Legal Support Services Deskbook
Working for the FDIC Legal Division
1.1 Scope of the Legal
Support Services Deskbook ("LSS Deskbook")
The Legal Support Services Deskbook (LSS Deskbook) describes the policies and procedures that must be followed by experts and legal support service (LSS) providers engaged by the Federal Deposit Insurance Corporation (FDIC) Legal Division.
1.2 Identifying the FDIC as a
Experts and LSS providers may list the FDIC as a client in published materials with adherence to the following restrictions.
Experts and LSS providers may not represent that they have been approved as experts or LSS providers for the FDIC. Experts and LSS providers are required to comply with all applicable ethics rules regarding advertising, including those restrictions pertaining to claims of expert status, expertise, or specialization. Experts and LSS providers may not quote FDIC materials or staff comments concerning performance evaluations.
1.3 Statutory Compliance
The Legal Division requires all experts and LSS providers to comply with all applicable statutes and regulations, as well as orders, policies, procedures, and directives. Refer to Appendix A for a representative list of applicable federal laws and regulations.
Employment Opportunity and Diversity
The FDIC has a strong commitment to equal opportunity under the law. As a part of the FDICs Minority and Women Outreach program, the Legal Division seeks to actively consider for engagement firms owned by minorities and/or women. Moreover, the FDIC expects its contractors and sub-contractors to take affirmative action to ensure that all individuals have equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a qualified covered veteran as defined by 38 U.S.C. § 4212(a)(3). The Legal "Minority-owned businesses" are those that are at least 51% owned and controlled (through day-to-day management) by one or more persons who are members of one or more of the following groups:
- Asian Pacific Americans;
- Black Americans;
- Hispanic Americans;
- Native American Indians;
- Sub-Continent Asian Americans; and
- Members of other groups designated from time to time by the Small Business Administration (SBA)
"Women-owned businesses are those that are at least 51% owned and controlled (through day-to-day management) by non-minority women. Businesses claiming minority- or women-owned status must certify their status as such to the FDIC, and the FDIC may require additional information to verify the status.
The Legal Division works to ensure the inclusion of minorities and women to the maximum extent possible. (See 12 C.F.R. Part 361) The FDIC provides assistance to minority- or women-owned businesses and minorities and women within other businesses with request for waivers of conflicts of interest or other matters relating to the retention of experts and LSS providers. If interested in such assistance, contact the Office of Minority and Women Inclusion.
The FDIC expects experts and LSS providers to maintain the highest ethical standards and to comply with all applicable laws, rules, and regulations governing ethical conduct. In particular, experts and LSS providers should be cognizant of the following:
- To avoid any appearance of an ethical conflict, neither the expert, LSS provider, nor any person associated with the potential or engaged expert or LSS provider shall provide any gift, gratuity, favor, entertainment, loan, or other thing of monetary value to any employee of the FDIC. (See 5 C.F.R. § 2635, Subpart B, Standards of Ethical Conduct for Employees of the Executive Branch.) While private businesses may host social or holiday functions for business associates and others with whom they do business, there are limitations on attendance at these events by FDIC employees. With few exceptions, FDIC employees may not solicit or accept gifts or loans from anyone who does, or seeks to do, business with the FDIC.
- Experts and LSS providers may hire former FDIC employees, but as former employees they are subject to the government-wide post-employment statute, 18 U.S.C. § 207, which affects what they can do for firms/businesses. Generally, however, former FDIC employees may work on matters that they worked on personally or which were under their supervision while at the FDIC, only when their post-employment employer is not in a position adverse to the FDIC.
- If an FDIC employee was involved in negotiating the firms/business current FDIC agreement for services, that individual, upon joining the firm/business may not, during the duration of the agreement renegotiate the rate schedule, request changes in billable individuals, or be involved in any matter pertaining to questions of the competence of the services provided by the firm/business under the agreement for services.
For more information, contact the Ethics Unit of the FDIC Executive Secretary Section in Washington, D.C. at (202) 898-7287.
and Document Ownership - Assignment of Rights
Workpapers and other work product (whether in paper or on magnetic or electronic media, e.g. including but not limited to tapes or disc) ("workpapers"), prepared by experts and/or LSS providers or accomplished under their direction or control are the property of the FDIC.
Under no circumstances may the engaged firm/business withhold files from the FDIC for any reason including a payment dispute.
Experts and LSS providers must permit the FDIC, the FDIC Office of Inspector General, and the Government Accountability Office, or their representatives, to conduct audits or reviews of FDIC billings, including previously paid invoices. All paid invoices are subject to audit and Legal Division review regardless of disallowance taken during the bill review and approval process.
For purposes of subsequent audits and Legal Division review, experts and LSS providers must retain copies of all invoice packages and original underlying support documentation, including time sheets, cancelled checks, invoices, and time and expense adjustment records, for at least three years after final payment for services provided.
The record keeping requirements for electronic billing (timekeeping) systems are discussed in Appendix C. The FDIC reserves the right to obtain additional information upon review of any itemized bill or support documentation.
