CALL FOR SUBMISSIONS ("CFS") FOR TRANSACTION ADVISOR PANEL – MARKET ADVISORY SERVICES ("Applicant Pay Basis")

OMB Control Number: 0693-XXXX
Expiration Date: XX/XX/XXXX
CALL FOR SUBMISSIONS (“CFS”) FOR
TRANSACTION ADVISOR PANEL – MARKET ADVISORY SERVICES
(“Applicant Pay Basis”)
The CHIPS Program Office (“CPO”) of the United States Department of Commerce (the “Department”) is
responsible for implementing the CHIPS Incentives Program established pursuant to Section 9902 of Title XCIX—
Creating Helpful Incentives to Produce Semiconductors for America – of the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021, 15. U.S.C. §4652, as amended by the Creating Helpful
Incentives to Produce Semiconductors and Science Act of 2022 (Sections 102 and 105 of Pub. L. 117-167)
(together, the “CHIPS Act”). Pursuant to this CFS, CPO invites submissions from market advisory firms (“Firms”)
interested in serving on a panel to advise the Department on transactions under Section 9902 of the CHIPS Act
(the “Panel”). Each Firm selected for the Panel will:

•

Have superior qualifications and expertise in providing market advisory services in industry and
competitor review and business case review; and

•

Be prepared to provide market advisory services to the Department from time to time as outlined in this
CFS and on an Applicant Pay Basis. “Applicant Pay Basis” means that the fees and expenses of the
Department for a transaction will be borne solely by the applicant or sponsor (or another third party) and
not by the Department. All transactions covered by this CFS will be on an Applicant Pay Basis. The
Department shall have no obligation or liability to make any payments to Firms retained in connection
with this CFS. However, the Department reserves the right to elect in the future to pay for certain fees and
expenses associated with market advisory services.

Submissions are due [DATE/TIME] (Washington, D.C. time). Please see Instructions to Firms, Annex A, for
submission instructions, requesting any clarification, and communicating with the Department or CPO in respect
of this CFS. In particular, all communications regarding this CFS should be directed to the following e-mail
address: [email protected].
The documents that are attached are:

Annex A
Annex B

Instructions to Firms (Pages 2-7)
Form of Submission (Pages 8-39)
1.
Cover Letter and Eligibility Criteria
2.
Technical Capability and Financial Proposal
3.
Conflicts of Interest and Disclosure
4.
Guidelines for Transaction Advisors

We look forward to hearing from you.

1

Sincerely,
CHIPS Program Office
United States Department of Commerce

Burden Statement
A Federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to
a penalty for failure to comply with an information collection subject to the requirements of the Paperwork Reduction Act
of 1995 unless the information collection has a currently valid OMB Control Number. The approved OMB Control Number
for this information collection is 06XX-XXXX. Without this approval, we could not conduct this information collection.
Public reporting for this information collection is estimated to be approximately 8 hours per response, including the time
for reviewing instructions, searching existing data sources, gathering, and maintaining the data needed, and completing
and reviewing the information collection. All responses to this information collection are mandatory to obtain benefits.
Send comments regarding this burden estimate or any other aspect of this information collection, including suggestions
for reducing this burden to the National Institute of Standards and Technology at: address, Attn: Cierra Bean, Business
Operations Analyst, CHIPS Program Office, and [email protected].

ANNEX A
INSTRUCTIONS TO FIRMS
1. Introduction
1.1 CPO invites Firms interested in being included on the Panel to provide a submission in response to this
CFS (each, a “Submission”). The mission of the CHIPS Incentives Program is to catalyze long-term
growth in the domestic semiconductor industry to support our national and economic security by
financing major semiconductor manufacturing and related facilities through a combination of grants,
loans, loan guarantees, and other transactions. For more general information on the CHIPS Incentives
Program, please see the CHIPS website at www.chips.gov.
1.2 This CFS will be used to create a panel of Firms qualified to provide market advisory services to
the Department on an “Applicant Pay Basis” in connection with transactions under Section 9902
of the CHIPS Act for which the Department retains external support (“Transaction Advisors”).
Although the Department will have no obligation to pay the fees and expenses of any Transaction
Advisor in these matters, CPO will select Transaction Advisors, ensure that the work is being
performed in accordance with the specified scope of work, and approve its invoices. In these
matters, the Firm’s professional duties will be solely to the Department as its client.
1.3 A more specific description of the services that may be required is described below in Section 8.
1.4 The cost of preparing a Submission, providing any additional information, attending any meetings or
making any oral presentations in connection with this CFS shall be borne by each Firm, regardless
of the outcome of the CFS process.
1.5 Effective with the release of this CFS, all communications regarding this CFS should be directed to the
following e-mail address: [email protected]. Firms may submit requests for clarification to this CFS by
sending an e-mail to [email protected] no later than [DATE/TIME]. CPO may, whether at its own
initiative, or in response to a clarification requested by a Firm, modify this CFS by addendum. CPO may,
at its discretion, extend the deadline for Submissions.
2. Intended Schedule
The following schedule reflects the expected completion dates, but may be modified by CPO in its sole
discretion (all dates are Washington, D.C. time):








[DATE/TIME]
[DATE/TIME]
[DATE/TIME]
[DATE/TIME]
[DATE/TIME]
[DATE/TIME]

Issue Call for Submissions
Deadline for Submitting Questions
Submission Due Date
Selection Date
Firm Acknowledgement Date
Implementation Date

3. Submission Due Date
Submissions must be submitted by e-mail in Microsoft Word or PDF format to [email protected] by
[DATE/TIME] (Washington, D.C. time).
3

4. Preparation of Submission
4.1 Firms should respond to this CFS clearly and concisely, omitting generalized public relations
or business development materials. Please provide brief, clear examples of relevant
expertise and value added.
4.2 Submissions should contain the Firm’s best terms from a technical and financial standpoint.
4.3 Submissions must follow the Form of Application provided in Annex B and should reproduce the
questions and numbering used in that form. Submissions should not exceed twenty (20) pages
(excluding (i) resumes of proposed Firm Team members and (ii) responses to the items requested
in Annex B, Section 3, Conflicts of Interest Disclosure).
5. Evaluation of Submissions
5.1 An evaluation committee (the “Evaluation Committee”) comprised of CPO staff or other federal
employees will carry out the initial evaluation of each Submission.
5.2 The Evaluation Committee will recommend Firms for inclusion on the Panel based on the
following criteria:

•

•
•

Eligibility Criteria: The eligibility criteria contained in Section 1.A of Annex B (Form of Application)
are designed to ensure that, to the degree possible, only those Firms with the evident ability to
satisfy the Department’s basic requirements will provide Submissions and qualify for further
consideration under this CFS.
Technical Capability: The technical capability and experience of: (i) the Firm, (ii) the Key Persons
(as defined in Annex B) and (iii) the Firm Team (as defined in Annex B).
Financial Proposal: A Firm’s ability to deliver timely, high-quality services, at reasonable fees.

•

References: CPO may check references (whether or not listed in the Submissions) for the
Firms.

•

Conflicts of Interest: CPO will consider the responses to the items listed in Section 3 of
Annex B (Conflicts of Interest Disclosure).

5.3 CPO reserves the right to verify any information contained in a Firm’s response or to request
additional information after the Submission is received.
5.4 During the evaluation process, CPO may select a short list of finalists (“Short List”) from among the
responding Firms. CPO may conduct discussions and meetings with, and request oral
presentations from, all or some of the Firms on the Short List.
5.5 CPO reserves the right to discontinue the process contemplated by this CFS at any time and makes
no commitments, implied or otherwise, that inclusion on the Panel will guarantee work or a
revenue stream.
6. Final Selection for Panel
6.1 CPO will select Firms for inclusion on the Panel based on its sole and exclusive determination.
6.2 Based on the selection criteria outlined above in Section 5, the Evaluation Committee will
4

recommend to the CPO Chief Operating Officer or their designee (“Selecting Official”) the Firms to
be included on the Panel. The Selecting Official will make the final determination regarding the
Firms to be included on the Panel.
6.3 CPO will notify each Firm whether it has been selected for the Panel no later than the Selection
Date noted above, unless extended.
6.4 Selected Firms will be included on the Panel upon confirmation in writing to the Department of their
participation on the Panel prior to the Firm Acknowledgement Date noted above, unless extended.
6.5 Firms included on the Panel are expected to be prepared to commence providing services as of the
Implementation Date stipulated in Section 2 above, subject to the process outlined in Section 7 below,
pursuant to which allocation of work assignments for any specific transactions will be made. While
the Department expects to use the Firms on the Panel for services as outlined in the CFS, the
Department is not bound to do so and selection as a member of the Panel is not a guarantee that the
Firm will be engaged to provide market advisory services for the Department on specific transactions.
6.6 The Department reserves the right to terminate a Firm’s status as a member of the Panel at any time,
with or without cause. If a Firm is removed from the Panel, the Firm agrees to engage in a
reasonable transition of any current matters to another Firm as directed by the Department.

