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Legal Fees Paid Under the
Troubled Asset Relief Program:
An Expanded Report

SIGTARP 11-004

September 28, 2011

Office of the special inspector general
For the Troubled Asset Relief Program
1801 L Street, NW, 4th floor
Washington, D.C. 20220

 
 

September 28, 2011

MEMORANDUM FOR:

Mr. Timothy Massad – Assistant Secretary for Financial
Stability, Department of the Treasury

FROM:

Ms. Christy L. Romero – Acting Special Inspector General
for the Troubled Asset Relief Program

SUBJECT:

Legal Fees Paid Under the Troubled Asset Relief Program:
An Expanded Report (SIGTARP 11-004)

We are providing this audit report for your information and use. It is our expanded report
on legal fees paid under the Troubled Asset Relief Program, which was created by the
Emergency Economic Stabilization Act of 2008. The Office of the Special Inspector
General for the Troubled Asset Relief Program conducted this audit under the authority
of Public Law 110-343, as amended, which also incorporates the duties and
responsibilities of inspectors general under the Inspector General Act of 1978, as
amended.
We considered comments from the Department of the Treasury when preparing the final
report. The comments are addressed in the report, where applicable, and a copy of
Treasury’s response to the audit is included in Appendix K – Management Comments, of
this report. Names of individuals and proprietary contractor pricing information have
been redacted in this final report.
We appreciate the courtesies extended to our staff. For additional information on this
report, please contact Mr. Kurt Hyde, Deputy Special Inspector General for Audit and
Evaluation (Kurt.Hyde@treasury.gov / 202-622-4633), or Ms. Kimberley A. Caprio,
Assistant Deputy Special Inspector General for Audit and Evaluation
(Kimberley.Caprio@treasury.gov / 202-927-8978).

SIGTARP 11-004

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Legal Fees Paid Under the Troubled Asset
Relief Program: An Expanded Report

Table of Contents
Introduction ................................................................................................................................................. 1 
The OFS Contracts with the Four Law Firms Did Not Include Sufficiently Detailed Billing
Requirements or Instructions.................................................................................................................. 5 
OFS Did Not Have Sufficiently Detailed Procedures for Reviewing Legal Fee Bills ............................... 6 
SIGTARP’s Criteria for Reviewing Fee Bills Paid by OFS Were Based on the FAR and Best
Practices of Other Federal Entities ......................................................................................................... 7 
For the Four Law Firms, SIGTARP Found Block Billing, Either No Descriptions of Work or
Vague Descriptions of Work, and Administrative Charges – All of Which OFS Should Have
Questioned Before Payment ................................................................................................................... 9 
The OFS Process for Awarding Legal Service Contracts Provided Adequate Price Competition........... 21 
Update on SIGTARP’s Recommendations Made in the Venable Report ................................................ 24 
Conclusions and Recommendations ......................................................................................................... 25 
Management Comments and SIGTARP’s Response ................................................................................ 28 
Appendix A – Scope and Methodology .................................................................................................... 29 
Appendix B – Potential Billing Issues ...................................................................................................... 32 
Appendix C – Questioned Legal Fees by Category .................................................................................. 33 
Appendix D – Contracting Services Provided to OFS by Other Treasury Offices and
Responsibilities of Contracting Officers and Contracting Officer’s Technical Representatives ......... 34 
Appendix E – OFS Legal Service Contracts............................................................................................. 37 
Appendix F – OFS Proposal Evaluation Rating Scale and Definition of Rating Terms ......................... 39 
Appendix G – Payment-Related FAR Clauses Incorporated into OFS Contracts .................................... 40 
Appendix H – New OFS Guidance to Its Outside Counsel on Legal Fee Bill Submission and
Format .................................................................................................................................................. 41 
Appendix I – Acronyms and Abbreviations ............................................................................................. 42 
Appendix J – Audit Team Members ......................................................................................................... 43 
Appendix K – Management Comments.................................................................................................... 44 

This report has cleared SIGTARP’s Office of General Counsel disclosure review process and information
determined to be restricted from public release has been redacted from this report.
Redaction Legend: (b)(4) – 5 U.S.C.§ 552(b)(4), Trade Secrets, Commercial or Financial Information.
(b)(6) – 5 U.S.C.§ 552(b)(6), Personal Information Affecting an Individual’s Privacy. 

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1

Introduction
The Department of the Treasury (“Treasury”) has paid law firms millions of
dollars for professional services related to the Troubled Asset Relief Program
(“TARP”). The Office of the Special Inspector General for the Troubled Asset
Relief Program (“SIGTARP”) audited Treasury’s processes for contracting for
and payment to five of these law firms. From the inception of TARP to
March 31, 2011, Treasury’s Office of Financial Stability (“OFS”), which
administers TARP, paid these five law firms more than $27 million in fees and
expenses. SIGTARP began an audit of OFS policies and practices governing
OFS contracts with the five law firms in May 2010 as part of SIGTARP’s
continuing oversight of TARP and in response to a request from Senator Tom
Coburn, M.D. (SIGTARP Engagement Code 021.) Senator Coburn was
interested in how OFS awarded contracts for professional services, whether firms’
labor rates were consistent with industry norms, and whether taxpayers were
getting the best value for these services. SIGTARP’s reporting objectives were to
determine whether OFS contracting processes for legal services ensure:



contractors submit invoices (“fee bills”) that accurately reflect the work
performed; and
contractors charge fair and reasonable prices.

As SIGTARP conducted its audit, it found weaknesses in the OFS contract for
legal services with Venable, LLP (“Venable”), as well as the OFS procedures for
review of Venable’s fee bills. Venable’s fee bills to OFS happened to be the first
law firm’s bills audited by SIGTARP. SIGTARP’s initial review of other law
firms’ contracts and fee bills at the time the Venable report was issued suggested
that they too raised similar weaknesses and issues. In light of the magnitude of
legal fees that continue to be paid by OFS under TARP, SIGTARP decided to
issue a report based on its findings on Venable’s bills and made four
recommendations designed to provide OFS an opportunity to quickly strengthen
its policies, controls, and contracts to better protect taxpayers. OFS agreed to
implement SIGTARP’s recommendations. That report – “Treasury’s Process for
Contracting for Professional Services under TARP,” SIGTARP 11-003 (the
“Venable report”) – was issued April 14, 2011, and is available at
www.SIGTARP.gov.
This report presents the results of SIGTARP’s audit of the remaining four law
firms’ contracts and fee bills. The four firms are:  
 




SIGTARP 11-004

Simpson Thacher & Bartlett LLP (“Simpson Thacher”);
Cadwalader Wickersham & Taft LLP (“Cadwalader”);
Locke Lord Bissell & Liddell LLP (“Locke”); and

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

2

Bingham McCutchen LLP (“Bingham”), formerly McKee Nelson LLP.1

As of March 31, 2011, OFS had paid these four law firms more than $25.5 million
in legal fees and expenses that were subject to SIGTARP’s audit. SIGTARP
conducted this audit between May 2010 and May 2011, and in accordance with
generally accepted government auditing standards prescribed by the Comptroller
General of the United States. For a discussion of the audit’s scope and
methodology, see Appendix A.
 

SIGTARP found weaknesses in the OFS contracts with the four firms for legal
services and OFS policies for reviewing and paying legal fee bills. The findings
were similar to SIGTARP’s previous report. SIGTARP found that the four firms
submitted, and OFS paid, bills that contained one or more of the following:






no descriptions of the work performed;
vague descriptions of the work performed;
descriptions of more than one task in the time entry (“block billing”);
expense charges without adequate support; and
administrative charges not allowed under the contract.

Because of the lack of adequate detail in the fee bills and lack of support for
expenses, in many instances, OFS would not have been able to assess adequately
the reasonableness of individual hourly charges and expenses.
SIGTARP likewise was not able to assess the reasonableness of most of the law
firms’ fees. SIGTARP questioned $8.1 million of the $9.1 million (89%) of legal
fee bills reviewed. The most striking example of fees questioned by SIGTARP is
from the law firm Simpson Thacher. Simpson Thacher billed OFS $5.8 million in
fees and expenses with bills that provided no detail whatsoever as to the work
performed. Further, Simpson Thacher did not provide any receipts, or adequate
documentation, for its expenses as required in one of its contracts, and billed for
expenses under another contract that did not allow expenses. SIGTARP
questioned all $5.8 million in fees and expenses OFS paid to Simpson Thacher.
Without knowing what specific work was included in the charges, OFS could not
have determined whether the fees and expenses the firm was paid were properly
allocable to the contract, allowable pursuant to financial regulations, and
reasonable, which are the requirements of the Federal Acquisition Regulation
(“FAR”).
Although SIGTARP questioned fee bills from all of the law firms audited, this
does not mean that all the fees and expenses SIGTARP questioned were
unreasonable. Instead, it means that the information provided in the bills was
1

McKee Nelson LLP merged with Bingham McCutchen LLP in August 2009. The new firm uses the Bingham
McCutchen name. In November 2009, OFS accepted the contractor’s request to novate the contract (substitute a new
contract for the old one) and recognized Bingham McCutchen as the successor. All terms and conditions of the
contract remained the same.

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insufficient to allow SIGTARP – or OFS – to fairly assess their reasonableness.
Overall, OFS should determine the allowability of $7,980,215 in unsupported
legal fees and expenses paid to the law firms, and disallow and seek recovery
from Simpson Thacher for $91,482 in ineligible fees and expenses paid that were
specifically not allowed under the OFS contract. Further, Simpson Thacher billed
for staff in unapproved “counsel” and “senior counsel” labor categories not
included in its contract or task orders, and OFS was not consistent in its payment
for those labor categories – sometimes reimbursing the charges at partner rates
and other times at associate rates. Overall, while this may have reduced OFS’
legal fees, the substitution of labor categories and rates after contract award was
not documented in contract modifications.
In the Venable report, SIGTARP concluded that OFS contracts and fee bill review
practices created an unacceptable risk that Treasury, and therefore the American
taxpayer, was overpaying for legal services. Therefore, SIGTARP made four
recommendations. OFS agreed to implement SIGTARP’s recommendations and
adopted new guidance for law firms on preparation of fee bills. OFS told
SIGTARP that it sent that guidance to all of the law firms with which it currently
has contracts and provided additional training to OFS staff. SIGTARP will
continue to monitor OFS’ progress in implementing SIGTARP’s
recommendations.
In determining whether the prices the law firms charged OFS were fair and
reasonable, SIGTARP first reviewed the OFS contract award process and found
that the process was adequate and in compliance with applicable provisions of the
FAR, which governs Federal executive agencies’ acquisition of supplies and
services. OFS awarded all contracts with the five firms that SIGTARP reviewed,
including Venable, under a provision in the FAR that allows the use of other than
full and open competition due to an unusual and compelling urgency, and
SIGTARP found that OFS followed multiple established procedures in
accordance with the FAR. Although OFS had narrowed the competitive field by
selecting firms that would receive a request to submit an offer to the Government
(rather than soliciting offers from all interested sources as would be required
under a full and open competition), OFS solicited, received, and evaluated
multiple offers before awarding these contracts. Further, even though OFS also
limited offeror response times and OFS evaluation times so contracts could be
awarded quickly, SIGTARP concluded that the OFS process provided adequate
price competition.
 

However, notwithstanding the professional service prices in the contract,
SIGTARP found that OFS paid Simpson Thacher the full amount Simpson
Thacher billed for its foreign subcontractor, even though the charges were at rates
significantly above the ceiling rate in the contract. OFS paid more than $520 per
hour above the maximum allowable partner rate, $220 above the maximum
allowable associate rate, and $152 more than the maximum legal assistant rate.
Notwithstanding the fact that there was no need for OFS to pay more for these

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services since Simpson Thacher had already agreed in its contract to provide these
services at a lower rate, SIGTARP found no documentation to justify OFS paying
the higher rates. In total, OFS overpaid Simpson Thacher $68,936 for the work of
this subcontractor, and OFS should seek reimbursement of the amount paid in
excess of the maximum rates provided for in the contract. SIGTARP considers
these costs ineligible for reimbursement under OFS contract provisions.
In this report, SIGTARP is making new recommendations for OFS to determine
the allowability of unsupported legal fees and expenses and recover ineligible
legal fees and expenses paid to the four law firms, as well as all other law firms.
To further improve controls over the review and payment of legal fee bills, OFS
should also require pre-approval of all contracted legal staff and pre-justification
of their billing rates. SIGTARP’s specific recommendations are discussed later in
this report.

