RFQ Att 1 PWS.pdf

70FA6024Q00000003

ATTACHMENT 1

PERFORMANCE WORK STATEMENT

Performance Work Statement (PWS)

National Flood Insurance Program (NFIP) Outside Counsel Advisory and Assistance Support

5 March 2024

PERFORMANCE WORK STATEMENT

1.0 Introduction

1.1 Overview

This Performance Work Statement (PWS) stipulates the requirements for advisory and assistance (A&AS) support services pertaining to specialized legal counsel required by the Federal Emergency Management Agency’s (FEMA) Office of Chief Counsel (OCC).

Within the Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Resilience, Federal Insurance Directorate (“FID”) operates the National Flood Insurance Program (NFIP). The OCC is responsible for providing FEMA with legal advice, counsel, risk analysis, and dispute resolution services. Within OCC’s Operations Law Resilience Legal Division, Federal Insurance and Fund Management Branch provides these services to FID. This contract will directly support the OCC’s Federal Insurance and Fund Management Branch.

The Contractor, also referred to as outside legal counsel, shall be required to perform in accordance with the Quality Assurance Surveillance Plan (QASP).

1.2 Background

Through the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood Insurance Affordability Act of 2014, FEMA received authority to establish a federal-based program to secure reinsurance for the NFIP from the private reinsurance and capital markets to better manage losses incurred from major flood events. Having completed yearly reinsurance placements since 2017, FEMA is now working to further develop and mature the NFIP Reinsurance Program, again utilizing both the traditional reinsurance market and the capital markets. The NFIP Reinsurance Program’s initial purchases of reinsurance from the traditional and capital markets marked the first time the Federal government had secured reinsurance from private markets through a program of this nature.

The Program involves working with complex and specialized areas of reinsurance law, such as traditional reinsurance and insurance-linked securities (ILS). As a result, Resilience requires legal subject-matter-experts to advise and assist on matters related to reinsurance and securities laws and the reinsurance industry, including the private capital markets.

In 2017, FEMA completed its inaugural traditional reinsurance placement. In 2018, FEMA completed a traditional reinsurance placement and its first ILS placement. As of Fiscal Year 2023, FEMA has completed a total of seven placements for annual traditional reinsurance and six ILS placements.

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2.0 Scope

Technical direction will be utilized to further clarify certain aspects of the Objectives detailed in Section 2. This technical direction will be issued in writing by either the Contracting Officer (CO) or the Contracting Officer’s Representative (COR). Program guidance will delineate specific deliverables and time schedules in accordance with the requirements defined in the Objectives.

2.1 Description of Services

The contractor shall provide the necessary personnel to deliver the legal counsel services required by this Performance Work Statement. These contractor personnel shall have expertise in and experience with the reinsurance industry including the private capital markets. OCC requires the contractor to deliver support within four Objectives: 1) work related to reinsurance agreement terms and conditions including matters involving reinsurers, capital bond markets, and insurance-linked securities; 2) drafting memoranda of law on topics related to reinsurance including matters involving reinsurers, capital bond markets, and insurance-linked securities; 3) consulting on legal issues related to the management and operations of a Resilience-operated reinsurance program including matters involving reinsurers, capital bond markets, and insurance- linked securities; and

4) provide advice on potential disputes arising from reinsurance and other related agreements. The specifics required by each Objectives are explained in the subsections below.

2.1.1 Task 1: Reinsurance Agreement Terms and Conditions

The outside legal counsel shall be expected to be familiar with the NFIP through experience and background research, for example, on the National Flood Insurance Act of 1968, as amended, NFIP regulations in Title 44 of the Code of Federal Regulations, NFIP process and procedures, the Write Your Own Program, customary insurance practices, and the practices of other governmental entities ceding risk to private markets.

Upon the request of FEMA, the outside legal counsel shall draft reinsurance agreement terms and conditions for NFIP reinsurance agreements as required. Upon the request of FEMA, the outside counsel shall also be required to analyze, review, and provide comments on reinsurance agreements, as required.

Upon the request of FEMA, the outside legal counsel shall participate in meetings with FID’s broker, DHS, OCC, and reinsurers, as required, for example, to develop or customize the terms and conditions of reinsurance- related agreements.

