Appendices
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Statutory Compliance
- Contacts
- Electronic Billing
- Legal Services
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Delegations of Authority
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Litigation &
Resolutions Branch
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Corporate
Operations Branch
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Supervision
Branch
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Consumer &
Legislation Branch
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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
Client
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.
1.4 Equal
Employment Opportunity and Diversity
The FDIC has a strong commitment to equal
opportunity under the law. As a part of the FDIC’s 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.
1.5 Ethical
Considerations
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
firm’s/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.
1.6 Workpapers
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.
1.7 Audit
Rights
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.
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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.
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1.9 Contacts with the Media and the Public
Under no circumstances shall experts or LSS providers comment to
the media on FDIC matters.
Media Inquiries
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.
Speaking Engagements
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
Oversight Attorney
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).
Performing Services
During the course of providing services, the Oversight Attorney
will:
• Review the expert’s or LSS provider’s 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.
1.11 Alternative
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.
1.12 Termination
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.
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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.
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