SIGTARP 11-004

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5

The OFS Contracts with the Four Law Firms
Did Not Include Sufficiently Detailed Billing
Requirements or Instructions
Similar to what SIGTARP found in the Venable contract, SIGTARP found that
the contracts with these four law firms did not contain detailed billing
requirements, instructions regarding the preparation of fee bills, or specific
guidance on allowable costs and services. Instead, the contracts incorporated only
general payment information by reference to two FAR provisions governing
payment. SIGTARP also examined the task orders issued under the contracts, but
none included any additional invoice or billing requirements. The task orders did
include instructions on how to email fee bills to Treasury’s vendor pay system for
payment, but did not provide instructions on how the fee bills should be structured
or how attorneys and paralegals should document and report their time for each
activity.
OFS contracts with the law firms ultimately govern allowable services and costs.
As SIGTARP reported previously, if OFS had included specific, detailed
provisions regarding billing methods, and allowable services and costs in its
contracts, or had more effective internal procedures for reviewing legal fee bills,
the billing issues SIGTARP identified should not have been allowed.

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6

OFS Did Not Have Sufficiently Detailed
Procedures for Reviewing Legal Fee Bills
SIGTARP found weaknesses in OFS’ then-existing procedures for reviewing
invoices from contractors because the procedures lacked sufficient detail. As
previously discussed in more detail in SIGTARP’s Venable report, SIGTARP
reviewed the OFS “Contracting Officer Technical Representative (COTR)
Nomination and File Organization Procedures” (“COTR procedures”) and the
OFS “Administration Procedures” to determine whether these procedures are
sufficient to ensure payments are made only for invoices submitted by contractors
that adequately and accurately reflect the work performed and that only include
allowable costs. The COTR procedures state, in Section 4.3.1.2, Contract
Performance Management, that COTR duties may include, “Reviewing contractor
invoices to ensure costs are allocable to the contract, allowable pursuant to
financial regulations, and reasonable.” However, the procedures do not provide
specifics on allowable and unallowable costs, services, and charges; nor are
COTRs separately provided this information as a guide to perform reviews of the
fee bills. The OFS procedures do not provide specific instructions or guidelines
that would serve as a basis for COTRs to review and question invoices.
As reported previously, OFS COTRs interviewed by SIGTARP confirmed that
there were no written standards for the invoice review process. The OFS COTRs
told SIGTARP that they employ informal processes that begin when the
contractor submits an invoice and status report that includes hours and dollars
spent. The COTRs stated that they review all documentation for accuracy and
reasonableness and typically communicate with the various OFS business teams
and others receiving a contractor’s work to determine whether the time and
information reported are accurate. They also review invoices submitted by other
vendors for similar tasks and compare them to the invoice they are examining.
The COTRs informed SIGTARP that when conducting their reviews of legal
contracts in particular, they look for issues such as unauthorized attorneys
working on the contract, double billing, or “other direct costs”2 not covered by the
contract such as automated legal research, long-distance telephone calls, and
commercial messenger and delivery services. According to the COTRs, unless
the contract states that other direct costs are reimbursable, they are not paid. The
COTRs told SIGTARP they employed all of these informal processes when
reviewing the fee bills that were the subject of this audit.

2

“Other direct costs” are contract-related expenses for anything other than direct labor charges.

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SIGTARP’s Criteria for Reviewing Fee Bills Paid
by OFS Were Based on the FAR and Best
Practices of Other Federal Entities
Without the benefit of detailed guidance to law firms in the OFS contracts or
detailed OFS internal procedures for its staff to review the bills, SIGTARP looked
to the following guidance (which is more extensively explained in SIGTARP’s
Venable report):



FAR clauses expressly incorporated in the OFS legal service contracts; and
general provisions in the FAR governing labor-hour contracts.

In addition, SIGTARP looked to best practices of other Federal entities,
particularly the Federal Deposit Insurance Corporation (“FDIC”), which has a
long history of contracting with law firms to provide legal representation and
advice to the agency to assist it in the management and liquidation of assets and
liabilities from closed, insured banks.3 The FDIC Outside Counsel Deskbook
directs, among other things, the billing practices of law firms working with FDIC.
It includes:







requirements for outside counsel to prepare a budget at the commencement of
a matter and submit detailed fee bills on a regular basis in accordance with the
budget;
submission instructions, including requirements for monthly billing and for
billing within 30 days of the last day of the contractor’s billing cycle;
descriptions and lists of billable and non-billable fees and expenses, including
documented approval and retention of receipts for non-overhead expenses;
and
invoice format, including requirements and examples for:
o detail and description of services or activities (time billed for each activity
should be identified separately; block billing – the combination of
different types of activities in one entry on the invoice – is prohibited,
even if the same individual performed the activities, unless the total time
charged is no more than 30 minutes);
o time increments (billing in increments of greater than 0.1 hour – 6 minutes
– is unacceptable);
o itemization of expenses; and

3

Outside counsel under contract to FDIC provide a broad range of services, including liquidation of failed insured
depository institutions; bankruptcy and creditors’ rights; collections; foreclosures; real estate and financial transactions
including debt restructuring; general business and corporate law advice; professional, director, and officer liability issues;
and other litigation. As of July 31, 2010, FDIC’s website (www.FDIC.gov) listed more than 900 law firms on its “List of
Counsel Available.”

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o travel reimbursements, similar to requirements in Government travel
regulations.
SIGTARP also reviewed practices used by the Department of Justice’s United
States Trustee Guidelines,4 and local rules of court established by the Delaware
Bankruptcy Court.5
Using the FAR and best practices of these Federal entities, SIGTARP prepared a
list of potential billing issues and then evaluated a sample of legal fee bills paid
by OFS by comparing each individual hourly labor charge in the fee bills to the
list of potential billing issues.6 All potential billing issues SIGTARP assessed are
listed in Appendix B.
The sampled fee bills represent about $9.1 million of the total $25.5 million OFS
paid the four law firms that were subject to SIGTARP’s audit in this report, or
36% of total billings. The value of each of the law firms’ legal fees that
SIGTARP audited is shown in Table 2 of Appendix A.

4

The Bankruptcy Reform Act of 1994 amended the responsibilities of the United States Trustees under 28 U.S.C.
586(a)(3)(A) to provide that, whenever they deem appropriate, United States Trustees will review applications for
compensation and reimbursement of expenses under section 330 of the Bankruptcy Code, 11 U.S.C. 101, et seq., in
accordance with procedural guidelines adopted by the Executive Office for United States Trustees. The guidelines are
available at http://www.justice.gov/ust/eo/rules_regulations/guidelines/docs/feeguide.htm.
5
Although SIGTARP assessed Rule 2016-2 (d) from the Local Rules for the United States Bankruptcy Court, District of
Delaware, which became effective February 1, 2009, all bankruptcy courts have similar standards for fees, whether
contained in local rules or not. The Delaware Bankruptcy Court is considered a leading bankruptcy court for standards
because of the number of corporations registered in the state. The rule is available at
http://www.deb.uscourts.gov/LocalRules/LOCAL%20RULES%202009.pdf.
6
SIGTARP selected the largest fee bills submitted by the four law firms.

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9

For the Four Law Firms, SIGTARP Found Block
Billing, Either No Descriptions of Work or Vague
Descriptions of Work, and Administrative Charges
– All of Which OFS Should Have Questioned
Before Payment
In an effort to assess the reasonableness of the $9.1 million sample of fee bills,
SIGTARP compared descriptions of work performed by each contracted attorney
or paralegal (collectively “timekeepers”) in each individual time charge on the
sampled fee bills to the list of potential billing issues in Appendix B. SIGTARP
questioned any item that:





was not a professional service and was not directly attributable to achieving
the contract or task order statement of work, such as preparing an invoice or
researching case law for matters outside the scope of work;
did not have sufficiently detailed descriptions of the task performed; or
had descriptions of more than one task in the time entry, which is typically
called lump billing or block billing.

After reviewing each charge, SIGTARP classified it as:





“allowable,” 7 when no exception to the FAR or SIGTARP’s list of potential
billing issues was noted;
“unallowable,” when the cost was not allowed as prescribed by FAR
31.201-2, or fit the description of a charge included in SIGTARP’s list of
potential billing issues in Appendix B; or
“unsupported,” when the description of work did not contain enough
information for SIGTARP to determine whether the task met the five FAR
31.201-2 requirements8 to be “allowable” or whether it fit the description of a
charge included in SIGTARP’s list of potential billing issues.

Where there were no descriptions of the specific work performed, SIGTARP
questioned all of the fees. Where there were descriptions of the work, SIGTARP
assessed the description of work performed in each individual time charge.
7

FAR Subpart 31.2, Contracts with Commercial Organizations, prescribes the determination and proper treatment of costs in
Government contracts with commercial organizations. Specifically, subsection 31.201-1 describes the composition of total
cost, and subsections 31.201-2 through 31.201-4, respectively, describe the principles used to determine whether costs are
properly allowable, reasonable, and allocable to Government contracts.
8
Under FAR 31.201-2, a cost is allowable only when it complies with all of the following five requirements. The cost must:
(1) be reasonable (not exceed that which would be incurred by a prudent person in the conduct of a competitive business),
(2) be allocable (incurred specifically for the contract), (3) meet standards promulgated by the Cost Accounting Standards
Board or generally accepted accounting principles, (4) be within the terms of the contract, and (5) be within any limitations
set forth by FAR Subpart 31.2, which prescribes the determination and proper treatment of costs in Government contracts
with commercial organizations.

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SIGTARP questioned $8.1 million, or 89%, of the fee bills reviewed. Including
the amounts questioned for Venable in SIGTARP’s previous report, SIGTARP
questioned $8.7 million of $10.1 million in legal fees audited, or 86%. Table 1
identifies the costs SIGTARP questioned for each sampled law firm. The fact that
SIGTARP questioned these costs does not mean that all of the money paid should
be recovered from the law firms. Instead, it means that OFS should request and
receive additional information from the law firms to justify payment under the
FAR as being properly allocable to the contract, allowable, and reasonable, and in
accordance with the best practices of other Federal entities.
TABLE 1

QUESTIONED LEGAL FEES
Audited
Fees and
Expenses

Simpson Thacher & Bartlett LLP

1

Cadwalader Wickersham & Taft LLP
Locke Lord Bissell & Liddell LLP
Bingham McCutchen LLP
(novated from McKee Nelson LLP)
Subtotal Related to This Report
Venable LLP

3

Total for This Audit

2

Percent of
Audited Fees
Questioned

$5,883,206

Law Firm

Questioned
Fees and
Expenses
$5,883,206

100%

2,869,998

1,983,685

69%

272,243

146,867

54%

67,383

57,939

86%

$9,092,830

$8,071,697

89%

1,027,049

676,840

66%

$10,119,879

$8,748,537

86%

Notes: Numbers affected by rounding.
1
Simpson Thacher’s contract number TOFS-09-0009 is still active. Between 02/04/2011, when OFS provided SIGTARP fee
bills for audit, and 03/31/2011, OFS paid additional Simpson Thacher fee bills totaling $83,824. The additional fee bills were
not subject to SIGTARP’s audit.
2
OFS awarded contract number TOFS-10-D-0006 to Cadwalader Wickersham & Taft after SIGTARP’s audit began. It was,
therefore, not subject to audit. As of 03/31/2011, $3,789,815 had been obligated and $992,237 was expended under the
contract.
3
All amounts shown for Venable LLP were previously reported in audit report number SIGTARP 11-003, “Treasury’s Process
for Contracting for Professional Services under TARP,” issued April 14, 2011, and are shown here for comparative purposes
only.
Source: SIGTARP analysis of data provided by OFS.

SIGTARP questioned the largest percentage of costs because law firms provided
inadequate detail to support charges for hourly fees and related expenses.9 Then,
SIGTARP questioned most of the remaining costs because they were block billed,
meaning that a single charge included descriptions of several different tasks
without specifying the time required to complete each task, and together the tasks
totaled more than 30 minutes.10 While OFS’ legal service contracts did not
specifically prohibit block billing, the COTRs had the authority to reject invoices
containing such billing based on FAR standards. Reasonableness of individual
9

Appendix C presents all questioned and unsupported legal fees and expenses that SIGTARP identified, categorized by
type of billing issue.
10
Consistent with the FDIC Outside Counsel Deskbook, SIGTARP did not question block-billed charges totaling 30 minutes
or less.

