SOLICITATION NOTICE
R -- Legal Knowledge and Expertise in Trust Law to Provide Analysis and Advice in Planning and Conducting the Historical Accounting of Individual Indian Money Accounts.
- Notice Date
- 6/13/2002
- Notice Type
- Solicitation Notice
- Contracting Office
- Minerals Management Service, GovWorks, 381 Elden Street, MS 2500, Herndon, VA 20170-4817
- ZIP Code
- 20170-4817
- Solicitation Number
- 85259
- Response Due
- 7/5/2002
- Archive Date
- 9/5/2002
- Point of Contact
- Wallace O. Adcox, Contracting Officer, (703) 787-1354
- Description
- Gov.Works is issuing this request for proposals on behalf of the Office of Historical Trust Accounting, U.S. Department of the Interior. This notice is a combined synopsis/solicitation for commercial services prepared in accordance with the format in the Federal Acquisition Regulations, Subpart 12.6, as supplemented with additional information included in this notice. THIS ANNOUNCEMENT CONSTITUTES THE ONLY SOLICITATION; OFFERS ARE BEING REQUESTED AND A WRITTEN SOLICITATION WILL NOT BE ISSUED. Contract period is for a base period of one year with two option years. The Government reserves the right to unilaterally extend the period of contract performance in accordance with FAR 52.217-9, "Option to Extend the Term of the Contract--Services". STATEMENT OF WORK: Objective: Long-term support, analysis, and expert legal advice provided to the Office of Historical Trust Accounting and Departmental leadership for the historical accounting on law and practice related to common law trust beneficiaries and private and commercial trustees. BACKGROUND: The Department of the Interior (Department) has the fiduciary responsibility on behalf of the U.S. Government to manage both Tribal trust funds and Individual Indian Monies (IIM) trust funds. These two trust funds and accounts are managed by Bureau of Indian Affairs (BIA) and the Office of the Special Trustee for American Indians (OST). The Office of Historical Trust Accounting (OHTA) was established on July 10, 2001, to plan for and direct the historical accounting of IIM accounts. The OHTA is developing a Plan for the Historical Accounting (Plan) which must be presented to and approved by the Congress to secure long-term funding, and to the District Court in relation to the Cobell v. Norton litigation (see below). In creating the OHTA, Interior Secretary Gale Norton set a first charge to prepare an initial plan for what must be addressed in the Plan. This initial plan submitted September 10, 2001, the Blueprint for Developing the Comprehensive Historical Accounting Plan for the Individual Indian Money Accounts, is the framework for preparing the Plan. The Secretary's second charge was to develop a plan for initial work that can begin before the is completed. The OHTA submitted on November 7, 2001, the Report Identifying Preliminary Work for the Historical Accounting. (Both documents are available on the OHTA website at www.doi.gov/ohta/). The OST, established by the American Indian Trust Fund Management Reform Act of 1994 (PL. 103?412), was created to improve the accountability and management of Indian funds held in trust by the Federal Government. Currently, OST maintains approximately 1,400 accounts for 315 Tribal entities with cash and investments of approximately $3.0 billion, and more than 285,000 IIM accounts with cash and investments of approximately $360 million. Annually, approximately $800 million passes through the Tribal trust fund, and approximately $300 million passes through the IIM trust fund. This income is generated from the sale or rental of Indian-owned land and natural resources such as timber, farming, grazing, and royalties from various minerals and oil and gas exploration and production, and from land use for rights-of-way and easements. Funds also are derived from interest earned on invested funds, as well as awards or settlements of Tribal or individual Indian claims. The BIA, along with the Department's Minerals Management Service and the Bureau of Land Management, manage the land records, and revenue collection and processing. COBELL V. NORTON: The facts underlying the Cobell v. Norton litigation involve a broad sweep of United States history. Although U.S. policy through the 1870s was to locate Indians on reservations, the government began to break up reservations starting in the 1880s. Thousands of individual Indians were allotted 60- to 120-acre parcels of land in the break-up. The government held these parcels in trust, and established an Individual Indian Monies Trust Fund to collect and disburse to the Indians any revenues generated by mining, oil and gas extraction, timber operations, grazing or similar activities on their land. In June 1996, a class action lawsuit was filed against the Department by five Indian plaintiffs on behalf of Individual Indian Money (IIM) account holders which asked for, in part, the historical accounting of IIM accounts. The case was divided into two phases: the first phase addressed the Department's efforts to reform the management of IIM trust funds, and the timing and scope of any second phase relating to actual accounting issues is not known at this time. Trial was held during June and July 1999 on the first phase of the complaint. On December 21, 1999, the U.S. District Court ruled that the Department was in breach of four specific duties. On appeal, the U.S. Court of Appeals for the District of Columbia affirmed the ruling of the District Court; however, it stated that the actual legal breach was the failure to provide an accounting. The D.C. Circuit Court of Appeals' ruling provides some guidance on the obligation of the Department to perform