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Upon the request of FEMA, the outside legal counsel shall draft other types of agreements, including, but not limited to, trust agreements, sidecar agreements, catastrophe bond agreements, or other agreements to secure reinsurance including insurance-linked securities from the private reinsurance and capital markets, as required.

2.1.2 Task 2: Drafting of Legal Memorandum

Upon the request of FEMA, the outside legal counsel shall research and draft memorandum of law on issues related to the FEMA’s securing reinsurance from the private reinsurance and capital markets, including matters involving reinsurers, capital bond markets, and insurance- linked securities on behalf of the NFIP.

2.1.3 Task 3: Consulting on Reinsurance Program

The outside legal counsel shall consult with OCC to enable it to advise the NFIP as it develops an operations protocol defining and/or refining the NFIP Reinsurance Program’s processes and procedures (i.e., administrative, accounting, legal, etc.), governance (includes roles and responsibilities), reporting, documentation, and audits.

Upon the request of FEMA, the outside legal counsel shall review and provide comments on the NFIP Reinsurance Program’s operational protocols, including processes and procedures, governance, reporting, documentation, and audits process, as required.

2.1.4 Task 4: Advice on Potential Disputes

Upon the request of FEMA, the outside legal counsel shall provide advice to OCC on potential disputes arising from reinsurance and other related agreements involving the private reinsurance and capital markets.

2.2 Timeline for Deliverables

Resilience intends to implement the NFIP Reinsurance Program through placements following its Fiscal Year 2023 reinsurance placements. As a result, FEMA anticipates most of the work under the period of performance of this contract will occur on a rolling basis with periods of greater activity in the months leading up to the placements in order to assist Resilience with meeting deadlines necessary to accomplish the desired placements as well as to address issues arising from any claim collection.

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2.3 Deliverables

Item Due Date

Reinsurance agreement terms and conditions Upon request

Legal Review of Agreements Upon request Memoranda of law and legal opinions Upon request

Consulting with Reinsurance Program Upon request

Provide advice on potential disputes Upon request

2.4 Billing of Hours

The contractor shall only invoice for hours expended on required deliverables. Before the contractor performs work related to any of the four tasks, they shall receive advance direction from the contract’s authorized personnel. The contractor shall, upon request by the contract’s authorized personnel, submit an estimate of hours prior to work performed on specific assignments. Based on the spacing of deliverables (reference section 3.2), there may be months where the contractor’s services are not required, and as a result, no invoice for that month shall be submitted.

The contractor’s proposed labor rates for each labor category shall be fully burdened. A fully burdened labor rate is inclusive of: wages, overhead, general and administrative expenses, and profit for each category of labor.

Additionally, this contract shall not authorize payment for the following activities:

• Clerical or administrative tasks, such as: time spent photocopying, collating, and faxing; arranging travel; data entry, document scanning, and document conversion to other electronic formats; scheduling and arranging meetings, etc.;

• Billing-related time (i.e., invoices, accounting, or bookkeeping); and

• Time spent on review or clearing of conflicts or opening a file.

2.5 Handling of Information

Due to the attorney-client relationship all communication is privileged and confidential.

Therefore, Resilience does not require the contractor to take any specialized IT security measures when receiving, transmitting, or communicating, in any form, information related to work under this contract.

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3.0 Qualifications and Key Personnel

This contract will require both key and non-key personnel.

The personnel performing work under this contract shall have completed a four year undergraduate degree from an accredited college or university and have a Juris Doctor from a law school accredited by the American Bar Association (ABA). Additionally, all legal personnel shall be an active member of the bar in any U.S. jurisdiction.

3.1 Key Personnel

Of-Counsel or Partner

Experience: Licensed attorney must be a partner or of-counsel (Of-counsel is the title of an attorney in the legal profession of the who often has a relationship with a law firm or an organization but is neither an associate nor partner) with a minimum of 20 years of experience as an attorney in a private law firm, in- house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least eight (8) years of specialized experience in reinsurance law. Specifically, the attorney must have experience working with a cedent to draft, review, and revise the terms and conditions of a traditional reinsurance agreement. The attorney must also have experience drafting, reviewing, and revising other types of agreements, such as trust agreements, side car agreements, catastrophe bond agreements, and other agreements to secure reinsurance from the capital markets. The attorney must have experience advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities).

The attorney should have experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer.

Previous experience working with the Federal government, and specifically with the National Flood Insurance Program is also highly desirable.