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tasks, and, therefore, allowability under the FAR guidelines, cannot be determined
when charges are block billed. That OFS COTRs did not use this authority under
the FAR guidelines may have been a product of the lack of sufficiently detailed
OFS procedures on reviewing fee bills. SIGTARP, however, questioned all
block-billed charges. SIGTARP questioned fee bills from all four firms audited,
as discussed in the sections below.

SIGTARP Questioned All $5.8 Million of Simpson Thacher’s Legal
Fees Because Simpson Thacher Did Not Provide Any Description of
Work Performed or Any Receipts for Expenses
From the inception of TARP in October 2008, through March 31, 2011, OFS paid
Simpson Thacher more than $5.8 million in legal fees and expenses under three
contracts. The first, contract TOS-09-007, was awarded on October 10, 2008.
While containing a Statement of Work broad enough to include legal advice and
services on any of the TARP programs, it focused on the Public-Private
Investment Program (“PPIP”). Simpson Thacher also provided corporate law
advice for such matters as disposing of the warrants issued under the Capital
Purchase Program (“CPP”), and the sale of shares of Citigroup common stock
received as part of CPP. The contract had a maximum value of $500,000, which
OFS increased to $1,025,000 through a series of modifications.11 In total,
Simpson Thacher was paid $931,090 for its services under this contract. The
second contract, TOFS-09-D-0001, was awarded to Simpson Thacher on
February 20, 2009, to provide legal services related to Treasury investments under
CPP and the Capital Assistance Program (“CAP”). This contract had a maximum
value of $5,000,000.12 In total, Simpson Thacher was paid $1,530,023 for its
services under this contract. The third contract, TOFS-09-D-0009, was awarded
on May 26, 2009, and contained the same Statement of Work as Simpson
Thacher’s first OFS contract. This contract had a maximum value of
$15,000,000, and is still active.13 As of March 31, 2011, Simpson Thacher had
received $3,505,917 for its services under this contract.
SIGTARP questioned all $5.8 million in fees and expenses OFS paid to Simpson
Thacher because Simpson Thacher provided no detail of work performed in its fee
bills, and did not provide receipts or proper documentation for expenses. Because
no descriptions of individual tasks performed were included in any of the 43 fee
bills submitted under the 11 task orders of the three contracts, SIGTARP could
not determine whether, as required by the FAR, any fees or costs submitted by
Simpson Thacher and paid by OFS were allocable to the contract, allowable
pursuant to financial regulations, and reasonable. OFS COTRs should not have
paid any of Simpson Thacher’s fee bills without additional information.

11

On October 10, 2008, OFS awarded the only task order for this contract for work performed through April 9, 2009.
Between February 20, 2009, and July 10, 2009, six task orders were awarded under the Simpson Thacher contract for work
performed through October 31, 2009.
13
Four task orders have been issued under this contract.
12

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12

OFS COTRs did initially reject some invoices and reduced payments on others,
then later approved them for payment after receiving corrected fee bills. Based on
emails and documentation in the contract file, COTRs rejected invoices or
questioned charges for reasons such as:







billing for other direct costs under a contract that did not allow for them;
billing for unapproved labor categories;
billing at rates above the contract’s maximum allowable labor rates;
billing amounts above the task order maximum ceiling value;
billing for work performed under an incorrect task order; and
submitting vendor backup documentation that did not match source materials.

However, despite raising these issues, OFS still paid more than $5.8 million in
fees and expenses for fee bills that contained no description of work whatsoever.
It is unclear, however, why the COTRs allowed Simpson Thacher to continue to
bill in the manner it did.
The following is an example of a typical Simpson Thacher fee bill provided to
SIGTARP by OFS:

SIGTARP 11-004

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Invoice No. 257565
October 14, 2009

U.S. DEPARTMENT OF THE TREASURY

In This Invoice,
SIGTARP Was
Looking For:

SIMPSON THACHER & BARTLETT LLP
425 LEXINGTON AVENUE, NEW YORK, NEW YORK 10017-3954

 

 Task Descriptions and

For all professional services rendered in
connection with Treasury/TO Obligation
Document No. TOFS-09-D-0001 TO 0005
through June 26, 2009, based on time
recorded through October 1, 2009.
Hours and Dollars Spent *
Hours
Partners
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
Senior Counsel
[name redacted–(b)(6)]
 
Associates
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
Legal Assistants
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
[name redacted–(b)(6)]
   
Total

13

Dollars

[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]

$756.88
$41,175.00
$24,745.00
$2,850.00
$14,488.75

[hours redacted–(b)(4)]

$3,155.63

[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]

$5,573.75
$914.38
$16,032.50
$16,948.75
$29,375.00
$481.25
$1,856.25
$4,143.75
$19,617.50
$18,335.63
$700.63

[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]
[hours redacted–(b)(4)]

$50.00
$350.00
$281.25
$58.75
$56.25

[hours redacted–(b)(4)]

$201,946.88

* Hours reflect entries recorded in the Firm’s computer system as
of October 1, 2009 and may not reflect all hours for services
rendered during the period.

Completion Times –
Detailed descriptions of each
service or activity, and the
time billed for each.
o Without task descriptions,
the reviewer cannot tell
whether the work was
necessary or related to this
contract.
o Without completion times,
the reviewer cannot tell
whether the time billed to do
the work was reasonable.
o Each task description and the
time charged to complete
that task should be presented
separately – tasks should not
be combined, and times
should not be combined.

 Hourly Rate – If the hourly
rate for each timekeeper is
not shown, the reviewer must
recalculate each line to
determine whether the rate is
correct.

 Receipts for Expenses –
Although expenses were not
included in this bill, when
other direct costs are billed,
receipts need to be provided
so the reviewer can see that
the expenses were necessary
and properly related to the
contract.

Narrative task descriptions were not included in any of the Simpson Thacher
invoices. In fact, two of Simpson Thacher’s early fee bills paid by OFS contained
only the total dollar amount owed for professional services rendered. Both were
submitted on the same day – one was for $200,000 and the other, for $300,000.
Neither contained any detail of work performed, the number of hours worked,
labor rates, names of attorneys and paralegals performing the work, or even the
billing period. At SIGTARP’s request during the course of this audit, OFS

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14

obtained from Simpson Thacher hourly breakdown information for these two
invoices, but descriptions of specific tasks performed were not provided.
Other fee bills included only the total number of hours charged, while still others
contained only the total number of hours broken out by timekeeper (as shown in
the previous example) without any detail as to the tasks the timekeeper was
performing. No invoice contained enough information to justify OFS paying
Simpson Thacher.
Other billing issues identified by SIGTARP in the review of Simpson Thacher fee
bills include the following:


Simpson Thacher billed for foreign subcontractor costs (for a United
Kingdom firm) without obtaining prior consent from Treasury for
subcontracting, and billed at rates significantly above the contract’s
maximum allowable rate for each labor category – Simpson Thacher used
a subcontractor in the United Kingdom for legal services under its contract
(TOFS-09-0001, task order 1). This task order was subject to the terms of the
original contract, which incorporates FAR 52.244-2, Subcontracts, and,
among other things, requires pre-approval of any labor-hour subcontracts. In
other words, Simpson Thacher was not authorized to enter into a subcontract
with any firm because Simpson Thacher did not obtain prior consent from the
contracting officer to do so. Nonetheless, significantly after the fact, the
contracting officer approved Simpson Thacher’s use of the subcontractor.
OFS also reimbursed Simpson Thacher for this subcontractor at rates
significantly above the ceiling rate in Simpson Thacher’s contract. Simpson
billed more than $520 per hour above the maximum allowable partner rate,
$220 above the maximum allowable associate rate, and $152 more than the
maximum legal assistant rate. SIGTARP found no justification in the contract
file for OFS paying the higher rates. Simpson Thacher had already agreed in
its contract to provide these services at a lower rate. In total, OFS overpaid
Simpson Thacher $68,936 for the work of this subcontractor, and OFS should
seek reimbursement of the amount paid in excess of the maximum rates
provided for in the contract. SIGTARP considers these costs ineligible under
OFS contract provisions.



SIGTARP 11-004

Simpson Thacher billed for unauthorized expenses and did not provide
receipts for authorized expenses – Although reimbursed by OFS, “other
direct costs,” which are contract-related expenses for anything other than
direct labor charges, were not allowed unless specifically authorized.
However, OFS reimbursed other direct costs for Simpson Thacher, even when
those expenses were not authorized under Simpson Thacher’s contract and
task order. According to the OFS COTRs whom SIGTARP interviewed, and
confirmed later by OFS, in order for other direct costs to be properly
reimbursed an “Other Direct Costs” clause must be included in the contract, or

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15

an express allowance for other direct costs must be included in the specific
task order. Neither Simpson Thacher’s contract TOS-09-007 nor its
underlying task order included an Other Direct Costs clause. Nonetheless,
$22,546 in other direct costs were submitted by Simpson Thacher and
reimbursed by OFS. SIGTARP questioned all $22,546 in other direct costs
billed under this contract because the other direct costs provision was not
included in the contract and those expenses should not have been reimbursed
under OFS’ current practices. Accordingly, SIGTARP considers these costs
ineligible for reimbursement under OFS contract provisions.
In another Simpson Thacher contract, other direct costs were authorized.
However, Simpson Thacher did not provide receipts or adequate
documentation for those other direct costs that Simpson Thacher was allowed
to bill to OFS. Specifically, in contract TOFS-09-D-0009, other direct costs
were allowed, and Simpson Thacher was reimbursed for such costs totaling
$5,286. As stated in the contract: “All invoices shall be fully documented by
including receipts evidencing payment by the contractor and shall identify the
action with which the expenditure is connected.” However, except for one
instance when information regarding a telephone call was provided, receipts,
or adequate documentation, were not provided for other direct costs as part of
the invoice. In the one instance when more information was provided to
document telephone calls, the matter being discussed was not clearly
identified, nor were the individuals participating in the call. Other expense
descriptions for telephone calls did not state whether they were local or longdistance, which determines whether or not they were properly reimbursable.
After SIGTARP questioned OFS about these charges, OFS obtained
additional receipts and documentation from Simpson Thacher and provided
them to SIGTARP. However, OFS did not obtain receipts and documentation
from Simpson Thacher for these charges prior to SIGTARP raising the issue
in this audit. Also, the additional receipts and documentation did not include
the topics researched or the subject matter discussed in telephone calls and,
therefore, it is not possible to determine whether these charges are properly
reimbursable.


SIGTARP 11-004

Invoices did not clearly identify the beginning and ending dates of the
billing period covered, and invoices were not submitted timely or on a
regular basis – Combined, these two factors would have inhibited the ability
of OFS to assess the reasonableness of the charges in any given month. For
example, because Simpson Thacher did not have fixed cutoff and billing
periods, it continued to collect time charges from previous billing periods and
then billed them to OFS with current period charges. This process also
allowed timekeepers to continue documenting their time after the end of the
billing period during which they provided services to OFS. For example, the
Simpson Thacher invoice above – dated October 14, 2009 – stated that it was
“For all professional services rendered…through June 26, 2009, based on time
recorded through October 1, 2009.” In other words, in this instance Simpson

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16

Thacher’s staff was three months late not only in reporting their time but also
in recording the time. As such, the COTR would not have had the opportunity
to even review the invoice until months after the work had been performed
and could not have reasonably determined whether the hours charged for the
tasks were appropriate. For example, on one invoice, Simpson Thacher billed
514 hours for one of its attorneys and 459 for another. This would be
excessive for a month’s billing – an average of 128 hours and 114 hours per
week, respectively – but without knowing the billing period, reasonableness
cannot be determined.


