RFP Attachment II - PWS.pdf

Export-Import Bank On Behalf Of

Office of Board Authorized Finance Asset Management Division

Professional Legal Services in support of EXIM mission

PERFORMANCE WORK STATEMENT (PWS)

DATE: 21 January 2021

1.0 INTRODUCTION

The Contractor shall provide all personnel, equipment, supplies, postage, facilities, transportation, tools, materials, travel, supervision, and other items and non-personal services necessary to perform the legal Services as defined in this Performance Work Statement, except for those items/services specified as Government furnished property and/or services or those expenses specifically authorized for reimbursement.

2.0 BACKGROUND

The Export-Import Bank of the United States (“EXIM Bank”) supports the financing of U.S.

goods and services. It assumes credit and country risks the private sector is unable or unwilling to accept. Upon payment of a claim, the Asset Recovery Group (“ARG”) within the Asset Management Division of EXIM Bank (“AMD”) becomes responsible for attempting recovery from the borrower, insured, debtor and/or guarantors (collectively hereinafter, the “Borrower”).

EXIM often pursues collection efforts against a defaulted Borrower in the foreign jurisdiction against a specific person or against a company over the Borrower of the assets in which EXIM possesses a secured interest pursuant to the Transaction.

As the premier Export Credit Agency of the United States, EXIM engages in complex, commercial finance transactions with commercial and sovereign entities operating in diverse international jurisdictions. EXIM often requires expert legal services (representation, advice, advocacy, negotiation) from Contractors doing business in these foreign jurisdictions. The purpose of this PWS is to obtain expert legal services from highly qualified and experienced Contractors operating within the jurisdictions of the following jurisdictions: the country of Kenya and the country of Ukraine.

3.0 SCOPE

The selected Contractor shall provide comprehensive professional legal services in support of EXIM’s mission. Such legal services may pertain to any aspect of EXIM’s efforts to protect its interests in the subject of any Transaction involving parties or assets located within or doing business within the Contractor’s jurisdiction.

4.0 OBJECTIVES (NATURE OF WORK)

Desired Outcome: The maximization of EXIM’s recovery under any imperiled or defaulted Transaction.

Constraints: The cost to benefit ration of expending resources in any collection effort is a primary constraint. EXIM retains the sole discretion to end any legal effort in the event it believes that the cost of continued legal action is not likely to be compensated by the eventual recovery (if any). A further constraint pertains to the Contractor being properly licensed and insured to operate as legal counsel for compensation within the jurisdiction of Kenya or Ukraine, as the case may be. If the Contractor is “debarred” or suspended (prohibited from performing legal work) based on local jurisdiction directives, the Contractor shall immediately inform EXIM.

EXIM will then take appropriate action which may include termination of the IDIQ contract and or the then operative Task Order under such IDIQ contract. The Contractor will comply with all applicable rules and regulations of professional conduct governing the conduct of lawyers and Contractors licensed to practice in Kenya or Ukraine, as the case may be.

5.0 APPLICABLE DIRECTIVES

1. EXIM and AMD procedures and polices (as same are made available to the Contractor)

2. Industry practices as observed by peer institutions including Federal Agencies, foreign

ECAs, and multilateral development banks

3. Rules of conduct for licensed attorneys as promulgated by cognizant governing authority

(i.e. Bar) within Kenya or Ukraine, as the case may be

4. Rules of civil procedure/evidence/conduct as promulgated by the cognizant Kenyan or

Ukrainian court, as the case may be.

5. All services rendered by the Contractor will be subject to the existence of an attorney-client privilege existing between the Contractor and EXIM. The Contractor must comply with applicable Bar rules and regulations, and where adopted within the jurisdiction, the American Bar Association Rules of Professional Conduct. Should subcontractors be required to complete work, Contractor shall request consent to subcontract in accordance with FAR 52.444-2.

6. Contractor and its attorneys and support staff must handle all material provided to them in accordance with the Privacy Act, 5 USC 522a, and the Procurement Integrity Act, and shall not knowingly or willfully release to any person or entity any portion of documentation provided to them by EXIM, unless acting at EXIM’s request. Contractor and its personnel are expected to have access to sensitive, confidential, business information and or trade secrets of parties to a given Transaction. Contractor and its personnel shall handle all such information in accordance law and regulations.

