel; and ensure that credit agreement terms, conditions, covenants, and remedies provide adequate security to the DOT, are appropriate for the particular transaction, and are consistent with the statutory criteria and the regulations implementing the relevant DOT credit program. The firm may also be asked to review all loan closing documentation and be responsible for or represent as appropriate the USDOT at financial close and may from time to time be required to furnish legal memoranda which would be incorporated into a briefing memoranda making recommendations with regard to the execution of credit agreements for the aforementioned programs by the Department.

B. TASK ORDER PROCEDURE

All funds expended under this contract shall be incurred, accounted for and invoiced under individual Task Orders.

Firms selected from this solicitation will be placed in a pool of firms qualified to provide future legal counsel services for the specific DOT Credit Programs described herein. At the time DOT requires legal counsel services for one of the aforementioned credit programs, DOT will typically request a Task Order proposal from all the firms in the pool who have been qualified for the relevant credit program. This Task Order RFP will include a description of the project, an Executive Summary, unique characteristics (as applicable), specific information on the work to be performed, the objectives or results desired, a period of performance, deliverables, pricing required, other terms specific to the individual Task Order and its financing structure. Firms will be asked to submit a fixed price proposal and provide an anticipated date of completion, based on the project’s characteristics and the specific services requested. After a firm has been awarded an initial Task Order for a project, DOT may issue additional sole source task orders to that firm for necessary follow-on work related to that project.

It is the Government’s intent to provide all contractors awarded a contract under this solicitation a fair opportunity to be considered for each proposed Task Order. The Government expects to issue a competitive solicitation for Task Order proposals to all eligible contractors. However, the Government may issue Task Orders on a non-competitive basis or limited competitive basis as may be appropriate and authorized by law. The Contracting Officer will select the offer that is considered most advantageous to the Government considering technical merit of each proposal, key personnel, price, and past performance, especially performance on other Task Orders awarded hereunder. Task Order solicitations will specify the evaluation criteria that will be utilized together with a statement of the relative importance of each criterion. The selection of a contractor to perform a Task Order is generally not subject to protest.

The Government may solicit and award contracts for these or similar services covered under this ID/IQ contract by using on contract procedures including, but not limited to, Commercial Item purchase, Request for Proposals, or other ID/IQs.

The work shall be conducted by the contractor on an as needed basis, within the scope of this contract. The exact nature and extent of the contractor’s work under this contract will be based upon written Task Orders developed by the Government. Once work is identified, the Government will issue a Request for Proposal. Such requests may be issued electronically. The contractor shall submit to the Contracting Officer a Task Order Proposal (TOP) within 7 working days, unless the RFP has authorized more time for preparation and submission. Task Order proposals will normally be submitted electronically and will typically contain:

1. Discussion of the technical approach for performing the work.

2. Period of Performance and Schedule of Work.

3. Estimated level of effort, types of staffing and number of hours, including those in (5)

Staffing should indicate which individuals would perform which work as well as their degree of involvement.

4. Travel, per diem, equipment and materials estimates.

5. An estimate for subcontractors and consultants, including direct labor hours and cost information, if applicable.

6. Fixed price with a basic cost breakdown by cost element sufficient to determine price reasonableness.

The cost for the preparation and submittal of the TOP is the responsibility of the contractor.

If the contractor is not able, or does not wish, to compete for a specific task order it must so state in writing to the contracting officer in lieu of a TOP. However, contractors are strongly encouraged to make every effort to explore teaming, subcontracting or other arrangements so as to be able to propose on every offered task order. Failure to make reasonable efforts to propose on each solicitation issued will be considered under the past performance evaluation factor during future contract and task order source selections. Further, should the contractor fail to make good faith efforts to win task orders, it will forfeit its right to the minimum guarantee amount.

C. TASK ORDER AWARD

The Contracting Officer may enter into negotiations with those contractors submitting a TOP, and may request a revised TOP, as the situation may warrant.