Simpson Thacher billed for staff in unapproved “counsel” and “senior
counsel” labor categories not included in its contract or task orders, and
OFS was not consistent in its payment for those labor categories – Only
“partner,” “associate,” and “legal assistant” labor categories were included in
Simpson Thacher contracts TOFS-09-D-0001 and TOFS-09-D-0009. As
such, the various “counsel” labor categories were not included in the
“Maximum Labor Rate Table,” and OFS told SIGTARP that neither of the
two contracts was modified to include them.
For contract TOFS-09-D-0001, Simpson Thacher billed for attorneys in
“counsel” and “senior counsel” labor categories at varying rates and OFS paid
for the counsel labor categories by sometimes reimbursing the charges at
partner rates and other times at associate rates – but there was no justification
for any of the rates Simpson Thacher charged or the OFS reimbursement
rates. OFS told SIGTARP that an agreement on reimbursement rates for
counsel for this contract was based on conversations between the contracting
officer and the COTR in early 2009, and that it was the COTR’s
understanding that counsel rates – billed below the maximum rate for partner
– were allowable. Under contract TOFS-09-D-0009, Simpson Thacher again
billed, and OFS paid, for some attorneys in counsel labor categories, even
though there was no documentation that OFS had agreed to the use of counsel
labor categories.
Because a rate category for counsel did not exist in either contract, there were
no standards in the contracts that delineated the experience required for this
labor category. Thus, a more junior attorney could have been billed at a
partner-equivalent rate. The inconsistencies allowed by the OFS COTRs
could have been avoided by: (a) the use of multiple rate categories within
each labor category based on justifiable, previously agreed-upon standards
such as the attorneys’ years of experience; and (b) OFS requiring preapproval, in specified labor categories and at specified rates, of all contracted
legal staff before they are allowed to work on and charge time to OFS
projects.



SIGTARP 11-004

Some Simpson Thacher individual attorneys and other staff billed at
different rates – For example, on one invoice the same attorney appears four

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17

times and billed at two different rates. OFS told SIGTARP that it was not
notified in advance of any changes to individual billing rates. SIGTARP
found no evidence of contractor staff being preapproved to work on the
contract or identification of any specific labor category or rate for contractor
staff before fee bills were submitted. Simpson Thacher did not provide
documentation to explain why some attorneys and staff in the same labor
category could bill at a higher rate than others. However, OFS informed
SIGTARP that specific contractor employee rates were not approved or
disapproved as long as their billing rate was within the labor category range
and the employee met the requirements of the labor category description.

SIGTARP Questioned $1,983,685 of Cadwalader’s Legal Fees
On March 30, 2009, OFS entered into a contract with Cadwalader to provide legal
services related to Treasury’s TARP investment in the auto industry. The contract
initially had an $8,590,000 maximum value that was raised to $26,756,322
through a contract modification.14 In total, OFS paid Cadwalader $17,392,786 for
its services under this contract.
Of the $2,869,998 sample of Cadwalader’s legal fees and expenses SIGTARP
reviewed, SIGTARP questioned $1,983,685 that OFS paid to Cadwalader,
primarily based on block billing. In addition, in some instances Cadwalader did
not provide enough detail for SIGTARP to determine whether charges were
reasonable, and in other instances, paralegals or clerical staff could have
performed tasks performed by attorneys. These billing issues are illustrated in the
following examples:


Block billing –
05/01/09 [Timekeeper name redacted–(b)(6)]: EMAIL EXCHANGE AMONG LAW FIRMS
PLOTTING DOL CONF CALL RE VEBA. STUDY DEAL DOCS FOR SAME. LONG CONF
CALL DOL RE ERISA & VEBA. TCS AND EMAILS RE SAME WITH [name redacted–
(b)(6)], [name redacted–(b)(6)], ETC. DRAFT SUMMARY OF CONF CALL FOR UST.
(6.00 HOURS)
05/01/09 [Timekeeper name redacted–(b)(6)]: TELEPHONE CALLS WITH [name redacted–
(b)(6)], [name redacted–(b)(6)]; CONFERENCE RE: TAX ISSUES WITH [name
redacted–(b)(6)]; [name redacted–(b)(6)]; [name redacted–(b)(6)]; [name
redacted–(b)(6)]; [name redacted–(b)(6)]; REVIEW AND REVISE DOCUMENTS;
RESEARCH RE: TAX ISSUES. (6.84 HOURS)



Inadequate detail –
05/01/09 [Timekeeper name redacted–(b)(6)]: REVISE AGREEMENTS, SCHEDULES; CALLS;
E-MAILS. (5.00 HOURS)
05/03/09 [Timekeeper name redacted–(b)(6)]: REVIEW SCHEDULES; E-MAILS. (2.50 HOURS)

14

Between April 2, 2009, and July 8, 2009, four task orders were awarded under the contract for work performed through
July 31, 2010.

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

18

Tasks not requiring attorneys –
05/01/09 [Timekeeper name redacted–(b)(6)]: PREPARED SIGNING DOCUMENT ROOM.
(13.84 HOURS)
05/01/09 [Timekeeper name redacted–(b)(6)]: SCANNED PDFS OF TERM SHEETS,
SUBSCRIPTION AGREEMENTS, AND ADDITIONAL PURCHASE AGREEMENT AND
LETTERS TO [name redacted–(b)(6)], [name redacted–(b)(6)] AND [name
redacted–(b)(6)]. (1.34 HOURS)
05/01/09 [Timekeeper name redacted–(b)(6)]: MONITOR SIGNING ROOM; UPDATE FOLDERS
FOR SIGNING DOCUMENTS; UPDATE INDEX OF SIGNING DOCUMENTS. (6.17 HOURS)

Because multiple tasks were included in block billed charges without actual
completion times, SIGTARP was not able to determine which portions of these
charges are appropriate and so questioned the entire amount. Cadwalader would
need to provide additional information for OFS to determine whether these
charges were reasonable and therefore allowable.
Further, in reviewing the descriptions in Cadwalader’s fee bills, there was
inadequate detail to determine whether the charge was reasonable. In the example
above, the COTR could not have reasonably determined with whom the
conference calls and conferences were held and for what purpose, and whether the
conferences and calls were necessary for the level of persons involved, and not
longer than necessary.

SIGTARP Questioned $146,867 of Locke’s Legal Fees
On February 12, 2009, OFS entered into a contract with Locke to provide legal
services in support of certain of Treasury’s TARP investments in S-Corporations
as well as other certain investments in TARP’s Capital Purchase Program.15 The
contract had a $2,000,000 maximum value. In total, the firm was paid $272,243
for its services under this contract.16
Of the $272,243 of Locke’s legal fees and expenses OFS paid, SIGTARP
questioned approximately half ($146,867). Most of the charges were questioned
because they were block billed. In some cases, Locke’s descriptions of tasks
performed did not contain enough detail for SIGTARP to determine whether
charges were reasonable. These billing issues are illustrated in the following
examples:

15

Under the Capital Purchase Program, Treasury directly purchased preferred stock or subordinated debentures in qualifying
financial institutions. CPP was intended to provide funds to “stabilize and strengthen the U.S. financial system by
increasing the capital base of an array of healthy, viable institutions, enabling them [to] lend to consumers and
business[es].” Treasury invested $204.9 billion in 707 institutions through CPP.
16
On February 12, 2009, OFS awarded the only task order under the contract and work was performed through May 5, 2009.

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

19

Block billing –
03/09/09 [Timekeeper name redacted–(b)(6)]: CONFERENCE WITH [name redacted–(b)(6)]
AND [name redacted–(b)(6)]; REVIEW DOCUMENTS. (4.00 HOURS)
03/10/09 [Timekeeper name redacted–(b)(6)]: CIRCULATION OF CORRESPONDENCE TO
TREASURY AND [bank name redacted–(b)(4)] WITH APPLICABLE DOCUMENTS;
REVIEWS OF RECEIVABLES AND INTERNAL DISCUSSION WITH REGARD THERETO;
PREPARATION OF FURTHER REQUIRED CORRESPONDENCE; REVIEW OF PACKAGE OF
SIGNATURE PAGES; CALL WITH COUNSEL TO [bank name redacted–(b)(4). (6.70
HOURS)



Inadequate detail –
03/11/09 [Timekeeper name redacted–(b)(6)]: CLOSING FOR [bank name redacted–(b)(4)];
CONFERENCES. (1.60 HOURS)
03/09/09 [Timekeeper name redacted–(b)(6)]: REVIEW DOCUMENTS WITH [name redacted–
(b)(6)]. (4.00 HOURS)
03/18/09 [Timekeeper name redacted–(b)(6)]: REVISE DOCUMENTS. (1.70 HOURS)



Administrative –
03/05/09 [Timekeeper name redacted–(b)(6)]: REVIEW AND ANALYZE INFORMATION
RELATED TO PROVISION OF SERVICES TO THE DEPARTMENT OF TREASURY AND
GOVERNMENT CONTRACTS ISSUES RELATED TO SAME; ATTENTION TO STRATEGY
REGARDING SAME. (2.00 HOURS)
03/11/09 [Timekeeper name redacted–(b)(6)]: (TREASURY\GENERAL) EMAILS TO TEAM
REGARDING STATUS. BEGIN PREPARATION OF WEEKLY REPORT TEMPLATE;
CONFERENCE WITH [name redacted–(b)(6)] AND [name redacted–(b)(6)]
REGARDING SAME. (2.00 HOURS)

Of the amounts questioned by SIGTARP, $3,971 were for administrative
expenses and fees, such as word processing, preparing fee bills, reviewing the
OFS contract and task orders, and addressing conflicts of interest issues. As
specified in the FAR, under labor-hour contracts, hourly rates already include
wages, indirect costs, and general and administrative expenses. The FDIC Outside
Counsel Deskbook expressly prohibits fees for invoice preparation or review.
OFS should have denied these types of administrative charges.

SIGTARP Questioned $57,939 of Bingham’s Legal Fees
On March 30, 2009, OFS entered into a contract with this law firm to provide
legal services related to Treasury’s TARP investments related to Small Business
Administration (“SBA”) loans and securities backed by SBA loans. The contract
had a $2,000,000 maximum value.17 In total, OFS paid Bingham $270,524 for its
services under this contract.
Of the sample of $67,383 of Bingham’s legal fees and expenses SIGTARP
reviewed, SIGTARP questioned $57,939 that OFS paid to Bingham. At the time
17

Between January 25, 2010, and January 28, 2010, two task orders were awarded under the contract for work performed
through August 31, 2010.

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20

of the audit, these charges were not supported by adequate documentation because
they either were block billed, or did not contain enough detail for SIGTARP to
determine whether the charges were reasonable, as illustrated in the following
examples:


Block Billing –
06/23/09 [Timekeeper name redacted–(b)(6)]: CONFERENCE WITH [Timekeeper name
redacted–(b)(6)] AND [Timekeeper name redacted–(b)(6)] REGARDING REVISING
MPA FOR SENIOR NOTE PROVISIONS; REVISE DRAFT, INCORPORATING CPP TERMS.
(11.75 HOURS)
06/24/09 [Timekeeper name redacted–(b)(6)]: CALL WITH TREASURY REGARDING MPA
AND TERM SHEET; INTERNAL DISCUSSIONS REGARDING SAME; REVISE AND
CIRCULATE MPA AND TERM SHEET. (8.00 HOURS)



Inadequate Detail –
06/15/09 [Timekeeper name redacted–(b)(6)]: CONFERENCE CALL WITH [name redacted–
(b)(6)]; SECOND CALL WITH [name redacted–(b)(6)] AND TREASURY; MEET WITH
DEAL TEAM. (1.75 HOURS)
06/15/09 [Timekeeper name redacted–(b)(6)]: TELEPHONE CONFERENCE WITH [name
redacted–(b)(6)]; TELEPHONE CONFERENCE WITH [name redacted–(b)(6)] AND
TREASURY. (1.25 HOURS)

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21

The OFS Process for Awarding Legal Service
Contracts Provided Adequate Price Competition
In order to determine whether OFS received fair prices for legal services, it was
necessary to review Treasury’s contracting process with the law firms. As of
March 31, 2011, OFS had entered into 35 legal service contracts with 21 different
law firms.18 OFS awarded 15 legal service contracts using a narrowed
competitive field and compressed timeframes (by citing an unusual and
compelling urgency as allowed under the FAR); 14 through full and open
competitions; five using the General Services Administration’s (“GSA”) Federal
Supply Schedule; and one through simplified acquisition procedures for contracts
under $100,000. A list of all legal service contracts awarded by OFS is shown in
Appendix E.
The Emergency Economic Stabilization Act of 2008 (“EESA”) allowed the
Secretary of the Treasury to waive any provision of the FAR if the Secretary
determined that “urgent and compelling circumstances make compliance with
such provisions contrary to the public interest.” Treasury has not, however, made
use of this waiver authority in its contracting for legal services. The FAR
therefore governs OFS’ contracting procedures.
According to OFS, because of the length of time required to issue contracts using
full and open competitions,19 OFS awarded contracts for legal services using a
narrowed competitive field and compressed timeframes as an interim measure.
The OFS contract files that SIGTARP reviewed showed that at the time the
contracts in SIGTARP’s sample were being processed in January 2009, OFS was
also working on an omnibus procurement for legal services. The goal of the
omnibus procurement was to pre-qualify law firms to provide legal services in
particular areas so that when a project arose in one of those areas, OFS could
move quickly to retain one of the prequalified firms. However, because that
procurement was expected to take three to five months, the omnibus procurement
would not eliminate the need for other legal procurements awarded based on an
unusual and compelling urgency. As shown in Appendix E, OFS awarded
contracts under its omnibus procurement for legal services in August 2010.
For the contracts SIGTARP reviewed, OFS justified the competitions by citing an
unusual and compelling urgency, as allowed under FAR 6.302-2.20 In reviewing
18

Additional information on services provided to OFS by other Treasury offices and the responsibilities of Treasury’s
contracting officer and OFS COTRs is shown in Appendix D.
19
According to OFS, under normal circumstances: for a large commercial acquisition the requested response time is
approximately 30 days; for a non-commercial acquisition, approximately six weeks; for a GSA schedule acquisition,
approximately two weeks; and for a competitive task order from a multiple award indefinite-delivery, indefinitequantity contract the requested response time is approximately 10 days, unless the need is urgent.
20
FAR 6.302-2, Unusual and Compelling Urgency, provides the authority, describes the proper application, and defines
the limitations of contracts issued using other than full and open competitions justified under this provision.

