Clarifications_for_OPIC-16-R-0014.pdf

Clarification Points Request for Proposals

U.S. Legal Services for International Finance and

Political Risk Insurance Transactions Request for Proposals

OPIC-16-R-0014

NOTE: This information is for clarification and reference purposes only. This document will not be made part of the IDIQ Contract.

1. Do the words “Development or International Finance Institution” refer to U.S. Government entities, foreign government entities, or private-sector entities?

ANSWER:

Development or International Financial Institution means a financial institution, export credit agency, or development bank set up by one or more countries to finance development in one or more developing countries.

2. What is the relationship between the core teams to be proposed in the proposal as against the specific teams that will be selected for each IDIQ Task Order?

ANSWER: OPIC expects that all key personnel who will work on Task Orders to be included in the core team described in the response to the IDIQ for the applicable List. OPIC would like to see one attorney who is the Team Leader or relationship partner included on each team. Associates and paralegals do not need to be described by name and experience to the extent they are interchangeable with other associates or paralegals. You may describe such personnel by category and provide their hourly rates as a range in the IDIQ. All will need to be described by name and hourly rates in IDIQ Task Orders unless otherwise provided in the IDIQ Task Order Request.

3. If a firm intends on proposing teams for multiple Prospective Contractor Lists, would it be acceptable if we proposed a single core team based in the U.S. to service as the initial Point of Contact for all IDIQ Task Order Requests? This core team would not necessarily act on every particular matter, but it would manage the overall relationship between OPIC and the firm.

ANSWER: See answer to the previous question (Question #2).

4. Does Attachment 2, Paragraph (B)(7)(i) and (ii) involve all attorneys within the firm or just the attorneys working on a particular OPIC Matter?

ANSWER: This includes all attorneys within the firm.

5. In Attachment 2, Paragraph (B)(7)(ii) of the solicitation, it states, “During the course of the Firm’s representation of OPIC in the Current OPIC Matter…the Firm shall not, without prior notice to and consultation with the Project Attorney, represent…(ii) in any matter that is not an OPIC Matter, any party to the Current OPIC Matter other than a Permissible Party”).

Is this language intended to be a notification requirement as well as the scope of the requirement?

ANSWER: Yes, this is a notification and consultation requirement, not a prior consent requirement.

6. Paragraph B(7)(i) of Attachment 2 indicates that the entire Firm may not, “without prior notice to and consultation with the Project Attorney”, represent any party other than OPIC in any OPIC Matter (i.e. in any transaction in which OPIC “is involved”). As explained above in relation to Question No. 2, OPIC may be “involved” in transactions in many capacities where OPIC’s involvement may not be known to the Firm or to the Firm’s client.

(a) May a Firm satisfy the disclosure requirements of this Item B(7)(i) by limiting its response to those matters where OPIC’s involvement is as a direct party to such matter and such involvement is known to the Firm after the Firm has conducted reasonable internal conflict searches in accordance with the customary practices of other similarly situated law firms.

ANSWER: This generally will be sufficient.

(b) In some cases the Firm may be involved representing a client on an ongoing matter before OPIC becomes involved, and as such will be unable to provide “prior” notice of the Firm’s involvement when OPIC becomes involved. Please confirm that notice to the Project Attorney as soon as practicable after the Firm learns of OPIC’s involvement as a direct party will be sufficient to discharge this requirement in such circumstances.

7. Paragraph B(7)(ii) of Attachment 2 indicates that the entire Firm may not, “without prior notice to and consultation with the Project Attorney”, represent any party to the Current OPIC Matter other than OPIC in any matter even where OPIC is not involved (other than a Permissible Party). The Firm is a full-service global firm that represents numerous clients (such as global commercial banks) who may from time to time become parties to a Current OPIC Matter (for example as a bank syndicate member or as a collateral agent or trustee) but because of the nature of that client’s business is engaged in numerous other lines of business wholly unrelated to the markets in which OPIC operates (for example, as lenders or agents in purely domestic real estate finance transactions). It may be a breach of the firm’s duty of confidentiality to those clients to disclose the fact of the Firm’s representation of those clients (or the details of the matters on which the Firm represents such clients) to OPIC by notifying the Project Attorney. In addition, it may not be feasible to obtain the client’s consent to such disclosure (especially, but not only, where OPIC has no involvement in such other matters or in the markets where OPIC does not operate).

(a) Please confirm that Paragraph B(7)(ii) would not require the Firm to notify OPIC of the

Firm’s representation of other parties to the Current OPIC Matter unless such other party is a direct party to the Current OPIC Matter (rather than a Firm client who is one or more steps removed from the Current OPIC Matter, such as a loan participant, bank syndicate member or equity investor, who does not have direct contractual relations with OPIC in the Current OPIC Matter).

(b) Will a Firm be able to satisfy this Item B(7)(ii) by providing general disclosure if the provision of specific client- or transaction-identifying details would breach a duty of confidentiality owed to another Firm client.

8. Does OPIC require notification that other members of the Firm are representing such commercial bank on an unrelated matter? If so, could it be confirmed whether such notice would be required in every instance where the Firm is representing such commercial bank (for example, if such commercial bank is part of a large bank group on a separate project but not acting as the “lead” bank, would notice be required in such instance?).

ANSWER: Yes, OPIC would require notice in each instance.

