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(M16) Legal
Contractor Assurance

​​​​​Management System Owner: General Counsel

Revision and Date: Revision 5.0 - July 2, 2018

1.0            Pu​​rpose

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.  

2.0            Roles and Responsibili​​​ties

Title Responsibiliti​es

Office of General Counsel (OGC)

Types of OGC functions:

​Senior Management Responsibilities/Administrative:

  • Owns and o​versees the LM​​S 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 risk.​

  • 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.

Risk Management:

  • 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.

  • Advises MSOs, SMEs, and Laboratory or FRA personnel on legal issues and legal risk mitigation:

    • ​Review of Regulatory orders;

    • Federal law;

    • State law.

  • 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;

    • Procurement;

    • IP and Partnering (engagement with OPTT);

    • Appropriate insurance arrangements;

    • Others.​​

Compliance:

  • 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.

Counseling:

  • Fosters relationsh​​ips and partners with Departments and Divisions to encourage and provide proactive legal input, advice, and support.

  • Provides input, advice, and assistance with other policies and processes (Laboratory or Department-wide).

  • Advises MSOs, SMEs, Laboratory personnel, and FRA leadership on legal issues and legal risk mitigation.

  • Legal review and development of agreements:

    • Procurement;

    • IP and Partnering (engagement with OPTT);

    • Others.

Corporate:

  • Liaison with FRA and Board on all of above.​


Response:

  • Serve as part of Emergency Operations Center (EOC) Command in tertiary liaison function.
  • Serve as part of the Emerge​​ncy Circumstances Committee.
  • Incident response functions; works with appropriate Laboratory management and areas to respond to incidents as they raise legal issues, obligations, or reporting requirements.

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.

  • Cost allowability.

  • Contract requirements relating to finance and financial reporting.

  • ​Financial Reporting and Audit.

  • Board facing activities.

Laboratory Director and Chief Operating Officer (COO)

  • 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, and Deputies

  • 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 (OPTT)

  • 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.​

​Users, Visitors

  • ​Conduct activities in compliance with the Code of Ethics and Conduct.​

​Employees

  • ​​​Conduct activities in compliance with the FRA Code of Business Ethics and Conduct Program.

  • Implement T&C's.​

  • 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.

  • Whistleblower protection.​

​FRA Board

  • ​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.​

3.0            Primary Requireme​​nts

3.1 M&O Contract

  • ​​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


​​​​3.2 Regulations, Orders, and Other Requirements

  • ​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.​

4.0            Management System Description Over​​view

​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.  


4.1 Risk Identification, Management, and Mitigation

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.


4.2 Policies and Procedures

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:

  • Inventory and Collection of Policies and Procedures
    • Legal
    • Lab-wide; owned by Legal
    • Lab-wide; Legal input
    • Department
  • Assessment of gaps, redundancies, and revisions or updates needed
  • Drafting, with input from stakeholders
  • Implementation, with assistance from Departments
  • OCG reviews all new Laboratory policies
  • Assessment of compliance and enforcement process and record keeping

4.3 Legal Action Management

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."​


4.4 Procurement 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.


4.5 M&O Contract: Interpretation, Modification, and Update

The OGC works with DOE on the modifications and updates to the M&O Contract and with MSOs and SMEs to implement contract modifications.


4.6 Communications

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.

  • Weekly Lab Status meetings
  • Weekly Senior Management meetings
  • Weekly FSO meetings
  • Bi-weekly meetings with the CFO
  • Regular meetings with the OPTT
  • Regular communications and meetings with WDRS
  • Benefits Committees
  • Regular communication and reporting to DOE-SC-ISC, OCC
  • Regular communications with and reporting to FRA members and their counsel; FRA Board
  • Inter-laboratory GC calls
  • Participation in the Department of Energy Contractor Attorneys Association (DOECAA)

4.7 Continuous Improvement

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.


5.0            Reports, Audits, A​​ssessments and Required Records

5.1 Rep​​orts

  • Quarterly Litigation Reports to DOE
  • Contingent Liability Reports to DOE 2x each year
  • Contingent Liabilities Reports to Accounting Annually
  • Report on Litigation to outside Auditors
  • Prepare costs of outside counsel to accounting annually
  • Provide legal report to Board of Directors prior to each meeting

5.2 Required Records


The OGC currently has the "Legal Office Records Inventory and Disposition" schedule in place, which tracks the DOE Administrative Records Schedule. It maintains file folders for all required subjects, such as litigation, insurance, administrative and office, non-disclosure and confidentiality agreements, request for records, historical files etc. The complete "Legal Office Records Inventory and Disposition" schedule can be found on the Fermilab Records Management website (http://ccd.fnal.gov/records/restrict/LEGAL-FilePlan.pdf).Contract mapping shows 45 clauses – see them all listed below.​

6.0            Additional References​​

​Prime Contract Clauses for which Legal has responsibility or input:

Part I

  1. C.4(c)(7) – Legal Services
  2. G.3 – Contract Administration
  3. H.15 - Cap on Liability
  4. H.18 – Application of DOE contractor requirements documents
  5. H.19 – External Regulation
  6. H.21C – Post Contract Responsibilities for pension and other benefits plans
  7. H.22 – Contractor Acceptance of Notices of violations or alleged violations, fines and penalties
  8. H.23 – Allocation of responsibilities for contractor environmental compliance activities
  9. H.24 – Workers' Compensation
  10. H.30 – Lobbying Restriction (Consolidated Appropriations Act, 2105)
  11. H.37 – Defense and Indemnification of Employees
  12. H. 43 – Special Financial Institution Account Agreement

    ​Part II
  13. I.1 – FAR 52.202-1 Definitions (Nov 2013); modified by DEAR 952.202-1
  14. I.2 – FAR 52.203-3 – Gratuities (Apr 1984)
  15. I.5 – FAR 52.203-7 Anti-Kickback Procedures (May 2014)
  16. I.6 – FAR 52.203-8 Cancellation, Rescission and Recovery of Funds for Illegal or Improper Activity (May 2014)
  17. I.7 – FAR 52.203-10 Price or Fee Adjustment for illegal or improper activity (May 2014)
  18. I.8 (a) – FAR 52.203-12 Limitation on Payments to influence certain federal transactions (Oct 2010)
  19. I.8 (b) – Prohibition
  20. I.8 (c) – Exceptions
  21. I.8 (d) – Disclosure
  22. I.8 (e) – Penalties
  23. I.8A FAR 52.203-13 Contractor Code of Business Ethics and conduct (Oct. 2015)
  24. I.8A (c) – Business ethics awareness and compliance program and internal control system
  25. I.8C – FAR 52.203-15 Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (June 2010)
  26. I.8D – FAR 52.203-17 Contractor Employee Whistleblower Rights and Requirement to inform Employees of Whistleblower Rights (April 2014)
  27. I.12A – FAR 52.209-9 Updates of publicly available information regarding responsibility matters (Jul 2013)
  28. I.14 – FAR 52.215-8 Order of precedence – Uniform contract format (Oct 1997)
  29. I.16B – FAR 52.215-17 Waiver of facilities capital cost of Money (Oct 1997)
  30. I.19 – FAR 52.219-16 Liquidated Damages – Subcontracting Plan (Jan 1999)
  31. I.20– FAR 52.219-28 Post-Award Small business program representation (Jul 2013)
  32. I.50 – FAR 52.232-24 Prohibition of assignment of claims (May 2014)
  33. I.51 – FAR 52.233-1 Disputes (May 2014)
  34. I.52A – FAR 52.233-4 Applicable Law for breach of contract claim (Oct 2004)
  35. I.67 – FAR 52.252-6 Authorized Deviations in Clauses (Apr 1984)
  36. I.85 - DEAR 952.250-70 Nuclear Hazards Indemnity Agreement (Oct 2005) -
  37. I.89 – DEAR 970.5203-3 Contractor's Organization (Dec 2000)
  38. I.90 – DEAR 970.5204-2 Laws, Regulations and DOE directives (Dec 2000) (Deviation)
  39. I.106 – DEAR 970.5227-4 Authorization and Consent (Aug 2002)
  40. I.107 – DEAR 970.5227-5 Notice and Assistance regarding patent and copyright infringement (Aug 2002)
  41. I.108 – DEAR 970.5227-6 Patent Indemnity – Subcontracts (Dec 2000)
  42. I.112 – DEAR 970.5228 – 1 Insurance - Litigation and Claims (Jul 2013)
  43. I.115 – DEAR 970.5231-4 Preexisting Conditions (Dec 2000) (Alternate II) (Dec 2000)
  44. J.9.A-15 – Departmental Directives Program
  45. J.40 – Privacy Act of 1974


7.0            Definitions of Acronyms and Te​rms

Acronym Definition
OGC Office of the General Counsel
MSOManagement System Owner
SMESubject Matter Expert
T&CsTerms and Conditions
OPTTOffice of Partnerships and Technology Transfer
​P.O.​Purchase Order
​LMS​​Legal Management System
 
​​ 

8.0            Extension of Management System To South Dakota

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:

  • Support to the South Dakota Services Division
  • Support to LBNF/DUNE, and all related procurement activities
  • Management of insurable risk
  • Liaison with legal counsel for all third parties related to South Dakota activities
  • Counsel regarding FRA government affairs activities within the State of South Dakota
  • Compliance with requirements unique to the South Dakota Science and Technology Authority and the Sanford Underground Research Facility property
  • Advocacy on behalf of FRA and Fermilab with relevant State of South Dakota agencies
  • Management of dispute resolution​

As appropriate, the OGC engages and manages outside counsel licensed in South Dakota, as prescribed by the Legal Management Plan and 10 CFR 719.