3.1 Purpose of
Contract The contract is an agreement for legal
support services between the expert or LSS provider and the FDIC that
contain terms and conditions applicable to experts and legal support
services. The four (4) types of contracts and their purposes are:
The purpose of this agreement is to establish
terms and conditions for the engagement of Experts to provide
expert services in support of litigation in the Winstar related
cases pending (or that may be brought) against the United States.
3.2 Duration of
Agreement for Services
The purpose of this agreement is to engage contractors
for the provision of services in support of pending or on-going
The agreement shall remain in effect for a
specified period of time from the effective date set forth in the
agreement (the Oversight Attorney may negotiate a longer period with
approval of the appropriate delegated authority), but subject
however, to earlier termination by the FDIC with or without cause or
advance notice. If no effective date is indicated, the agreement is
effective as of the date signed by the FDIC.
3.3 Duration of Agreement for Services
The rates (hourly or flat) charged by the expert and LSS
provider and their billable individuals should be listed on a rate
schedule and should include all overhead. Hourly or flat rates, for
example, are listed on rate Schedule A and should be submitted by
the expert as Schedule A to the Agreement for Expert Services.
The Agreement for Legal Services for a specified
service or product defines the agreed firm fixed price under Section
1 (Sale and Purchase of Services). A Statement of
Work (SOW) describing the services to be performed with
quantities, delivery dates, and place(s) of delivery should be
submitted by the expert or LSS provider as Schedule A to the
Agreement for Legal Services. The firm fixed price includes all
taxes, insurance, transportation, and delivery charges.
The Oversight Attorney shall review the schedule
and ensure that the expert or LSS provider meets the needs of the
subject case. Individuals not listed on the rate schedule should be
added to the rate schedule amendment form prior to performing
Absent compelling reasons no increase in the rate
schedule attached to the agreement will be permitted during its
term, other than as may be provided in the agreement.
The agreement may be extended on its existing
terms by mutual agreement of the parties.
If the continuation agreement is approved, the
agreement will continue until the earliest of:
All work on outstanding legal support services
A new agreement is executed; or
FDIC exercises its right to terminate the
Continuation of the agreement is not the same as
renewal of the agreement. Continuation does not permit the expert or
LSS provider to receive any new legal support matters.
It is the expert or LSS provider's responsibility to inform the FDIC
of all new or changed information concerning the firm/business.
Information that needs to be updated includes, but is not limited
Structural changes in the firm/business;
New tax identification number; and
Adding or removing billable individuals.
In addition, payment of invoices may be delayed if
information is not up-to-date. The Oversight Attorney should be
contacted immediately if the expert or LSS provider is unsure
whether or not an amendment to the agreement is required.
Structural Changes The expert or LSS provider may need to amend their agreement
when a structural change occurs in the firm/business. Structural
changes may impact the expert or LSS provider's relationship with
the FDIC in the area of conflicts of interest. In addition,
structural changes may also impact the FDICs invoice payment
Examples of structural changes include:
Merger or other ownership changes;
Change from a partnership to a professional
Name change; or
Change of address or addition of a new branch
After reviewing information that the expert or LSS
provider submits concerning any structural change, the FDIC office
or section that oversees the agreement for services will determine
what action is appropriate.
Note: If the expert or LSS provider's
firm/business has multiple offices, identify the branch office(s)
in which the structural change occurred by entering the city and
state in which the office is located on the Amendment Form.
New Tax Identification Number (TIN)
A new tax identification number -
Word (TIN) that does
not include a structural change requires, at a minimum, an amendment
to the agreement. The expert or LSS provider should submit an
amendment form - Word. If the FDIC determines that a
new agreement is necessary, the FDIC may permit the expert or LSS
provider to continue to handle existing assignments or may suspend
the agreement until a new agreement is executed.
changes that result in a new federal TIN require the execution
of a new agreement. A new TIN also changes information used
for payment of invoices by Electronic Funds Transfer ("EFT") and
may require the execution of new EFT forms.
See EFT Guidelines.
The expert or LSS provider must inform the FDIC
in writing when adding or removing billable individuals to a rate
schedule. Complete the amendment form when any billable individual
is added or removed.
a. Complete a separate form for each branch office
of a multiple office firm/business. Enter the federal tax
identification number, name of firm/business, and branch office
b. Make changes, as appropriate, to the name of
firm/ business, address, telephone number, fax number, e-mail
address, and contact person;
c. If the individual has a minority status, type:
A for Asian American
B for Black American
H for Hispanic American
N for Native American Indian;
d. Type M for male or F for female in the gender
e. Type the hourly or flat rate; and
f. Sign and date the completed amendment form.
Note:The expert or
LSS provider may attach continuation sheets if necessary to
document changes to the agreement.
2. If the expert or LSS provider submits a letter
rather than the amendment form, the letter must include all of the
information requested on the amendment form.
3. The expert or LSS provider should mail the
original form or letter to the Oversight Attorney.
4. Except for experts or LSS providers retained by
the Receivership Goodwill Section, the expert or LSS provider should
mail a copy of the form or letter to the Legal Division:
Federal Deposit Insurance Corporation
Attn: Legal Services Group (LSG)
3501 Fairfax Drive - Room VS-E-6066
Attn: Carl Polvinale
Arlington, VA 22226
5. Experts and LSS providers retained by the
Receivership Goodwill Section should mail a copy of the form or
Federal Deposit Insurance Corporation
Receivership Goodwill Section
550 17th Street, NW, Room MB-3120
Attn: Mike Condon
Washington, D.C. 20429-9900
6. The expert or LSS provider should send a copy
of the form or letter to any other Legal Division office with which
the expert or LSS provider does business.
