Legal Advice Assistance_RFP_(FINAL) 4 Feb 2011.pdf

DTFR53-11-R-00005

SOLICITATION, OFFER AND AWARD

4. TYPE OF SOLICITATION2. CONTRACT NUMBER 3. SOLICITATION NUMBER

7. ISSUED BY CODE 8. ADDRESS OFFER TO (If other than Item 7)

ORDER UNDER DPAS (15 CFR 700)

6. REQUISITION/PURCHASE NUMBER

NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder".

NEGOTIATED (RFP)

SEALED BID (IFB)

5. DATE ISSUED

1. THIS CONTRACT IS A RATED RATING PAGE OF PAGES

1 46

C. E-MAIL ADDRESS

EXT.NUMBERAREA CODE

B. TELEPHONE (NO COLLECT CALLS)A. NAME

10. FOR

INFORMATION

CALL:

CAUTION: LATE Submissions, Modifications, and Withdrawals: See Section L, Provision No. 52.214-7 or 52.215-1. All offers are subject to all terms and conditions contained in this solicitation.

(Date)(Hour) local timeuntildepository located in copies for furnishing the supplies or services in the Schedule will be received at the place specified in Item 8, or if hand carried, in the

SOLICITATION

9. Sealed offers in original and

PART IV - REPRESENTATIONS AND INSTRUCTIONS

OTHER STATEMENTS OF OFFERORS

EVALUATION FACTORS FOR AWARD

INSTRS., CONDS., AND NOTICES TO OFFERORS

REPRESENTATIONS, CERTIFICATIONS AND

LIST OF ATTACHMENTS

CONTRACT CLAUSES

PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.

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J

K

L

M SPECIAL CONTRACT REQUIREMENTS

CONTRACT ADMINISTRATION DATA

DELIVERIES OR PERFORMANCE

INSPECTION AND ACCEPTANCE

PACKAGING AND MARKING

DESCRIPTION/SPECS./WORK STATEMENT

SUPPLIES OR SERVICES AND PRICES/COSTS

SOLICITATION/CONTRACT FORM

PART II - CONTRACT CLAUSESPART I - THE SCHEDULE

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G

F

E

D

C

B

A

SEC. DESCRIPTION PAGE(S) (X) DESCRIPTION SEC. (X)

11. TABLE OF CONTENTS

18. OFFER DATE17. SIGNATURE

SUCH ADDRESS IN SCHEDULE.

IS DIFFERENT FROM ABOVE - ENTER

15C. CHECK IF REMITTANCE ADDRESS

EXT.NUMBERAREA CODE

15B. TELEPHONE NUMBER

(Type or print)AND

ADDRESS

OF

OFFEROR

CODE FACILITY

16. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER15A. NAME

DATEAMENDMENT NO.DATEAMENDMENT NO.

and related documents numbered and dated):

amendments to the SOLICITATION for offerors

(The offeror acknowledges receipt of

14. ACKNOWLEDGEMENT OF AMENDMENTS

CALENDAR DAYS (%)30 CALENDAR DAYS (%)20 CALENDAR DAYS (%)10 CALENDAR DAYS (%)

(See Section I, Clause No. 52.232.8)

13. DISCOUNT FOR PROMPT PAYMENT

designated point(s), within the time specified in the schedule.

by the offeror) from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the price set opposite each item, delivered at the

12. In compliance with the above, the undersigned agrees, if this offer is accepted within ______________ calendar days (60 calendar days unless a different period is inserted

NOTE: Item 12 does not apply if the solicitation includes the provisions at 52.214-16, Minimum Bid Acceptance Period.

OFFER (Must be fully completed by offeror)

IMPORTANT - Award will be made on this Form, or on Standard Form 26, or by other authorized official written notice.

