AMENDMENT 2 009.doc

RFP DTFH61-08-R-00009 Amendment 2

AMENDMENT 2

RFP DTFH61-08-R-00009

Legal Advisory Services

Q&A

NOTE: The answer to questions regarding the firm’s employees is dependant on whether you are referring to key or non-key personnel.

QUESTION: The RFP uses the phrase "representing the Program." Does "representing the Program" mean working on a transaction for TIFIA under a specific task order, or does it mean being on the approved list for assignments?

RESPONSE: “Representing the Program” refers to those individuals designated in the firm’s ID/IQ contract and/or task order as key personnel. Regardless of whether a firm currently holds an active task order, those designated as key personnel represent the program.

QUESTION: The RFP states that the firm shall not represent a Related Party while simultaneously representing the Program. If the firm is representing a Related Party, but is not working under a DOT task order, is the firm in compliance with the policy?

RESPONSE: The firm is NOT in compliance with the policy if they are referring to key personnel. Non-key personnel can represent a Related Party, but during the 5-year term of the ID/IQ contract, the firm cannot provide services to the TIFIA program.

QUESTION: The RFP states that key personnel "may never represent an Applicant or Related Party back to the DOT". It then states: "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."

What activities can key personnel engage in when representing a Related Party?

RESPONSE: None.

QUESTION: Can the firm’s designated key personnel represent a Related Party in a transaction and draft the Official Statement and Bond Purchase Agreement, provide advice on PAB related issues and general tax structuring issues, and provide representations of a similar nature? Do these activities constitute representing a Related Party "back to the DOT"?

RESPONSE: No, because these activities do constitute representing a Related Party “back to the DOT.” Key personnel may provide general information about the program, such as its statutory requirements, typical position in the flow of funds as subordinate lender, program regulations, and procedural requirements from the program guide, and provide advice on PABS, but shall not represent an applicant back to DOT or pursue funding or assist in preparing an application for TIFIA assistance.

QUESTION: The RFP states that non-key personnel in a different office” may represent an Applicant or Related Party" but that during the term of the contract "the Key Personnel may not provide legal services to the applicable Program." The RFP further provides that while key personnel are working under a DOT task order "its non-key personnel may not represent an Applicant back to DOT."

May the firm (and its key personnel) represent TIFIA on a financing while non-key personnel from a different office represent a Related Party on a separate and unrelated project that includes a TIFIA loan if they limit their work to representation that is not "back to DOT?" That is, to the non-TIFIA related aspects of the transaction (e.g., providing advice on a PABs structure, acting as underwriters' counsel, tax counsel, bond counsel or drafting a PAB term sheet or the Official Statement)?

RESPONSE: No, key personnel may not represent TIFIA on a financing while non-key personnel from a different office represent a Related Party on a separate and unrelated project that includes a TIFIA loan. While non-key personnel from another office of the firm may represent an applicant or related party, during such engagement by non-key personnel, key personnel are not eligible to work for the TIFIA program or propose in response to a TIFIA task order for legal services.

The examples below may help your understanding of our restrictions:

Scenario 1:

Anita and Jeff both work for Paramesh LLC, a law firm, which holds an ID/IQ contract with the TIFIA program. Anita is listed in the Key Personnel clause of the ID/IQ contract. Jeff is not identified under the contract, and thus is considered non-key personnel. Segundo Toll Road Company (Segundo) plans on building a toll road both in Virginia and Colorado. It plans on applying for TIFIA assistance for their Virginia project, but not their Colorado project.

Segundo applies for TIFIA assistance, and wishes to hire Paramesh to help prepare the application. Jeff (as non-key personnel) can work for Segundo, but Anita (as Key Personnel) cannot. Throughout the engagement, Anita must abide by the terms of her Confidentiality Agreement precluding communication with Jeff (or any other firm member working for Segundo) regarding any TIFIA information not otherwise publicly available. In addition, during this or subsequent related engagements with Segundo neither Anita nor any other Paramesh firm member can work for TIFIA during the life of the ID/IQ contract.

Wisconsin DOT, not a TIFIA applicant, hires Paramesh Legal Advisors to work on a non-TIFIA related project. Both Anita and Jeff can work for Wisconsin DOT, but during this engagement neither Anita nor any other firm member can work for TIFIA on any projects related to Wisconsin.

Scenario 2:

Anita and Jeff both work for Paramesh Legal Advisors, which holds an ID/IQ contract AND currently holds a task order with the TIFIA program for a project with Segundo’s VA toll road. Anita is listed in the Key Personnel clause in the TIFIA task order. Jeff is not identified under either the task order or the ID/IQ contract, and thus is considered non-key personnel.

Segundo Toll Road Company is planning to build another toll road in Texas and applies for TIFIA assistance. Segundo wishes to hire Paramesh Legal Advisors to help prepare the application. Paramesh Legal Advisors cannot work for Segundo on the Texas project. As long as Paramesh is working on the VA project, they cannot work for Segundo on any other project.

Wisconsin DOT, not a TIFIA applicant, hires Paramesh Legal Advisors to work on a non-TIFIA related project. Both Anita and Jeff can work for Wisconsin DOT, but during this engagement no firm member can work for TIFIA on any projects related to Wisconsin.

QUESTION: The time frame for selection of a team to be part of a concession can be in excess of three years, and the consortium that includes a Related Party may ultimately not be selected as the winning bidder. If key personnel represent a Related Party in a bid consortium on non-TIFIA related aspects of the transaction, is the firm prohibited from bidding on or receiving a TIFIA task order for a separate and unrelated project under the Program during the entire period the bid remains in contention? Does this activity constitute "representation back to DOT"? If not, can it later become representation back to the DOT under the following hypothetical situations: (i) when a bid team is selected as the winning bidder, (ii) when a TIFIA application is filed, (iii) when TIFIA approves a project for financing, or (iv) never, because the activity described does not constitute representation back to the DOT?

RESPONSE: A firm holding an ID/IQ contract should be aware of the potential conflict of interest in joining a bid consortium that may file a TIFIA application upon being selected as the winning bidder. However, the firm is NOT prohibited from bidding on or receiving a TIFIA task order for a separate and unrelated project under the Program during the entire period the bid remains in contention. During this period, this activity does not constitute "representation back to DOT". It becomes representation back to the DOT when a TIFIA application is filed.

QUESTION: If certain activities by counsel (e.g., drafting a PAB term sheet, etc.) do not constitute representation back to the DOT at a particular point, but can later become representation back to the DOT (e.g., after TIFIA approves a project for financing), can you describe an example of how a law firm can represent a Related Party in a financing involving, or potentially involving, TIFIA?

RESPPONSE: A law firm holding an ID/IQ contract can represent a Related Party by using its non-key personnel. However, during this time, the firm may not hold any TIFIA task orders. While the Department recognizes that many concessions have multiple teams proposing under a design-build-operate concession and only one concession will be chosen by a State DOT, a firm that desires to work for both TIFIA and a concession bidder should segregate TIFIA key personnel from the firm’s non-key personnel to effectively represent the concession entity that may ultimately negotiate with the Department for federal credit assistance. The Department would lose the benefit and value of contracting with key personnel to provide outside counsel to the Department under the TIFIA program, if TIFIA key personnel provided the legal counsel and advice to the team that wins the concession and then seeks TIFIA assistance.