3.2 Non-Key Personnel

Associate

Experience: Licensed attorney with a minimum of six (6) years of experience with a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least three (3) years of specialized experience in reinsurance law.

Specifically, the attorney must have experience working with a cedent to draft agreements to secure reinsurance from the private and capital markets. The attorney should have experience researching and writing memorandum of law on issues related to reinsurance.

The attorney should also have experience related to advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.)

https://en.wikipedia.org/wiki/Title https://en.wikipedia.org/wiki/Lawyer https://en.wikipedia.org/wiki/Legal_profession https://en.wikipedia.org/wiki/Law_firm https://en.wikipedia.org/wiki/Associate_attorney https://en.wikipedia.org/wiki/Partner_(business_rank)

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and governance (i.e., roles and responsibilities).

Experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer, and experience working with the Federal government, specifically with the National Flood Insurance Program, are also highly desirable.

4.0 Place of Performance

Work performed under this contract shall take place primarily at the contractor’s place of business. The majority of communications for work performed under this contract shall take place via electronic and telephonic means – email, conference call, video conference, and computer screen share.

When the contractor has staff located in the DC metro area that allows for convenient and affordable travel to the Resilience headquarters office, then by invitation from an authorized FID employee, the contractor may be asked to travel to FID’s office in order to complete a task within one of the work areas.

FEMA-FID headquarters is located at: 400 C St SW, Washington, DC 20024.

4.1 Period of Performance

The period of performance of this contract is one base year and four one-year option periods.

5.0 Applicable Documentation

The work performed under this contract does not require compliance with any DHS, FEMA, or FID specific regulations, policies, memorandums, or directives.

6.0 Other Direct Costs

6.1 Material Expenses

Material expenses are not anticipated under this contract. Specifically, the following charges related to overhead costs and internal charges shall not be reimbursed, including but not limited to:

6.1.1 Office supplies;

6.1.2 Charges for local and long distance telephone service, teleconference lines, and facsimile;

6.1.3 Imaging or scanning service costs;

6.1.4 Document file/storage and retrieval costs;

6.1.5 Electronic legal research annual or monthly fees (i.e., Lexis, Westlaw, or other

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cost-based providers);

6.1.6 Rent for office space, equipment, or software;

6.1.7 Charges for case management systems;

6.1.8 Charges for meeting rooms;

6.1.9 Catering; and

6.1.10 Postage.

6.2 Travel

Out of area travel is not allowed unless the contractor is given advance authorization and approval by the contract’s designated CO and/or COR. FEMA does not anticipate the need for regular travel in order to perform this work; however, the need for travel may arise so the contractor can attend in- person meetings with FEMA, its reinsurers, brokers, and any other reinsurance and insurance-linked securities-related agents related to the design of a reinsurance agreement and/or other agreements necessary for obtaining reinsurance through private reinsurers and the capital markets. If this situation occurs, FEMA will give the contractor advance notice.

If travel costs are incurred by the contractor, then they shall comply with the Federal Travel Regulations (FTR) and Federal Acquisition Regulations (FAR) Subpart 31.205- 46, Travel costs, when billing for travel expenses.

7.0 Security Requirements

All personnel require access to information up to the sensitive but unclassified, for official use only (FOUO) levels. Contractor must ensure contractor employees receive a favorably adjudicated public trust suitability prior to entry on duty (EOD). All individuals will be U.S. citizens. The contractor shall follow the standards established within DHS and FEMA policy.

Unauthorized Disclosure of Classified or Unclassified Information

Contractors and Subcontractors who are working on this contract shall receive Unauthorized Disclosure of Classified or Unclassified Information training.

Access to the training can be obtained at:

https://securityawareness.usalearning.gov/disclosure/index.html

Send the certificate of completion to the FEMA Contracting Officer Representative no later than 30 calendar days after awarded contract. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

OPSEC Training

Contractors and Subcontractors who are working on this contract shall receive the OPSEC Awareness Brief.

https://securityawareness.usalearning.gov/disclosure/index.html

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Access to the briefing can be obtained at:

https://securityawareness.usalearning.gov/opsec/index.htm

Send the certificate of completion to the FEMA Contracting Officer Representative no later than 30 calendar days after awarded contract. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