The government will evaluate each TOP in accordance with the stated evaluation criteria, and will award the task order to the contractor who offers the best value to the Government. The determination of best value will be based on a consideration of conflict of interest issues, availability, proposed staff, relevant experience, expertise and price. DOT in its sole discretion will award the Task Order to a single firm, consistent with FAR 16.505 (b) (2). Each Task Order may include one or more of the services listed in the statement of work.

Upon mutual agreement of the parties as to the work to be performed, the schedule, and the pricing, the FHWA will issue a Task Order. The contractor shall acknowledge acceptance of the Task Order and shall immediately proceed with the conduct of the work.

Task Orders will contain the following information:

1. Name and signature of the Contracting Officer.

2. Contract Number, Task Order number and Task Order effective date.

3. A description of the task including deliverables.

4. Accounting and appropriation data.

5. The negotiated fixed prices.

6. Document and reporting requirements, as applicable

7. Delivery or performance schedule.

D. COMPLAINTS ABOUT TASK ORDER AWARDS

The Contracting Officer’s selection decision on each task order request shall be final and is not subject to protest, except for a protest that the task order increases the scope, period, or maximum value of the contract. Accordingly, in accordance with FAR 16.505 (b)(5), an ombudsman has been appointed to hear and facilitate the resolution of the contractor’s concerns resulting from task order award. The existence of the ombudsman does not diminish the authority of the Contracting Officer. Further, the ombudsman does not participate in the evaluation of the proposals or the adjudication of formal contract disputes. Therefore, before consulting with the ombudsman, interested parties must first address their concerns, issues, disagreements and/or recommendations to the Contracting Officer for resolution. Contractors may request a debriefing from the Contracting Officer.

If the Contracting Officer cannot make resolution, interested parties may contact the FHWA ombudsman, Patricia Prosperi, at the following address:

Patricia Prosperi

Associate Administrator for Administration/Agency Competition Advocate

HAD-1, Room E64-312

1200 New Jersey Avenue, SE

Washington, DC 20590

E-mail: administration.fhwa@dot.gov

SECTION IV PACKAGING AND MARKING

A. For TIFIA:

If possible, email deliverables to the TIFIA JPO Director, Mark Sullivan, at mark.sullivan@dot.gov . If deliverables are in hard copy, please package and ship all deliverables to:

TIFIA Joint Program Office

HCFT-1, Room E64-302

1200 New Jersey Ave, S.E.

Washington, D.C. 20590

Attention: Mark Sullivan

B. For Title XI:

If possible, email deliverables to the MARAD staff member Debra B. Lessans, at debra.lessans@dot.gov . If deliverables are in hard copy, please package and ship all deliverables to:

Title XI Program Office Office of Shipyards and Marine Financing Maritime Administration, MAR-720 1200 New Jersey Avenue, S.E.

Washington, DC 20590

SECTION IV CONTRACT ADMINISTRATION DATA

A. PAYMENT

Submit all invoices to one of the following addresses:

All invoices and required supporting documents should be sent via e-mail to the following address: 9-AMC-AMZ-FHWA-Invoices@faa.gov.

(a) Include the invoice as an attached PDF document

(b) Include in the e-mail subject line the following:

(i) Invoice No. #

(ii) Contract/Task Order Number

(iii) Name of your Company/Organization.

(iv) Attention: Bob Prior

Example: Invoice No. 35 – DTFH61-08-C-00001 – ABC Company – Attention: Bob Prior

If the invoice and supporting documents exceed 8 MB as an e-mail attachment, you must select one of the other submission options presented below:

Invoices submitted via an overnight service must use the following physical address:

MMAC

FHWA/AMZ-150

6500 S. MacArthur Blvd Oklahoma City, OK 73169

Attention: Bob Prior

Express Delivery Point of Contact: April Grisham, 405 954-8269 Invoices may be submitted via regular U.S. Postal Service to the following address:

Federal Highway Administration

Markview Processing

P.O. Box 268865

Oklahoma City OK 73126-8865

Attention: Bob Prior

All invoices, regardless of submission method, must identify the Contracting Officer as the invoicing point of contact.