an accounting of the IIM accounts. Specifically, the Court of Appeals held that the relationship between the United States and the IIM account holders is a trust relationship that creates fiduciary obligations. See Cobell v. Norton, 240 F.3d 1081, 1099-1100 (D.C. Cir. 2001). In addition, the Court of Appeals held that, while the government's obligations are rooted in and outlined by relevant statutes and treaties, they are largely defined in traditional equitable terms: "Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." Courts "must infer that Congress intended to impose on trustees traditional fiduciary duties unless Congress has unequivocally expressed an intent to the contrary." Id. Much as the Supreme Court has regularly turned to the Restatement and other authorities to construe trust responsibilities, it is appropriate for the District Court to consult similar sources. Because of this, the Court of Appeals held that the United States owes a duty to account to the IIM beneficiaries. The Court of Appeals also held that the "1994 Act reaffirms the government's preexisting fiduciary duty to perform a complete historical accounting of trust fund assets," and found that the fair and accurate accounting referenced in Section 102 of the 1994 Act requires "reconciling the accounts, taking into account past deposits, withdrawals, and accruals," as well as reporting of "all items of property, income, and expenses. . . ." Id. at 1102-03. The Court of Appeals further stated that an "adequate" accounting is one that is "sufficient to serve the purposes for which a trust accounting is typically conducted." Id. at 1103. Therefore, the accounting "must contain sufficient information for the beneficiary readily to ascertain whether the trust has been faithfully carried out." Id. The Court of Appeals, however, acknowledged that there were substantial questions yet to be determined about the scope of the accounting owed by the United States. The Court of Appeals expressly stated that the decisions regarding the nature and scope of the United States' accounting were to be resolved by the Federal Government. Thus, while noting that the Department's actions would be judged by strict standards based upon the duty to deal fairly with the IIM beneficiaries, the Court of Appeals noted with approval that the District Court had "explicitly left open the choice of how the accounting would be conducted, whether certain accounting methods, such as statistical sampling or something else, would be appropriate. Such decisions are properly left in the hands of administrative agencies." Id. at 1104. It is within this context that the Department is designing its approach and will conduct the historical accounting using appropriate methods to fulfill its trust responsibility. HISTORICAL ACCOUNTING PROJECT: As part of the Department's overall trust reform efforts, the Department is undertaking an evaluation of the reliability of past IIM account activity. Part of this work is already underway for the period after enactment of the American Indian Trust Fund Management Reform Act of 1994. That work will not, however, discharge the Department's duty to account as outlined by the two courts. The mission of OHTA is to determine what will be required to meet the Department's duty to account, present the Plan for the work to Congress (and the Court), and upon appropriation of funds needed, implement the accounting. Given the length of time involved, the distinct histories of various groups of trust assets, the various business practices that generated trust income, known or suspected problems in the records, and other historical factors, the development of the Plan for the historical accounting is a complicated task. Among the things that must be evaluated are the relative costs, utilities, and impact upon beneficiaries of various approaches to providing the accounting for distinct subgroups of accounts or trust assets. The Plan for the accounting must be both fair to beneficiaries and feasible. Based on information developed through public meetings and from related efforts, including substantial work in relation to production of records for the five named plaintiffs, reconciliation of the five named plaintiffs' accounts, additional research and progress toward the historical accounting, and related trust reform efforts, the Department is developing a Plan, as requested by Congress in the fiscal year 2001 appropriations report language, describing in detail how the Department will conduct the historical accounting, the methods to be employed, the anticipated costs, and anticipated levels of confidence and accuracy in the results. In her Secretarial Order and memorandum of July 10, 2001, Secretary Gale Norton established the OHTA and charged the OHTA with planning and carrying out this historical accounting. NATURE OF THE CONTRACT: This contract is intended to provide the OHTA and the Department with independent expertise in trust and fiduciary law from the perspective of providing trust services to beneficiaries in a private or commercial trust relationship. Generally, the selected attorney contractor will consult with Office of Historical Trust Accounting and Office of the Solicitor staff on an ongoing basis. The attorney contractor will be asked to review materials provided by the OHTA through the Solicitor's Office and prepare legal memoranda which respond to legal issues presented in the implementation of the historical accounting plan, conducting the accounting, and reporting to beneficiaries. The attorney contractor's work products will be circulated to government staff and/or other government contractors for review and