Management System Owner: General Counsel
Revision and Date: Revision 5.0 - July 2, 2018
The purpose of the Legal Management System (LMS) is to facilitate effective, proactive, and efficient legal advice and support of Fermi Research Alliance, LLC, (FRA) and the Laboratory's operations in accordance with applicable laws, regulations, DOE requirements, and the M&O (Management and Operating) Contract. The LMS includes risk identification and mitigation, policies and processes, legal project management systems, procurement and other reviews and approvals, M&O Contract modification and interpretation work, regular communications, and continuous improvement. The LMS is evolving with the development and roll out of enhancements and broadening of the legal support resources and reach.
Office of General Counsel (OGC)
Types of OGC functions:
Senior Management Responsibilities/Administrative:
Owns and oversees the LMS and other DOE contractor legal management requirements.
Identifies legal risks and mitigation strategies, with input from other MSOs.
Owns and establishes policies, processes, and training relating to legal requirements and overall compliance and ethics issues.
Provides input, advice, and assistance with other policies and processes (Laboratory or Department-wide).
Fosters relationships with Departments and Divisions to encourage and provide proactive legal input, advice and support.
Advises and partners with MSOs, SMEs, Laboratory personnel and FRA leadership on legal issues and legal risk mitigation.
Ensures the Laboratory mitigates potential liability and addresses insurable risk through appropriate insurance arrangements, and is responsible for developing the Laboratory Risk Management Policy for insurable and uninsurable
Maintains a current copy of the Prime Contract between FRA and DOE (DE-AC02-07CH11359).
Participates in Laboratory Senior Management strategic planning and development, including Laboratory Planning, Enterprise Risk, and large project development and delivery. Partners with and counsels Senior Management on matters relating to the management and operation of the Laboratory.
Advises MSOs, SMEs, and Laboratory or FRA personnel on legal issues and legal risk mitigation:
Review of Regulatory orders;
Establishes and updates standard Terms and Conditions (T&C's) for Procurement and other contractual agreements; works with SMEs in situations where customized T&C's are appropriate.
Ensures the Laboratory is protected from liability through:
Legal review of agreements;
IP and Partnering (engagement with OPTT);
Appropriate insurance arrangements;
Owns and establishes policies, processes, and training relating to legal requirements and overall compliance and ethics issues.
Provides input, advice, and assistance with other policies and processes (laboratory or department-wide).
Reviews all new Laboratory policies.
Pursuant to the Legal Management Plan, manages outside legal counsel including retention and work.
Fosters relationships and partners with Departments and Divisions to encourage and provide proactive legal input, advice, and support.
Advises MSOs, SMEs, Laboratory personnel, and FRA leadership on legal issues and legal risk mitigation.
Legal review and development of agreements:
Liaison with FRA and Board on all of above.
Chief Financial Officer (CFO)
Work together to ensure knowledge of potential liabilities for Budget planning and audit/ reporting purposes
Advises and establishes budgets, reserves (including litigation reserves), and audit reporting on legal matters.
Contract requirements relating to finance and financial reporting.
Financial Reporting and Audit.
Board facing activities.
Laboratory Director and Chief Operating Officer
Secures and allocates resources to support implementation of LMS and provision of legal services.
Supports legal function and ethics culture of Laboratory through communications, directions, and actions.
Approves lab-wide policies and communications relating to legal matters.
Manages lab-wide issues and Prime Contract requirements and corporate governance.
Contract requirements relating to Laboratory operations and direction.
Consults with OGC regarding risk and liability concerns in all areas of the Laboratory.
Manages corporate matters as liaison to the FRA Board.
Chief Laboratory Officers, Departments Heads,
Partner and establish relationships with OGC to facilitate proactive legal support.
Assure implementation of legal advice and requirements in their organizations.
Office of Partnerships and Technology Transfer
Process owner for SPPs, CRADAs, NPUAs, and other partnerships between Fermilab and outside entities, including international agreements.
Partners with and engages OGC regarding technology transfer and agreement legal issues, including terms and conditions.
Procurement Manager and Administrators
Implement legal requirements, terms and conditions in procurement matters.
Seek legal review as required on procurements.
Work with OGC on disputes with subcontractors, terminations and other subcontractor actions.
Partner with OGC on standards and risk management.
Partner with OGC regarding claims and disputes.
Conduct activities in compliance with the Code of Ethics and Conduct.
Conduct activities in compliance with the FRA Code of Business Ethics and Conduct Program.
Utilize reporting mechanisms and channels to seek legal advice and report.
Fraud/waste and abuse disclosure.
Disclosure of conflicts and other sensitive and/or confidential information.
Liaison with OGC regarding matters involving Laboratory activities impacting Members and Directors.
DOE (FSO and DOE-CH)
Liaison and coordinate on all Laboratory matters impacting the M&O Contract, DOE, Office of Science.