9. The questions for the Project Finance List and Small Impact Investing Finance List ask a law firm to describe the experience in general commercial practice (Questions D and E, respectively). Does the experience requested need to be in relation specifically to Project Finance or Small Impact Investing (depending on the section) or may we provide a single description of our general commercial capabilities and cross reference the response to each section as appropriate to minimize duplication?

ANSWER: A single description is satisfactory.

10. For arbitration support, is there a particular arbitration tribunal or tribunals for which OPIC would like to see credentials?

ANSWER: In responding to the IDIQ, OPIC requests that a law firm cites experience handling matters with any major international arbitration tribunal. Any IDIQ Task Order issued where arbitration expertise is relevant will specify the particular arbitral rules or tribunal s for which support is sought. Note that OPIC generally specifies the International Arbitration Rules of the American Arbitration Association in its loan and insurance contracts, so that type of experience should be included, but other experience may be relevant in other contexts as well.

11. In the Project Finance List questions, Question B it states, “OPIC expects not less than 10 years aggregate experience and not less than 5 years as lead partner on international project finance transactions in developing countries and emerging market economies.” Can OPIC confirm if the aggregate experience applies to each partner on the team or just the Team Leader, particularly in regards to the required 5 years’ experience as lead partner?

ANSWER: Ten (10) years aggregate experience means combined experience of all partners on the team, including but not limited to the Team Leader. One person on the team must have 5 years as lead partner on international project finance transactions – but this could be anyone on the team and does not have to be the Team Leader.

12. Would experience representing other export credit agencies on transactions that substantively provide the same product as political risk insurance be acceptable experience for the Political Risk Insurance List?

ANSWER: OPIC is not an Except Credit Agency, but that type of experience could be relevant if the product provided is the same as political risk insurance.

13. Paragraph A(3) of Attachment 2 indicates that if awarded an IDIQ Task Order, the Firm would be required to provide a fair summary of each matter in which the Firm…represents any party to any “OPIC Matter”, which is defined in the RFP as “any matter in which OPIC is involved” [emphasis added]. There may be many matters in which OPIC “is involved” where the Firm has no knowledge or ability to know of OPIC’s involvement. For example, where a bank client of the Firm is considering providing a loan to a project to which OPIC is also considering providing financing (but where OPIC’s interest is unknown to the Firm or to the Firm’s client), or where a client of the Firm is considering the acquisition of a company or a project where OPIC has insured or is considering insuring some or all of the equity but the existence of such insurance has not been disclosed to the Firm or to the Firm’s client and is not publicly known. OPIC’s “involvement” in a deal can be particularly difficult to identify if it is not participating as a direct party to a given matter, but its involvement is some steps removed (e.g. where it may be insuring a portion of the equity). Furthermore, OPIC may be considering a transaction where other participants in the market have no awareness of OPIC’s interest in that transaction.

(a) May a Firm satisfy the disclosure requirements of Paragraph A(3) of Attachment 2 (i.e. the requirement to disclose the Firm’s involvement in any OPIC Matter (i.e. any matter in which OPIC “is involved”) by limiting its response to those matters where OPIC’s involvement is as a direct party to a matter and such involvement is known to the Firm after the Firm has conducted reasonable internal conflict searches in accordance with the customary practices of other similarly situated law firms.

(b) The Firm represents numerous clients who are or may become involved in OPIC Matters (i.e. matters in which OPIC “is involved”) – for example where a client may be a potential recipient of OPIC financing or where a client may seek to become a beneficiary of OPIC insurance. The disclosure of such representations or of the Firm client’s role in such transactions could constitute a breach of the Firm’s duty of confidentiality to those clients under applicable rules of professional responsibility. Will a Firm be able to satisfy this Item A(3) of Attachment 2 by providing general disclosure if the provision of specific client- or transaction-identifying details would breach a duty of confidentiality owed to another Firm client.

ANSWER: If disclosure of specific transaction details would constitute a breach of professional responsibility rules, a more generic disclosure of the relationship due to involvement of a non-OPIC Team Member generally will satisfy this obligation.

14. Based on prior experience, can you give us an idea of the expected frequency of travel? If so, what type of travel, e.g. international or typically within the US?

ANSWER: Travel will be infrequent. International travel will be rare.

15. Regarding Attachment 2, how does OPIC determine whether or not to allow a conflict waiver, making it possible for our firm to represent a client that is adverse to OPIC in a matter in which our firm is not engaged by OPIC? How often are such waivers requested, and what percentage are granted?

ANSWER: Any such waivers would be granted on a case by case basis, within OPIC’s discretion. The Firm should assume that OPIC would not agree to members of the OPIC Team representing a client in a matter where the client is adverse to OPIC.

16. Regarding Section C3(A)(5), is it permissible to apply for the list in only select areas?

ANSWER: We are looking for firms who can provide advice in as many areas as possible, the minimum number of areas is two.

17. Is there any disadvantage to applying for more than one Prospective Contractor List?

ANSWER: No.

18. As a boutique, the Firm has some skill sets that would apply to all of the Lists, such as international dispute resolution and litigation. For example, the Firm would like to be considered for workouts and potential litigation for Investment Funds, but do not have the transactional capacity in-house to meet all of the criteria for that List. Should the Firm still apply and indicate that the Firm is limiting the RFP submission to particular types of work?

ANSWER: No, firms must meet all of the criteria on the lists.

19. Can a Firm partner with other boutique firms for specific Contractor Lists?

ANSWER: While this is not precluded, preference will be given to those firms that already have the relevant capacity in-house.