1.8 Fees and Expenses
The Legal Division expects to receive expert and legal support services at competitive fixed prices or hourly rates.
The expert and LSS provider must include in their fixed prices or hourly rates, its costs for doing business, including all "overhead," general and administrative costs, fringe benefits, and profit. The expert or LSS provider may not submit (and the FDIC will not pay) invoices for such costs of doing business. "Markups" above any costs actually incurred by the expert or LSS provider for any supplies or services obtained for the Legal Division shall not be charged to the FDIC. Any discounts received are expected to be passed on to the FDIC.
The FDIC will only pay reasonable costs for services rendered or supplies provided in the course of engagement for expert or legal support services. All invoices for services rendered and expenses to be reimbursed must be consistent with the agreement for expert or legal support services. The invoice process is discussed in Chapter 5. The FDIC will not pay inflated hours or other artificially inflated prices.
|Note: (1) The submission of erroneous bills or requests for reimbursement of inappropriate charges may result in civil or criminal sanctions. (2) Under no circumstances may experts or LSS providers attempt a set-off or recoupment, obtain a charging or retaining lien, or withhold files in the event of a dispute over payment for services rendered.|
1.9 Contacts with the Media and the Public
Under no circumstances shall experts or LSS providers comment to the media on FDIC matters.
Instead, experts and LSS providers shall promptly advise the FDIC Oversight Attorney of all media inquiries concerning FDIC matters. The Oversight Attorney shall refer the inquiry to the FDIC Office of Public Affairs in Washington, D.C., at (202) 898-6993 for response.
If experts or LSS providers address the public at seminars or other functions on topics pertaining to the FDIC or laws and regulations affecting the FDIC, the LSS provider must disclose to the audience that they are making the presentation on their own behalf and not on behalf of the FDIC.
1.10 Role of FDIC
Attorneys in the Legal Division will act as "Oversight Attorneys" and are responsible for managing all legal assignments and litigation, including experts and LSS providers. Experts and LSS providers must consult with the Oversight Attorney on all major strategic or tactical decisions.
Beginning to Provide Legal Services
It is important that before experts and LSS providers begin providing services for the FDIC, that the FDIC Oversight Attorney identify clearly the objectives to be achieved and possible alternative courses of action. As a general matter (depending in part on the scope of the assignment), the Oversight Attorney will:
- Define the goals and objectives to be achieved;
- Outline roles and expected duties; and
- Discuss with the expert or LSS provider the scope of the optional case plan, and/or the required budget, and schedule designed to achieve the FDIC's goals and objectives in a cost-effective manner (refer to Chapter 4 and Chapter 5).
During the course of providing services, the Oversight Attorney will:
- Review the experts or LSS providers work;
- Monitor progress against the agreement for legal support services;
- Review and obtain approval of any significant changes in the agreement for legal services or case plan;
- Keep FDIC business personnel informed of developments; and
- Coordinate contacts between experts and LSS providers and FDIC business personnel, as discussed below.
Contacts with Other FDIC Offices
All contact with non-legal FDIC personnel should be made through the Legal Division. This policy permits the most efficient utilization of resources and serves to avoid duplication of effort and to minimize costs. Therefore, experts and LSS providers are expected to direct all communications to the Oversight Attorney, except in the following circumstances:
- When the Oversight Attorney indicates otherwise;
- Immediate action is required and neither the Oversight Attorney nor his/her supervisor can be reached;
- Responding to an FDIC Legal Division review request;
- Responding to the FDIC's Office of Inspector General; or
- Seeking limited factual information that can only be obtained in a relatively brief amount of time (such as pay off figures for a loan or the address of a borrower).
- Under special circumstances or in certain types of litigation your Oversight Attorney may make arrangements for more extensive direct contact with FDIC business personnel. This might occur, for example, in a case involving an in-depth investigation of an institution's records.
Charges for time and expenses related to contacts other than those authorized may not be paid.
Dispute Resolution ("ADR")
The FDIC is committed to the use of alternative dispute resolution (ADR) in appropriate situations. The FDIC views such techniques as potentially less costly, less time consuming, and a more effective means of resolving appropriate disputes.
The Legal Division reserves the right to discontinue its relationship with the expert or LSS provider, with or without cause, if it is determined that it is in the best interest of the FDIC. Terminations of services will be in writing. Verbal notification will also be confirmed in writing.
The expert or LSS provider will be contacted and provided instructions concerning disposition of files and other FDIC property.
|Note: The expert or LSS provider must forward, upon demand of the Legal Division, all files, workpapers, work product, and documents (whether in paper or on magnetic or electronic media, e.g. including but not limited to tapes or discs) concerning the terminated expert or legal support services including all work product of the firm/business. It is important that the expert or LSS provider promptly forward materials as instructed. Failure to do so may delay or prevent payment of the final invoice. Under no circumstances may the expert or LSS provider withhold files, documents, work product, or workpapers in the event of a dispute with the FDIC.|