28. AWARD DATE

(Signature of Contracting Officer)

27. UNITED STATES OF AMERICA

25. PAYMENT WILL BE MADE BY

26. NAME OF CONTRACTING OFFICER (Type or print)

CODE 24. ADMINISTERED BY (If other than Item 7)

ITEM

(4 copies unless otherwise specified)

23. SUBMIT INVOICES TO ADDRESS SHOWN IN

41 U.S.C. 253 (c) ( 10 U.S.C. 2304 (c) (

22. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION:

21. ACCOUNTING AND APPROPRIATION20. AMOUNT19. ACCEPTED AS TO ITEMS NUMBERED

AWARD (To be completed by government)

CODE

21113100502/04/2011 X

RAD-30

FRA

Federal Railroad Administration Office of Acq. and Grant Services 1200 New Jersey Avenue SE West Building, 3rd Floor, STOP-50 Washington DC 20590

1400 ES 03/10/2011

Tremayne Terry Tremayne.Terry.CTR@dot.gov

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PAGE(S)

Robert L. Carpenter

AUTHORIZED FOR LOCAL REPRODUCTION

Previous edition is unusable

STANDARD FORM 33 (Rev. 9-97)

Prescribed by GSA - FAR (48 CFR) 53.214(c)

1-2 3-6

7-10 12-14 14-18 19-28

29-31

33-42

43-46

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

NAME OF OFFEROR OR CONTRACTOR

2 46

CONTINUATION SHEET

REFERENCE NO. OF DOCUMENT BEING CONTINUED PAGE OF

DTFR53-11-R-00005

(A) (B) (C) (D) (E) (F)

Delivery Location Code: RAD-30

FRA

Federal Railroad Administration Office of Acq. and Grants Services 1200 New Jersey Avenue SE West Building, 3rd Floor, STOP-50 Washington DC 20590 USA

0001 Legal support services for the Federal Railroad Administration's Railroad Rehabilitation and Improvement Financing (RRIF) Program. Specific services will include providing advice to FRA in regard to the RRIF program and assistance with the drafting and negotiation of agreements for direct loans and loan guarantees for program applicants.

OPTIONAL FORM 336 (4-86)

Sponsored by GSA

FAR (48 CFR) 53.110

NSN 7540-01-152-8067

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SECTION B – SUPPLIES OR SERVICES AND PRICES/COSTS

B.1 Services to be Provided

The Contractor shall provide on a non-personal services basis, legal services and support for the Federal Railroad Administration’s Railroad Rehabilitation and Improvement Financing (RRIF) program. The services provided under the resultant contract will include advice regarding the RRIF program and assistance with the drafting and negotiation of agreements for direct loans and loan guarantees for program applicants.

B.2 Pricing Arrangement / Contract Type

The contracts resulting from this solicitation are intended to be multiple awards of Indefinite Delivery/Indefinite Quantity contracts under which either Firm-Fixed-Price or Time-and Materials/Labor Hour type task orders may be issued. Note: Firm-Fixed-Price is the preferred method to be used.

B.3 Funding

In accordance with Federal Acquisition Regulation (FAR) clause 52.232-22, “Limitation of Funds,” funds in the amount of $25,000.00 have been allotted to each contract. These funds are provided for the guaranteed minimum. Funding will be obligated on individual Task Order(s) for the services to be provided. The Contractor shall not perform work on the contract which exceeds the total amount actually obligated by the Government via task orders. The Government shall not reimburse the Contractor for costs incurred in excess of the total amount allotted by the Government on this contract, or in conjunction with funds allotted on individual task orders. The contractor assumes the risk for any increased costs beyond what the Government obligates.

B.4 Indefinite Delivery/Indefinite Quantity

Minimum Obligation: $25,000.00 (Guaranteed minimum) per contract

Maximum Quantity: H.2 and H.5 (22,500 hours X Section B hourly rates + ODCs = total ceiling amount) per contract

B. 5 Schedule

The Contractor shall furnish all personnel, facilities, equipment, supplies, transportation, and services required to provide the professional support services to the Federal Railroad Administration (FRA) as specified in this solicitation in Section C, and the terms and conditions contained herein. The required services shall be provided at the fixed rates set forth below.

The labor categories listed below are provided as examples. Offerors should present labor category terminology that is representative of their established labor category structures.