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22

the sample of competitions conducted by OFS, SIGTARP found that they were in
compliance with FAR requirements, and were consistent with the OFS acquisition
procedures that became effective in November 2009. Under the FAR and the
2009 OFS procedures, OFS was allowed to limit the number of offerors, offeror
response times, and OFS evaluation times so that contracts could be awarded
more quickly. Nonetheless, the procedures OFS used for these simplified
acquisitions included all the key steps in a normal acquisition.
SIGTARP reviewed the statements of work in contracts awarded to the sampled
firms to determine whether they were unusually narrow, specific, or otherwise
appeared to have been steered to a particular contractor. SIGTARP concluded
that they were sufficiently general and objectively described the tasks required,
and did not appear to favor any particular contractor.
 

Under FAR 6.302-2, Unusual and Compelling Urgency, agencies are required to
request offers from as many potential sources as practicable under the
circumstances. When reviewing the solicitations in SIGTARP’s sample,
SIGTARP found that OFS issued requests for proposals to five to eight law firms
for each solicitation. SIGTARP’s review of these solicitations showed that OFS
received from two to six proposals for each solicitation. OFS evaluated each firm
based on the criteria outlined in its source selection plan, and rated each firm on
the scale identified in Appendix F to determine which would provide the “best
value”21 to the Government.
As described in FAR 8.405-1(c), in addition to price, when determining best
value, many other factors may be considered. OFS evaluated legal expertise,
management and staffing approach, mitigation of conflicts of interest, past
performance, and small business participation. OFS determined that, for each
solicitation, at least one and up to three of the proposals were technically
acceptable in all areas evaluated. SIGTARP concluded that OFS adequately
evaluated all qualified proposals and awarded contracts based on the best value.
For all proposals received, OFS also evaluated the contractors’ proposed pricing
to determine whether costs were reasonable. OFS compared the firms’ rates, by
labor category, to the independent Government cost estimate. OFS then
compared the total proposed price for all competing law firms with the total
estimated costs. SIGTARP concluded that OFS had created adequate price
competition in accordance with FAR 15.403-3(b).22
21

As defined in the FAR, “best value” means the expected outcome of an acquisition that, in the Government’s estimation,
provides the greatest overall benefit in response to the requirement.
22
FAR 15.403-3(b), Adequate price competition, states that “When adequate price competition exists (see [FAR]
15.403-1(c)(1)), generally no additional information is necessary to determine the reasonableness of price.” Under FAR
15.403-1(c)(1), Adequate price competition, in general, a price is based on adequate price competition if (i) two or more
responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement,
or (ii) there was a reasonable expectation, based on market research or other assessment, that two or more responsible
offerors, competing independently, would submit priced offers in response to the solicitation’s expressed requirement, even
though only one offer is received from a responsible offeror.

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23

 

SIGTARP also reviewed the justifications for each sampled contract and found
OFS to be in compliance with the provisions of FAR 6.303, Justifications, which
prescribes the required content of such justifications. The justifications were also
approved by the Treasury competition advocate as required by FAR 6.304,
Approval of the Justification. Overall, SIGTARP found that OFS followed its
procedures and FAR requirements and that OFS’ actions were sufficient, given
the urgent nature related to the need for legal services. Further, once the limited
competition contracts expired, OFS began awarding contracts using full and open
competition.
Finally, SIGTARP compared the hourly rates OFS paid the five law firms to rates
paid by other Federal entities. Two law firms in SIGTARP’s original sample had
legal service agreements with FDIC, and one had a GSA Federal Supply
Schedule.23 SIGTARP contacted FDIC and obtained information regarding rates
those firms charged FDIC. Although not directly comparable to other law firms
performing different tasks, the rates were similar and in some cases the rates
charged OFS were slightly less when compared to rates paid by FDIC and those
on the GSA Federal Supply Schedule. In addition, SIGTARP compared rates
published in a National Law Journal article24 to the law firms’ rates charged to
OFS. Of the firms in SIGTARP’s sample, three had rates published in this article.
All three firms provided OFS with a discount from those rates, ranging from 31%
to 44%, when compared to rates published in the article.

23

The Federal Supply Schedule program, also known as the GSA Schedules Program or the Multiple Award Schedule
Program, is directed and managed by GSA and provides Federal agencies with a simplified process for obtaining
commercial supplies and services at prices associated with volume buying. Federal Supply Schedules and pricing are
publically available.
24
Jones, Leigh, “Law Firm Fees Defy Gravity,” The National Law Journal, 12/08/2008,
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202426491654&slreturn=1&hbxlogin, accessed 06/10/2010.

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Update on SIGTARP’s Recommendations Made
in the Venable Report
In the Venable report, SIGTARP recommended that OFS adopt the legal fee bill
submission standards contained in FDIC’s Outside Counsel Deskbook, or
establish similarly detailed requirements for how law firms should prepare legal
fee bills and include the new requirements in its open legal service contracts. In
response, OFS did not specifically adopt FDIC or U.S. Bankruptcy Trustee
standards, but instead adopted a one-page guidance, which is contained in
Appendix H, that contains some FDIC or Trustee guidance but is not as detailed.
Although OFS has not incorporated this guidance into its formal policies, this
guidance addresses many of the issues in the Venable report as well as in this
report. For example, the new guidance provides that activities should not be
block billed, but instead should be billed in six-minute increments, which is an
important change. The new guidance also requires that there be detailed activity
descriptions and that any charges for meetings must include key attendees, the
subject of the meetings, and the participant’s role. It is not clear who is a key
attendee and why OFS is requiring only that key attendees be listed as opposed to
any attorney or paralegal. The new guidance also provides that the type of
activity (such as a phone call or research) be included. Although the type of
activity is important, as set forth in the Venable report, the FDIC Outside Counsel
Deskbook contrasts between a description of a time charge for “research,” which
lacks detail, and one for “legal research on statute of limitations issues,” which
provides more detail.
In the Venable report, SIGTARP recommended that OFS develop and incorporate
into its written policies specific instructions and guidance for OFS COTRs to use
when reviewing legal fee bills. OFS told SIGTARP that it has held training for its
COTRs and other staff on its new guidance to law firms and that it will work to
incorporate relevant portions of its training into written procedures. Because the
new guidance is one page and is not as detailed as other Federal entities’ best
practices, the procedures and training for OFS staff in implementing these
guidelines will be critical. SIGTARP will continue to monitor OFS’
implementation of written procedures and its modification of open contracts to
include the new guidance.
Finally, SIGTARP recommended in the Venable report that OFS review
previously paid legal fee bills to identify unreasonable or unallowable charges and
seek reimbursement for those charges as appropriate. OFS agreed to adopt this
recommendation, but stated that it would review paid invoices in connection with
contract closeout procedures. OFS recently told SIGTARP that a Treasury
contracting officer has been assigned to review Venable’s invoices. In addition,
OFS stated that Treasury is engaged in discussions with Venable regarding
questioned invoice amounts. However, OFS has not yet sought reimbursement of
any amounts from Venable.

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Conclusions and Recommendations
For the four law firms reviewed in this report, SIGTARP found weaknesses in
Treasury’s contracts and payment for legal services under TARP that were similar
to SIGTARP’s previous report on Venable. The Office of Financial Stability, the
office within Treasury that administers TARP, has paid the five law firms that
SIGTARP audited more than $27 million in legal fees and expenses. In
SIGTARP’s Venable report, SIGTARP questioned $676,840 in legal fees paid by
OFS because the bills contained block billing, inadequate description of services,
and administrative tasks being performed by attorneys. To an even greater extent,
SIGTARP found the same problems in its audit of Treasury’s contracting and
payment of legal services for four other law firms. The law firms were Simpson
Thacher & Bartlett LLP, Cadwalader Wickersham & Taft LLP, Locke Lord
Bissell & Liddell LLP, and Bingham McCutchen LLP.
SIGTARP audited a judgmental sample of $9.1 million in legal fee bills from
these four firms paid by OFS under TARP and questioned $8.1 million (89%).
SIGTARP found that the fee bills contained either no descriptions or vague
descriptions of work performed, block billing, unsupported expense charges, and
administrative charges that were not allowed under the contract. As a result, OFS
would not have been able to assess adequately the reasonableness of the fees it
paid. Although SIGTARP questioned fee bills from all of the law firms audited,
this does not mean that all the fees and expenses SIGTARP questioned were
unreasonable.
The most striking examples of problematic fee bills were from Simpson Thacher,
which charged OFS $5.8 million in fees and expenses without providing any
description of the work performed and without providing any receipts, or
adequate documentation, for expenses. Although OFS questioned some charges,
resulting in resubmitted bills, it still paid $5.8 million for original and resubmitted
bills that had no description of work and no contractually required receipts. OFS
had no way of knowing whether these fees and expenses were allocable to the
contract and reasonable and allowable (the requirements for payment under FAR).
In addition, OFS overpaid Simpson Thacher $68,936 for its foreign subcontractor,
even though the subcontractor was not preapproved and Simpson Thacher
charged as much as $520 per hour more than the maximum hourly rate under the
contract.
SIGTARP found that OFS’ then-existing legal service contracts and review
procedures caused it to fall short in comparison to the best practices identified by
SIGTARP and used by other Federal entities. Although SIGTARP concluded that
the OFS process for awarding legal service contracts provided adequate price
competition and that the process complied with FAR requirements, SIGTARP
found weaknesses in both the OFS contracts with the law firms and OFS policies
for reviewing legal fee bills. Similar to SIGTARP’s findings in the Venable
report, the OFS contracts for legal services with these law firms do not contain
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sufficiently detailed requirements or instructions on how law firms should prepare
fee bills or how they should describe discrete tasks within each fee bill. In
addition, as stated previously in the Venable report, the OFS COTRs were not
given specific standards or instructions on how to review legal fee bills for
accuracy and reasonableness. As a result, in some instances OFS overpaid for
legal services.
The lack of specific, documented invoice review procedures also meant that all
invoices were not subject to the same level or consistency of review. For
example, in reviewing fee bills from the law firms, some COTRs rejected fee bills
that included labor categories such as “counsel” not included in the contract,
while other COTRs approved and paid them. One OFS COTR paid counsel at
partner rates and another OFS COTR paid them at associate rates. SIGTARP also
noted that OFS paid for attorneys billed in labor categories other than those
agreed to in the contract and task orders. While this may have reduced OFS legal
fees, the substitution of labor categories and rates after contract award was not
properly documented in contract modifications. In response to the Venable
report, OFS agreed to adopt new guidance for law firms on submission of fee
bills.
SIGTARP reiterates the recommendations that it made in the Venable report. In
response to SIGTARP’s recommendation made in the Venable report that OFS
review previously paid legal fee bills to identify unreasonable or unallowable
charges, and seek reimbursement for those charges, OFS replied that it would
review contracts for questionable invoice amounts during contract closeout.
However, OFS should initiate reviews now and not wait until the close of a
contract to question paid invoices.
Regarding OFS’ process for awarding legal service contracts, SIGTARP found
that OFS followed its procedures and FAR requirements and that OFS’ actions
were sufficient, given the urgent nature related to the need for legal services. In
addition, although not directly comparable to other law firms performing different
tasks, the rates were similar and in some cases the rates charged OFS were
slightly less when compared to rates paid by FDIC and those on the GSA Federal
Supply Schedule.
OFS’ legal contracting practices and fee bill review practices in place up to the
time of our Venable report created an unacceptable risk that Treasury was
overpaying for legal services. If SIGTARP questioned $8.1 million out of a
$9.1 million sample, it is highly likely that these billing problems exist outside of
SIGTARP’s sample. As such, SIGTARP makes the following recommendations:
1. Treasury should specifically determine the allowability of $7,980,215 in
questioned, unsupported legal fees and expenses paid to the following law
firms:

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




27

Simpson Thacher & Bartlett LLP
$5,791,724
Cadwalader Wickersham & Taft LLP
$1,983,685
Locke Lord Bissell & Liddell LLP
$146,867
Bingham McCutchen LLP (novated from McKee Nelson LLP)
$57,939

2. The Treasury contracting officer should disallow and seek recovery from
Simpson Thacher & Bartlett LLP for $91,482 in questioned, ineligible fees
and expenses paid that were not allowed under the OFS contract. Specifically,
those are $68,936 for labor hours billed at rates in excess of the allowable
maximums set in contract TOFS-09-0001, task order 1, and $22,546 in other
direct costs not allowed under contract TOS-09-007, task order 1.
3. Treasury should promptly review all previously paid legal fee bills from all
law firms with which it has a closed or open contract to identify unreasonable
or unallowable charges and seek reimbursement for those charges, as
appropriate.
 