B. TRAVEL and PER DIEM Travel and per diem will be reimbursed in accordance with the Federal Acquisition Regulation and the Federal Travel Regulations in effect at the time of the travel. Task Orders will include an estimated cost for travel on a not to exceed basis. Travel reimbursed under this contract shall be based on the most economical form of transportation available only. Any costs deemed unreasonable will be reduced to a reasonable amount. Improper costs will be disallowed and deducted from the invoice. Any exceptions shall be fully justified and if at all possible, be approved in advance by the Contracting Officer. All travel shall be scheduled sufficiently in advance to take advantage of available discount rates.

Travel requirements shall be met using the most economical form of transportation available. This includes using connecting rather than direct flights, and reasonable efforts to insure the most economical flights are secured. Simply relying on a travel agent may not be sufficient. If economy class transportation is not available, the invoice must include justification for use of higher class travel indicating dates, times, and flight numbers.

Information on current Federal Travel Regulations and current per diem rates may be obtained at the following web site:

http://www.gsa.gov/Portal/gsa/ep/contentView.do?programId=9704&channelId=-15943&ooid=16365&contentId=17943&pageTypeId=8203&contentType=GSA_BASIC&programPage=%2Fep%2Fprogram%2FgsaBasic.jsp&P=MTT If the contractor purchases non-refundable tickets as a cost saving measure, and then is required to change or cancel the tickets due to causes beyond their control, the contractor may claim reimbursement for service charges. Unused tickets paid for by the Government must be sent promptly to the Contracting Officer, unless it is likely they can be reissued for a later trip and the company maintains an adequate accounting system to protect the tickets from misuse, and insures the Government will not be billed for the subsequent trip. Complete justification and accounting must be provided with the invoice.

Saturday night stays are not required to take advantage of lower fares, but if the traveler chooses to stay over, the Government will reimburse the contractor for the additional lodging and per diem expenses if the reduced cost of the airline ticket offsets these expenses. Complete justification and accounting must be provided with the invoice.

Use of a rental car shall always be justified, and their use is to be the exception rather than the rule. Alternate methods of local travel shall be used whenever possible, such as hotel or airport shuttles and taxis. If using a rental car, your justification must include the distance from the airport to the hotel and then to the training site. Also the name, phone number, and cost of a shuttle service, or statement that none were available. Remember, the Government is only obligated to pay reasonable costs, and without proper justification, charges will be reduced or eliminated as being unreasonable.

Personal convenience or “club” membership is not a justification for higher airfares, rental cars, or the choice of airlines or hotels.

The contractor shall always attempt to receive the Government rate for auto rentals and hotel rooms. Authorization letters will be issued to travelers upon request.

C. KEY CONTRACTOR PERSONNEL

As part of each Task Order proposal, the contractor shall designate a Project Manager and other personnel deemed by the contractor to be essential to the successful completion of the Task Order. These individuals will be listed in the Task Order as Key Personnel. In the event any of the Key Personnel are unable to perform as proposed for any reason during the performance of the Task Order, the contractor shall immediately notify the COTR and Contacting Officer in writing. Such notice will include an explanation of the problem, a proposed replacement by someone of equal or better qualifications and experience, and shall explain the impact on performance. All replacements are subject to the prior written approval of the Contracting Officer. However, the Government reserves the right to approve such replacements retroactively when circumstances prevent advance approval.

D. CONTRACTING OFFICER’S TECHNICAL REPRESENTATIVE (COTR)

The Contracting Officer will designate someone as his Technical Representative (COTR) to assist in monitoring the work under this contract. The COTR is responsible for the technical administration of the contract and its Task Orders as well as technical liaison with the contractor. The COTR is NOT authorized to change the statement of work, to make any commitments or otherwise obligate the Government or authorize any changes which affect the contract price, delivery schedule, period of performance or other terms or conditions of the contract.

The Contracting Officer is the only individual who can legally commit or obligate the Government for the expenditure of public funds, award, modify or terminate a contract or Task Order. The technical administration of this contract shall not be construed to authorize the revision of the terms and conditions of this contract.