6.7 Firms must provide notice to CPO when any Key Person (as defined in Annex B) leaves the Firm
and may propose a replacement Key Person for approval at CPO’ sole discretion. Firms must at all
times have at least one approved Key Person.
6.8 The number of Firms selected for the Panel will be determined by the capabilities of the Firms
responding to this CFS. In order to ensure that CPO continues to meet the evolving needs of the
Department’s business and clients and provide the best value to the Department’s various
stakeholders, CPO expects to review the Panel at least every five (5) years. However, CPO reserves
the right to extend, restructure, revise or terminate the Panel at any time.
7. Selection for Specific Transactions
7.1 This CFS is designed to identify Firms suitable for inclusion on the Panel only, and is not an offer to work on a
specific transaction. The need for Transaction Advisors and the selection of a Transaction Advisor for any
particular transaction will be determined by CPO in its discretion on a case-by-case basis, as described below.
CPO also reserves the right to retain transaction advisors not included on the Panel for any transaction
(including Applicant Pay Basis transactions), depending on the facts and circumstances of the transaction
(e.g., multi-lender transaction in which the lead lender (other than the Department) retains a firm not on the
Panel and CPO determines it wants to share transaction advisors with the other lenders).
7.2 For any given transaction where CPO elects to retain a Transaction Advisor on an Applicant Pay Basis
5

from the Panel, one or more of the Firms on the Panel will be asked to submit a proposal with regard
to a specified scope of work. The determination as to which Firms will be asked to submit a proposal
will be based on criteria determined by CPO in its sole discretion. Unless otherwise deemed
advantageous to the Department by CPO based on the facts and circumstances of such transaction,
CPO will choose one of those Firms to advise the Department on such transaction. Criteria taken into
account in selecting a Transaction Advisor may include:

•
•
•

•
•
•

The technical capability of the Firm and, particularly, the individual Firm Team members that the
Firm proposes for the assignment;
The Firm’s past performance when advising clients including, to the extent applicable,
any past engagements by the Department;
The Firm’s financial proposal (e.g., hourly rates, estimate of time required to complete the
assignment, discounts, caps or other mechanisms proposed, conditions attached to the
proposal, etc.);
Availability of the individuals proposed for the assignment and general distribution of
existing work among Firms;
The preferences, objections or potential conflicts of interest relating to other participants in the
transaction, including the applicant sponsor; and
Any other relevant factors as determined by the Department, including, but not limited to,
any other policy or internal Department considerations.

7.3 The Firm will be engaged by the Department (using the Department’s standard engagement
documentation, see Annex B, Section 4, Guidelines for Transaction Advisors, with such modifications
as the Department in its sole judgement deems appropriate from time to time), and will be
accountable to the Department employee assigned to be the Firm’s primary point of contact for the
transaction (“CHIPS Transaction POC”). The Transaction Advisor will be expected to work closely with
the CHIPS Transaction POC and keep the CHIPS Transaction POC informed of all significant transaction
and Department policy-related issues.
8. Services Required
8.1 CPO is interested in identifying Firms with a serious interest in advising the Department on
transactions in direct funding transactions (via grants, cooperative agreements, or other transactions),
loans, and loan guarantees (collectively, “CHIPS Incentives”) for eligible projects.
8.2 Sample Scope of Work. The following tasks would be typical of the range of services performed by
the Transaction Advisor on a specific CHIPS Incentives transaction:
Prior to the Department’s award of a CHIPS Incentives transaction to an applicant:
The Firm is required to provide CPO with a market reivew through the methods in Work Area 1 below, along
with a review of Applicant’s business case as defined in Work Area 2 below. The market to be reviewed will
be selected and refined according to the type of facility or facilities selected from the Facility Category list
below that is associated with the transaction (the “Selected Market”).
This assessment shall be provided in the form of a written report (the “Final Report”) to CPO that will
identify any issues with respect to the market aspects of the Project, evaluate whether the Applicant’s
6

business case reflects a reasonable assumption of proposed revenue generation and operating efficiency,
identify potential risks to the Project, and make recommendations, if necessary. CPO will facilitate
communication between the Applicant and the Firm for the purposes of preparing the Final Report and
soliciting additional information. The Final Report can be structured as a narrative report in Microsoft Word
or a substantive presentation in Microsoft PowerPoint.
This Final Report will include, but is not necessarily limited to, the following:
Work Area 1 – Industry Review Elements
•
Market demand, potentially to include validation/qualification of selected
size/share/growth/pricing assumptions across selected market segments (e.g. by product,
geography, etc.) and across customers (e.g. volumes demanded by selected customers and/or
discount pricing commanded by selected customers)
•
Market supply, potentially to include validation/qualification of selected competitor
landscape assumptions (e.g. existing or planned capacity by competitors, contract volumes
supplied by selected competitors, and/or premium pricing commanded by selected competitors),
and potentially to include validation/qualification of selected supply chain risks (e.g., pricing and
availability for key manufacturing materials and equipment
•
Industry capital allocation, potentially to include validation/qualification of industry
investment events/trends and their material effects on competitor/customer/supplier dynamics
and/or the Project (e.g., confirming or qualifying investor interest in the Project, another project,
or a broader market)
•
Cost structure, potentially to include validation/qualification of selected fixed and variable
cost assumptions across competitors and geographies
Work Area 2 – Review of the Company’s KPIs/Targets
•
Short-term Key Performance Indicators (KPIs)/Targets, potentially to include
validation/qualification of the value of selected supply agreements, key commercialization
assumptions, and the value of selected customer contracts.
•
Long-term KPIs/targets, potentially to include validation/qualification of selected longterm competitive advantages or differentiators from competitor products and/or substitutes, key
milestones required to attain and maintain these advantages, factors that uniquely influence the
Applicant’s revenue or cost structure, and how these factors may insulate the Applicant from or
expose the Applicant to competitive threats.
Facility Category List
• Leading-Edge Facilities for logic or memory that utilize the most advanced front-end fabrication
processes which achieve the highest transistor and power performance. For logic, this currently
includes facilities that produce semiconductors at high volumes using extreme ultraviolet (EUV)
lithography tools. For memory, this currently includes facilities capable of producing 3D NAND
flash chips with 200 layers and above, and/or dynamic random-access memory (DRAM) chips
with a half-pitch of 13 nm and below.
• Current-Generation Facilities that produce semiconductors that are not leading edge, up to 28
nm process technologies, and include logic, analog, radio frequency, and mixed-signal devices.
New and expanded current-generation front-end fabrication facilities will deliver
manufacturing capacity for current-generation semiconductor technologies, as well as new and
specialty technologies such as devices based on compound semiconductor materials.
7

•

•
•

•

Mature-Node Facilities that fabricate generations of: (a) logic and analog chips that are not
based on FinFET, post-FinFET transistor architectures, or any other sub-28 nm transistor
architectures; (b) discrete semiconductor devices such as diodes and transistors; (c)
optoelectronics and optical semiconductors; and (d) sensors. Back-end Production Facilities for
the assembly, testing, or packaging of semiconductors that have completed the front-end
fabrication process. This category includes advanced packaging of semiconductors.
Wafer Manufacturing Facilities for the high-volume production of semiconductor wafers,
including wafers made from silicon, silicon carbide, and gallium nitride. These facilities are the
sites of ingot production and wafer slicing, lapping, polishing, cleaning and inspection.
Semiconductor Materials Facilities for the manufacture or production, including growth or
extraction, of materials used to manufacture semiconductors, which are the chemicals, gases,
raw and intermediate materials, and other consumables used in semiconductor manufacturing.
Specific examples include but are not limited to polysilicon; photoresists and ancillaries
(developers, strippers, litho solvents, and anti-reflective and hardmask layers); sputter targets
(including tantalum, titanium, and aluminum); and materials specifically used in quantum
information systems (such as hafnium and niobium).
Semiconductor Manufacturing Equipment Facilities for the physical production of specialized
equipment integral to the manufacturing of semiconductors and subsystems that enable or are
incorporated into the manufacturing equipment. Specific examples of semiconductor
manufacturing equipment include but are not limited to deposition equipment, including
chemical vapor deposition, physical vapor deposition, and atomic layer deposition; etching
equipment (wet etch, dry etch); lithography equipment (steppers, scanners, extreme
ultraviolet); wafer slicing equipment, wafer dicing equipment, and wire bonders; inspection
and measuring equipment, including scanning electron microscopes, atomic force microscopes,
optical inspection systems, and wafer probes; certain metrology and inspection systems; and
ion implantation and diffusion/oxidation furnaces.

After the Department’s issuance of an award for the Project, such other market advisory services as may be
necessary from time to time, as determined by the Department.
CPO acknowledges and agrees that the Firm does not and shall not be required to provide fairness opinions or
valuations of market transactions, or legal, accounting, or tax advice.

