10 C.F.R. Subpart D—Reimbursement of Costs Subject to This Part
Title 10 - Energy
The standard for cost reasonableness determinations, one of the criteria for an allowability determination, is contained in the Federal Acquisition Regulation (FAR), at 48 CFR 31.201–3. In determining whether fees or rates charged by retained legal counsel are reasonable, the Department may consider: (a) Whether the lowest reasonably achievable fees or rates (including any currently available or negotiable discounts) were obtained from retained legal counsel; (b) Whether lower rates from other firms providing comparable services were available; (c) Whether alternative rate structures such as flat, contingent, and other innovative proposals, were considered; (d) The complexity of the legal matter and the expertise of the law firm in this area; and (e) The factors listed in §719.10(c). All costs determined to be allowable are reimbursable for actual costs only, with no overhead or surcharge adjustments. (a) Specific categories of unallowable costs are contained in the cost principles at 48 CFR (FAR) part 31 and 48 CFR (DEAR) part 931 and 970.31. See also 41 U.S.C. 256(e). (b) The Department does not consider for reimbursement any costs incurred for entertainment or alcoholic beverages. See 48 CFR (FAR) 31.205–14 and 31.205–51 and 41 U.S.C. 256(e). (c) Costs that are customarily or already included in billed hourly rates are not separately reimbursable. (d) Interest charges that a contractor incurs on any outstanding (unpaid) bills from retained legal counsel are not reimbursable. Travel and related expenses must at a minimum comply with the restrictions set forth in 48 CFR (FAR) 31.205–46, or 48 CFR (DEAR) 970.3102–05–46, as appropriate, to be reimbursable. Costs for the following require specific justification or advance written approval from Department counsel to be considered for reimbursement: (a) Computers or general application software, or non-routine computerized databases specifically created for a particular matter; (b) Charges for materials or non-attorney services exceeding $5,000; (c) Secretarial and support services, word processing, or temporary support personnel; (d) Attendance by more than one person at a deposition, court hearing, interview or meeting; (e) Expert witnesses and consultants; (f) Trade publications, books, treatises, background materials, and other similar documents; (g) Professional or educational seminars and conferences; (h) Preparation of bills or time spent responding to questions about bills from either the Department or the contractor; (i) Food and beverages when the attorney or consultant is not on travel status and away from the home office; and (j) Pro hac vice admissions. If advance approval is required under this part, the advance approval must be obtained from the Department counsel unless the Department counsel indicates that approval of a request may only be given by the contracting officer. (a) The contractor must have a monitoring system for subcontractor legal matters likely to reach $100,000 over the life of the matter. The purpose of this system is to enable the contractor to perform the same type of analysis and review of subcontractor legal management practices that the Department can perform of the contractor's legal management practices. The monitoring is intended to enable the contractor to keep the Department informed about significant subcontractor legal matters, including significant matters in litigation. The burden is on the prime contractor to be responsive to questions raised by the Department concerning significant subcontractor legal matters. (b) Contractors must submit information copies of subcontractor invoices for legal services to Department counsel. All costs covered by this part are subject to audit by the Department, its designated representative or the General Accounting Office. See §719.21. (a) If more than one contractor is a party in a particular matter and the issues involved are similar for all the contractors, a single legal counsel designated by the General Counsel must either represent all of the contractors or serve as lead counsel, when the rights of the contractors and the government can be effectively represented by a single legal counsel, consistent with the standards for professional conduct applicable in the particular matter. Contractors may propose to the General Counsel their preference for the individual or law firm to perform as the lead counsel for a particular matter. (b) If a contractor, having been afforded an opportunity to present its views concerning joint or lead representation, does not acquiesce in the designation of one retained legal counsel to represent a number of contractors, or serve as lead counsel, then the legal costs of such contractor are not reimbursable by the Department, unless the contractor persuasively shows that it was reasonable for the contractor to incur such expenses.
Title 10: Energy
PART 719—CONTRACTOR LEGAL MANAGEMENT REQUIREMENTS
Subpart D—Reimbursement of Costs Subject to This Part
§ 719.30 Is there a standard for determining cost reasonableness?
§ 719.31 How does the Department determine whether fees are reasonable?
§ 719.32 For what costs is the contractor, or Department retained counsel, limited to reimbursement of actual costs only?
§ 719.33 What categories of costs are unallowable?
§ 719.34 What is the treatment for travel costs?
§ 719.35 What categories of costs require advance approval?
§ 719.36 Who at the Department must give advance approval?
§ 719.37 Are there any special procedures or requirements regarding subcontractor legal costs?
§ 719.38 Are costs covered by this part subject to audit?
§ 719.39 What happens when more than one contractor is a party to a matter?