If the contractor receives direction from anyone other than the Contracting Officer it believes will effect the terms, conditions, schedule or pricing, it shall not proceed with such direction. The contractor shall discuss its reservations with the COTR, and if the issues cannot be resolved, then it shall notify the contracting officer who will resolve the matter.

E. TECHNICAL DIRECTION

Performance of the work under the contract is subject to the technical direction of the COTR. The term “Technical Direction” is defined to include, without limitation, the following:

a. Directions to the contractor which redirects the effort, shifts work emphasis between work areas, requires pursuit of certain lines of inquiry, fills in details or otherwise serves to accomplish the statement of work;

b. Provision of information to the contractor that assists in the interpretation of drawings, specifications or technical portions of the work description; and,

c. Review and approval/rejection of technical reports, drawings, specifications and technical information to be delivered by the contractor.

All Technical Direction must be within the general scope of work stated in the contract. The COTR does not have the authority to, and may not issue any Technical Direction that: (i) constitutes an assignment of additional work outside the general scope of the contract; (ii) in any manner causes an increase or decrease in the prices set forth in Section I; or (iii) changes any of the expressed terms, conditions or specifications of the contract.

All Technical Direction must be issued in writing, or shall be confirmed in writing by the COTR within 3 working days after issuance.

The contractor shall proceed promptly with the performance of duly issued Technical Directions.

However, if in the opinion of the contractor, the direction issued by the COTR is within one of the proscribed categories in (i) through (iii) above, the contractor shall not proceed, but shall notify the Contracting Officer in writing, within 3 working days after receipt of any such direction. The Contracting Officer will determine if the Technical Direction is proper, or if a contract modification would be required to properly implement the direction.

Failure of the parties to agree upon the nature of the direction, or upon the contract action to be taken with respect thereto shall be subject to the contract clause entitled “Disputes.” as provided in paragraph d of clause 52.212-4 of this contract.

SECTION V SPECIAL CONTRACT REQUIREMENTS

A. PROCUREMENT AUTHORITY

The Federal Highway Administration, Office of Acquisition Management, is the only agency that is authorized to place orders under this contract, or to modify, suspend or terminate this contract. The Contracting Officer is the only individual within FHWA authorized to perform these functions.

B. NONPERSONAL SERVICES CONTRACT

This contract is a “nonpersonal services contract” as defined FAR Section 37.101. It is understood and agreed that the contractor and its employees, consultants and subcontractors:

1. Shall perform the services specified herein as independent contractors, not as employees of the Government,

2. Shall be responsible for their own management and administration of the work required, and bear sole responsibility for complying with all technical, schedule, or financial requirements or constraints attendant to the performance of this contract,

3. Shall be free from any direct or indirect supervision or control by any Government employee; however,

4. Shall, pursuant to the government rights under contract clauses such as “Inspection,” and “Key Personnel” comply with such general direction of authorized Government employees as is necessary and appropriate to ensure accomplishment of the contract requirements and objectives.

Each employee of the contractor must be a citizen of the United States of America, or an alien who has been lawfully admitted for permanent residence as evidenced by Alien Registration Receipt Card Form I-151, or who presents other evidence from the Immigration and Naturalization Service that employment will not affect his/her immigration status.

C. POST AWARD EVALUATION OF CONTRACTOR PERFORMANCE

a. Contractor Performance Evaluations

Interim and final evaluations of contractor performance will be prepared on this contract in accordance with FAR 42.15. The final performance evaluations will be prepared as soon as possible after completion of all required work.

Interim and final evaluations will be provided to the contractor as soon as practicable after completion of the evaluation. The contractor may elect to review the evaluation and submit additional information or a rebuttal statement within thirty days. Any contractor response is voluntary. Any disagreement between the parties regarding an evaluation will be referred to an individual one level above the Contracting Officer, whose decision is final.

Copies of the evaluations, contractor responses and review comments, if any, will be retained as part of the contract file, and may be used to support future award decisions.

b. Electronic Access to Contractor Performance Evaluations

The U.S. Department of Transportation utilizes the National Institutes of Health (NIH) Contractor Performance System (CPS) to record and maintain interim and final past performance information.

