Questions_and_Answers.pdf

Questions and Answers

Legal Support Services for the Federal Railroad Administration’s Railroad Rehabilitation and

Improvement Financing (RRIF) Program

1.) If awarded would the contract be exclusive for the 1 year period or is the plan to bid out each engagement between a number of law firms?

No, this will be a multiple award IDIQ w/ options. Each Task order will be competed.

2.) What is the minimum amount of the engagement?

There is no minimum amount of engagements. Just a minimum and maximum ordering amount under the IDIQ.

3.) How does the process work once retained? If a loan transaction is undertaken does the law firm give an estimate of the legal fees?

Yes. A RFP will be sent to all IDIQ holders. Based on the statement of work included with the

RFP for the task order, the firm should submit a price proposal in accordance with the statement of work. FRA often requests firm fixed price bids for loan transaction task orders; however, in some circumstances FRA may seek time and materials bids.

4.) The RFP refers to using template documents. Can we obtain a copy of them to review now?

Yes, see attached example Financing Agreement.

5.) Is this a follow-on requirement? If so, could you please provide the incumbent contract number for this opportunity? If not, is this a new requirement?

This is a recompete of a multiple award IDIQ placed in 2011.

6.)

RFP Section H.2 – We understand that a firm will not be permitted to represent a loan applicant or borrower and FRA on the same transaction. Please confirm that a firm identified under the

IDIQ contract may represent a loan applicant or borrower seeking assistance from the RRIF program, in the following circumstances:

(a) In a transaction on which the FRA is a counterparty at a time when the firm is not advising the FRA pursuant to a task order on that transaction;

(b) In a transaction on which the FRA is a counterparty while the key personnel are advising

FRA pursuant to a task order on an unrelated transaction; and

(c) In a transaction on which the FRA is a counterparty after IDIQ contract has expired.

Please also advise whether the responses to the above (particularly (b)) would differ depending on whether it would be the key personnel, or other firm personnel, who would be involved in the relevant other transaction.

Conflict questions are answered on a case by case basis where the Department is presented specific facts to review. Offerors must provide any relevant information.

7.) RFP Section I.1 – Please clarify whether there is a requirement to subcontract any part of the work in support of a contract, e.g. to the extent the FRA requires legal services outside of those provided by the relevant firm that is otherwise engaged to advise the FRA pursuant to a task order. If there is a requirement to subcontract part of the work, please clarify to what extent law firms are required to comply with FAR 52.219-9 (Small Business Subcontracting Plan). We note that most law firms do not generally have small business subcontracting plans or bid out their teaming arrangements in a competitive process. Also, law firms do not typically subcontract (in the traditional sense), even where specialist firms might be engaged by a lead firm on behalf of a client, as each firm would owe a duty of care to the ultimate client. If there is no requirement to subcontract, please confirm that the FAR clauses that reference subcontracting and subcontracting plans will not be applicable and will not be incorporated by reference in a contract.

Based on the estimated contract value, FAR 52.219-9 will be included in the contract. The solicitation does not require the bidder to subcontract. However, some bidders may need to subcontract in order to meet the requirements of the solicitation. In those situations, there must be a lead firm with a subcontracting arrangement. Also, some awardees may need to subcontract or engage other law firms or service providers for task orders if the specifics of the task order warrant subcontracting, e.g. local counsel required in a state where selected firm does not have attorneys, mortgage or UCC filing services, etc. If you are subcontracting to meet the solicitation, then you must have a subcontracting plan in place.

8.) RFP Section L.5, Section 3 – Any legal expertise that we feel would be necessary to arrange for in a teaming arrangement with another firm will depend on the jurisdictions and specialties relevant to a particular transaction or task. Please confirm that teaming arrangements may be included in proposals on specific task orders instead of in response to this RFP. If so, we would propose to provide evidence in our response to this RFP of our general ability to successfully team with a variety of firms with jurisdictional and specialist expertise without committing to any particular teaming arrangements. Also, please confirm that these arrangements do not need to be handled as subcontracts (for the reasons noted above) provided that any additional firms are willing and able to enter into a parallel engagement agreement directly with the FRA.

Teaming arrangements may be included in response to the solicitation if necessary to demonstrate that the offeror meets the solicitation requirements. In those situations, there must be a lead firm with a subcontracting arrangement. However, the Government may also determine that teaming arrangements are necessary for certain task orders. In that event, the Government will permit awardees to engage in teaming arrangements in response to request for bids for a task order.