7. The Contractor understands that as legal counsel for EXIM, it will be acting in a fiduciary capacity to EXIM.

6.0 GOVERNMENT FURNISHED INFORMATION OR PROPERTY

EXIM will provide copies of relevant files pertaining to any Transaction assigned to the Contractor so that it can efficiently perform its legal services. All EXIM materials/information/files provided to the Contractor shall remain in the Contractor’s custody and control. All materials/information/files provided to the Contractor by EXIM shall remain Government (i.e. EXIM) property. The Government will provide relevant power of attorney in favor of the Contractor EXIM deems it necessary to do so, such that the Contractor, or its individual attorneys and support staff assigned to any particular matter, to facilitate the efficient performance of work within the jurisdiction in which the given Transaction or Borrower is domiciled. Any such Power of Attorney will be controlled by the Attorney-Client privilege existing between EXIM and the Contractor.

7.0 SPECIFIC REQUIREMENTS/TASKS

Task Introduction:

The Contractor shall provide a full range of professional legal services as may be requested by EXIM pertaining to any Transaction or any Borrower within the jurisdiction of either Kenya or Ukraine, as the case may be. The Contractor shall provide EXIM with the full spectrum of professional legal support required for the resolution of claims, disputes or defaults under any Transaction; and the management and/or disposition of assets or secured interests held by the Federal Government as located or filed within the jurisdiction of Kenya or Ukraine, as the case may be. The Contractor’s services shall encompass a wide range of services in furtherance of protecting or asserting EXIM’s interests under a given Transaction. The primary focus of effort shall be matters of commercial law and may involve civil litigation. Ancillary legal support may be required in the event that criminal litigation is brought against a Borrower. The Contractor shall aid EXIM in obtaining, organizing, analyzing and presenting evidence or materials for resolution of legal matters pertaining to a Transaction. Such services are not limited to actual litigation, but shall include pre-litigation negotiations, restructuring and work-out efforts approved by EXIM. Services include, but are not limited to: document acquisition, document preparation and organization, data extraction from forensic images, document analysis, technical support, and project management, litigation and post-judgement collection activities.

EXIM will retain decision-making authority regarding substantial litigation or negotiation positions.

Tasks:

The following is a non-exhaustive list of types of legal services or focus of effort that the Contractor may be required to perform in furtherance of protecting EXIM’s interest(s) under a given Transaction or other interests.

1. Coordinate with EXIM before undertaking any actions regarding substantial litigation and or negotiation positions and or decisions. EXIM retains the sole authority to make decisions binding upon the US Government or that would involve the payment of resources of the US Government, regarding any such matters.

2. Negotiating with Borrowers at any stage of a given Transaction to achieve a resolution short of pursuing active litigation. The Contractor shall not bind EXIM to any position taken by the Contractor until or unless EXIM has expressly approved that position and communicated same to the Contractor.

3. Commence and pursue civil litigation against Borrowers or other related parties involved in any aspect of a given Transaction. In the event the governmental authorities of the jurisdiction institute criminal proceedings against the Borrower or other related parties, the Contractor may be authorized by EXIM to provide evidence or argument in the criminal proceeding.

4. Provide post-judgment collection efforts, to include further litigation to enforce the judgment, or appeal of a judgment entered against EIXM, as required to protect EXIM’s interests.

5. The Contractor shall compile a documentary record regarding all aspects of enforcement of EXIM’s rights under a given Transaction, to include a litigation file, when applicable (the record shall contain or discuss, as the case may be, timelines, major decisions, major events impacting EXIM’s interests, copies of correspondence with Defendants, Court Orders, pleadings filed by the parties, and similar such records of importance to the conduct/progress of the litigation). The Contractor may be requested to collect such data/records/information that pre-date the assignment of the Contractor to that given Transaction, the expectation being that the Contractor will work collaboratively with other parties to obtain such documentation. The Contractor will deliver this Record to EXIM in electronic data storage medium as directed by EXIM (e.g. CD rom, shared file on “cloud based” data sharing service).

6. Provide expert legal advice to EXIM regarding any aspect of domestic law that may be of interest to EXIM, whether pertaining to a Transaction in default or more generally.

7. In the event EXIM is ordered by a court of competent jurisdiction to pay a judgment to another party, the Contractor may be required to serve as a fiduciary, holding payment from EXIM in constructive trust for payment to the Payee; deliver payment concurrent with negotiation and execution of an accord and satisfaction/satisfaction of the judgement;

and when applicable, obtain an Order from the Court dismissing the judgment against EXIM as paid in full.

8. Request a Power of Attorney on an as needed basis, in favor of the Contractor, and or the individual attorneys or legal staff assigned to provide legal services, when such Power of Attorney would facilitate the Contractor’s ability to perform the services required hereunder, so that the Contractor, or its individual attorneys and support staff assigned to this matter, can efficiently perform the services delineated in this PWS.

9. Provide legal services inside the country to which its Contract pertains (i.e. either Kenya or Ukraine, but not both). EXIM does not anticipate that the Contractor will be required to perform services in locations outside of the jurisdiction so assigned.