8

ANNEX B
FORM OF SUBMISSION
Note that your Submission (including the Cover Letter and all Sections) should not exceed twenty (20) pages
(excluding (i) resumes of proposed Firm Team members and (ii) responses to the items requested in Annex B,
Section 3, Conflicts of Interest Disclosure).
COVER LETTER:
Include in your Submission a cover letter (the “Cover Letter”) containing (i) contact information for one person at
the Firm with whom CPO will communicate regarding the Submission and (ii) the following signed confirmation by
that person:
On behalf of
(the “Firm”), I,
, acknowledge that I have
the authority to make this Submission and execute the below on behalf of the Firm. I further
acknowledge that: (i) to the best of my knowledge all of the information submitted by the Firm in
response to the Call for Submissions (“CFS”) is complete and accurate, and (ii) the Guidelines (as defined
in Annex B, Section 4 of the CFS) have been reviewed by me and all other necessary parties within the
Firm, and, if selected for the Panel, the Firm hereby agrees to comply with the provisions of such
Guidelines.

Signature

Date

Printed Name and Title
Name of Firm

9

SECTION 1: ELIGIBILITY CRITERIA
Section 1 of your Submission must include responses to each item listed below (unless the item is not applicable).
SECTION 1.A. GENERAL ELIGIBILITY CRITERIA
To be included on the Panel, the Firm must respond “yes” to each of the three questions below (1.A.1(a), (b) and
(c)).

1.A.1.

Question

a) Does the Firm have experience conducting reviews of
projects with total project costs of over $300 million?

Firm’s Response
Yes/No

b) Does the Firm have a staff capable of conducting multiple

Yes/No
simultaneous reviews of companies?
c) Has the Firm completed an engagement associated with a
project located in the United States?
d) Has the Firm been debarred, suspended, or otherwise
Yes/No
excluded from receiving an award by the Federal
Government or otherwise prohibited by Presidential
Executive Order or law from receiving an award from the Yes/No
Federal Government?

*Transactions used by the Firm to respond affirmatively to questions 1.A.1(a), and the members of the Firm Team
that worked on them should be specifically identified in the chart described below in Section 2.A.3. Clearly
designate each such transaction on the chart with an asterisk.
SECTION 1.B. GENERAL FIRM INFORMATION AND FIRM TEAM

1.B.1. Firm Information & Key Person (Relationship Partner). Specify contact information for the Firm (e.g.,

address, phone, website). Specify the name, title and contact information for the senior Firm employees (no
more than two) who the Firm proposes to manage the Firm’s relationship with the Department (each, a “Key
Person”).

1.B.2. Firm Team & Resumes. Specify each Firm employee proposed to work on Department transactions (the
“Firm Team”) and provide the information requested below. List only core members of the team (e.g., do not
include very junior employees, administrative employees, or other employees you do not anticipate would be
10

frequently assigned to Department matters). Do not list more than 10 members.
If the Firm is selected for the Panel, the Firm may propose additional or different Firm Team members for any
particular transaction.
Attach to the Submission a resume or biography for each member of the proposed Firm Team below (which may be
excluded from the twenty (20) page limit for the Submission). Resumes should be succinct and specific, should focus on
experience that is relevant to CHIPS Incentives transactions, as applicable, and should highlight the individual’s specific
role in the listed transactions.

Name

Title

Years of
Practice

Office Location

11

Area(s) of Expertise
(indicate: working on
behalf of government OTA
and/or loan programs as a
client, reviews of complex
infrastructure/technology
projects, comprehensive
understanding of the
semiconductor industry
and landscape,
demonstrated ability to
analyze a semiconductor
company’s business case
and associated information
(e.g., management team,
long-term competitive
advantages))

SECTION 2: TECHNICAL CAPABILITY AND FINANCIAL SUBMISSION
Section 2 of your Submission must include responses to each item listed below.
SECTION 2.A TECHNICAL CAPABILITY
EXPLANATORY NOTE TO SECTION 2A: CPO intends to select Firms for the Panel based on different areas of
expertise so as to achieve a Panel that can advise the Department on a wide range of CHIPS Incentives Program
transactions. Accordingly, a Firm does not need to have experience and expertise in all areas or locations to be
considered for the Panel. Please focus on what you believe to be your firm’s genuine strengths. Do not respond
for a particular category if you do not have real strengths in the relevant area.

2.A.1. Provide the following information, indicating the item number next to each response:
2.A.1.a. : Brief profile of your Firm, including a description of the number and location of the Firm’s
offices, major practice areas relevant to CHIPS Incentives transactions, and number of employees
working in such major practice areas.
2.A.1.b. : Description of the relevant expertise and experience of the proposed Firm Team in the
following areas, but only in those areas in which the proposed Firm Team has real strength.
Firms are not required to be proficient in every area. Limit your response for each area to one-half of a
page and no more than three pages in total for all areas.

i) Working on behalf of government OTA and/or loan programs as a client
ii) Reviews of complex infrastructure/technology projects
iii) Comprehensive understanding of the semiconductor industry, competitor landscape, and industry

benchmarks, all to include understanding of supply and demand, key success factors and risks,
trends of private capital, and cost structure across the industry
iv) Demonstrated ability to analyze a semiconductor company’s business case, including assessment of
management team, long-term competitive advantages, cost structure, financial model, and
financial ratios

2.A.2. Provide three names and contact information from past or current clients that the Key Persons have
recently advised on matters similar to Department transactions and who you authorize to speak with the
Department about your performance on their matters. Please indicate whether any individuals named, or
members of their immediate families, are former employees of the Firm.

12

2.A.3.

Provide a list of representative transactions undertaken by members of the proposed Firm Team. Include only
transactions that reached financial close in the past 5 years. Please use the chart below to provide this information and include no
more than 15 total transactions.
2.A.3. Table of Representative Transactions
Brief Transaction
Description, including:
• Name
• Description
• Client and role

Project Costs (US$)
• Total project costs

•

Firm Team Members
Involved and Role of
Each Team Member in
Transaction1

Dates of
Substantial
Work

1)
2)
3)
4)
5)
6)
7)
8)
9)
10)

If such Firm Team member was not at the Firm at the time of the engagement, indicate the firm or other organization at
which the work was performed.

1

13

SECTION 2B: FINANCIAL SUBMISSION
EXPLANATORY NOTE TO SECTION 2B: Provide hourly rates (or a range of hourly rates) for each of the
applicable experience categories in the table format provided below. If applicable, note whether such
rates are discounted from the Firm’s typical rates in the applicable table columns. If the Firm is selected
for the Panel, note that proposed hourly rates (or range of hourly rates) for any specific transaction may
not exceed the pricing provided below. Note whether these rates will increase in subsequent years,
and, if so, what the maximum percentage annual increase would be.
Pricing Submission (Year 1: [MONTH] [YEAR] – [MONTH] [YEAR])
Experience
Category

Senior partner
Project manager
Senior
associate/analyst
Junior
associate/analyst
[Add additional
categories as
necessary]

Name of Firm
Team members

Hourly rate/
range for this

in experience
category2
[
]
[
]
[
]

CFS [YEAR]

[

]

Firm’s regular
rate for
Departmentlike clients3

Percentage
discount from

Maximum
percentage of

such regular rate

$
$
$

$
$
$

[
[
[

yearly increase in
rates
]%
[ ]%
]%
[ ]%
]%
[ ]%

$

$

[

]%

There do not need to be Firm Team members in each category.
“Department-like clients” would include, for example, federal credit programs engaged in complex
project finance or corporate finance transactions, multilateral and bilateral development
organizations, export credit agencies, regional development banks, and other government-owned or
controlled financing parties.

2
3

14

[

]%

SECTION 3: CONFLICTS OF INTEREST DISCLOSURE
Section 3 of your Submission must include responses to each item listed below, based on reasonable due
diligence. To the extent the Firm believes its ability to disclose any of this information is limited by existing
contractual obligations or Firm policy, the Firm is expected to so state and to provide as much detail as possible
to enable the Department to conduct a thorough assessment of the Firm’s past and ongoing activities.
3.1. Describe any past or ongoing CHIPS-Related Activities (as defined below) in which the Firm, any Firm Team
member, and any proposed subcontractor or consultant were or are engaged. Provide the name of the
client (or indicate “self”), a description of the commercial relationship, services provided, including the title
and links to publicly available publications or materials, and the period of performance.
3.1.1. The term “CHIPS-Related Activities” means (i) any activity related to the implementation of
Section 9902 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal
Year 2021, as amended by the CHIPS Act of 2022 (the “CHIPS Act”), or any other potential or
existing domestic or foreign semiconductor incentive programs related to semiconductor
manufacturing facilities, (ii) any material participation in a statement of interest, pre-application
or application for financial assistance under the CHIPS Act and (iii) any services to an Applicant
(as defined below) in connection with the preparation of a statement of interest, preapplication or application for financial assistance under the CHIPS Act.
3.1.2. The term “Applicant” means (i) any person or entity that the Firm knows, based on reasonable
due diligence, is preparing or has submitted a statement of interest, pre-application, or
application for financial assistance under Section 9902 of the CHIPS Act and (ii) any person or
entity that is materially participating in a statement of interest, pre-application, or application
or the preparation of a statement of interest, pre-application or application for financial
assistance under the CHIPS Act, including, without limitation (1) any state or local government
developing, offering, or providing incentives in connection with such an application; (2) any
institution of higher education or training entity developing, offering, or providing workforce
development, educational or research and development activities in connection with such an
application; (3) any person or entity developing, offering, or providing financing in connection
with such an application; and (4) any person or entity participating in an application by
providing materials, equipment, other supplies, or purchase commitments in connection with
such an application.
3.2. Describe any other past or ongoing services not covered by paragraph 3.1 that the Firm, any Firm Team
member, and any proposed subcontractor or consultant have performed or are performing for any person
or entity described in (i) of the definition of Applicant set forth in 3.1.2. Provide the name of the client (or
indicate “self”), a description of the commercial relationship, services provided, and the period of
performance.
3.3. Describe any actual, potential, or apparent Conflict of Interest (as defined below) relating to any past or
ongoing work the Firm, any Firm Team member, and any proposed subcontractor or consultant have
performed or are performing (including, but not limited to, any activities or services identified under
paragraphs 3.1 and 3.2 above). Provide the name of the client (or indicate “self”), a description of the
commercial relationship, services provided, the period of performance, and the nature of the actual,
potential, or apparent conflict of interest.
15