Part I Section C.4(c)(7) – Legal Services "The Contractor shall maintain legal support for all contract activities including, but not limited to, those related to patents, licenses, and other intellectual property rights; subcontracts; technology transfer; environmental compliance and protection; labor relations; and litigation and claims."Part I Section C, Clause C.3.1.4 Operational and Financial Management Excellence — shared responsibility with senior managers to ensure applicable law and regulations are understood and followed.Part II, Section I, Clause I.8A – FAR 52.203-13 Contractor Code of Business Ethics and Conduct.Part II, Section I, Clause I.89 – DEAR 970.5203-3 Contractor's Organization.Part II, Section I, Clause I.112- DEAR 970.5228-1 Insurance – Litigation and Claims.Part I, Section H, Clause H.47 – Risk Management and Insurance Programs.Other Clauses for which OGC has responsibility or input are listed below in Section 6.0 Additional References and in the FRA Contract Clause Mapping to Management Systems.FRA Contract Clause Mapping to Management Systems: https://fermipoint.fnal.gov/organization/ood/cas/ Fermilab Performance Evaluation and Measurement Plan (PEMP)
Legal support for the PEMP Goals, Objectives, and Notable Outcomes
10 CFR 719 – Contractor Legal Management Requirements; Acquisition Regulations.DOE Acquisition Letter 2014-03 – Allowability of Contractor Costs of Litigation Defense and Settlement (in light of Secretary of the Army v. Tecom, 566 F.3d 1037 (Fed. Cir. 2009)).FAR 31.205-47 as modified by DEAR 970.3102-05-47– Costs Related to Legal and Other Proceedings.
The overall approach of the OGC for its LMS is to develop channels of communication and relationships throughout the Departments and Divisions of the Laboratory to foster proactive legal support and counsel on Laboratory operations and strategies, in addition to facilitating effective response to legal or litigation issues that arise. The LMS elements include risk identification management and mitigation, policies and processes, legal project management systems, procurement matter reviews and approvals, M&O Contract modification and interpretation work, regular communications, and continuous improvement.
Reporting Mechanisms - Fraud/waste/abuse/ethics hotline
Enterprise legal risks are identified through the Laboratory's Enterprise Risk Ranking activities, with mitigations and risk responses that also tie into the legal policy, processes, and training activities. Additional legal risks are identified on a continuing basis, with mitigation plans and responses developed as needed.
The OGC also mitigates and manages risk through assessment of Laboratory insurance needs and availability, and the procurement and management of appropriate insurance programs and consulting services.
The OGC owns policies and procedures relating to legal issues and has input into others. The OGC has specific ownership of the Code of Business Ethics and Conduct Program and related procedures, processes and training. The OGC publicizes the Code of Business Ethics and Conduct Program through the website, administers the "Ask the Ethicist" program, and conducts training on Code of Business Ethics and Conduct Program issues. The OGC also distributes reminders on various issues such as reporting fraud, waste, and abuse and conflict of interest issues.
For policies and procedures owned by other MSOs, the OGC provides input and advice on development, implementation, and enforcement. The OGC reviews all new Laboratory policies. The OGC works to ensure that the Laboratory overall has appropriate policies and procedures through the following types of activities, which are ongoing and dynamic:
The OGC maintains several logs to manage legal matters: (1) a general action log; (2) P.O./Procurement review log; and (3) a log relating to reviews for the OPTT.
The OGC is evaluating various commercially available Enterprise Legal Management systems to enhance the project management, tracking, and reporting capabilities and to include functionality to manage P.O.s, e-billing, documents, litigation or project status and communication, and insurance claims.
Litigation management is governed by 10 CFR 719,Part II, Section I, Clause I.112 of the M&O Contract, and the FRA Legal Management Plan, each of which include requirements for outside counsel retentions, engagement letters, staffing and resource plans, and billing. In addition, DOE Acquisition Letter 2014-03 and FAR 31.205-47 as modified by DEAR govern allowability of costs and settlements on litigation (and pre-litigation) matters. The OGC is developing a custom set of T&Cs for legal services agreements, a "Doing Business with the OGC" manual to provide guidance to outside counsel on particular requirements for working with Fermilab and complying with 10 CFR 719, and a Fermilab Litigation Response Plan.
In accordance with the M&O Contract and DOE requirements, the OGC reports to and seeks approval as required by DOE (the Fermi Site Office or DOE-Office of Science and Integrated Service Center, Office of Chief Counsel) on retention of counsel, staffing and resource management, and resolution for "significant matters."
The OGC reviews and approves procurements over established thresholds by amount, subject matter, or DOE approval/notice requirements in accordance with the Procurement Policy and Procedures Manual. The OGC works with Procurement and project leads to develop new agreements and contractual vehicles for delivering projects outside the normal scope of Procurement (e.g., LBNF/DUNE and SURF Operations).
The OGC owns the standard T&C's for laboratory procurements. The process of reviewing and updating or enhancing the T&C's is ongoing. Customized T&C's and modules are being considered for development.
The OGC works with DOE on the modifications and updates to the M&O Contract and with MSOs and SMEs to implement contract modifications.
The OGC utilizes numerous avenues of internal and external communication to support the Legal Management System. Among other things, this communications structure enhances the ability to provide proactive legal input and counsel and allows for the sharing of information and best practices with similarly situated contractors.
The LMS is not static. The assessments made and steps taken for each of the component elements are dynamic and evolving in order to achieve continuous improvement. The OGC is organizing Rapid Improvement Events to improve processes and tools, including as they relate to procurements and contracting, and developing Key Performance Indicators (KPIs) and measures to assess the Legal Management System and to identify areas of focus for continuous improvement.
Prime Contract Clauses for which Legal has responsibility or input:
Pursuant to the FRA Prime Contract, the LMS applies to all FRA and Fermilab activities in South Dakota. Accordingly, the OGC supports all South Dakota activities under the LMS, including but not limited to:
As appropriate, the OGC engages and manages outside counsel licensed in South Dakota, as prescribed by the Legal Management Plan and 10 CFR 719.