comment, and the attorney contractor may be asked to address such comments in the final draft of any work product. The attorney contractor may be asked to review documentation, including but not limited to relevant pleadings and briefs from earlier litigation, depositions, actuarial and historical materials, reports, plans, alternative proposals, accounting procedures, historical accounting results, information to beneficiaries, or may be asked to address specific issues and questions. The attorney contractor is expected to offer its own independent analysis and comments strictly from the standpoint of its own practice and experience as a trust attorney. As required, the contract may be modified, curtailed, or extended, as needed by the OHTA. The attorney contractor will not provide legal advice with regard to the current Cobell v. Norton litigation. DURATION: While the duration of this contract is envisioned to be approximately three years, the actual term will be determined by the attorney contractor's performance, need for private legal expertise, and available funding. LOCATION: It is anticipated that the contractor will be available for periodic meetings at its offices, at the Department of the Interior in Washington, DC, or at sites around the United States. Meeting frequency is expected to average about once a month. DIRECTION: The attorney contractor will work with and be directed by a representative of the Department of the Interior Solicitor, who will also be the contract technical representative for Interior. All tasking, reporting, and communicating procedures will be established at the start of the contract. TASKS AND DELIVERABLES: Tasks and deliverables on an ongoing basis will include but are not limited to: 1. Meet with Department staff and contractors, as well as personnel from other federal agencies; 2. Assist in evaluating submissions from the Court, from plaintiffs' counsel, or other sources and provide oral or written analysis; 3. Conduct legal research as requested and necessary, and provide independent, expert legal analysis, advice, comments, and recommendations based on the attorney contractor's trust law experience in the form of legal briefs, reports, or letters; 4. Participate in discussions with key OHTA, Departmental, and other contractor personnel on historical accounting, beneficiary relations, and related decisions, policies, procedures, and provide independent expert legal advice and recommendations as appropriate HOW TO PROPOSE: Offers must submit brief written proposals NOT EXCEEDING Fifteen (15) pages in length. The proposal shall detail the methodology by which the offer will meet our needs and demonstrate the relevant experience of the company and its key personnel. Resumes must accompany the proposal but do not count against the 15 page limit. The proposal must include a Management Plan detailing how the offeror will manage the project with a clear table of organization. The offeror must demonstrate in their proposal: 1) extensive experience acting as a trustee for a large number of clients; 2) record of exceptional past performance acting as a trustee. As part of the proposal, the Offeror shall provide the names, addresses, and telephone numbers of three (3) businesses or Government agencies for whom the Offeror has performed as a trustee. Offers must also submit a business proposal priced on a time-and-material basis. The proposal should be priced by task showing the position; loaded hourly rate; number of hours; and an estimate of other direct costs such as travel. EVALUATION CRITERIA: 1) Experience in law and practice related to common law trust beneficiaries and private and commercial trustees; 2) past performance in such law and practice; 3) technical approach; and 4) price. This is a best value procurement which favors technical competence over price. Experience and past performance are the most important evaluation factors with technical approach of secondary importance. Among offers considered technically equal, price will be the deciding factor. The following provisions/clauses are incorporated by reference: FAR 52.212-1, Instructions to Offerors-Commercial Items (Oct 2000); FAR 52.212-2, Evaluation-Commercial Items (Jan 1999); FAR 52.212-3, Offeror Representations and Certifications-Commercial Items (May 2001); FAR 52,212-4, Contract Terms and Conditions-Commercial Items (May 2001); and FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or executive Orders-Commercial Items (May 2001). Copies of these provisions and clauses are available via the World-Wide Web at http://www.arnet.gov/far/. Offerors may download and use the FAR 52.212-3 section from the website or request a copy from the Contracting Officer. You may fax a written request for these documents to the Contracting Officer at 703/787-1387 or send an e-mail request to "Wallace.adcox@mms.gov". OFFERS MUST BE RECEIVED BY 4:00 P.M. (LOCAL TIME) ON July 5, 2002, AT MINERALS MANAGEMENT SERVICE, GovWorks, MS 2500, 381 ELDEN ST., HERNDON, VA 20170. Offers must include the following: (a) the 3 references described above, (b) the completed Offeror Representations and Certifications-Commercial Items FAR provision 52.212-3, and (c) time-and-materials priced offer for the base period and two option years. You should submit one original and five (5) copies of your proposal. We would also appreciate a digital copy submitted via e-mail by the due date. All correspondence must reference RFP 85259. PLEASE FAX OR E-MAIL ANY QUESTIONS. TELEPHONE INQUIRIES ARE STRONGLY DISCOURAGED.
- Record
- SN00093198-W 20020615/020613213306 (fbodaily.com)
- Source
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