Contractors that have Internet capability may access evaluations through a secure Web site for review and comment by completing the registration form that can be obtained at the following URL: https://cpscontractor.nih.gov/.

The registration process requires the contractor to identify an individual that will serve as a primary contact and who will be authorized access to the evaluation for review and comment. In addition, the contractor will be required to identify a secondary contact who will be responsible for notifying the cognizant contracting official in the event the primary contact is unavailable to process the evaluation within the required 30-day time period. Once the contractor is registered and a performance evaluation has been prepared and is ready for comment, the CPS will send an email to the contractor representative notifying that individual that a performance evaluation is electronically available for review and comment.

D. REPORTS OF PROBLEMS

The contractor shall bring actual or potential problems under the contract to the attention of the COTR and the Contracting Officer as soon as they are known. Oral reports shall be followed by written reports within 3 working days.

E. CONTRACT START UP

The contactor shall be prepared to accept and perform task orders upon the effective date of the contract.

F. CONFLICT OF INTEREST

The DOT is committed to providing the public with service free from bias, conflicts of interest and unprofessional conduct. A contractor’s goals, policies, practices and culture must maintain the Government’s responsibility to the public for independent judgment without regard to remuneration from other sources.

It is the DOT’s policy to award contracts only to those offerors whose objectivity is unimpaired by any past, present, or planned interest -- financial or otherwise -- in organizations either regulated by the DOT or with interests that may be substantially affected by activities of the DOT. 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.

It is incumbent upon the contractor to promptly disclose in writing to the Contracting Officer any actual or apparent conflict of interest, or an interest or interests that may give rise to the appearance of a conflict as such could affect the public’s confidence in Department’s execution of federal laws and regulations governing its programs.

While providing legal advisory services for a DOT credit program (a “Program”), the contractor shall not represent any applicant seeking assistance from that Program (an “Applicant”) while simultaneously representing that Program. Nor shall the offeror represent any entity that is an integral party (including, but not limited to, a public sponsor, co-lender, underwriter or bond insurer) to the proposed financing (a “Related Party”) while simultaneously representing that Program. If awarded a contract to provide services to only one Program, however, the contractor may represent an Applicant or Related Party to another Program, although it is required to disclose any such relationship.

The DOT policy, however, does allow an offeror to provide services to an Applicant under certain circumstances:

· All individuals (including partners, associates, consultants or subcontractors) identified by the offeror as holding a key position of service to a Program (“Key Personnel” – see Section IV) may never represent an Applicant or Related Party back to the DOT. On behalf of existing and future clients, Key Personnel may provide general advice and consultation regarding a Program but shall not participate in a process or decision to pursue funding under a Program, nor assist in the preparation of an application.

· Individuals (including partners, associates, consultants or subcontractors) not so identified by the contractor and included in the contract or task order Key Personnel clause and who are affiliated in a different office (e.g., New York and Philadelphia) than the listed Key Personnel (“Non-Key Personnel”) may represent an Applicant or Related Party. During the term of such a contract for representation back to DOT, the Key Personnel may not provide legal services to the applicable Program (a “Limited Restriction”). Conversely, when an advisor is working under a DOT task order, its Non-Key Personnel may not represent an Applicant back to DOT. Key Personnel, including support staff, must execute a confidentiality agreement with the FHWA precluding communication (except for sharing publicly available information such as the Program statute, regulations, and official guidance) regarding the Program with the Non-Key Personnel representing an Applicant.

· The DOT recognizes that advisory firms may work for Applicants on engagements with, at most, an indirect connection to a DOT credit program (“Other Work”). For example, an advisor may be under contract to a State DOT regarding a transportation bond issuance when that State DOT is concurrently a TIFIA Applicant for a different project. In such instances, both Key and Non-Key Personnel may work for the Applicant, but the Limited Restriction would prevent Key Personnel from performing such Other Work while simultaneously providing legal services to the Program. Within this general framework, each occasion will be examined for its relevance to the Limited Restriction.