3.3.1. The term “Conflict of Interest” means any past (going back to January 2021), current, or future
activity or relationship that could render the Firm, any Firm Team member, or any
subcontractor or consultant unable or potentially unable to render impartial assistance or
advice to the Department free of the appearance or existence of bias or impaired objectivity,
including (i) any conflict of interest pursuant to any applicable professional or ethical obligations
and (ii) any other legally binding conflict restraints.
3.4. Provide the Organizational Conflict of Interest Plan (“OCI Plan”) of the Firm and any proposed subcontractor
or consultant. The OCI Plan should, at a minimum, describe the policies and procedures for defining,
identifying, mitigating, and avoiding organizational and personal Conflicts of Interest between the work to
be performed under this Retainer Letter and any past, ongoing, and future work, as well as personal
financial or employment relationships. The OCI Plan must include a description of the firewalls the Firm and
any proposed subcontractor or consultant or will have in place to avoid improper disclosure of information
by Firm Team members or relevant employees of proposed subcontractors or consultants.
3.5. Identify any registrations under the Lobbying Disclosure Act or the Foreign Agents Registration Act related
to the development or implementation of any potential or existing domestic or foreign semiconductor
incentive program related to semiconductor manufacturing facilities.

16

SECTION 4: GUIDELINES FOR TRANSACTION ADVISORS
EXPLANATORY NOTE TO SECTION 4: Please review the below guidelines and attached forms (collectively, the
“Guidelines”).

A.

Retention & Fee Arrangements. As noted above, the fees and expenses of the Firm for each
transaction covered by this CFS will be solely on an Applicant Pay Basis. The anticipated
documentation of these arrangements on each transaction is: (i) a retainer letter addressed to the
Department and signed by the Firm (the “Retainer Letter”), which the Firm agrees will be substantially
in the form attached hereto as Section 4, Appendix B, and (ii) a fee letter addressed to the Firm from the
applicant, sponsor or other third party responsible for paying the Firm’s fees and expenses, and
countersigned by the Firm (the “Applicant Fee Letter”), which the Firm agrees will be substantially in
the form attached hereto as Section 4, Appendix A.
These forms may be updated from time to time
by CPO or modified to reflect specific transactions or circumstances by CPO.
B.
Conflicts of Interest. The Firm’s engagement by the Department in matters under this CFS must
not present any conflicts of interest. For purposes of identifying whether such conflicts exist, when
requesting proposals for specific transactions, CPO will provide to the Firm, on a confidential basis, a
preliminary list of other entities involved in or expected to be involved those specific transactions (the
“Conflicts List”). The Firm (including its employees, experts, and advisors) must agree that it will not use
the information provided in the Conflicts List for any purpose other than determining whether conflicts
exist. In connection with any specific transaction for which the Firm is selected, the Firm will be required
to: (1) provide a signed individual non-disclosure and conflicts agreement form for each individual on the
Transaction team, and (2) provide updated responses to the items requested in Annex B, Section 3, Conflicts
of Interest Disclosure.

17

SECTION 4, APPENDIX A: FORM OF APPLICANT FEE LETTER
[Place on Company letterhead]

Firm Name and Address
Attn.: Key Person
RE:

Services in connection with the proposed financing under CHIPS Incentives Program of [Name
of project or transaction] (the “Transaction”)

Dear Name of Key Person:
We understand that the CHIPS Program Office (“CPO”) of the United States Department of Commerce (the
“Department”) requires a market advisory services in connection with the proposed Transaction. For this
purpose, we understand that the Department has approved the use of the firm of [Name of Firm] (the
“Firm”) from the date hereof.
As the [applicant][sponsor] in the transaction, we hereby agree, to promptly: [(i)] pay all fees and
expenses charged by the Firm that have been approved for payment by the Department[; (ii) pay an
initial retainer to the Firm in the amount of $
(the
“Retainer Amount”); and, (iii) from time to time thereafter, replenish the retainer to the Retainer
Amount upon notification by the Firm]. We acknowledge our [joint and several] obligation[s] to pay
all fees and expenses of the Firm, whether or not the Department’s award the Transaction is provided,
and/or whether or not incurred prior to the date hereof, pre- closing or post-closing. We acknowledge
that the Department will not be responsible for any fees and expenses charged by the Firm related to the
Transaction [, and that if the Retainer Amount is not promptly replenished, the Firm shall, upon CPO’s
direction, cease working on the Transaction.
We understand that, following termination of the
engagement by the Department in connection with the Transaction, any unused Retainer Amount shall
be returned to the applicant or the sponsors, as the case may be.]
It is our understanding that the rates per hour of your employees will be as follows:

18

Name

Standard
Hourly Rate

Senior Partner

$000.00

Project manager

$000.00

Senior Associate/Analyst

$000.00

Junior Associate/Analyst

$000.00

[Discounted
Hourly Rate]

We request that you provide, through the Department, statements identifying in reasonable detail the
work performed by task or document, as applicable, during the relevant period, the total time billed
therefore by the Firm, and the reimbursable expenses incurred, as well as aggregate amounts incurred to
date.
We anticipate receiving your monthly invoices. We acknowledge that all fees and expenses represented
by such invoices are due on presentation thereof, including at closing, and that the reasonableness of all
fees and expenses invoiced shall be determined solely by the Department. Please forward all monthly
statements and invoices directly to the Department so the statements and invoices can be reviewed with
a view to redaction of privileged or otherwise sensitive information prior to submitting them to us. The
determination as to redaction is solely in the discretion of the Department. We understand that your
client is the Department.
In addition to fees, we will reimburse you for your reasonable expenses incurred in connection with the
Transaction, including such items as document preparation and reproduction, travel expenses, courier
and messenger services, and other similar items. We ask that your statements and invoices identify the
types of these expenses in reasonable detail.
[The Firm agrees that it will not disclose information provided by the applicant in connection with the
Transaction to any third-party without the applicant’s prior written consent. The following types of
information are not subject to the preceding sentence:
i.

information that at the time of disclosure by the Firm is generally known by or available to the
general public;

ii.

information that at the time of disclosure by the Firm is legally known to the Firm at the time of
disclosure from a source other than the applicant, unless the Firm knows or has reason to believe
that the source obtained or furnished the information without legal authority; and

iii.

information that at the time of disclosure by the Firm has been furnished to the Firm by a thirdparty who legally obtained said information and the right to disclose it, unless the Firm knows or
has reason to believe that the source obtained or furnished the information without legal
authority.

19

Notwithstanding the foregoing, the Firm shall be permitted to disclose to the Department (including the
Department’s officers, employees, advisors, and agents) and any other governmental authority that has
a reasonable need to know in connection with the Transaction information provided by the applicant
without the applicant’s prior written consent.
The Firm agrees that it will not use information provided by the applicant in connection with the
Transaction for any private commercial purpose or any purpose other than to evaluate the Transaction.]
The parties hereto agree that this letter agreement is subject to the consent of the Department to its terms
and conditions. The parties hereto agree that they will not amend, modify, alter, or change in any way this
letter agreement without the Department’s prior written consent. The parties hereto agree that they will
not assign their rights or obligations hereunder without the Department’s prior written consent.
This letter shall be governed by, and construed and interpreted in accordance with the laws of the State
of New York (without giving effect to its conflict of laws principles (except Section 5‑1401 of the New York
General Obligations Law)).
Please sign and return a copy of this letter to confirm your understanding of, and agreement with, the
foregoing.

20

If you have not already done so, please commence your work on this matter upon receipt of this letter.
Very truly yours,
Name of Applicant or Sponsor
By
Name:
Title:

ACCEPTED AND AGREED:
Name of Firm
By
Name:
Title:

cc:

[Name of Department Agreements Officer]
[______]
United States Department of Commerce

cc:

[Name of Department Program Official]
[______]
United States Department of Commerce

21

SECTION 4, APPENDIX B: FORM OF RETAINER LETTER
[Place on Firm Letterhead]

CHIPS Program Office
United States Department of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230
Attn:

[Name of Department Agreements Officer]

Re:

Engagement of Name of Firm by the United States Department of Commerce (the
“Department”) in connection with financing of Name of project or transaction (the
“Transaction”).