However, Offerors MUST provide in Section B a fully loaded hourly billing rate for all labor categories that could potentially be required for contract performance allocated among the 4500 hours established per year. If your firm has two or more levels in a particular labor category (i.e,, 1st year Associate, 2nd year Associate, etc) then state a rate for each and allocate the estimated hours among them. A ceiling amount for Other Direct Costs (ODCs) is included below for evaluation purposes. Specific amounts for ODCs will be determined by the Contracting Officer upon the award of individual task orders. Offerors selected for award of an IDIQ contract shall be eligible to compete for the award of task orders.

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CLIN DESCRIPTION EST HRS UNIT RATE TOTAL EST COST

0001 Base period Legal Support Services 4500 HR $TBD $TBD (NTE)

Offerors shall cite the applicable labor categories and rates anticipated to be billed over the contract period for this CLIN. Add or delete sub-CLINs as needed.

Labor Category Rate Partner $ Partner $

Associate $ Legal Assistant/Paralegal $

0001AA Other Direct Costs (ODCs) (Travel, phone calls, and other miscellaneous items billed at costs) $TBD NTE

0002 Option period 1 Legal Support Services 4500 HR $TBD $TBD (NTE)

Partner $

0002AA Other Direct Costs (ODCs)

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0003 Option period 2

Partner $

0003AA Other Direct Costs (ODCs)

0004 Option period 3

Partner $

0004AA Other Direct Costs (ODCs)

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0005 Option period 4

Labor Category Rate

________________________ _________________NTE

________________________ _________________NTE

________________________ _________________NTE

0005AA Other Direct Costs (ODCs)

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SECTION C – DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK (SOW)

C.1 PURPOSE

The Federal Railroad Administration (FRA), on behalf of the US Department of Transportation (DOT), is establishing multiple 1-year Indefinite Delivery/Indefinite Quantity (ID/IQ) contracts, with four options to extend, to provide legal advice and assistance to the agency in implementing the Railroad Rehabilitation and Improvement Financing (RRIF) Program. The selected contractors shall provide advice to FRA on the RRIF program and individual financing applications and assist the FRA in drafting and negotiating agreements for direct loans and loan guarantees.

The FRA seeks to award legal advisory task orders to well qualified Offerors with significant rail and/or 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. Attorneys providing services under this contract shall be admitted to the bar of at least one U.S. state or the District of Columbia, in good standing, and have graduated from an accredited U.S. law school.

FRA's objectives for the Contractor under this contract are to assist the FRA in structuring a debt owed to the FRA in a RRIF loan transaction, assure that the transaction protects the Federal government’s interest, and assure consistency with the governing statutes, regulations, notices, Office of Management and Budget circulars, and executive orders associated with the RRIF program and federal loans in general.

The number of task orders issued will depend on the demand for RRIF assistance, the complexity of the applications RRIF receives and the availability of resources in-house to FRA.

Transactions that are large or complex will result in task orders for legal advisors. In addition, the FRA may issue task orders for assistance in amendments to existing loan agreements, exercising rights under existing loan agreements, structuring and negotiating loan workouts, research and other special legal advisory services to assist in carrying out RRIF program requirements.

Unless specifically stated otherwise, the Contractor shall furnish all necessary facilities, materials, and personnel to perform services necessary to successfully complete each task order issued to it.

The Contractor agrees that it will forfeit the guarantee if it fails to make good faith efforts to win task orders issued hereunder.

C.2 BACKGROUND

The RRIF program has $35 billion authorized to provide direct loans and loan guarantees to state and local governments, interstate compacts, government sponsored authorities and corporations, railroads, joint ventures that include at least one railroad and certain limited option rail freight shippers seeking to acquire, rehabilitate or improve intermodal or rail equipment, refinance outstanding debt for such purposes and to develop or establish new intermodal or railroad facilities. (See 45 U.S.C. 821 et seq.)

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Through RRIF, the FRA can loan up to 100 percent of eligible project costs. Additional information about the RRIF program may be found on the Internet:

http://www.fra.dot.gov/Pages/1770.shtmlhttp://www.fra.dot.gov/Pages/1770.shtml.

Typical RRIF loan applications are from small railroads for projects to rehabilitate track and refurbish or purchase equipment. However, FRA has seen an increased interest in RRIF from many different entities including public and governmental entities and even Class I railroads. FRA has also seen a change in the type of project proposed for financing.