Insider Threat Training

Insider Threat training for Contractors can be found at:

https://securityawareness.usalearning.gov/itawareness/index.htm#

Certificate of training is required for all cleared contractor employees who are working with classified or unclassified information. All certificates must be sent to the assigned FEMA Contracting Officer Representative, before the Contractor or Subcontractor is granted access to classified or unclassified information but no later than 30 calendar days after awarded contract. All cleared contractor personnel are required to recertify Insider Threat training annually thereafter. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

For Official Use Only (FOUO) Information

In accordance with DHS Management Directive 11042.1 contractors, consultants and others to whom access is granted will abide by 11042.1; DHS policy regarding the identification and safeguarding of sensitive but unclassified information originated within DHS. It also applies to other sensitive but unclassified information received by DHS from other government and non-governmental activities.

The contractor will:

Be aware of and comply with the safeguarding requirements for “For Official Use Only” (FOUO) information as outlined in this directive.

Participate in formal classroom or computer-based training sessions presented to communicate the requirements for safeguarding FOUO and other sensitive but unclassified information.

Be aware that divulging information without proper authority could result in administrative or disciplinary action.

Contractors and Consultants shall execute a DHS Form 11000-6, Sensitive but Unclassified Information Non Disclosure Agreement (NDA), as a condition of access to such information. Other individuals not assigned to or contractually obligated to DHS, but to whom access to information will be granted, may be requested to execute an NDA as determined by the applicable program manager. Execution of the NDA shall be effective upon date of the DHS Policy and not applied retroactively.

Unauthorized Disclosure of Classified or Unclassified Information https://securityawareness.usalearning.gov/opsec/index.htm https://securityawareness.usalearning.gov/itawareness/index.htm

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Contractors and Subcontractors who are working on this contract shall receive the Unauthorized Disclosure of Classified or Unclassified Information training.

Access to the training can be obtained at:

https://securityawareness.usalearning.gov/disclosure/index.html

Send the certificate of completion to the FEMA Contracting Officer Representative no later than 30 calendar days after awarded contract. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

Foreign Travel and Government-Issued Equipment

Per DHS and FEMA IT policy, FEMA employees and contractors are not authorized to take government-issued equipment, including cell phones, computers, or tablets such as iPads, outside of the United States regardless of the reason for travel. If government-issued equipment is required for official foreign travel, FEMA government employees may request a temporary loaner device through the Mobility Service Center. Office of the Chief Information Officer, Service Center for the duration of their trip. FEMA contractors must contact their contracting officer’s representative (COR) for further guidance.

If your device is detected as operating outside of the United States and its territories it will be disabled, and your information will be forwarded to the Office of Professional Responsibility for review.

Background Investigations

All contractor personnel who require access to DHS or FEMA information systems, routine access to DHS or FEMA facilities, or access to sensitive information, including but not limited to Personally Identifiable Information (PII), shall be subject to a full background investigation commensurate with the level of the risk associated with the job function or work being performed. FEMA’s Personnel Security Division (PSD) will determine the risk designation for each contractor position by comparing the functions and duties of the position against those of a same or similar federal position, applying the same standard for evaluating the associated potential for impact on the integrity and efficiency of federal service.

Low Risk without Information System Access

Contractor personnel occupying positions or performing functions with a Low Risk designation and who do not require access to DHS or FEMA information systems may undergo a Tier 1 investigation with a credit check and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

(also reference Facility Access).

https://securityawareness.usalearning.gov/disclosure/index.html https://usfema.sharepoint.com/teams/FEMAET/it_tools/tsc/Pages/default.aspx https://usfema.sharepoint.com/teams/FEMAET/it_tools/tsc/Pages/default.aspx

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Low Risk with Information System Access

Contractor personnel occupying positions or performing functions with a Low Risk designation and who require access to DHS or FEMA information systems shall undergo a Tier 2 Suitability Background Investigation (T2) and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

Moderate Risk

Contractor personnel occupying positions or performing functions with a Moderate Risk designation shall undergo a Tier 2 Suitability Background Investigation (T2) and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

High Risk

Contractor personnel occupying positions or performing functions with a High Risk designation shall undergo a Tier 4 Suitability Background Investigation (T4) and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

Background Investigation Process

To initiate the request to process contractor personnel, the Contractor shall provide the FEMA Contracting Officer’s Representative (COR) with all required information and comply with all necessary instructions to complete Section II of the FEMA Form 121- 3-1-6, “Contract Fitness/Security Screening Request.” The FEMA COR shall ensure that all other applicable sections of the FEMA Form 121-3-1-6 are complete prior to submitting the form to FEMA PSD for processing. The Contractor shall also provide the FEMA COR with completed OF 306, “Declaration for Federal Employment,” forms for all contractor personnel.