Dear [__]:
This letter confirms that Name of Firm (the “Firm”) will provide market advisory services to the
Department in connection with the Transaction from the date hereof. Such engagement is being
undertaken pursuant to Section 9902 of Title XCIX—Creating Helpful Incentives to Produce
Semiconductors for America – of the William M. (Mac) Thornberry National Defense Authorization Act
for Fiscal Year 2021, 15. U.S.C. §4652, as amended by the Creating Helpful Incentives to Produce
Semiconductors and Science Act of 2022 (Section 102 and 105 of Pub. L. 117-167) (together, the “CHIPS
Act”). The Firm serves on a panel to advise the Department on transactions under Section 9902 of the
CHIPS Act (the “Panel”). The Firm's engagement by the Department on the Transaction is subject to the
understanding that the Department will not be responsible for any of the Firm's fees and expenses
attributable to advising the Department in connection with the Transaction. The Firm agrees that the
Firm will look only to Name of Applicant or Sponsor (the [“Applicant”] [“Sponsor”]) for payment of such
fees and expenses, without recourse in any manner whatsoever to the Department. The Firm's
responsibilities in connection with the Transaction and the terms upon which the Firm will advise the
Department are set forth in Attachment A attached hereto.
Name of Key Person will have primary responsibility for the engagement. The Firm's fees are based
upon the hourly rates and other terms and conditions set forth in a letter from the [Sponsor] [Applicant]
(the “Responsible Party”) to the Firm (the “Sponsor/Applicant Fee Letter”).
The Firm will keep the CHIPS Program Office, on behalf of the Department, closely involved with the
progress of the Firm’s services in connection with the Transaction. The Firm will furnish to the
Department monthly statements of fees and expenses (each, a “Statement”), which shall include a
detailed summary of fees and out of pocket expenses (each, a “Detailed Summary”).
The Firm will furnish all Statements via e-mail as follows to [___] (the “Department
Agreements Officer”) and [___] (the “Department Program Official”) at [___].
22

Each Statement will clearly indicate:
Transaction Number: Insert project/transaction number
Transaction Name: Insert name
Department Agreements Officer: Insert name
Department Program Official: Insert name
Each Statement will include the following in the Detailed Summary for the period covered by such
Statement:

(i)

a detailed description of services rendered, including: (a) the date on which services
were provided; (b) a brief description of each task performed; (c) the amount of time
expended to perform the task; and (d) the identity of and billing rate for the person
who performed the task; and

(ii)

a description of each out-of-pocket expense for which the Firm seeks reimbursement,
including: (a) the date on which the expense was incurred; and (b) the nature of the
expense.

Each Statement will indicate:

(i)

a statement of total fees and expenses for the period covered by the Statement; and

(ii)

a cumulative total of fees and expenses incurred from commencement of work on the
matter and a cumulative total of fees and expenses paid to the Firm from
commencement of work on the matter.

If more than one task was performed by a time-keeper on the same day, the time for all tasks may be
combined into one time entry, but separately set out in a detailed list or description to note the proportion
of the total time spent on each task included therein. The Firm will maintain documentation evidencing
all expenditures for out-of-pocket expenses incurred for CPO review, as necessary.
If the Firm is handling more than one CHIPS engagement matter at a time, a separate statement for each
matter in the format described above will be submitted. We understand that CPO will not accept a single
Statement covering multiple Department engagement matters.
We understand that CPO will forward or authorize the Firm to forward to the Responsible Party the
Detailed Summary after reviewing, and, if necessary, redacting (or requesting the Firm to redact) such
Detailed Summary to protect information deemed privileged or otherwise sensitive by CPO. The
determination as to redaction is solely in the discretion of the Department.
At least five (5) business days prior to closing, the Firm shall provide to CPO an invoice that will include an
estimate for the time expected to be incurred through the closing and for customary post-closing work,
together with an estimate of expenses in connection therewith for transmittal to the Responsible Party
after review, and redaction, if necessary, to protect privileged attorney-client information or other
information deemed sensitive by CPO. Following closing, the Firm shall furnish to CPO Statements and
Detailed Summaries of fees and expenses for services provided post-closing in connection with the
Project, as these fees and expenses may accrue from time to time, for transmittal to the Responsible Party
after review and redaction, if necessary, to protect information deemed privileged or otherwise sensitive
23

by CPO.
The Firm confirms that with respect to the Transaction: (i) there are no conflicts of interest with present
or former clients of the Firm, and (ii) the Firm will provide high quality services in a cost- effective manner
and in accordance with the highest ethical standards.
Further, the Firm hereby confirms that the Firm is subject to the terms of the Guidelines for Engagement
of the Department of Commerce by Transaction Advisors in CHIPS Matters attached hereto as Attachment
B, the terms of which are incorporated herein by reference, regarding engagement by other clients who
are, or seek to be parties to matters in which the Department is a party. Appendix III sets forth updated
responses to the items requested Section 3 (Conflicts of Interest Disclosure) of the Firm's Submission to
the Department in response to the Department’s Call for Submissions. The Firm will keep CPO apprised
of all material developments in the Transaction, and any potential conflicts of interest that may arise with
respect to the Firm's work on the Transaction.
Nothing in this letter shall constitute a waiver of otherwise applicable standards of professional
responsibility that may restrict the Firm, or its employees, from being engaged by the Department in
connection with the Transaction.
This letter shall be governed by, and construed and interpreted in accordance with, the federal law of the
United States of America; provided that, to the extent that federal law does not specify the appropriate
rule of decision for a particular matter at issue, the law of the State of New York (without giving effect to
its conflict of laws principles (except Section 5‑1401 of the New York General Obligations Law)) shall be
adopted as the governing Federal rule of decision. This Firm may not assign its rights and obligations
hereunder without the prior written consent of the Department Agreements Officer.
This letter, together with the Call for Submissions for Transaction Advisor Panel—Market Advisory
Services and the annexes and forms attached thereto (including the Instructions to Firms, Form of
Submission, Form of Applicant Fee Letter, the Form of Retainer Letter); the Call for Submissions for
Individual Transactions; the Sponsor/Applicant Fee Letter; any other retainer letter and sponsor/applicant
fee letter entered into by the Firm from time to time; and the OTA Cover Sheet signed by the Department
Agreements Officer (as updated from time to time) constitute the Other Transaction Agreement (OTA)
(Agreement No. [___]), dated as of [DATE]., entered into by the Department’s National Institute of
Standards and Technology.
Upon executing the Applicant/Sponsor Fee Letter, we will forward a copy thereof for CPO’s files to Name
of Firm Administrative Staff.
Very truly yours,
NAME OF FIRM
By:
Partner
ACCEPTED AND AGREED:
24

U.S. DEPARTMENT OF COMMERCE
By:
Name:
Title: [Department Agreements Officer]

25

ATTACHMENT A TO RETAINER LETTER
(SCOPE OF WORK)
The Firm’s responsibilities shall include the following tasks:
[INSERT SPECIFIC SCOPE OF WORK FROM REQUEST]

26

ATTACHMENT B TO RETAINER LETTER
GUIDELINES FOR ENGAGEMENT BY THE DEPARTMENT OF COMMERCE
OF TRANSACTION ADVISORS IN CHIPS MATTERS

(A)

Introduction. The following guidelines (these “Guidelines”) set forth the
policies of the United States Department of Commerce for the engagement
of outside counsel for CHIPS Incentives Program transactions (each, a “CHIPS
Transaction”) where the Department is the client but fees and expenses are
paid by the applicant, the sponsor or another creditworthy entity. These
Guidelines apply specifically to Firms that have agreed, by execution of the
Retainer Letter to which these Guidelines are attached, to an engagement by
the Department in connection with a specific CHIPS transaction (such
engagement, the “CHIPS Engagement,” the project, transaction, or other
matter giving rise to such engagement, the “CHIPS Engagement Matter”).
Unless the context otherwise requires, capitalized terms used in these
Guidelines and not otherwise defined shall have the meanings set forth in the
Retainer Letter.

(B)

Appendices. In connection with the CHIPS Engagement, the Firm confirms
to the Department that:

(C)

(1)

attached hereto as Appendix I are the names of the individual Firm
employees who will constitute the team handling the CHIPS
Engagement (such team the “Firm Team,” and each member of such
team and any other employee involved in the CHIPS Engagement, a
“Firm Team Member”), and the Firm employees who will have primary
responsibility for the CHIPS Engagement (the “Team Leader”);

(2)

attached hereto as Appendix II are individual non-disclosure and
conflicts agreements, executed by each Firm Team Member as of the
date of the Retainer Letter, concerning certain obligations set forth in
Part C of these Guidelines (the “Non-Disclosure and
Conflicts Obligations”); and

(3)

attached hereto as Appendix III are updated responses to the items
requested in Section 3 (Conflicts of Interest Disclosure) of the Firm’s
Submission to the Department’s Call for Submissions.