4. Treasury should require in any future solicitation for legal services multiple
rate categories within the various partner, counsel, and associate labor
categories. The additional labor rate categories should be based on the
number of years the attorneys have practiced law.
5. Treasury should preapprove specified labor categories and rates of all
contracted legal staff before they are allowed to work on and charge time to
OFS projects.

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Management Comments and SIGTARP’s Response
 
Treasury provided comments on a draft of this report in a memorandum dated
September 28, 2011. Treasury’s memorandum is reproduced in full in
Appendix K.
In its response, Treasury neither agreed nor disagreed with the five
recommendations regarding OFS’ review and payment of legal fees and related
costs, but stated that it is committed to working with SIGTARP to address the
recommendations. SIGTARP will follow up on Treasury’s specific actions to
address the recommendations. Treasury also stated in its response that it was well
positioned to judge the quality and value of assistance provided by its contracted
legal staff and to ensure that taxpayer funds were used wisely. SIGTARP
disagrees with Treasury’s position on the value it received – OFS received legal
fee bills that contained block-billed charges, vague and inadequate descriptions of
work performed, and charges for administrative functions not allowed under the
contracts. Because OFS did not question these legal fee bills and request more
detailed information, it could not have determined that amounts billed and paid
were reasonable.
 

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Appendix A – Scope and Methodology
SIGTARP performed this audit under authority of Public Law 110-343, as amended, which also
incorporates the duties and responsibilities of inspectors general under the Inspector General Act
of 1978, as amended. SIGTARP initiated this audit at the request of Senator Tom Coburn, M.D.
The audit’s objectives were to examine the processes used to ensure that (1) professional services
contract prices are fair and reasonable; and (2) invoices submitted by the contractors accurately
reflect the work performed. For one law firm, Venable LLP, SIGTARP reported results on
April 14, 2011, related to the second objective in audit report number SIGTARP-11-003,
“Treasury’s Process for Contracting for Professional Services under the Troubled Asset Relief
Program.”
To determine how OFS established and implemented contracting procedures, including those
regarding conflicts of interest, SIGTARP interviewed procurement officials in OFS and
Treasury’s Procurement Services Division. SIGTARP reviewed relevant Treasury policies and
procedures issued before OFS was created that were used by OFS until it issued its own policies.
SIGTARP also reviewed OFS contracts with law firms to understand the services to be provided
and any billing requirements included in the contracts.
To determine whether OFS policies and procedures were effective, SIGTARP audited a sample
of invoices paid by OFS for legal services (“fee bills”) submitted by a sample of law firms and
paid by OFS. Five law firms were judgmentally selected, based on Congressional interest and
the dollar value of awarded contracts. SIGTARP selected the following five law firms for audit:






Simpson Thacher & Bartlett LLP;
Cadwalader Wickersham & Taft LLP;
Locke Lord Bissell & Liddell LLP;
Bingham McCutchen LLP (which merged with McKee Nelson LLP); and
Venable LLP.

Audit fieldwork included tests of transactions and interviews conducted at OFS offices in
Washington, D.C. Additional tests and interviews, including a walk-through of billing practices
and procedures and reviews of timekeeping and billing policies, were conducted in the law
offices of Locke Lord Bissell & Liddell in Washington, D.C., and Venable LLP in Baltimore,
Maryland. As shown in Table 2, the scope of the audit covered all $26.9 million in payments to
the five law firms made between October 3, 2008 – the inception of TARP – and March 31,
2011. For that period, SIGTARP selected for audit $10.1 million in payments OFS made to the
five law firms.

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TABLE 2

AUDITED PAYMENTS TO LAW FIRMS

Audited

Percent
Audited

TOFS-09-0001

$1,530,023

$1,530,023

100%

TOFS-09-0009

1

3,422,093

100%

931,090

931,090

100%

TOFS-09-D-0006

Law Firm

Paid Legal Fees
and Expenses
as of 3/31/2011

17,392,786

2,869,998

17%

TOFS-09-D-0011

Contract Number

Simpson Thacher & Bartlett LLP

TOS-09-007

Cadwalader Wickersham & Taft LLP

2

3,422,093

1,278,696

0

0%

TOS-09-020

409,955

0

0%

Locke Lord Bissell & Liddell LLP

TOS-09-022

272,243

272,243

100%

Bingham McCutchen LLP
(novated from McKee Nelson LLP)

TOFS-09-D-0005

270,524

67,383

25%

$25,507,410

$9,092,830

36%

1,394,723

1,027,049

74%

$26,902,133

$10,119,879

38%

Subtotal Related to This Report
Venable LLP

3

Total for This Audit

TOFS-09-D-0002

Notes: Numbers affected by rounding.
1
Simpson Thacher’s contract number TOFS-09-0009 is still active. Between 02/04/2011, when OFS provided SIGTARP fee bills for audit, and
03/31/2011, OFS paid additional Simpson Thacher fee bills totaling $83,824. The additional fee bills were not subject to SIGTARP’s audit.
2
OFS awarded contract number TOFS-10-D-0006 to Cadwalader Wickersham & Taft after SIGTARP’s audit began. It was, therefore, not subject to
audit. As of 03/31/2011, $3,789,815 had been obligated and $992,237 was expended under this contract.
3
All amounts shown for Venable LLP were previously reported in audit report number SIGTARP 11-003, “Treasury’s Process for Contracting for
Professional Services under TARP,” issued April 14, 2011, and are shown here for comparative purposes only.
Source: SIGTARP analysis of data provided by OFS.

SIGTARP conducted this performance audit in accordance with generally accepted government
auditing standards prescribed by the Comptroller General of the United States. Those standards
require that SIGTARP plan and perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for findings and conclusions based on the audit objectives. SIGTARP
conducted this audit from May 2010 through May 2011. SIGTARP believes that the evidence
obtained provides a reasonable basis for the findings and conclusions based on the audit
objective.

Limitations on Data
SIGTARP was unable to collect complete timekeeping information for attorneys providing legal
services to OFS. One law firm asserted that disclosing descriptions of tasks performed for the
firm’s other clients would violate those clients’ attorney-client privileges, and, therefore,
SIGTARP did not collect this information from any of the law firms. Without this information,
SIGTARP was not able to determine whether OFS was paying for duplicated or recycled
attorney work products. In addition, entities performing work under contract to OFS in support
of TARP are required to disclose organizational conflicts of interest. Certifications regarding
conflicts of interest are required from contractors (“self-certifications”), and OFS has indicated
that it has no process for independently verifying self-certifications. Because contractors selfidentify conflicts of interest, instances of non-compliance could have been omitted.

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Use of Computer-Processed Data
SIGTARP did not use OFS computer-processed data during this audit. Legal fee bills were not
submitted electronically by law firms or processed electronically by OFS.

Internal Controls
As part of this audit, SIGTARP reviewed Locke Lord Bissell & Liddell’s and Venable’s internal
control framework for collecting and reporting time charges. SIGTARP also examined OFS
controls for contract issuance and administration.

Prior Coverage
As stated above, SIGTARP issued an earlier report as part of this audit. No other audits with the
same or similar audit objectives have been performed on OFS’ process for contracting for
professional services under the Troubled Asset Relief Program.

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Appendix B – Potential Billing Issues
SIGTARP
1
Classification

Fees for Labor

Description

Administrative Tasks

Invoice preparation, review, or corrections to an invoice required by the OFS contracting
officer’s technical representative or Treasury’s contracting officer.

Unallowable

Block Billing

Aggregating or lumping together multiple tasks in the same time charge, collectively
totaling more than 0.5 hours.

Unsupported

Clerical Fees

Hourly fees for time spent photocopying, sending facsimiles, etc.

Unallowable

Clerical Overtime

Secretarial or clerical overtime that has not been approved by the OFS contracting
officer’s technical representative.

Unallowable

Contract Review

Proposal/Task Order/Contract Review. (Administrative items added by SIGTARP.)

Unallowable

Excessive Conferences

Excessive intra-office conferences between attorneys or paralegals for the purpose of
providing instruction or status.

Unsupported

Excessive Review

Excessive time spent in “file review.”

Unsupported

Excessive Revision

Excessive time spent in “review and revision” of documents.

Unsupported

Excessive Staff

Excessive number of attorneys performing services on a matter.

Unsupported

Inadequate Description

Insufficient or incomplete description of tasks (for example: “research”).

Unsupported

Labor Category

Charging attorney time for tasks that should be performed efficiently and effectively at
less expense by a paralegal or secretary, or charging paralegal time for tasks that
should be performed by clerical workers.

Unsupported

Labor Rate

Hours charged at a more senior attorney rate when a matter should be handled by a less
senior attorney.

Unsupported

Training Time

Educational or development costs to become generally familiar with statutory and case
law affecting Treasury.

Unallowable

Unapproved Staff

Services of billable individuals who have not been included on the approved rate
schedule.

Unsupported

Unapproved Task

Legal work on matters not approved (work should be tied to Statement of Work).

Unallowable

Value Billing

Value billing (billing based on the value of the information or service provided rather than
billing based on time spent).

Unallowable

Other Direct Costs

Description

SIGTARP
Classification

Commuting

Daily commuting expenses.

Unallowable

Copies

In-house photocopying charges at more than $0.08 per copy.

Unallowable

Copying

Clerical time for photocopying, sending facsimiles, filing, etc.

Unallowable

Filings

Any costs relating to filing fees in U.S. District Courts or Courts of Appeal, which OFS is
not required to pay (pursuant to 12 U.S.C. 1819(b)(4)).

Unallowable

Postage

Ordinary postage (other than express, messenger, etc.).

Unallowable

Research

Charges other than “actual time” charges for electronic research (Westlaw, Lexis, etc.).

Unallowable

Tax

Sales tax (except for lodging) or surcharges imposed by utilities or telephone services.

Unallowable

Training

Charging attorney time for preparing and presenting training to OFS.

Unallowable

Travel

Approved travel time at 50% of approved timekeeper rate.

Allowable

2

Note: Not all potential billing issues were identified during SIGTARP’s review of fee bills.
1

Under FAR 31.201-2, Determining Allowability, a cost is “allowable” only when it complies with all of the following five requirements. The cost must:
(1) be reasonable (not exceed that which would be incurred by a prudent person in the conduct of a competitive business), (2) be allocable (incurred
specifically for the contract), (3) meet standards promulgated by the Cost Accounting Standards Board or generally accepted accounting principles,
(4) be within the terms of the contract, and (5) be within any limitations set forth in FAR Subpart 31.2, which prescribes the determination and proper
treatment of costs in Government contracts with commercial organizations.

2

A cost is “unsupported” if, at the time of the audit, the cost is not supported by adequate documentation; for example, if the description of the associated
task does not contain enough information to determine whether the task meets the five requirements to be “allowable,” as shown in Note 1.