Any work for an Applicant must be promptly disclosed by the contractor in writing to the Contracting Officer and COTR. The DOT clause 1252.209-70 cited in Section IX of this contract details requirements regarding disclosure of conflicts of interest in the offeror’s proposal.

The policy is summarized below:

Advisory Firm

Key Personnel

In addition, with each task order proposal, the contractor shall assure compliance with the DOT’s conflict of interest policy as follows:

1. Based on information provided by the Contracting Officer regarding the Applicant and Related Parties, the contractor shall determine whether any of these entities are also clients of the contractor.

2. In accordance with Federal Acquisition Regulation (FAR) Subpart 9.5, and consistent with applicable rules of professional conduct, the contractor shall conduct a conflict of interest analysis.

3. The contractor shall then either 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.

Notwithstanding such certification, the Contracting Officer reserves the right, under the FAR 9.504, to evaluate independently any potential conflict of interest and to take action to avoid, neutralize or mitigate the conflict prior to award of a task order.

If at any time following execution of the contract or a task order, the contractor determines that it represents an Applicant or Related Party in any capacity, related to the Program or not, the contractor must: a) disclose the representation; b) if the engagement relates to a Program, conclude such engagement after a reasonable amount of time; c) not respond to any task order solicitation from the applicable Program until the engagement is concluded; and d) not accept new matters related to the Program from such clients throughout the remainder of the representation contract.

The contractor agrees that if it discovers an 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 taken to remedy the conflict. Further, the contractor shall take any action requested by the Contracting Officer to avoid, neutralize or mitigate the conflict. If at any time following execution of the contract or a task order, the contractor becomes aware of a potential or actual conflict of interest and misrepresents or fails to disclose relevant information (intentionally or not) to the Contracting Officer, the Government may, among other actions, terminate the contract for cause.

SECTION VI CONTRACT CLAUSES

A. 52.212-4 Contract Terms and Conditions -- Commercial Items (Feb 2007)

(a) Inspection/Acceptance. The contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C.3727). However, when a third party makes payment (e.g., use of the Government-wide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include --

(i) Name and address of the contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, or 52.232-34, Payment by Electronic Funds Transfer—Other Than Central Contractor Registration), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) 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.

(3) The contractor shall submit all of its invoices to one of the following addresses:

Normally, all invoices and required supporting documents should be sent via e-mail to the following address: 9-AMC-AMZ-FHWA-Invoices@faa.gov.

(a) Include the invoice as an attached PDF document

(b) Include in the e-mail subject line the following:

(i) Invoice Number

(ii) Task Order Number

(iii) Name of your Company/Organization.

(iv) Attention: Bob Prior

Example: Invoice No. 1 – DTFH61-05-D-00123/T-08-004 – ABC Company, Inc. – Attention: Bob Prior

If the invoice and supporting documents exceed 8 MB as an e-mail attachment, you must select one of the other submission options presented below:

Invoices submitted via an overnight service must use the following physical address:

MMAC

FHWA/AMZ-150

6500 S. MacArthur Blvd Oklahoma City, OK 73169

Attention: Bob Prior

Express Delivery Point of Contact: April Grisham, 405 954-8269 Invoices may be submitted via regular U.S. Postal Service to the following address:

Federal Highway Administration

Markview Processing

P.O. Box 268865

Oklahoma City OK 73126-8865

Attention: Bob Prior

All invoices, regardless of submission method, must identify the Contracting Officer in the attention line.

Since it is necessary for you to go to the GSA per diem web page to ascertain the correct hotel and M&I expense rates, it would be very helpful to our review and approval process to include a copy of the web page with the applicable line highlighted. Payments may be delayed when we cannot determine from the invoice which rate applies, thus cannot approve it without going back to the contractor for more information.

INVOICES FAILING TO FOLLOW THESE INSTRUCTIONS ARE NOT PROPER FOR PAYMENT, AND WILL BE RETURNED FOR CORRECTION.

(h) Patent indemnity. The contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the contractor is reasonably notified of such claims and proceedings.

(i) Payment. (1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered as set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5 (b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date that appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the contractor shall immediately notify the Contracting Officer and request instructions for disposition of the overpayment.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience.