Request for Quotations: Legal Support for Water Transactions in the Columbia Basin

OVERVIEW

The National Fish and Wildlife Foundation (NFWF) seeks a qualified Contractor to assist the Columbia Basin Water Transactions Program (CBWTP) with legal support for water transactions. The purpose of this RFQ is to identify legal service providers who are interested and qualified to assist NFWF with legal review and any issues arising in the evaluation, selection, and funding of water transactions. Efficient and effective legal review of water transactions is central to the program goal to secure water for in-stream tributary flows at a location(s) where low flows are a limiting factor to fish survival, productivity, and distribution and for the maximum reach of river legally and physically possible. The period of performance is anticipated to run from the award date to September 30, 2027, with the possibility to extend in annual increments, pending satisfactory completion of tasks and funding availability.

BACKGROUND

CBWTP funds development and implementation of water transactions in the United States portion of the Columbia Basin and is the largest instream flow restoration program in the country. Since its inception in 2002, CBWTP has implemented 725 voluntary water transactions and secured approximately 2.95 million acre-feet of water in flow-limited tributaries of the Columbia River Basin, enough to provide for the annual domestic use of approximately 32 million Americans. CBWTP works across portions of Oregon, Washington, Montana, and Idaho, and its investments in water transactions have increased stream flows for the benefit of native fish species, including Pacific salmon, steelhead trout, and resident fish species. More details on the program's goals and impact are available on NFWF's website. Funding for this program is primarily provided by the Bonneville Power Administration (BPA). One award will be made for this contract.

SCOPE OF WORK

NFWF seeks a qualified Contractor to assist with CBWTP transaction legal due diligence and review transaction proposals and documentation submitted by on the ground practitioners, known as Qualified Local Entities (QLEs). Program reviews and analyses should support payment approval for water transactions in certain streams and/or subbasins. The following tasks constitute the Scope of Work for this Request for Quotations. The Contractor should anticipate at least quarterly check-in calls with the CBWTP Program Manager throughout the duration of the project to discuss progress, address challenges, and develop a strategy for future efforts. Any required reports and deliverables will be sent to the CBWTP Program Manager. Please provide time and cost quotes for each task using the Contractor Budget Template provided (through 9/30/27).

Task 1: Review water transaction proposals and provide feedback on legal issues or concerns as part of the CBWTP Technical Advisory Committee.

In accordance with NFWF's water transaction process, all CBWTP water transaction proposals are reviewed by a Technical Advisory Committee (TAC). The TAC currently consists of representatives from U.S. Fish and Wildlife Service (USFWS), the Bonneville Power Administration (BPA), the U.S. Forest Service (USFS), the Northwest Power and Conservation Council (NPCC), the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), the Confederated Tribes of the Colville Reservation (CTCR), and expert consultants in monitoring, water rights valuation, and water law. This task includes serving as the water rights law expert in these meetings. NFWF typically has three transaction solicitations per year in which eligible QLEs can submit proposals for funding. The TAC meets three times a year to review and score submitted proposals. Each solicitation generates 5-20 proposals.

Before TAC review, QLEs are required to provide a landowner agreement, conflict of interest list, map of proposed water rights involved in the water transaction, and a water right diligence form that summarizes QLE legal diligence on the transaction. The selected Contractor will then review these documents for completeness and consistency with the Program's funding requirements. Legal concerns will be raised by the Contractor for each transaction during the TAC review meeting. Examples include ensuring all transactions have an enforceable landowner agreement, ensuring the water right(s) associated with the transaction are not at risk of legal forfeiture, and ensuring all transactions provide sufficient documentation to prove they are purchasing water from the legal owner(s) of the water rights in a proposed transaction.

The selected Contractor is required to inform NFWF if there is a conflict of interest with a water rights seller and recuse themselves from reviewing any transactions associated with such seller(s) as appropriate.

Deliverable: For each TAC-approved proposal, the selected Contractor must provide a summarized document of findings from their legal review, which includes potential risks, legal concerns, and/or legal errors that can or should be resolved by NFWF and/or QLEs prior to providing payment for the transaction. Note that for permanent transactions with terms of 30 or more years (including renewals), a pre-TAC meeting review is required but subsequent legal review will be conducted by BPA's Office of General Counsel.

Task 2: Complete a comprehensive review of water transaction documentation.

In accordance with CBWTP processes, once a transaction is ready for invoice, QLEs will submit signed landowner agreements and state agency approval (or equivalent) documentation to complete the transaction. The selected Contractor will provide a final review of this complete package of transaction materials and update any legal review documents to confirm the legal review. BPA's Office of General Counsel will conduct this legal due diligence for transactions with terms of 30 or more years.

Deliverable : For each TAC-approved transaction, the selected Contractor must provide an updated summary document that contains confirmation that the legal risks outlined in the deliverable of Task One have been resolved and the transaction review has been completed.

Task 3: Advise NFWF on program strategies and improvements.

The selected Contractor will advise NFWF, as needed, on potential improvements to CBWTP to enhance efficiency and effectiveness of program operations within the context of legal review. Contractor should anticipate providing guidance on federal regulations and the Northwest Power Act, be able to provide informational presentations and trainings to program participants upon request, advise on strategic communication with BPA, NPCC, federal and tribal partners, and advise on issues of strategic importance to the program.

REQUIRED EXPERTISE AND PROPOSED STAFF

A. Knowledge and track record: Applicants must demonstrate expertise and experience with legal needs and requirements of instream flow transactions, state change applications and final orders, and working with federal agencies.
B.Experience in CBWTP region: Preference will be given to providers who have experience working in or are otherwise familiar with the Columbia River Basin and specifically within subbasins that have been identified as priorities for flow and fisheries restoration by federal, Tribal, and state agencies. Providers must demonstrate familiarity and expertise with the Oregon, Washington, Idaho, and Montana legal systems, or show how they will learn any new systems.
C. Capacity and flexibility to deliver services: Providers must demonstrate that they have a degree of flexibility in how and where services are delivered, and that they have the ability to tailor content and delivery methods to meet the specific needs of the CBWTP.

CRITERIA FOR COMPETITIVE APPLICATIONS

Proposals will be evaluated and scored on the following criteria. Offerors should organize their Proposal Narrative based on these sections:

1. Understanding of the Scope of Work. The Scope of Work must demonstrate an understanding of the goals of the activities involved. This section should include a description of how you will communicate with NFWF and program stakeholders and report on progress, results, and deliverables. Weight: 10%
2. Technical Approach. The proposed technical approach for conducting the tasks should clearly describe the proposed methods necessary to conduct the project. The section must demonstrate that those methods are robust and appropriate for conducting the project and address any areas of complexity or uncertainty associated with conducting the project. Weight: 30%
3. Qualifications of Proposed Personnel. This section should clearly describe which tasks each member of the team will conduct and how their training and experience provide the requisite experience to do so successfully. Weight: 15%
4. Contractor's Past Performance. The proposal should include information on the primary investigator(s)'s past performance experience in the requested field. List recent (last 2-5 years) accomplishments and previous services related to the technical expertise offered. If subcontractors are to be used, information should be provided that demonstrates their past performance as well. Describe how that past performance is applicable to this evaluation.
   Weight: 15%
5. Budget. The proposed budget should itemize work in sufficient detail to enable reviewers to evaluate the appropriateness of the entire funding request. You must use attached Contractor Budget Template. You may add columns to the template for additional tasks if needed, but should not make any other changes. If applicable, please include the proposed budget for equipment purchase in the proposal separate from the Contractor Budget Template. The total budget should be no greater than $90,000. Weight: 30%

ELIGIBLE OFFERORS & CONFLICT OF INTEREST STATEMENT

Eligible applicants include institutions of higher education, other nonprofits, commercial organizations, international organizations, and local, state and Indian tribal governments.

By submitting a proposal in response to this solicitation, the offeror warrants and represents that it does not currently have any apparent or actual conflict of interest, as described herein. In the event an offeror currently has, will have during the life of the contemplated contract, or becomes aware of an apparent or actual conflict of interest, in the event an award is made, the offeror must notify NFWF in writing in the Statement of Quotations, or in subsequent correspondence (if the issue becomes known after the submission of the Statement of Quotations) of such apparent or actual conflicts of interest, including organizational conflicts of interest. Conflicts of interest include any relationship or matter which might place the contractor, the contractor's employees, or the contractor's subcontractors in a position of conflict, real or apparent, between their responsibilities under the award and any other outside interests, or otherwise. Conflicts of interest may also include, but are not limited to, direct or indirect financial interests, close personal relationships, positions of trust in outside organizations, consideration of future employment arrangements with a different organization, or decision-making affecting the award that would cause a reasonable person with knowledge of the relevant facts to question the impartiality of the offeror, the offeror's employees, or the offeror's future subcontractors in the matter. Upon receipt of such a notice, the NFWF Contracting Officer will determine if a conflict of interest exists and, if so, if there are any possible actions to be taken by the offeror to reduce or resolve the conflict. Failure to resolve conflicts of interest in a manner that satisfies NFWF may result in the proposal not being selected for award.

By submitting a proposal in response to this solicitation, the Offeror warrants and represents that it is eligible for award of a Contract resulting from this solicitation and that it is not subject to any of the below circumstances:

Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an Contract with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government; or

Was convicted (or had an officer or agent of such corporation acting on behalf of the corporation convicted) of a felony criminal violation under any Federal or State law within the preceding 24 months, where the awarding agency is aware of the conviction, unless the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government; or

Is listed on the General Services Administration's, government-wide System for Award Management Exclusions (SAM Exclusions), in accordance with the OMB guidelines at 2 C.F.R Part 180 that implement E.O.s 12549 (3 C.F.R., 1986 Comp., p. 189) and 12689 (3 C.F.R., 1989 Comp., p. 235), "Debarment and Suspension, " or intends to enter into any subaward, contract or other Contract using funds provided by NFWF with any party listed on the SAM Exclusions in accordance with Executive Orders 12549 and 12689. The SAM Exclusions instructions can be found here: https://www.sam.gov/SAM/

SUBMISSION REQUIREMENTS

Proposals must be submitted under the same cover at the same time, in three distinctly labeled and separate documents: 1) Technical Proposal, 2) Budget, and 3) Evidence of Financial Stability. Interested parties should submit proposals electronically to the CBWTP Program Coordinator, Ernest Newborn ([email protected]) using the requirements below:

1. Technical Proposal
   • Format: Proposals must be provided in Word format or searchable PDF with a font size no smaller than 11 pt.
   • Contact information: Primary contact person, company name, address, phone, email, website, DUNS number, and EIN/Taxpayer ID#.
   • Narrative: Concise (10-page limit) description of the work plan and a summary of the applicant's expertise and experience, organized by the Criteria for Competitive Applications.
   • Biographies: Resumes and/or Vitae of key staff and their role in the proposed work area.
   • References: List two clients who have received services from the applicant that is similar in nature to the proposed work; include names, phone numbers, and email address.
2. Budget: The budget proposal must be submitted using the following NFWF budget template. A budget must be submitted with the application:
   • Budget for Current Period of Performance - Detail the hours, personnel, and tasks needed to complete each task prior to 9/30/2027.
   • Overall Budget for Complete Scope of Work - Provide a budget estimate for all tasks described above, including the hours, personnel, and tasks needed.
3. Evidence of Financial Stability: The applicant shall provide proof of financial stability in the form of financial statements, credit ratings, a line of credit, or other financial arrangements sufficient to demonstrate the applicant's capability to meet the requirements of this solicitation.
4. Professional Liability Insurance: The applicant shall provide proof of professional liability insurance in the form of a Certificate of Insurance or other documentation sufficient to demonstrate the applicant has a current and up to date policy of professional liability.

SELECTION PROCEDURE

A panel of NFWF staff will review the proposals. Offerors may be asked to modify objectives, work plans, or budgets prior to final approval of the award. Only one award will be made for this project. If multiple institutions are involved, they should be handled through subcontracts.

SUBMISSION DEADLINES