Non-Disclosure and Conflicts Obligations. In connection with the CHIPS
Engagement, the Firm agrees:
(1)

The information provided to the Firm and any Firm Team Member is
made available solely for the purpose of providing services to the
Department in connection with the CHIPS Engagement. That
information may include trade secrets, proprietary information, other
legally protected information, and internal Department materials,
27

communications, and deliberations that are subject to confidentiality
protections by law or are otherwise not appropriate for public
disclosure.
(2)

The following types of information are not subject to this Part (C):
a) Information that at the time of disclosure by the Firm is
generally known by or available to the general public;
b) Information that at the time of disclosure by the Firm is
legally known to the Firm at the time of disclosure from a
source other than the Department, unless the Firm knows or
has reason to believe that the source obtained or furnished
the information without legal authority;
c) Information that at the time of disclosure by the Firm has
been furnished by the Department to the public; and
d) Information that at the time of disclosure by the Firm has
been furnished to the Firm by a third party who legally
obtained said information and the right to disclose it, unless
the Firm knows or has reason to believe that the source
obtained or furnished the information without legal
authority.

(3)

The Firm will not disclose information received during the CHIPS
Engagement or prepared by the Firm during the performance of the
CHIPS Engagement based on information received from the
Department to any third party without the prior written consent of an
authorized Department representative.

(4)

The Firm understands that unauthorized disclosure of such information
may result in termination of the CHIPS Engagement and subject the
Firm to civil and/or criminal penalties.

(5)

The Firm shall not use the information received during the CHIPS
Engagement or prepared by the Firm during the performance of the
CHIPS Engagement based on information received from the
Department for any private commercial purpose, or any purpose other
than to perform the services in connection with the CHIPS Engagement.

(6)

The Firm shall not leverage its government work to solicit private sector
business. The Firm shall not, without the prior written approval from
an authorized Department representative, refer to the CHIPS
Engagement or the Firm’s work in connection therewith, in any
business development activities, advertising, publicity, or promotional
materials.

(7)

The Firm shall not use any Department logos or insignia without
appropriate written consent from an authorized Department
representative.
28

(8)

The Firm agrees to follow any written instructions provided by the
Department, its employees, and authorized representatives for the
proper handling of any information received during the performance of
the CHIPS Engagement.

(9)

The Firm shall establish and/or maintain operating procedures,
screening measures, and/or physical security measures to
appropriately protect the information received during the performance
of the CHIPS Engagement from any inadvertent release or disclosure to
any unauthorized third parties. The Firm shall segregate all information
it receives from the Department to prevent commingling or disclosure
to Non-Firm Team Members. “Non-Firm Team Member” means
individual Firm employees who are not participating in work under this
Call for Submissions.

(10) Internal dissemination by the Firm of information received from the
Department during the performance of the CHIPS Engagement shall be
limited to Firm Team Members who have been informed of the
confidential nature of the information and need such information to
perform work in connection with the CHIPS Engagement.
(11) The Firm agrees to indemnify and hold the Department, its agents, and
employees harmless from every claim or liability, including attorneys’
fees, court costs, and any expenses arising out of, or in any way related
to, the Firm’s disclosure or misuse of information received from the
Department or prepared by the Firm during the performance of the
CHIPS Engagement.
(12) The Firm agrees that it shall return to the Department or destroy all
information received by the Firm or prepared by the Firm during the
performance of the CHIPS Engagement upon (a) demand by an
authorized Department representative or (b) the completion or
termination of the CHIPS Engagement, whichever occurs first.
(13) In the event the Firm receives any legal notice from any third party that
attempts to require the Firm to release any information subject to this
Part (C), the Firm shall within three (3) business days provide written
notice to the Department Agreements Officer and the Department
Program Official, along with notice to any relevant third party of the
notice received by the Firm.
(14) In the event the Firm is involved in any litigation related to any
information subject to this Part (C), the Firm shall within five (5)
business days provide written notice to the Department Agreements
Officer and the Department Program Official, along with any relevant
third party, of such litigation.
(15) The Firm shall immediately provide written notification to the
Department Agreements Officer upon discovery of any unauthorized
use or disclosure of any information or any other breach of this Part (C).
29

The Firm agrees to cooperate with the Department to assist the
Department with regaining possession of any information, and to also
prevent further unauthorized use or disclosure.
(16) The provisions contained in this Part (C) are consistent with and do not
supersede, conflict with, or otherwise alter the employee obligations,
rights, or liabilities created by existing statute or Executive order
relating to (1) classified information, (2) communications to Congress,
(3) the reporting to an Inspector General or the Office of Special
Counsel of a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety, or (4) any
other whistleblower protection. The definitions, requirements,
obligations, rights, sanctions, and liabilities created by controlling
Executive orders and statutory provisions are incorporated into this
Part (C) and are controlling.
(17) The Firm shall establish and/or maintain and abide by an Organization
Conflict of Interest Plan (“OCI Plan”). The OCI Plan shall, at a minimum,
describe the Firm’s policies and procedures for defining, identifying,
mitigating, and avoiding organizational and personal Conflicts of
Interest (as defined in Section 3.3.1, “Conflict of Interest Disclosure”)
between the work the Firm performs in connection with the CHIPS
Engagement and any past, ongoing, and future work. The OCI Plan
must include a description of the procedures the Firm will have in place
to ensure compliance with this Part (C), including the firewalls the firm
will have in place to avoid improper disclosure of information by Firm
Team Members to Non-Firm Team Members.
(18) The Firm shall submit to the Department Agreements Officer for
approval on a case-by-case basis a plan to mitigate a specific actual,
potential, or apparent Conflict of Interest between the work to be
performed in connection with the CHIPS Engagement and any past,
ongoing, or future work for other clients.
(19) The Firm understands that an actual, potential, or apparent Conflict of
Interest may arise from a Firm Team Member performing CHIPSRelated Activities (as defined in Section 3.1.1, “Conflict of Interest
Disclosure”) for another client, a Firm Team Member performing nonCHIPS-Related Activities for an Applicant (as defined in Section 3.1.2), a
Non-Firm Team Member performing CHIPS-Related Activities for
another client, or a Non-Firm Team Member performing non-CHIPSRelated Activities for an Applicant. An actual, potential, or apparent
Conflict of Interest may also arise from employment, stock ownership,
a creditor or debtor relationship, prospective employment, or any
activities or relationships that could render the Firm unable or
potentially unable to render impartial assistance or advice to the
Department free of the appearance or existence of bias.

30

(20) The Firm hereby affirms that, to the best of its knowledge and upon
reasonable due diligence and inquiry, it does not have any actual,
potential, or apparent Conflict of Interest with respect to any service
provided in connection with the CHIPS Engagement.
(21) The Firm agrees that, to avoid actual, potential, or apparent Conflicts
of Interest, for the duration of the CHIPS Engagement, the Firm shall
not perform CHIPS-Related Activities for a person or entity described in
clause (i) of the definition of Applicant set forth in Section 3.1.2,
“Conflict of Interest Disclosure,” unless the Firm: (1) fully discloses and
submits to the Department Agreements Officer and the Department
Program Official a description of the proposed engagement, (2)
proposes a plan to mitigate any actual, potential, or apparent Conflict
of Interest, and (3) obtains written authorization from the Department
Agreements Officer. Failure to comply with this provision may result in
termination of the CHIPS Engagement or removal from the Panel.
Failure to comply with this provision may result in termination of the
CHIPS Engagement or removal from the Panel.
(22) The Firm agrees that, to avoid actual, potential, or apparent Conflicts
of Interest, for the duration of the CHIPS Engagement, the Firm shall
not perform CHIPS-Related Activities for any person or entity described
in clause (ii) of the definition of Applicant set forth in Section 3.1.2,
“Conflict of Interest Disclosure,” unless the Firm: (1) fully discloses and
submits to the Department Agreements Officer and the Department
Program Official a description of the proposed engagement and (2)
proposes a plan to mitigate any actual, potential, or apparent Conflict
of Interest. Failure to comply with this provision may result in
termination of the CHIPS Engagement or removal from the Panel.
a) The Firm agrees to expressly disclose if the CHIPS-Related
Activities the Firm expects to perform for any person or
entity described in clause (ii) of the definition of Applicant set
forth in Section 3.1.2, “Conflict of Interest Disclosure”
include—or may potentially include—issuing a public
report(s), and agrees that the Firm’s mitigation plan must
expressly address how it will ensure that the views expressed
in any such public report will not present an actual, potential,
or apparent Conflict of Interest. Failure to comply with this
provision may result in termination of the CHIPS Engagement
or removal from the Panel.
(23) The Firm agrees that to avoid actual, potential, or apparent Conflicts of
Interest, for the duration of the CHIPS Engagement and one (1) year
thereafter Firm Team Members shall not perform CHIPS-Related
Activities for another client who is also an Applicant (as defined in
Section 3.1.2, “Conflict of Interest Disclosure,” unless the Firm: (1) fully
discloses and submits to the Department Agreements Officer and the
Department Program Official a description of the proposed
31

engagement, (2) proposes a plan to mitigate any actual, potential, or
apparent Conflict of Interest, and (3) obtains written authorization
from the Department Agreements Officer. Failure to comply with this
provision may result in termination of the CHIPS Engagement or
removal from the Panel.
(24) The Firm affirms that if it becomes aware of a previously undisclosed
actual, potential, or apparent Conflict of Interest; engagement with an
Applicant; or participation in CHIPS-Related Activities, the Firm will
immediately notify the Department Agreements Officer and the
Department Program Official. Penalties for failure to properly disclose
an actual or apparent Conflict of Interest before or during performance
of the CHIPS Engagement may include termination of the CHIPS
Engagement or removal from the Panel.
(25) The obligations imposed by this Part (C) shall survive the expiration or
termination of the CHIPS Engagement. The Firm shall include this Part (C)
in any subcontractor and consultant agreements it may enter into in
connection with the CHIPS Engagement and shall be liable for any
breach thereof by any subcontract or consultant party to such
agreements.