10. The Contractor must prepare and deliver to EXIM a monthly Status Report detailing actions taken, decisions made, and current procedural posture of each Transaction or matter assigned to the Contractor.

11. The Contractor is to provide a Conflict of Interests (“COI”) Notification to EXIM within 5 days of receiving a request from EXIM to undertake representation of EXIM in a given Transaction or other matter. The said Notification shall confirm whether the Contractor possesses any COI that would impinge upon its ability to effectively represent EXIM’s interests.

12. The Contractor shall deliver a Litigation Strategy or Position Paper, outlining its recommended course of action with respect to a Transaction or other matter assigned to it by EXIM. The Contractor shall update this submittal at regular intervals to account for progress (or lack thereof) in resolution of the claim, dispute or other matter involved.

13. EXIM shall provide copies of/access to relevant files of Government material/information/files/data/records to the Contractor to facilitate the Contractor’s efficient and effective delivery of its legal services. All EXIM materials/information/files/data/records provided to the Contractor shall remain in the Contractor’s custody and control. All Government material/information/data/files/records provided to the Contractor shall be returned to EXIM at the conclusion of this Contract if so directed by the Contracting Officer, or shall be destroyed by the Contractor and certified as such to EXIM within 60 days of the expiration or termination of the Contract.

14. EXIM does not contemplate that the Contractor will engage in any travel to perform the services. In the event that the Contractor recommends that it requires site visits to locations outside of the 50 mile radius from its main offices in order to perform services under this Contract, Contractor shall request reimbursement for such travel to be included in the Task Order or shall request a Task Order modification as appropriate.

15. Subcontractors: In the event that the Contractor determines that it requires the assistance of a subcontractor (another Company/Firm possessing unique expertise, financial consultant, expert witness or other specialist), the Contractor must first obtain the written consent of the Contracting Officer before engaging such party.

Requirements

Contractor Qualifications

1. The Contractor must have at least 3 years of experience in representing US Governmental entities engaged in complex, international, commercial financial transactions with private sector and or sovereign parties, to include experience in civil litigation to enforce enforce/collect the creditor entity’s secured interests under such complex, international, commercial financial transactions. The Contractor must provide documentation attesting to its experience in this regard.

2. The Contractor must be adept at negotiating with debtors. The Contractor must be well-respected by the courts and members of the bar of the jurisdiction in which it practices.

3. The Contractor shall maintain its good standing to practice law within the courts of the jurisdiction of either Kenya or Ukraine, as the case may be. The Contractor must ensure that each of its attorneys assigned to perform services under the Contract are licensed to practice law in Kenya or Ukraine, as the case may be.

8.0 DELIVERABLES

Deliverable Item PWS Section Due Date Format/ Quantities

Status Report

Section 7 Task

By 5th day of the month following the month covered by the Report

Electronic, (In English)

Conflict of Interest notification

Section 7 Task

Within 5 business days of identifying conflict

Email

Litigation/Negotiation strategy

Section 7 Task

Within 30 days of Contract Award; Quarterly thereafter

Email

Establishment of Escrow holding account

Section 7 Task 7

Within 15 days of notification from EXIM of need

Written report

Historic Record File Section 7 Task 5 Within 6 months of contract award

Written Document

9.0 PERFORMANCE REQUIREMENT SUMMARY (PRS)

Task or Deliverable

Performance Standard

Acceptable Quality Level (AQL)

Surveillance Method

Performance Rating Incentives/Dis incentives

Status Report

Complete, accurate and timely, delivered monthly per each Transaction or other Matter assigned

100% of Reports submitted on time

Surveillance by EXIM Bank COR will be performed as the Event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Positive or negative CPARS rating

Marginal (between 91% and 93%

Unsatisfactory (less than 90%).

Conflict of Interest notification

Complete, accurate and timely

100% accuracy of Notices delivered within 5 calendar days of identification of the COI.

s

Surveillance by EXIM Bank COR will be performed as the Event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

Positive or

CPARS rating

Establishme nt of Escrow fund account

Insured account at Licensed Financial Institution established

Account established within 15 days of request of

EXIM

Surveillance by EXIM Bank COR will be performed as the Event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Litigation/N egotiation strategy

Complete, accurate and timely

100% accuracy.

100% delivered timely.

Surveillance by EXIM Bank COR will be performed as

Exceptional Very Good Satisfactory Marginal Unsatisfactory

CPARS rating as described in the PWS and specified in the approved Schedule of Deliverables the Event occurs.

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

Historic Record File

Complete, accurate and timely

Delivered within timeframe established by EXIM on case-by-case basis

Surveillance by EXIM Bank COR

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Unrecovered cases might be recalled back to EXIM Bank’s portfolio and Contractor instructed to “Cease and Desist” from any further recovery efforts.