In accordance with FAR Subpart 44.101, Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor.

9.) Should our responses to SECTION K be incorporated into our proposal submission? If so, given the page limit restrictions for Volume I –Technical Proposal, should these responses be included as a separate attachment?

Include as a separate attachment.

10.) Please provide a working link to the names of RRIF applicants on the RRIF website. The link provided in the Solicitation on p. 11 returns an error message. Alternatively, please confirm that this link takes the Offeror to the correct location http://www.fra.dot.gov/Page/P0128

Yes, this is a working link.

11.) Please confirm that Offerors are not required to estimate hours in response to this solicitation; and that estimated hours will be required only at the time of responding to individual competitive task orders (i.e. once specific tasks are identified).

Correct. Estimated hours will be required only for task orders under the IDIQ.

12.) In Volume I, Section 2, part d, you request “Identify in-house and contracted technical capabilities”. Please clarify what you mean by “technical” capabilities.

Knowledge and Skills related to providing legal advisory services relevant to section C.

13.) Should our firm have our client references complete the Past Performance Questionnaires and submit them directly to the FRA, or should our references return the completed Questionnaires to

Katten and then we submit them as part of Volume II – Past Performance Questionnaires? Page

33 of the RFP document indicates that “Past Performance Questionnaires must be received from contractor clients no later than 5 calendar days after…the due date for proposals by 1:00 PM

EDT.” If our client references are to submit the Questionnaires directly to the FRA, we are unclear then what we should include in Volume II of our response. Alternatively, if we are to submit our client’s Questionnaires ourselves as Volume II of our proposal, is Volume II not due then until May 14?

Past performance questionnaires should be sent to FRA by the client. For your response, complete the past performance survey. Please see amendment 1 of the solicitation for Volume II .

14.) As this solicitation is for an Indefinite Delivery Indefinite Quantity type contract, do we need to submit a small business subcontracting plan at this time? Or are subcontracting plans only required when an individual competitive task order is solicited for a specific task?

Please see responses to Qs. 7 and 8

15.) Is there a missing Section A to the solicitation?

Section A is included on a contract Standard form. Section A Only included upon contract award, not this solicitation.

http://www.fra.dot.gov/Page/P0128

16.) For conflict purposes, would the client be defined as the Federal Railroad Administration (FRA)?

The client would be defined as the U.S. Department of Transportation, including the Federal

Railroad Administration, Office of the Secretary, Federal Aviation Administration, Federal

Highways Administration, Federal Transit Administration, Federal Motor Carrier Safety

Administration Federal Maritime Administration, National Highway Traffic Safety

Administration, Office of the Inspector General, Pipeline and Hazardous Material Safety

Administration, Saint Lawrence Seaway.

17.) Can a proposal be submitted solely for NEPA work, or must the proposal also include advice related specifically to the RRIF loan program ?

FRA will evaluate the proposal based on the factors in Section M of the solicitation.

18.) Does FRA interpret the language in H.2 allow a firm representing FRA on a RRIF loan transaction to:

- Represent the borrower in the other RRIF loan transactions that are separate from the transaction in which the firm is representing FRA; and/or

- Represent RRIF borrowers and other entities adverse to FRA in unrelated matters outside the RRIF loan program.

See answers to previous conflict of interest questions.

19.) Is FRA willing to consider proposed additions/ or revisions to the Conflict of Interest provisions in section H.2 of the Solicitation? No.

20.) Would key personnel be barred only from representing a RRIF applicant or borrower in the contract of a RRIF loan? Or would the key personnel also be barred from representing a RRIF applicant or borrower even in an unrelated matter? ?

Conflict questions are answered on a case by case basis where the Department is presented specific facts to review.

21.) What does FRA consider to be a “potential conflict? Or is the interpretation of this term left to the discretion of the contractor?

Generally, it means an anticipated or possible future conflict.

However, if the contractor is unsure at the time, the contractor should discuss with the

Contracting Officer.

22.) What is FRA’s customary practice regarding the payment of law firm invoice from on RRIF transactions-e.g. are invoices paid monthly, or at defined milestone, or at time of closing?

FRA will make payment in accordance with FAR subpart 52.212-4(g).