(D)

Expenses, Billing, Collections and Travel. In connection with the CHIPS
Engagement, the Firm agrees:
(1)

The Firm assumes the credit risk and dispute risk of the Applicant. The
Department has no obligation to pay any of the Firm's fees and
expenses; however, the Department will support the Firm in obtaining
payment of its reasonable fees and expenses, which, in cases that the
Department deems appropriate, may include requiring such payment
as a closing condition.

(2)

During the course of the CHIPS Engagement, the Firm shall promptly
respond to inquiries from the CPO or the [Applicant] [Sponsor]
regarding past and expected fees and expenses. The Department
expects the Firm's staff to use good judgment and to incur only
reasonable fees and expenses necessary to achieve the Department’s
objectives in connection with a CHIPS Engagement. Transportation,
lodging, meal and incidental expenses will be considered reasonable
only to the extent that they do not exceed the maximum per diem rates
in effect at the time of travel as set forth in the Federal Travel
Regulation (available here: https://www.ecfr.gov/current/title41/subtitle-F).

(3)

The Firm shall notify CPO of any amounts invoiced to the Applicant in
any CHIPS Engagement that remain unpaid for more than three (3)
months.

(4)

If the Firm requests payment of expenses for air travel in connection
with a CHIPS Engagement, such air travel shall be on a U.S. flag certified
32

air carrier in compliance with 49 U.S.C. § 40118 (the “Act”), unless (1) a
bilateral or multilateral agreement with the United States provides
otherwise, (2) air travel on a U.S. flag certified air carrier between
locations outside of the United States is not reasonably available, or (3)
air travel on a U.S. flag certified air carrier between the United States
and a location outside of the United States is not available.

(E)

Firm Team Changes. The Firm shall promptly notify CPO of the departure from the Firm
of any employee who is a Firm Team Member, the withdrawal of any Firm Team
Member from a CHIPS Engagement, and the addition of any new Firm Team Members
(subject to the approval of CPO).

(F)

Publications & Speeches.

(G)

(1)

In the event that any employee of the Firm publishes any article, makes
any speech or appears on a panel discussion relating to any CHIPS
Engagement, the Firm shall ensure such person does not disclose any
confidential information. The Firm shall require such person to make
clear that he or she is writing or speaking in his or her own behalf, and
not on behalf of the Department, the CHIPS Incentives Program or CPO.
The Firm should deliver promptly to CPO copies of all speeches and
articles referred to above after they have been given or published.

(2)

In its promotional materials describing various client engagements, the
Firm may disclose publicly available information about a particular
CHIPS Engagement, provided that the Firm has performed substantial
work in connection with such engagement.

Rules of Professional Responsibility. These Guidelines are intended to
supplement any professional or ethical obligations applicable to the Firm's
professional staff. Notwithstanding the payment obligations of the
[Applicant] [Sponsor] described above, for the purposes of applicable
professional or ethics codes, the Department, and not the Applicant [or the
Sponsor], shall be deemed to be the Firm's client in a CHIPS Engagement.
(1)

Equal Employment. The Firm shall comply with Section 202 of Executive
Order (EO) 11246, as amended, pertaining to equal employment, as
well as the EO’s implementing regulation at 41 C.F.R. § 60-1.4.

(H)

Files. All electronic and physical files relating to a CHIPS Transaction prepared
by the Firm (“CHIPS Files”) belong to the Department. The Firm may not
reproduce, transfer or destroy CHIPS Files without the prior written approval
of the CPO on behalf of the Department. The Firm shall transfer all CHIPS
Files to the Department at actual cost upon CPO’s written request. The Firm
shall not have any lien over any CHIPS Files.

(I)

Debarment. The Firm represents that it has not been debarred, suspended,
or otherwise excluded from receiving an award by the Federal Government
or otherwise prohibited by Presidential Executive Order or law from receiving
an award from the Federal Government. The Firm shall comply with the
33

provisions of 2 C.F.R. Part 1326 (Nonprocurement Debarment and
Suspension) and require participants in lower-tier transactions to comply
with 2 C.F.R. Part 180, Subpart C (OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension).

(J)

Sanctions. Failure to comply with these Guidelines may result in the
Department terminating any then-existing CHIPS Engagements with the Firm
and/or disqualifying the Firm for future transactions.

(K)

Information Security Controls. Before the Firm may commence any work on
the Transaction, (1) the Firm shall have implemented security controls that
meet or exceed the standards set forth in 48 C.F.R. 52.204-21 (available here:
52.204-21 Basic Safeguarding of Covered Contractor Information Systems. |
Acquisition.GOV) or (2) if the Firm’s security controls do not meet such
standards in any respect, the Firm and DOC shall have agreed to a plan of
action and milestones (POA&M) to correct any such deficiency. For more
detail on protecting the confidentiality of Controlled Unclassified Information
(CUI) that resides in nonfederal systems and organizations, please see SP 800171 Rev. 2 (available here: NIST SP 800-171 Rev. 2 | Protecting Controlled
Unclassified Information in Nonfederal Systems and Organizations).

(L)

Telecommunications Equipment or Services. In the provision of services to
the Department in connection with the CHIPS Engagement, the Firm will not
use telecommunications equipment or services produced or provided by
Huwaei Technologies Company or ZTE Corporation or any subsidiary or
affiliate of such entities.

(M) TikTok. The Firm warrants that the software application TikTok, or any

successor application or service of TikTok developed or provided by
ByteDance Limited or an entity owned by ByteDance Limited, (A) is not
installed on the devices by which the Firm is providing the Department
services in connection with the CHIPS Engagement; and/or (B) has no ability
to access information related to the services the Firm is providing in
connection with the CHIPS Engagement.

(N) Notices.

All notices to the Department hereunder shall be sent by email,
courier or overnight mail to [___] (as the Department’s Agreements Officer)
and [___] (as the Department’s Program Official) at the following address:
CHIPS Program Office
United States Department of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230

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APPENDIX I
NAMES OF FIRM TEAM MEMBERS, INCLUDING TEAM LEADER
Category

Name

Senior partner
Project manager
Senior associate/analyst
Junior associate/analyst

35

APPENDIX II
FORM OF INDIVIDUAL NON-DISCLOSURE AND CONFLICTS AGREEMENT
This Individual Non-Disclosure and Conflicts Agreement, dated as of [DATE] (this "Agreement”),
is entered into by the undersigned and is being delivered to the U.S. Department of Commerce (the
“Department”) in connection with the Retainer Letter, dated as of [DATE] (the “Retainer Letter”),
entered into by [FIRM NAME] (the “Firm”) and delivered to the Department.
1. Definitions:
For purposes of this Agreement, the terms identified herein have the following definitions:
“Applicant” means (i) any person or entity that the Firm knows, based on reasonable due
diligence, is preparing or has submitted a statement of interest, pre-application, or application for
financial assistance under Section 9902 of the CHIPS Act and (ii) any person or entity that is materially
participating in an application or the preparation of a statement of interest, pre-application or
application for financial assistance under the CHIPS Act, including, without limitation (1) any state or
local government developing, offering, or providing incentives in connection with such an application;
(2) any institution of higher education or training entity developing, offering, or providing workforce
development, educational or research and development activities in connection with such an
application; (3) any person or entity developing, offering, or providing financing in connection with such
an application; and (4) any person or entity participating in an application by providing materials,
equipment, other supplies, or purchase commitments in connection with such an application.
“CHIPS Act” means the William M. (Mac) Thornberry National Defense Authorization Act for
Fiscal Year 2021, as amended by the CHIPS Act of 2022.
“CHIPS-Related Activities” means (i) any activity related to the implementation of Section 9902
of the CHIPS Act, or any other potential or existing domestic or foreign semiconductor incentive
programs related to semiconductor manufacturing facilities, (ii) any material participation in an
application for financial assistance under the CHIPS Act and (iii) any services to an Applicant (as defined
below) in connection with the preparation of an application for financial assistance under the CHIPS Act.
“Conflict of Interest” means any past (going back to January 2021), current, or future activity or
relationship that could render the Firm, any Firm Team member, or any subcontractor or consultant
unable or potentially unable to render impartial assistance or advice to the Department free of the
appearance or existence of bias or impaired objectivity, including (i) any conflict of interest pursuant to
any applicable professional or ethical obligations and (ii) any other legally binding conflict restraints.
“Department Agreements Officer” means the employee of the Department defined as the
“Department Agreements Officer” in the Retainer Letter.
“Department Program Official” means the employee of the Department defined as the
“Department Program Officer” in the Retainer Letter.