Recent applications have included rehabilitation of intermodal facilities, start-up intermodal facilities, and construction of new high speed rail lines.

C.3 CONTRACTOR TASKS

In accordance with the terms of this contract and specific task orders awarded, the Contractor shall assist the RRIF program to evaluate, negotiate and document individual credit transactions. Typical documents for the RRIF program include a financing agreement and a security agreement for private entities. However, because the nature of applications is changing, the contractor will be expected to adapt the documents and recommend and prepare additional documents as needed.

The Contractor will work with FRA’s Office of Chief Counsel and at times DOT’s Office of General Counsel (hereinafter FRA counsel). During a transaction, all communication with related parties outside of FRA shall occur only with the participation or approval of FRA 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 FRA regarding all legal aspects of the proposed credit transaction.

2. Reviewing, providing drafting assistance, providing assistance with negotiations, and amending FRA credit agreements including, but not limited to, term sheets, direct loan agreements, guaranteed loan agreements, security agreements, guarantees, inter-creditor agreements, cross-collateral agreements and mortgages/Deeds of Trust.

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

4. Assistance with 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 RRIF 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 RRIF program.

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

7. Advising on and issuing opinions (in certain circumstances) to DOT that take into account foreign jurisdictions and foreign laws including foreign equivalent of bankruptcy law, secured transactions law and real estate law.

8. Recommending, reviewing, providing assistance with negotiations, and modifying, as appropriate, all legal opinion letters and certificates 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 the RRIF 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 FRA's execution of the RRIF agreements.

11. Representing in conjunction with FRA attorneys, as appropriate, the FRA 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 hosting and handling of all closing activities. Such closing may be held simultaneously with other project loans (if any) and other agreements related to the transaction.

12. Attending meetings in Washington, D.C. or other locations and participating in conference calls involving the RRIF lender (including RRIF program staff, FRA counsel, and outside financial advisor) and the borrower, as necessary. The FRA anticipates that each negotiation will require several (at least two) 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 FRA both printed and electronic copies of the final transaction documents (the "closing binder") no later than 60 days after FRA's execution of the credit agreement.

14. Providing ongoing advice and counsel to FRA, after financial close, regarding all legal aspects of proposed amendments, including waivers and modifications of the credit transaction and the exercise of rights and remedies under the loan documents.

15. Reviewing, drafting, and providing assistance with negotiations on amendments to (or restatements of) credit agreements and related transaction agreements.

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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.

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SECTION D – PACKAGING AND MARKING

D.1 PRESERVATION, PACKAGING, AND PACKING

All packing, packaging, and mailing of all deliverables hereunder must be in accordance with best commercial practices at the most economical rate(s) sufficient to ensure arrival to destination in a safe and undamaged condition.

D.2 MARKING

All information submitted to the Contracting Officer or the Contracting Officer’s Technical Representative (COTR) shall clearly indicate the applicable contract number for which the information is being submitted.

SECTION E – INSPECTION AND ACCEPTANCE

E.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address:

https://www.acquisition.gov/far/

NUMBER DATE TITLE

52.246-4 AUG 1996 INSPECTION OF SERVICES-FIXED PRICE

52.246-6 MAY 2001 INSPECTION – TIME-AND-MATERIAL AND LABOR-HOUR

E.2 INSPECTION AND ACCEPTANCE

a. Under this contract the Contractor shall submit to the Contracting Officer’s Technical

Representative (COTR) all deliverable items referenced in Section F of this contract for review and approval. The period for Government review of work documents will be no longer than thirty (30) days. The Contractor shall submit a revised document within a reasonable amount of time but not longer than ten (10) days of receipt of Government comments unless otherwise authorized by the Contracting Officer.

b. Satisfactory completion of work under this contract shall be indicated by written acceptance of such work by the Contracting Officer or the designated COTR. Taking physical delivery shall not constitute acceptance. Final acceptance at the conclusion of the contract shall be made in writing by the Contracting Officer.