Source: FDIC Outside Counsel Deskbook, with administrative tasks related to contract and task order review, and value billing, added by SIGTARP.

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Appendix C – Questioned Legal Fees by Category
Category

Simpson
Thacher &
Bartlett LLP

Cadwalader
Wickersham
& Taft LLP

Locke Lord
Bissell &
Liddell LLP

Bingham
McCutchen
LLP (novated
from McKee
Nelson LLP)

$0

$1,841,336

$107,955

$40,724

$1,990,015

$416,797

$2,406,812

0

0

3,971

0

3,971

20,638

24,609

5,855,374

33,058

10,717

863

5,900,012

12,265

5,912,277

Labor Category

0

14,304

0

0

14,304

0

14,304

Travel (50% of
full hourly rate)

0

3,091

0

0

3,091

0

3,091

Block Billed and
Administrative
Tasks

0

0

14,726

0

14,726

34,086

48,812

Block Billed and
Inadequate Detail

0

15,394

9,498

16,352

41,244

191,638

232,882

Block Billed and
Labor Category

0

21,574

0

0

21,574

0

21,574

Block Billed
and Travel

0

44,825

0

0

44,825

0

44,825

Inadequate Detail
and Labor
Category

0

3,979

0

0

3,979

0

3,979

Block Billed,
Administrative
Tasks, and
Inadequate Detail

0

0

0

0

0

1,416

1,416

Block Billed,
Inadequate Detail,
and Travel

0

2,013

0

0

2,013

0

2,013

Copying Costs
(over 8¢ per copy)

0

1,493

0

0

1,493

0

1,493

5,286

0

0

0

5,286

0

5,286

22,546

0

0

0

22,546

0

22,546

0

2,618

0

0

2,618

0

2,618

$5,883,206

$1,983,685

$146,867

$57,939

$8,071,697

$676,840

$8,748,537

Fee or Cost
Billing Issue
Block Billed
Administrative
Tasks
Inadequate Detail

No Receipts
Provided for
Other Costs
Other Costs Not
Allowed
Under the Contract
Research Costs
Total

SIGTARP 11-004

Subtotal
Related
to This
Report

Venable
1
LLP

Total
for
This
Audit

September 28, 2011

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Appendix D – Contracting Services Provided to OFS by
Other Treasury Offices and Responsibilities of Contracting
Officers and Contracting Officer’s Technical
Representatives
OFS manages TARP, with key support services provided by other Treasury offices. For
example, the Procurement Services Division solicits, negotiates, and awards contracts on behalf
of OFS. Under FAR 1.602, Contracting Officers, only contracting officers are granted the
authority to enter into, administer, and terminate contracts on behalf of the Government.
Contracting officers are also responsible for ensuring performance of all necessary actions for
effective contracting, ensuring compliance with the terms of the contract, and safeguarding the
interests of the United States in its contractual relationships.
Within the Procurement Services Division, Treasury’s contracting officers are delegated the
authority to administer and/or terminate contracts on behalf of Treasury. The Department of the
Treasury Acquisition Regulation, which supplements the FAR, allows the contracting officer to
delegate certain responsibilities to a COTR.25 Accordingly, for each contract, the contracting
officer appoints a COTR through a letter of designation, after the COTR is nominated by the
program office.26 The letter of designation describes the authority as well as specific
responsibilities of the COTR. Each contract identifies the responsible COTR.
The contracting officer maintains the official contract file for all OFS procurements. However,
while the contract is active, the COTR also creates and maintains working files to facilitate the
contract management process. When the contract is complete, the COTR files are sent to the
contracting officer and become part of the official contract file. The COTR also:







monitors contractor performance to ensure that products and services conform to contract
requirements;
provides “technical direction” to the contractor within the scope of the contract’s
specifications or work statements, such as instructions that direct or redirect work, shift
the work between work areas or locations, fill in details regarding the work, and ensure
tasks outlined in work statements are accomplished satisfactorily;
assesses and reports on the contractor’s performance;
authorizes payments to the contractor; and
creates and maintains records of the administration of each contract.

25

The Department of the Treasury Acquisition Regulation states: “Requisitioning offices must nominate to the
contracting officer an individual to act as the contracting officer’s technical representative in the administration
and monitoring of a contract. Selection is to be based on the technical expertise and experience of the
individual…” The COTRs’ authorities and responsibilities are communicated to them in their COTR Designation
Memorandum, which is prepared for each contract.
26
Treasury program offices receiving support services through contracts are required to nominate a COTR in
accordance with the Department of the Treasury Acquisition Regulation, which supplements the FAR.

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Until September 2009, OFS used procedures issued by Treasury’s Procurement Services
Division (“Treasury’s procedures”). Treasury’s procedures state that the COTR is responsible
for, among other items, “Reviewing contractor invoices and supporting documentation for
certification,” but include no specific instructions beyond that requirement. Moreover, while
Treasury’s procedures address a broad array of procurement functions, such as tracking invoices
and vouchers, they do not address precise activities required of COTRs in conducting reviews of
legal fee bills or similar bills.
After September 2009, OFS established its own procedures. SIGTARP reviewed OFS
“Contracting Officer Technical Representative (COTR) Nomination and File Organization
Procedures” (“COTR procedures”) and OFS “Administration Procedures” to determine whether
these procedures are sufficient to ensure that payments are made only for invoices submitted by
contractors that adequately and accurately reflect the work performed and that only include
allowable costs. The COTR procedures state, in Section 4.3.1.2, Contract Performance
Management, that COTR duties may include, “Reviewing contractor invoices to ensure costs are
allocable to the contract, allowable pursuant to financial regulations, and reasonable.” However,
the procedures do not provide specifics on allowable and unallowable costs, services, and
charges; nor are COTRs separately provided this information as a guide to perform reviews of
the fee bills. The OFS procedures are similar to Treasury’s procedures discussed earlier in that
they do not provide specific instructions or guidelines that would serve as a basis for COTRs to
review and question invoices.
Although the OFS COTR procedures make no reference to the FAR regarding what is allowable,
because the Secretary of the Treasury has not waived any provision of the FAR, the FAR still
governs OFS contracts. Under FAR 31.201-2, Determining Allowability, a cost is allowable
only when it complies with all of the following five requirements. The cost must: (1) be
reasonable (not exceed that which would be incurred by a prudent person in the conduct of a
competitive business), (2) be allocable (incurred specifically for the contract), (3) meet standards
promulgated by the Cost Accounting Standards Board or generally accepted accounting
principles, (4) be within the terms of the contract, and (5) be within any limitations set forth by
FAR Subpart 31.2, which prescribes the determination and proper treatment of costs in
Government contracts with commercial organizations.
Treasury’s standard operating procedure for invoice control, dated February 28, 1994, state that a
COTR’s responsibilities include, “Reviewing contractor invoices and supporting documentation
for certification.” Section IV, Responsibilities of a COTR, also lists other responsibilities:
 
The COTR is designated … to furnish technical clarification, monitor contract performance and maintain an
arm’s length relationship with the contractor throughout the term of his appointment. The COTR’s technical
knowledge in the areas of performance covered by the contract allows him to function as the Government
representative most capable of providing technical direction to the contractor. Generally, a COTR’s
responsibilities include:
a.
b.
c.
d.

Controlling all Government technical interface with contractor personnel;
Assuring that appropriate action is taken on technical correspondence pertaining to contract/delivery
orders and ensuring that adequate files are maintained;
Furnishing documentation on any request for change, deviation, or waiver to the contracting officer for
action;
Reviewing contractor invoices and supporting documentation for certification;

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e.
f.
g.
h.
i.

36

Notifying the contracting officer of performance problems and recommending corrective action;
Reviewing contract deliverables and accepting/rejecting them;
Evaluating contractor proposals and developing Government estimates;
Preparing contractor performance evaluations; and
Accounting [for] and monitoring any Government furnished property.

OFS “Contracting Officer Technical Representative (COTR) Nomination and File Organization
Procedures,” dated November 30, 2009, state, in Section 4.3.1.2, Contract Performance
Management, that COTR duties may include, “Reviewing contractor invoices to ensure costs are
allocable to the contract, allowable pursuant to financial regulations, and reasonable.”
Specifically, the section 4.3, COTR Duties, states in part:
4.3.1. COTR’s duties can be categorized as acquisition planning; proposal evaluation and negotiation; and
performance management. Specific COTR responsibilities may include:
1. Acquisition planning
a. Gathering requirements and drafting statements of work or related documents
b. Conducting market research to identify qualified sources
c. Preparing documentation to support Program and contract determinations and
d. Evaluating contractor proposals for technical and performance
2.

Contract performance management
a. Hosting post-award orientations
b. Conducting regular meetings and maintain[ing] effective communications with contractor
management
c. Preparing periodic cost accrual and contact performance reports
d. Reviewing contractor invoices to ensure costs are allocable to the contract, allowable pursuant to
financial regulation, and reasonable
e. Coordinating audits of contractor records as required
f. Providing technical direction and work authorization
g. Performing quality assurance reviews of contractor products or services to ensure compliance with
contract terms and conditions
h. Managing COTR files
i. Overseeing contract logistics requirements, such as information technology, security, facilities,
and government furnished property

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Appendix E – OFS Legal Service Contracts
(Issued October 3, 2008, through March 31, 2011)
Date of
Award

Contract
Number

Vendor

Purpose

Obligated
Value

Expended
Value

Contracts Awarded through Limited Competition Citing Unusual and Compelling Urgency
10/10/08

TOS-09-007

Simpson Thacher &
Bartlett MNP LLP

Legal services for the
implementation of TARP

11/07/08

TOS-09-010A

Sonnenschein Nath &
Rosenthal LLP

Legal services related to auto
industry loans

01/27/09

TOS-09-020

Cadwalader Wickersham
& Taft LLP

02/12/09

TOS-09-022

02/20/09

$931,090

$931,090

$2,722,326

$2,702,441

Bankruptcy legal services

$409,955

$409,955

Locke Lord Bissell
& Liddell LLP

Initiate interim legal services in
support of Treasury
investments under EESA

$272,243

$272,243

TOFS-09-D-0001

Simpson Thacher &
Bartlett MNP LLP

Capital Assistance Program (I)

$2,047,872

$1,530,023

02/20/09

TOFS-09-D-0002

Venable LLP

Capital Assistance Program (II)
Legal Services

$1,394,724

$1,394,724

03/30/09

TOFS-09-D-0005

Bingham McCutchen LLP

Small Business Administration
initiative, legal services –
contract novated from McKee
Nelson LLP

$422,355

$270,524

03/30/09

TOFS-09-D-0006

Cadwalader Wickersham
& Taft LLP

Auto investment legal services

$17,392,786

$17,392,786

03/30/09

TOFS-09-D-0007

Haynes and Boone LLP

Auto investment legal services

$345,746

$345,746

03/30/09

TOFS-09-D-0004

Sonnenschein Nath &
Rosenthal LLP

Auto investment legal services

$1,834,193

$1,834,193

$4,068,834

$2,286,996

$7,849,026

$3,505,917

Legal services for work under
Treasury’s Public-Private
Investment Fund (PPIF)
program
Legal services for work under
Treasury’s Public-Private
Investment Fund (PPIF)
program

05/26/09

TOFS-09-D-0010

Anderson, McCoy & Orta

05/26/09

TOFS-09-D-0009

Simpson Thacher &
Bartlett MNP LLP

07/30/09

TOFS-09-D-0011

Cadwalader Wickersham
1
& Taft LLP

Restructuring legal services

$2,049,979

$1,278,696

07/30/09

TOFS-09-D-0012

Debevoise & Plimpton LLP Restructuring legal services

$159,175

$1,650

07/30/09

TOFS-09-D-0013

Fox, Hefter, Swibel, Levin
Restructuring legal services
& Carol, LLP

$84,125

$26,493

$41,984,429

$34,183,477

Subtotals

Contracts Awarded Using Simplified Acquisition Procedures for Contracts under $100,000
09/17/10

TOFS-10-O-0021

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Bingham McCutchen LLP

Small Business Administration
Section 7(a) Security Purchase
Program

$19,975

$11,177

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Contracts Awarded through Full and Open Competition
12/10/08