Contractor personnel who already have a favorably adjudicated background investigation, may be eligible to perform work under this contract without further processing by FEMA PSD if:

the investigation was completed within the last five years, it meets or exceeds the minimum requirement for the position they will occupy or functions they will perform on this contract, the contractor personnel have not had a break in employment since the prior favorable adjudication, and, FEMA PSD has verified the investigation and confirmed that no new derogatory information has been disclosed which may require a reinvestigation.

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FEMA PSD will notify the COR of the names of the contractor personnel eligible to work based on prior, favorable adjudication. The COR will, in turn, notify the Contractor of the names of the favorably adjudicated contractor personnel, at which time the favorably adjudicated contractor personnel will be eligible to begin work under this contract.

For those contractor personnel who do not have an acceptable, prior, favorable adjudication or who otherwise require reinvestigation, FEMA PSD will issue an electronic notification via email directly to the contractor applicant/personnel that contains the following documents, which are incorporated into this contract by reference, along with a link to the Office of Personnel Management’s (OPM) Electronic Questionnaires for Investigation Processing (e-QIP) system and instructions for submitting the necessary information:

Standard Form 85P, “Questionnaire for Public Trust Positions”

Optional Form 306, “Declaration for Federal Employment”

SF 87, “Fingerprint Card” (2 copies)

DHS Form 11000-6, “Non-Disclosure Agreement”

DHS Form 11000-9, “Disclosure and Authorization Pertaining to Consumer Reports Pursuant to the Fair Credit Reporting Act”

FEMA PSD will only accept complete packages consisting of all of the above document and Standard Form 85P, which must be completed electronically through the Office of Personnel Management’s e-QIP system. The Contractor is responsible for ensuring that all contractor personnel timely and properly submit all required background information.

Once contractor personnel have properly submitted the complete package of all required background information, FEMA’s Personnel Security Division, at its sole discretion, may grant contractor personnel temporary eligibility to perform work under this contract prior to completion of the full background investigation if the Personnel Security Division’s initial review of the contractor personnel’s background information reveals no issues of concern. In such cases, FEMA’s Personnel Security Division will provide notice of such temporary eligibility to the COR who will then notify the Prime Contractor, at which time the identified contractor personnel will be temporarily eligible to begin work under this contract. Neither the Prime Contractor nor the contractor personnel has any right to such a grant of temporary eligibility. The grant of such temporary eligibility shall not be considered as assurance that the contactor personnel will remain eligible to perform work under this contract upon completion of and final adjudication of the full background investigation.

Upon favorable adjudication of the full background investigation, FEMA’s Personnel Security Division will update the contractor personnel’s security file and take no further action. In any instance where the final adjudication results in an unfavorable

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determination FEMA’s Personnel Security Division will notify the contractor personnel directly, in writing, of the decision and will provide the COR with the name(s) of the contractor personnel whose adjudication was unfavorable. The COR will then forward that information to the Contractor. Contractor personnel who receive an unfavorable adjudication shall be ineligible to perform work under this contract. Unfavorable adjudications are final and not subject to review or appeal.

Continued Eligibility and Reinvestigation

Eligibility determinations based on a Low Risk T1, Moderate Risk T2S or High Risk T4 are valid for five years from the date that the investigation was completed and closed. Contractor personnel required to undergo a background investigation to perform work under this contract shall be ineligible to perform work under this contract upon the expiration the background investigation unless and until the contractor personnel have undergone a reinvestigation and FEMA’s Personnel Security Division has renewed their eligibility to perform work under this contract.

Exclusion by Contracting Officer

The Contracting Officer, independent of FEMA’s Personnel Security Division, may direct the Contractor be excluded from working on this contract. Any contractor found or deemed to be unfit or whose continued employment on the contract is deemed contrary to the public interest or inconsistent with the best interest of the agency may be removed.

NOTE: In the event the training links above are not accessible, all required training may be accessed through the Security Awareness Hub (usalearning.gov).

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