36

“Firm Team Member” means the individual Firm employees who will constitute the team
handling the engagement of the Firm by the Department in connection with the specific transaction
referenced in the Retainer Letter.
2. General Provisions:
a) The Department has retained the Firm to provide market advisory services in connection
with the specific transaction referenced in the Retainer Letter. I, an employee of the Firm, a
subcontractor, consultant or other entity retained by the Firm to perform work under the
Retainer Letter, intending to be legally bound, hereby consent to the terms of this
Agreement in consideration for being granted conditional access to certain information
during the performance of the Retainer Letter. I understand and agree that the obligations
imposed by this Agreement shall survive the expiration or termination of the Retainer
Letter.
b) I hereby acknowledge that I have received, reviewed, and understand Part (C) of
Attachment B to the Retainer Letter (Non-Disclosure and Conflict of Interest Obligations).
3. Non-Disclosure:
a) The information provided to the me during the performance of the Retainer Letter is made
available to me solely for the purpose of providing services to the Department under the
Retainer Letter. That information may include trade secrets, proprietary information, other
legally protected information, and internal Department materials, communications, and
deliberations that are subject to confidentiality protections by law or are otherwise not
appropriate for public disclosure.
b) The following types of information are not subject to this clause. Information that at the time of
disclosure by me:
i)
ii)
iii)
iv)

is generally known by or available to the general public;
is legally known to the Firm or me at the time of disclosure from a source other than the
Department, unless the Firm or I know or have reason to believe that the source obtained or
furnished the information without legal authority;
has been furnished by the Department to the public; or
has been furnished to the Firm or me by a third party who legally obtained said information
and the right to disclose it, unless the Firm knows or has reason to believe that the source
obtained or furnished the information without legal authority.

c) I will not disclose information received during the performance of the Retainer Letter or
prepared by the Firm or me during the performance of the Retainer Letter based on information
received from the Department to any third party without the prior written consent of an
authorized Department representative.
d) I understand that unauthorized disclosure of such information may result in termination of the
Retainer Letter and subject the Firm and/or me to civil and/or criminal penalties.
e) I shall not use the information received during the performance of the Retainer Letter or
37

prepared by the Firm or me during the performance of the Retainer Letter based on information
received from the Department for any private commercial purpose, or any purpose other than
to perform the services identified in the Retainer Letter.
f)

I will not leverage this government work to solicit private sector business. I shall not, without
the prior written approval from an authorized Department representative, refer to the Retainer
Letter, the Firm’s work, or my work thereunder, in any business development activities,
advertising, publicity, or promotional materials.

g) I shall not use any Department logos or insignia without appropriate written consent from an
authorized Department representative.
h) I agree to follow any written instructions provided by the Department, its employees, and
authorized representatives for the proper handling of any information received during the
performance of the Retainer Letter.
i)

The Firm shall establish and/or maintain operating procedures, screening measures, and/or
physical security measures to appropriately protect the information received during the
performance of the Retainer Letter from any inadvertent release or disclosure to any
unauthorized third parties. I agree to abide by the procedures and measures established by the
Firm and, in addition, shall segregate all information I receive from the Department to prevent
commingling or disclosure to non-Firm Team Members.

j)

Internal dissemination by me of information received from the Department during the
performance of the Retainer Letter shall be limited to those persons who have been informed of
the confidential nature of the information and need such information to perform the work
under the Retainer Letter.

k) I agree that I shall return to the Department all information received from or prepared by the
Firm or me during the performance of the Retainer Letter upon (a) demand by an authorized
Department representative or (b) the completion or termination of the Retainer Letter,
whichever occurs first.
l)

In the event the I receive any legal notice from any third party that attempts to require the Firm
or me to release any information subject to this Agreement, I shall within three (3) business days
provide written notice to the Department Agreements Officer and the Department Program
Official, along with notice to any relevant third party of the notice received by the Firm.

m) In the event I am involved in any litigation related to any information subject to this Agreement,
I shall within five (5) business days provide written notice to the Department Agreements Officer
and the Department Program Official, along with any relevant third party, of such litigation.
n) I shall immediately provide written notification to the Department Agreements Officer and the
Department Program Official upon discovery of any unauthorized use or disclosure of any
information or any other breach of this Agreement. I agree to cooperate with the Department
to assist the Department with regaining possession of any information, and to also prevent
further unauthorized use or disclosure.
38

4. Conflict of Interest:
a) I have disclosed to the Department any lobbying registrations under the Lobbying Disclosure Act
or registrations under the Foreign Agents Registration Act related to the development or
implementation of any potential or existing domestic or foreign semiconductor incentive
program related to semiconductor manufacturing facilities.
b) I hereby affirm that I am and will remain for the duration of the Retainer Letter in full
compliance with Firm’s Organizational Conflict of Interest Plan and any additional policies and
procedures for defining, identifying, and avoiding Conflicts of Interest.
c) For purposes of this agreement, I understand that an actual, potential, or apparent Conflict of
Interest may arise from my performing CHIPS-Related Activities for another client, my
performing non-CHIPS-Related Activities for an Applicant, employment, stock ownership, a
creditor or debtor relationship, prospective employment, or any activities or relationships that
could render me unable or potentially unable to render impartial assistance or advice to the
Department free of the appearance or existence of bias.
d) I hereby affirm that, to the best of my knowledge and upon due diligence and inquiry, I do not
have any actual, potential, or apparent Conflict of Interest with respect to any service provided
under the Retainer Letter.
e) I agree that, to avoid potential, actual, or apparent program Conflicts of Interest, for the
duration of the Retainer Letter and one year thereafter, I shall not (a) perform CHIPS-Related
Activities for another client or (b) otherwise provide services to an Applicant unless the Firm: (1)
fully discloses and submits to the Department a description of the proposed engagement, (2)
proposes a plan to mitigate any actual, potential, or apparent Conflict of Interest, and (3)
obtains written authorization from the Department. Failure to comply with this clause may
result in termination of the Retainer Letter.
f)

I further affirm that if I become aware of a previously undisclosed actual, potential, or apparent
Conflict of Interest; engagement with an Applicant; or participation in CHIPS-Related Activities, I
will immediately notify the Firm.

5. Additional Terms:
a) I represent and affirm that I have the authority to enter into this Agreement.
b)

These provisions are consistent with and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by existing statute or Executive order relating
to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector
General or the Office of Special Counsel of a violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific
danger to public health or safety, or (4) any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and liabilities created by controlling Executive
orders and statutory provisions are incorporated into this Agreement and are controlling.

c) My execution of this Agreement does not nullify or affect in any manner any other similar
39

agreement which I have executed, or may execute with the United States Federal Government
or any of its departments or agencies.
d) I acknowledge that monetary damages may not be a sufficient remedy for damages resulting
from my violation of this Agreement, and that the Department shall be entitled, without waiving
any other rights or remedies, to seek such injunctive or equitable relief as may be deemed
proper by a court of competent jurisdiction.
e) This Agreement constitutes the entire agreement with respect to the subject matter hereof. It
shall not be modified except by a written agreement signed by both parties.
f)

None of the provisions of this Agreement shall be deemed to have been waived by any act or
acquiescence on the part of the Department, but only by an instrument in writing signed by an
authorized official of the Department. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision(s) or of the same provision on another occasion.
Failure of either party to enforce any provision of this Agreement shall not constitute waiver of
such provision or any other provisions of this Agreement.

g) This Agreement shall be construed and governed by the laws of the United States.
h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions shall remain in full force and effect. Should
any obligations of this Agreement be found illegal or unenforceable as being too broad with
respect to the duration, scope or subject matter thereof, such obligations shall be deemed and
construed to be reduced to the maximum duration, scope or subject matter allowable by law.
I affirm that I have carefully read and understand the statements above. To the extent I believe my
ability to disclose any of this information is limited by existing obligations, I understand I am expected to
provide as much detail as possible to enable the agency to conduct a thorough assessment of my past
and ongoing activities. I make this Agreement in good faith, without mental reservation or purpose of
evasion.
Name: ______________________________

Firm:_________________________

Title: _______________________________

Email: ______________________________

Signature: ____________________________

Date: ______________________________

40

APPENDIX III
UPDATED CONFLICTS OF INTEREST SUBMISSION

41