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SECTION F – DELIVERY OR PERFORMANCE

F.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this address:

https://www.acquisition.gov/far/

NUMBER DATE TITLE

52.242-15 AUG 1989 STOP-WORK ORDER

ALTERNATE I

52.242-17 APR 1984 GOVERNMENT DELAY OF WORK

52.247-34 NOV 1991 F.O.B. DESTINATION

F.2 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 Subpart 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 on the Contractor as soon as practicable after completion of the evaluation. The Contract may elect to review the evaluation and submit additional information or a rebuttal statement within 30 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 FRA and the U.S. Department of Transportation will utilize the Department of Defense (DOD) Contractor Performance Assessment Reporting System (CPARS) to record and maintain interim and final past performance information.

Contractors that have Internet capability may access evaluations through a secure Website for review and comment by completing the registration form that can be obtained at the following URL: https://www.cpars.csd.disa.mil/.

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F.3 PERIOD OF PERFORMANCE

(a) Base Period of Performance (Term): The period of performance for the base period shall be one (1) year commencing from the effective date of the contract.

(b) Option Periods of Performance (Term): The periods of performance for each of the four

(4) options, if exercised by the Government, shall be 12 months commencing on the day after the expiration of the previous period of performance.

(c) The FRA has a unilateral right to extend the term of the contract through the exercise of one or more of the one-year option periods, in accordance with FAR 52.217-9, Option to Extend the Term of the Contract. If FRA exercises all options, the total period of performance for this contract will be five (5) years from the effective date of the contract. Task Orders may be issued any time during the period of performance of the contract and the period of performance for each individual task order will be specified in the task order. The period of performance for individual task orders issued under the contract may extend for one year beyond the period of performance of the contract for the base period and subsequent option periods, if exercised.

F.4 PLACE OF PERFORMANCE

It is anticipated that the preponderance of work under this contract will be performed at the Contractor’s facility and via telecommunication (telephone and electronic mail.) However, during instances that may involve performance at the Government’s facility, the contractor will be provided access to work space appropriately equipped for this purpose.

F.5 NOTICE OF DELAY

If, because of technical difficulties, the Contractor becomes unable to complete the contract work at the time specified, notwithstanding the exercise of good faith and diligent efforts in performing the work called for under this contract, the Contractor shall give the Contracting Officer written notice of the anticipated delay and the reasons for it. The notice and reasons shall be delivered promptly after the condition creating the anticipated delay becomes known to the Contractor but in no event less than 45 days before the completion date specified in this contract, unless otherwise permitted by the Contracting Officer. When notice is given, the Contracting Officer may extend the time specified in the Schedule of the task order for such period as is deemed advisable.

F.6 DELIVERABLES

Deliverables will be identified in individual task orders under this contract. These may require established content, quality standards or delivery schedules, as needed. Additionally, while deliverables will usually be written documents, according to the needs in a particular task order, they may also include briefings, data discs, or some combination of media.

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F.7 PLACE OF DELIVERY

(a) All deliverables, as described herein and as required by individual task orders, shall be delivered F.O.B. destination, to the COTR at the following address:

US Department of Transportation Federal Railroad Administration Office of Chief Counsel ATTN: (to be inserted at time of award) 1200 New Jersey Avenue, SE Washington, DC 20590

(b) A copy of the transmittal letter shall be emailed to the Contracting Officer, Robert Carpenter at robert.carpenter@dot.gov

SECTION G – CONTRACT ADMINISTRATION DATA

G. 1 TAR 1252.242-73 CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE

(OCT 1994)

(a) The Contracting Officer may designate Government personnel to act as the Contracting Officer's Technical Representative (COTR) to perform functions under the contract such as review and/or inspection and acceptance of services, including but not limited to documents, drafts, memorandums, briefings and other functions of a technical nature. The Contracting Officer will provide a written notice of such designation to the Contractor within five working days after contract award. The designation letter will set forth the authorities and limitations of the COTR under the contract.

(b) The Contracting Officer cannot authorize the COTR or any other representative to sign documents (i.e., contracts, contract modifications, etc.) that require the signature of the Contracting Officer.

G.2 COTR ASSIGNMENT

(To be inserted at time of award) is hereby designated as the Contracting Officer’s Technical Representative (COTR) for this contract. The COTR can be reached by telephone at (To be inserted at time of award).

