One of the most important initial steps in the litigation process is identifying the litigation support needs of each case. As soon as practicable after being assigned a case for litigation, and whenever possible prior to filing the complaint, the trial attorney should consult with his/her supervisory trial attorney, the Regional Attorney, and, if necessary, OGC Litigation Management Services (LMS) and/or Research and Analytic Services (RAS), to determine the services needed to support the litigation.
Litigation support services fall into two basic categories: nonexpert and expert services. Nonexpert litigation support services may include such items as: (1) court reporter services; (2) copying services; (3) services that assist in identifying and locating claimants and/or witnesses; (4) database construction services; and (5) process and subpoena servers. Expert services involve the retention of individuals to testify at trial and/or to consult during trial preparation. Experts may be medical doctors, psychologists, statisticians, economists, sociologists, or individuals with other areas of expertise. Some litigation support services are available internally, while others may only be obtained through a contract with an outside vendor.
The purpose of Part 4, section I of the Manual is to describe what litigation support services are available and how the trial attorney can obtain them. Some services are available internally, through RAS in OGC and through the Office of Research, Information and Planning (ORIP). Finally, this section of the Manual sets forth the federal and EEOC procedures for procuring nonexpert and expert contracts in some detail. Each subsection of Part 4, section I of the Manual is summarized below
RAS is an arm of OGC with a small staff. Its staff members (who have advanced degrees in the fields of social science, psychology, economics, and statistics) are available to testify as trial or consulting experts in selected cases brought by the Commission and to provide assistance generally in their areas of expertise. RAS staff members are also skilled in analyzing data, and creating and managing large computerized databases. For more information about the services that RAS can provide and how to obtain them, please refer to Manual Part 4, section I.B., Services Provided by Research and Analytic Services.
ORIP also provides analytic and technical support to Commission staff. ORIP generally provides support to Commission staff conducting class investigations, not litigation. For more information about ORIP's services, please refer to Manual Part 4, section I.C., Services Provided by the Office of Research, Information and Planning.
Except where available in-house through RAS, the Commission must contract for expert litigation support services using the federal acquisitions process. The steps for obtaining an expert contract are described in Manual Part 4, Section I.D., EEOC Procedures for Procuring Expert Litigation Support Services. Legal staff who have been employed at EEOC since prior to 1994 may remember that competitive bidding was once required for most expert contracts. At that time, an attorney was not allowed to discuss the facts of the case with prospective experts. The Acquisitions Streamlining Act of 1994 simplified the expert procurement process and did away with the requirement for "full and open competition" in procuring litigation experts. The procedures for obtaining an expert contract for $25,000 or less are quite simple and can be completed in the legal unit, generally in a few days. When the expert contract is for more than $25,000, the procurement package must go through a headquarters review process. Such contracts will generally take more than 30 business days (about six weeks) to complete.
The legal unit must use the federal acquisitions process to enter into contracts for nonexpert litigation support services. The basic steps for contracting for nonexpert support services are described in Manual Part 4, Section I.E., EEOC Procedures for Procuring Nonexpert Litigation Support Services. The usual EEOC nonexpert contract is bid competitively, unless it is for $2,500 or less.2 The procedures for obtaining a nonexpert support services contract for $25,000 or less are quite simple and can be completed in the legal unit, generally in a few days. When the nonexpert support services contract is for more than $25,000, the procurement package must go through a lengthy headquarters review process and the procurement procedures will generally take 4 to 6 weeks to complete. Section I.E. also explains the narrow exceptions to the requirement for "full and open competition" for nonexpert services over $25,000 and how the procurement procedures change when an attorney seeks to invoke the "sole source" exception to this requirement.