TOS-09-014C

Sonnenschein Nath &
Rosenthal LLP

Legal services for the purchase
of asset-backed securities

$249,999

$102,769

08/06/10

TOFS-10-D-0005

Alston & Bird LLP

Omnibus procurement for legal
services

$1,285,416

$2,277

08/06/10

TOFS-10-D-0006

Cadwalader Wickersham
& Taft LLP

Omnibus procurement for legal
services

$3,789,815

$992,237

08/06/10

TOFS-10-D-0007

Fox, Hefter, Swibel, Levin Omnibus procurement for legal
& Carol, LLP
services

$181,200

$660

08/06/10

TOFS-10-D-0008

Haynes and Boone, LLP

Omnibus procurement for legal
services

2

—

08/06/10

TOFS-10-D-0009

Hughes Hubbard &
Reed LLP

Omnibus procurement for legal
services

$113,655

$107,301

08/06/10

TOFS-10-D-0010

Love & Long LLP

Omnibus procurement for legal
services

—

2

—

08/06/10

TOFS-10-D-0011

Orrick Herrington
Sutcliffe LLP

Omnibus procurement for legal
services

—

2

—

08/06/10

TOFS-10-D-0012

Paul, Weiss, Rifkind,
Wharton & Garrison LLP

Omnibus procurement for legal
services

$3,565,041

$294,118

08/06/10

TOFS-10-D-0013

Perkins Coie LLP

Omnibus procurement for legal
services

—

2

—

08/06/10

TOFS-10-D-0014

Seyfarth Shaw LLP

Omnibus procurement for legal
services

—

2

—

08/06/10

TOFS-10-D-0015

Shulman, Rogers, Gandal, Omnibus procurement for legal
Pordy & Ecker, PA
services

$313,725

—

08/06/10

TOFS-10-D-0016

Sullivan Cove Reign
Enterprises JV

Omnibus procurement for legal
services

2

—

08/06/10

TOFS-10-D-0017

Venable LLP

Omnibus procurement for legal
services

$498,100

$190

$9,996,951

$1,499,552

Subtotals

—

—

Contracts Awarded through General Services Administration Federal Supply Schedule
10/29/08

T09BPA-002

Hughes Hubbard &
Reed LLP

Legal services for the Capital
Purchase Program

$3,060,921

$2,835,357

10/29/08

T09BPA-001

Squire, Sanders &
Dempsey LLP

Legal services for the Capital
Purchase Program

$5,787,939

$2,687,999

12/22/09

TOFS-10-B-0001

Hughes Hubbard &
Reed LLP

Document production services
and litigation support

$1,097,205

$699,683

04/08/10

TOFS-10-B-0002

Squire, Sanders &
Dempsey LLP

Housing legal services

$1,229,350

$774,012

07/22/10

TOFS-10-G-0007

Schiff Hardin LLP

Housing legal services

$537,375

$97,526

$11,712,790

$7,094,577

$63,714,145

$42,788,782

Subtotals
Total Obligations and Expenditures
Notes: Numbers may not total due to rounding.
1
2

$1.4 million deobligation submitted on 09/30/2010.
If no task orders have been awarded, no funds are obligated.

Source: OFS.

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Appendix F – OFS Proposal Evaluation Rating Scale and
Definition of Rating Terms
Evaluation Rating Scale
OFS Technical Evaluation Panels evaluated all non-price factors in legal service contract
proposals by providing adjectival ratings using the following evaluation rating scale:
Outstanding (O) – Meets all requirements of the Request for Proposal (“RFP”) and provides
significant advantages to the Government. A rating of outstanding is consistent with a judgment
that the proposal presents an extremely low risk of poor performance to the Government.
Good (G) – Meets all requirements of the RFP and provides advantages to the Government. A
rating of good is consistent with a judgment that the proposal presents a low risk of poor
performance to the Government.
Satisfactory (S) – Meets all requirements of the RFP. A rating of satisfactory is consistent with
the judgment that the proposal presents an average risk of poor performance to the Government.
Marginal (M) – Meets most or some requirements of the RFP, but is either significantly weak
on an RFP requirement, weak on a high number of RFP requirements, or vague with respect to
the firm’s ability to meet certain RFP requirements. A rating of marginal is consistent with the
judgment that the proposal presents an above average risk of poor performance to the
Government.
Unsatisfactory (U) – Does not meet the requirements of the RFP. A rating of unsatisfactory is
consistent with one or more significant weaknesses, a deficiency, or a non-responsive proposal.
This rating is consistent with the judgment that the proposal presents a high risk of poor
performance to the Government.
Identification of Strengths, Weaknesses, Significant Weaknesses and Deficiencies
The following are the definitions of these terms:
Term
Strength
Weaknesses
Significant
Weakness
Deficiency

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Definition
A quality element in the proposal that appreciably (measurably,
perceptibly) increases the chances of successful contract performance or
provides an advantage to the Government.
A flaw in the proposal that increases the risk of unsuccessful contract
performance.
A flaw in the proposal that significantly increases the risk of unsuccessful
contract performance.
A flaw in the proposal that calls into question the ability of the contractor
to perform the work in the Statement of Work.

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Appendix G – Payment-Related FAR Clauses
Incorporated into OFS Contracts
In the contracts audited by SIGTARP, the Federal Acquisition Regulation (“FAR”) was
referenced in the contracts, which stated: “This contract incorporates one or more [FAR] clauses
by reference, with the same force and effect as if they were given in full text.” The following
two FAR clauses dealing with payments to contractors were incorporated by reference into the
contracts:


FAR 52.232-1, Payments, which states in part:
The Government shall pay the Contractor, upon the submission of proper invoices or vouchers, the
prices stipulated in this contract for supplies delivered and accepted or services rendered and
accepted, less any deductions provided in this contract. Unless otherwise specified in this contract,
payment shall be made on partial deliveries accepted by the Government if—
(a) The amount due on the deliveries warrants it; or
(b) The Contractor requests it and the amount due on the deliveries is at least $1,000 or
50 percent of the total contract price.



FAR 52.232-7, Payments under Time-and-Materials and Labor-Hour Contracts, provides
general instructions on payment of invoices. The clause states in part:
The Government will pay the Contractor as follows upon the submission of vouchers approved by
the Contracting Officer or the authorized representative:
(a) Hourly rate.
(1) Hourly rate means the rate(s) prescribed in the contract for payment for labor that
meets the labor category qualifications of a labor category specified in the contract that
are—
(i) Performed by the Contractor;
(ii) Performed by the subcontractors; or
(iii) Transferred between divisions, subsidiaries, or affiliates of the Contractor under
a common control.
(2) The amounts shall be computed by multiplying the appropriate hourly rates prescribed
in the Schedule by the number of direct labor hours performed.
(3) The hourly rates shall be paid for all labor performed on the contract that meets the
labor qualifications specified in the contract. Labor hours incurred to perform tasks for
which labor qualifications were specified in the contract will not be paid to the extent
the work is performed by employees that do not meet the qualifications specified in the
contract, unless specifically authorized by the Contracting Officer.
(4) The hourly rates shall include wages, indirect costs, general and administrative
expenses, and profit. Fractional parts of an hour shall be payable on a prorated basis.
(5) Vouchers may be submitted once each month (or at more frequent intervals, if
approved by the Contracting Officer), to the Contracting Officer or authorized
representative. The Contractor shall substantiate vouchers (including any
subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual
payment and by—
(i) Individual daily job timekeeping records;
(ii) Records that verify the employees meet the qualifications for the labor categories
specified in the contract; or
(iii) Other substantiation approved by the Contracting Officer. 

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Appendix H – New OFS Guidance to Its Outside Counsel
on Legal Fee Bill Submission and Format
From: 
Sent: 
Subject: 

[name redacted–(b)(6)]
Thursday, March 03, 2011 11:26 AM 
Additional Guidance re Invoice Submission and Formatting Instructions 

Dear OFS Contractor:    
     
In an effort to standardize the procedures for all contractors in the submission of proper 
legal services invoices, listed below is guidance regarding invoice submission, invoice 
format and other direct costs.  This guidance should be considered as supplementary only 
to your base contract and individual task orders, which shall supersede anything 
contained herein to the contrary.  Please ensure that your March 2011 billing and all 
billing going forward conforms to the following standards: 
 
A. Invoice Submission Instructions 
 
Please refer to your base contract regarding invoicing and payment instructions. In 
addition, please use the following guidance in the preparation and submission of monthly 
invoices: 
 
1. Invoices should include your firm name, your DUNS number and the date. 
2. Invoices should be issued separately for each task order under your base contract.  Please 
indicate the contract and task order number as well as the invoice number on the cover page 
of each invoice.  Any Purchase Requisition number assigned to the task order by Treasury 
should also be listed. [COTRs to supply PR numbers to contractors as needed). 
3. Invoices should be submitted for each calendar month. 
4. Review bill prior to submission to ensure that it is within the labor hour categories and 
hourly rate maximums required by the task order and that only allowable expenses are 
charged as described in the task order and the other direct cost section of the base 
contract if such costs have been awarded in the task order. 
5. Do not bill for a service or cost that is customarily included in the normal overhead or 
administrative expense of running a law firm (monthly bill preparation often falls in this 
category). 
 
B. Invoice Formatting and Instructions 
 
In general, each entry shall include activity descriptions that are sufficiently detailed 
to allow the COTR to determine whether all the time, or any portion thereof, is actual, 
reasonable, and necessary and shall include the following:  
 
1. All activity descriptions shall be divided into general project categories of time. 
2. All entries shall include complete and detailed activity descriptions without the use of 
acronyms. 
3. Each activity description shall include a time allotment.  
4. Activities shall be billed in increments of one‐tenth of an hour (six minutes). 
5. Each activity description shall include the type of activity (e.g., phone call, research).  
6. Each activity description shall include the subject matter where task orders have multiple 
subjects.  
7. Activity descriptions shall not be lumped or block‐billed, i.e., each activity shall have a 
separate description and a time allotment.  
8. The activity descriptions shall individually identify all meetings and hearings, other key 
attendees in the firm or at Treasury, the subject(s) of the meeting or hearing, and the 
participant's role. 
9. Activity descriptions shall be presented chronologically, or chronologically within each 
project category. 
10. All travel shall be approved in writing by the Contracting Officer or Contracting Officer 
Technical Representative prior to the occurrence of the travel. 
 
C. Other Direct Costs: 
 
For task orders that provide for other direct costs, please refer to your base contract 
regarding allowable and non‐allowable costs and travel reimbursement procedures. 

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Appendix I – Acronyms and Abbreviations
Acronym

Definition

CAP
CO
COTR
CPP
EESA
FAR
FDIC
GSA
OFS
PPIF
PPIP
RFP
SBA
SIGTARP
TARP

Capital Assistance Program
Contracting Officer
Contracting Officer’s Technical Representative
Capital Purchase Program
Emergency Economic Stabilization Act of 2008
Federal Acquisition Regulation
Federal Deposit Insurance Corporation
General Services Administration
Office of Financial Stability
Public-Private Investment Fund
Public-Private Investment Program
Request for Proposal
Small Business Administration
Office of the Special Inspector General for the Troubled Asset Relief Program
Troubled Asset Relief Program

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Appendix J – Audit Team Members
This audit was conducted and the report was prepared under the direction of Kurt Hyde, Deputy
Special Inspector General for Audit and Evaluation, in the Office of the Special Inspector
General for the Troubled Asset Relief Program. The staff members who conducted the audit and
contributed to the report include Leah DeWolf, Brenda James, Danial Olberding, Sarah Reed,
and Trevor Rudolph.

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Appendix K – Management Comments

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SIGTARP Hotline
If you are aware of fraud, waste, abuse, mismanagement, or misrepresentations associated with the Troubled
Asset Relief Program, please contact the SIGTARP Hotline.
By Online Form: www.SIGTARP.gov
U

U

U

By Phone: Call toll free: (877) SIG-2009

U

By Fax: (202) 622-4559
By Mail:

Hotline: Office of the Special Inspector General
for the Troubled Asset Relief Program
1801 L Street., NW, 3rd Floor
Washington, D.C. 20220

Press Inquiries
If you have any inquiries, please contact our Press Office:
Julie Vorman
Acting Director of Communications
Julie.Vorman@treasury.gov
202-927-1310
U

Legislative Affairs
For Congressional inquiries, please contact our Legislative Affairs Office:
Lori Hayman
Director of Legislative Affairs
Lori.Hayman@treasury.gov
202-927-8941
U

U

Obtaining Copies of Testimony and Reports
To obtain copies of testimony and reports, please log on to our website at www.sigtarp.gov. 
U

U