The COTR has the authority to monitor the technical progress of the services that are required to be delivered under the contract. This includes meetings, and telephone conversations with the contractor’s personnel, inspection, acceptance, or rejection of the contracted items and other duties that may be authorized by the Contracting Officer.

The COTR cannot authorize or order the cessation of contract work nor delete, change, or waive any of the technical requirements or other terms and conditions of the contract. If a change (monetary or otherwise) to the contract is desired, the Contractor must submit a written request to the Contracting Officer for consideration. If appropriate, the change will be effected by a contract modification, after discussions and/or negotiations. Whenever a difference of opinion between the Contractor and the COTR occurs, the Contracting Officer or contract

SOLICITATION #: DTFR53-10-R-00005 Page 15 of 46 specialist should be contacted immediately for resolution.

The Contractor should also contact the Contracting Officer or contract specialist when the COTR cannot be contacted on a technical matter and for assistance on all other matters pertaining to this contract.

G.3 INVOICING INSTRUCTIONS

The Contractor shall submit invoices for payment utilizing Standard Form 1034 available at http://www.gsa.gov/portal/forms/type/SF prepared in one original copy sent to be sent to the following address:

DOT/FRA

Franchise Commercial Payments Branch FAA Mike Monroney Aeronautical Center

6500 S. MacArthur Blvd.

Oklahoma City, OK 73169 or (electronically) 9-amc-amz-fra-invoices@faa.gov

Payment will be made by electronic funds transfer to the Contractor’s bank account in accordance with the banking information to be supplied by the Contractor on the SF 3881 available at http://www.gsa.gov/portal/forms/type/SF.

G.4 TRAVEL AND PER DIEM

All travel reimbursable hereunder shall conform to the FAR 31.205-46 and the following:

(a) All travel shall be reimbursed in accordance with current Government travel regulations at economy class rates when available. If not available, reimbursement vouchers shall be annotated that economy class was not available.

(b) Per diem and subsistence: The Contractor shall be reimbursed for actual costs in accordance with current Government travel regulations.

G.5 TAR 1252.215-70 KEY PERSONNEL AND/OR FACILITIES (OCT 1994)

(a) The personnel and/or facilities as specified in paragraph (c) are considered essential to the work being performed hereunder and may, with the consent of the contracting parties, be changed from time to time during the course of the contract by adding or deleting personnel and/or facilities, as appropriate.

(b) Prior to removing, replacing, or diverting any of the specified individuals or facilities, the Contractor shall notify, in writing, and receive consent from, the Contracting Officer reasonably in advance of the action and shall submit justification (including proposed substitutions of equal or better qualifications and experience ) in sufficient detail to permit evaluation of the impact on this contract.

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(c) No diversion of key personnel shall be made by the Contractor without the written consent of the Contracting Officer. The Contracting Officer may ratify, in writing, the change and such ratification shall constitute the consent of the Contracting Officer required by this clause.

(d) 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.

The Key Personnel under this contract are:

Name Title (To be inserted at time of award) (To be inserted at time of award)

G.6 ACCEPTANCE OF KEY PERSONNEL SUBSTITUTIONS/REPLACEMENTS

In evaluating the justification and proposed substitution(s) of key personnel throughout the period of performance of this contract, the Contracting Officer reserves the right to make an assessment on the technical and/or professional qualifications of the proposed substituting individual(s). The Contracting Officer further reserves the right to disallow the utilization of the proposed substituting individual(s) for performance on the subject contract, when the technical and/or professional qualifications of the proposed individuals are determined, by the Contracting Officer, (1) not to be substantially equivalent to the technical and/or professional qualifications of the key personnel they are to substitute, or (2) not sufficient to reasonably insure successful performance or otherwise endanger project performance, progression, or completion.

G.7 CONFLICT OF INTEREST

The FRA and DOT are committed to avoiding situations which may place any of its contractors in a position that may subject them to circumstances involving bias, conflicts of interest, or unprofessional conduct. In this respect, the Contractor's strategic goals, corporate policies, management practices, and culture must be designed to maintain the Offeror’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 FRA’s and DOT’s execution of federal laws and regulations governing its financial assistance and safety programs. 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. Furthermore, DOT’s policy is not to award a contract to counsel who has represented a railroad where that railroad or its property will be involved in the project being funded by FRA, or who is or has represented the railroad in a safety matter or regulatory proceeding before FRA. No member partner or key personnel of the Contractor, or

SOLICITATION #: DTFR53-10-R-00005 Page 17 of 46 an immediate family member thereof, shall have a financial interest in the applicant, 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 FRA is providing credit assistance.

