Exception to Fair Opportunity Legacy Matters REDACTED.pdf

JUSTIFICATION FOR AN EXCEPTION TO FAIR OPPORTUNITY

The following facts and rationale justify the basis for an exception to fair opportunity following the requirements of FAR 16.505(b)(2)(ii).

1. I recommend that the Federal Housing Finance Agency (FHFA), Office of Budget and Financial Management (OBFM) use an exception to fair opportunity procedures in the acquisition of regulatory advice and litigation services and support to assist the Agency in meeting its legal obligations in on-going matters involving the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the “Enterprises”) currently performed by Arnold & Porter Kaye Scholer, LLP (APKS) under task order 95314321F4012.

The estimated price is $13M.

Nature and/or description of the action being approved. The proposed vehicle will be a time-and-materials task order issued against APKS’ Indefinite Delivery / Indefinite Quantity (IDIQ), contract 95314321D0001, for Litigation and Other Legal Advisory Services for the continuation of legal services to be provided on a non-exclusive, as-needed basis in response to long-term and short-term task assignments. The period of the proposed task order is November 4, 2024 to November 3, 2025.

2. A description of the supplies or services required to meet the agency’s needs.

FHFA’s Office of General Counsel (OGC) has a requirement that the Contractor shall provide legal services to FHFA as Conservator and regulator of the Enterprises in the areas of litigation, regulatory advice, securities law, financial services regulation law, antitrust, administrative law and other fields as needed. The regulatory advice and litigation services may include, but are not limited to, the following cases and matters: Challenges to the Third Amendment of the Treasury Agreement; matters related to the Supreme Court opinion in Collins v. Yellen, No. 19-422; Due Process cases; matters concerning the foreclosure of properties with Fannie Mae or Freddie Mac mortgages or liens; matters related to the primacy of Fannie Mae or Freddie Mac mortgages and liens; matters concerning actions taken at the state or local level that may conflict with FHFA or Enterprise authorities; issues or litigation related to the expiration or elimination of the conservatorship of the Enterprises. The scope of this justification includes advisory work that is currently pending and cases that are currently pending in federal and state courts. The Contractor shall also provide court reporting, videography, and expert consultants/witnesses, including administrative and operational support services to support the expert consultants/witnesses, as part of FHFA’s defense of cases pending in federal courts.

3. An identification of the exception to fair opportunity and the supporting rationale.

41 U.S.C. § 4106(c)(3); FAR 16.505(b)(2)(i)(C). Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.

Only one of the five awardees (APKS) holding an IDIQ contract for Litigation and Other Legal Advisory Services will be eligible to respond to the Task Order Requirement Package (TORP).1

In addition to receiving competitively awarded task orders under IDIQ contract 95314321D0001, APKS also represents FHFA in numerous cases throughout the United States under its existing task order (95314321F4012), and previously represented the Agency via 95314320C0004, awarded on February 29, 2020, FHF-16-C-0005, awarded on August 1, 2016, and FHF- 11-C-0012, awarded on January 7, 2011. In representing FHFA in numerous cases over the past several years, APKS has gained significant knowledge of the specific legal issues involved in current, ongoing cases. Likewise, APKS has obtained critical legal and factual knowledge of and experience with FHFA’s governing statutes, regulations, policies, and organization, its role as Conservator and regulator, and its litigation strategies. Many of the matters APKS is currently handling may extend well beyond the period of performance of APKS’ current contract.

It is critical that APKS continue to provide regulatory advice and litigation services to FHFA in the pending matters described in Section 3 above. APKS has acquired in-depth knowledge of the intricacies of the conservatorships, FHFA, and the unique and complex legal and regulatory issues confronting the Agency in these matters. If FHFA were to transition pending matters to a different law firm, the Agency and the new firm would need to spend significant time and resources to prepare counsel to advise and represent the Agency in these matters. Transition to a new counsel would thus result in a substantial duplication of cost to the Agency and a loss of the expertise

1 In November 2020 FHFA awarded five (5) IDIQ contracts to the following law firms: APKS;

Cadwalader, Wickersham & Taft, LLP; McKool Smith, P.C.; Squire Patton Boggs, LLP; and Duane Morris, LLP.

developed by APKS’ as a result of its advising on and litigating these matters over the course of several years. Transition to a new counsel could also jeopardize the Agency’s ability to timely respond to legal motions and document production requests in existing matters. Continuity is likewise necessary to maintain consistent legal positions in the various courts in which litigation is ongoing throughout the United States.

4. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

The rates of APKS’ IDIQ were established under competitive pressure and determined to be reasonable in November 2020 when the five IDIQ contracts were awarded. In addition, the TORP will invite APKS to provide discounts from its established IDIQ labor rates.

5. Any other facts supporting the justification.

None.

6. A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made.

All five IDIQ Vendors will be eligible to compete for other future task orders.

Furthermore, FHFA anticipates the award of follow-on IDIQ contract(s) on a competitive basis during calendar year 2025 for similar types of services in support of new legal matters, to include litigation.

CERTIFICATIONS

I certify that this justification is accurate and contains complete data necessary to support the recommendation for an exception to fair opportunity.

11/14/2024 //S// Date REDACTED

Office of General Counsel Associate General Counsel

I certify that this justification is accurate and complete to the best of the Contracting Officer’s knowledge and belief. Also, I hereby (1) determine the circumstances cited as the statutory authority apply to this action, (2) determine the anticipated cost to the government will be fair and reasonable, and (3) recommend approval for this action.

Date Carmen G. Rios

Contracting Officer

I determine that this submission is legally sufficient to support an exception to fair opportunity procedures.

Date REDACTED

Associate General Counsel Office of General Counsel

Senior Procurement Executive Approval

11/19/2024 //S//

Date Kevin M. Klekner

Senior Procurement Executive

Contracting Activity Competition Advocate

12/09/2024 //S//

Date Mary E. Peterman

Competition Advocate