7. The FDIC will notify the expert or LSS provider
if the request to amend the agreement is approved. The expert or LSS
provider will receive a copy of the fully-executed amendment form in
the mail. The expert or LSS provider may not bill the FDIC for the
services of billable individuals who have not been included on the
FDIC-approved rate schedule or Schedule A.
Note: When the expert or
LSS provider request an amendment to an agreement, the Legal
Division may elect to:
Amend the existing agreement;
Require the expert or LSS provider to enter into a new
Take other actions to protect the interests of the
3.6 Byrd Amendment -- Engagements Over $100,000
If the amount of the approved budget(s) exceeds
$100,000, the expert or LSS provider must comply with provisions of
the Byrd Amendment and its requirements.
3.7 Budget and Schedule
Once the expert or LSS provider has been selected
to provide services for the FDIC, the expert or LSS provider must
submit a formal budget and
rate schedule - Word indicating the approximate
cost of the services, if applicable, to the Oversight Attorney.
The budget is a vital tool in cost control and
oversight. Budget information controls costs and payment of
invoices. Except in a case of extreme urgency, the FDIC Legal
Division must approve the budget before beginning services.
Experts and LSS providers must contractually agree
that budgets impose firm maximum amounts for fees and expenses.
Unauthorized cost or expense overruns will not be reimbursed or
otherwise paid. Advances must be obtained through the Oversight
Attorney by approved delegated authority.
cannot be paid unless an approved budget and rate schedule is in
The FDIC uses on an on-going basis the cost estimates and other
information provided in the budget to assess cost-effectiveness
and measure progress. The Legal Division recognizes that
estimates may be affected by changed circumstances; but, because
the estimates are used in making business decisions, they must
be as accurate as possible.
The budget form translates the case plan into financial
expectations. The budget form should conform to the case plan for services rendered.
Completing the Budget Form
Following are the instructions for completing a
1. The expert or LSS provider should complete all
requested information on the budget form.
2. In particular, the expert or LSS provider
should indicate in the appropriate box whether the billing is at a
flat or an hourly rate. Refer to the following table to determine
information required for the type of billing entered.
Complete all phases of the budget in which fees and expenses
Record the flat fee as a total without further itemization by
Submit the estimated completion date and
allowable related expenses for each phase
3. If appropriate, the expert or LSS provider
should calculate the total estimated number of hours for all
services for each action.
4. Expert or LSS provider must sign and date the
3.8 Budget and Schedule Submission
The following steps outline the submission and
1. Once the budget, schedule, and case plan are
completed, it is submitted to the Oversight Attorney for approval.
If the budget is
in excess of $100,000, the expert or LSS provider must comply
with the Byrd Amendment by
submitting the Byrd Amendment Certification or Disclosure form
with the budget, rate schedule, and case plan.
2. The Oversight Attorney will review the budget,
rate schedule, and case plan. If it is satisfactory, the Oversight
Attorney will recommend approval by the appropriate FDIC delegated
3. The Legal Division will notify the expert or
LSS provider when the budget, rate schedule, and case plan are
3.9 Amended Budget If the approved budget is not sufficient to
complete all services, an amended budget and rate schedule is to be
submitted. When it is anticipated that the approved budget is not
likely to be sufficient, the expert or LSS provider should not wait
until after the approved budget is exceeded.
Written approval from the Legal Division is
required for any increase in the approved budget. Make sure the
amendment has been approved before the budget is exceeded. The Legal
Division allows exceptions to this policy only when extraordinary
Note: Failure to
obtain written FDIC approval for an amended budget will be
deemed a serious breach of duty to the FDIC and may result in
non-payment or disallowance of fees or expenses exceeding
authorized amounts. The expert or LSS provider must report to
the Oversight Attorney immediately any anticipated budget
An amended budget, rate schedule, and case plan contains:
Amended case plan, or explanatory narrative; and
Amended budget form and/or an amended rate schedule.
Note: If the
amended budget exceeds $100,000, the expert or LSS provider must
comply with theByrd Amendment.
If the previous budget exceeded $100,000, it is not necessary to
submit another Byrd Amendment Certification.
Completing the Amended Budget and Schedule The Oversight Attorney should ensure that the expert or LSS
provider completes the following instructions for completing an
amended budget and rate schedule.
1. Prepare a separate narrative explaining the reasons for the
2. If necessary, prepare an amended case plan that provides
detail commensurate with the significance of the services.
3. Fill out all requested information on the amended budget form,
in a manner similar to the original budget form.
4. Mark the appropriate box if the expert or LSS provider has
submitted a previous amended budget.
5. Use the most recent approved figures in the column for
6. Sign and date the amended budget.
3.10 Amended Budget and Schedule Submission
The following steps outline the submission and approval process:
1. Once completed, the amended budget and rate schedule should be
submitted to the Oversight Attorney for approval. This package
consists of the amended case plan and budget form.
2. The Oversight Attorney reviews the amended budget and rate
schedule. If it is satisfactory, the Oversight Attorney will
recommend approval by the appropriate FDIC delegated authority.
3. The Legal Division will notify the expert or LSS provider when
the amended budget, rate schedule, and case plan are approved.