The FRA seeks outside counsel that will provide the highest caliber of legal services commensurate with the complexity of the legal advice requested. 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.

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, FRA’s Office of Chief Counsel and/or DOT’s Office of General 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 the RRIF Program described herein. Key personnel may provide program information that is publicly available to non-key members such as the RRIF statute, its implementing regulations, and other information that has been disclosed to the public.

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

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

2. Key personnel identified by the Contractor to serve as outside counsel for the RRIF program enter into a confidentiality agreement with the Contracting Officer that precludes any communication within the Offeror between key personnel to this contract and other Offeror members, associates, and assistants that are representing a party in a proposed financing. However, at no time may a Offeror represent both FRA and an applicant or borrower on the same transaction.

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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 names of RRIF applicants on the RRIF website at http://www.fra.dot.gov/rpd/freight/1770.shtml and to be provided by the Contracting Officer, the Offeror will determine whether any of the entities or any related entities are also clients of the Contractor.

2. Whether the contractor ever represented any entity in any proceeding before the FRA or DOT?

3. 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.

4. 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.

5. 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 was 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 legal advisory services, the Contractor determines that it represents a RRIF Program applicant, or a related Party, in any capacity whether related to any of the RRIF 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.

G.8 FUNDING

Funding for performance of task orders will be allocated and obligated by the individual orders issued against the contract. Award of the base contract does not constitute an authority to commence work or incur costs on behalf of the Government.

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SECTION H – SPECIAL CONTRACT REQUIREMENTS

H.1 52.116-18 ORDERING (OCT 1995)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from date of contract award through expiration including options thereof.

(b) All contracts or task orders are subject to the terms and conditions of this contract. In the event of conflict between a contract or task order and this contract, the contract shall control.

(c) If mailed, a contract or task order is considered “issued” when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

H.2 52.216-19 ORDER LIMITATIONS (OCT 1995)

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than $1,000.00, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor—

(1) Any order for a single item in excess of $1,000,000.00;

(2) Any order for a combination of items in excess of $5,000,000.00; or

(3) A series of orders from the same ordering office within seven (7) days that together call for quantities exceeding the limitation in subparagraph (1) or (2) above.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation ‘FAR’), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) of this section.

(d) Notwithstanding paragraphs (b) and (c) above, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within three (3) days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons.

Upon receiving this notice, the Government may acquire the supplies or services from another source.

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H.3 52.216-22 INDEFINITE QUANTITY (OCT 1995)

(a) This is an indefinite-quantity contract for supplies or services specified and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.”

(c) Except for any limitations on quantities in the Order Limitations clause or in the

Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order.

The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after five (5) years from the effective date of the contract or the period of performance under an existing task order which was issued within the three years from the effective date of the contract, whichever is later.

H.4 FAIR OPPORTUNITY TO COMPETE FOR TASK ORDER AWARD

Each Contractor that is awarded a contract for the same services shall be afforded a fair opportunity to be considered for each task order (also referred to as “order’) in accordance with

FAR 16.505.

H.5 TASK ORDER ISSUANCE

Issuance of task orders will depend on the level of demand for RRIF credit assistance and other circumstances. As needed, for RRIF applications, FRA will engage one Offeror to perform the legal analysis relative to the RRIF credit assistance. (See the detailed procedures for soliciting task order proposals and the evaluation and award of task orders below.) In addition, the Contractor may be requested to provide assistance in reviewing, drafting, negotiating and modifying credit instruments including: term sheets, 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 inter-creditor agreements to be entered into between the FRA 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 needed, FRA may engage the Contractor prior to approval of a credit application to address specific legal issues related to the application.

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The Offeror must be able to attend working conferences and meetings at DOT headquarters in Washington, D.C., or a location convenient to the borrower as well as participate in telephone conference calls.

The Contractor selected may be asked to provide advice and counsel to FRA 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 FRA, are appropriate for the particular transaction, and are consistent with the statutory criteria and the regulations implementing the RRIF program. The Contractor may also be asked to review all loan closing documentation and be responsible for or represent as appropriate the FRA 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.

H.6 TASK ORDERING PROCEDURES

(a) Task Orders negotiated under this contract may only be issued by a designated Contracting Officer representing the Department of Transportation, Federal Railroad Administration.

(b) Task orders may be solicited, negotiated, and issued from the effective date of this contract through completion or termination of the base one-year period and/or each of the four successive one-year option periods of the contract. If all options are exercised, task orders may be issued through a five year period commencing from the effective date of contract. The period of performance for individual task orders issued under this contract may extend for one year beyond the period of performance of the contract for the base period. If exercised, the period of performance for Option Year 1 and each subsequent Option Year may extend six months beyond their respective period of performance end dates.

(c) All task orders shall be subject to the terms and conditions of this Base contract. In the event of conflict between a task order and this contract, the contract shall control. The Government will issue task orders for those segments of work defined in the Statement of Work appended hereto as Attachment J-1. The task orders shall be the instruments for specific work performance.

(d) Task orders will be negotiated with the contractor and issued by the Federal Railroad Administration’s Contracting Officer in writing using an Optional Form 347, a suitable agency-approved form, or any other appropriate contractual instrument. Task orders may not be issued orally. Most task orders will be executed through bilateral agreement between the contractor and the FRA Contracting Officer. However the Government reserves the right to execute task orders unilaterally. Under no circumstances shall the Government be obligated to pay for, nor shall the contractor be obligated to perform, work which is in excess of the current funded amounts.

(e) There is no limit on the number of task orders that may be issued against this contract, if and when needed, within the maximum value of the contract (sum of CLINs 0001 through 0005 at the time of award). It is anticipated that both firm-fixed-price and time-and-materials/labor hour type task orders will be negotiated for individual work requirements under this contract within the cumulative values stated for the base and each option period.

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(f) Any task order issued during the effective period of this contract and not completed within that time shall be completed by the contractor within the time specified in the order. The task order shall govern the contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contracts effective period.

(g) Orders placed under this contract shall contain the following information:

(1) Effective date of the order;

(2) Contract number and order number;

(3) Scope of Work, including references to applicable requirements in the Base contract;

(4) The firm-fixed-price or the time-and-materials/labor hour price of the task order for complete performance;

(6) Delivery or performance period;

(7) Place and manner of inspection and acceptance;

(8) Packaging, packing, and shipping instructions, if any

(9) Accounting and appropriation data; and

(10) Any other pertinent information.

(h) In implementing a task order, the contractor shall maintain at all times a complete updated cost and labor hour projection for completion of the task order work. If at any time the contractor becomes aware that a task order cannot be completed within the costs identified within the finalized task order document, the contractor shall notify the Contracting Officer in writing, with an updated cost and labor projection. In no event shall the Government be responsible for costs in excess of the value established in the executed task order document, without formal written approval by the Contracting Officer.

H.7 TASK ORDER PROPOSAL EVALUATION

(a) Written solicitations for each prospective task order will be issued by the Contracting Officer.

Each prospective task order solicitation shall include the specific statement of work. After issuance of a solicitation request, the contractor shall prepare and submit to the Contracting Officer a proposal. The proposal shall serve as the basis for negotiation of a finalized task order and shall specify the following:

(1) The technical approach to the work to be performed to include assigned personnel;

(2) The estimated labor, including a level of effort estimate for the required number of labor hours, by labor category and billing rates for each task or subtask;

(3) The estimated direct material, travel, subsistence, and similar costs, if required;

(4) The proposed fee or profit with supporting substantiation (i.e. risk factors associated with the statement of work—see FAR 15.404(d);

(5) The planned time schedule for performance with milestones suitable for monitoring task progress;

(6) Dollar amount and type of any proposed subcontract, including detailed supporting

Documentation pertaining to proposes costs;

(7) The total price, to be drawn against the negotiated ceilings under the Base contract.

The…