Appendix 1: EEOC Form 123: Requisition for Supplies, Equipment, Services, Furniture
Appendix 2: Market Survey Form
A significant number of litigation support procurement requests are for obtaining expert services. The Commission usually retains experts to testify in plaintiff's case-in-chief at trial, to consult during trial preparation, and/or to testify as a rebuttal witness at trial. Over the years, the legal units have worked with experts in diverse fields, including medical doctors, psychologists, statisticians, economists, individuals with expertise in various aeronautical specialties, etc. This section therefore addresses the procurement processes applicable to the acquisition of those expert services. While there are more similarities to -- than differences from -- the procurement process for nonexpert litigation support services, described in Part 4, section I.E, the entire process is described here to avoid confusion.
EEOC Order 360.001, EEOC Acquisition Policy, Guidelines, and Procedures, dated July 1, 1986, as amended, defines a "contract" as "a mutually binding legal relationship . . . obligating the seller [the contractor] to furnish supplies or nonpersonal services and the buyer [the Commission] to pay for them."2 The typical EEOC contract is a two-signature document in which the selected contractor signs first ("the offer") and the authorized Commission official signs second (the "acceptance"), resulting in a binding legal relationship. Another form of EEOC contract is a purchase order. With a purchase order, the authorized EEOC official signs first ("the offer"). The purchase order becomes binding when the selected contractor accepts in writing or performs the requested services (the "acceptance"). Contracts and purchase orders for less than $100,000 are called "simplified acquisitions." The procurement process is the same for both, although some of the forms differ.
Subsection 2., below, addresses the initial steps in the procurement process for all expert services contracts. Subsection 3. describes the required paperwork and procurement process for requests for $25,000 or less (which are approved at the field office level). This is a relatively simple process, which can be completed in several business days. Subsection 4. describes the procurement process for requests for more than $25,000 (which require headquarters approval). This process is somewhat more complicated than the former. Headquarters processing of these requests takes 30 business days (six weeks) or longer.
Before the trial attorney can prepare the paperwork required to start the expert contract process, the trial attorney will determine what expert services are needed and identify potential experts. These two steps will be the same regardless of the estimated cost of the contract.
Regardless of whether the request is for $25,000 or less or for more than $25,000, the first step in the procurement process is initiated at the field office level. The trial attorney should as soon as practicable after being assigned a case for litigation, and whenever possible prior to filing the complaint, 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 need for consulting or trial experts.
Once the trial attorney has decided that an expert is needed, the trial attorney will next identify experts who will be able to perform the needed services. As discussed above, the trial attorney will benefit from discussing the case with legal unit staff and other Commission staff for help in identifying prospective experts. Other potential sources of help with identifying experts include federal law enforcement agencies, individuals and organizations involved in similar civil rights litigation, bar organizations, local colleges and universities, etc.
When the trial attorney anticipates needing expert services, s/he should first check with Research and Analytic Services (RAS) in OGC to see if an in-house expert is available.3 See Part 4, section I.B. of the Manual for a discussion of the services available from the RAS staff. Legal units should always consider using RAS staff as consulting experts when outside experts are retained to testify. OGC should make full use of this important in-house source of expertise.
For many years, government attorneys were required to retain experts through a "full and open competition" process. The only permissible deviation from that competitive process was known as the "sole source" exception. The Acquisition Streamlining Act of 1994, however, simplified the expert procurement process. Federal government attorneys are no longer required to competitively bid expert contracts;4 attorneys can now discuss the facts of the case with potential experts and retain experts on an other than "full and open competition" basis.5
While the Acquisition Streamlining Act of 1994 eliminates the need for "full and open competition" in the procurement of experts, the Act nevertheless requires government attorneys to promote competition to the maximum extent possible. Therefore, to meet this requirement and ensure selection of a well qualified expert, trial attorneys should attempt to identify at least two or three potential experts who likely would be able to perform the required tasks.
When contacting potential testifying experts, the trial attorney should not limit the discussion to the substantive issues in the case. The trial attorney should assess each potential testifying expert's ability to communicate effectively with a judge and jury. In addition, the attorney should ask each potential expert to provide the following information:
The remaining steps in the procurement process for expert services for $25,000 or less all take place in the field office. The trial attorney prepares the paperwork for the Regional Attorney's approval and then the administrative unit processes the paperwork and issues the purchase order.
Requests for expert litigation support services are initiated by using an EEOC Form 123, Requisition for Supplies, Services, Equipment, Furniture. (See appendix 1 for a copy of a blank Form 123). The Form 123 must contain the following information:
A Statement of Work (SOW) is a clear and comprehensive description of the work to be performed and the contract performance standards to be met. The SOW is the most critical part of the procurement request, as it serves as the foundation for the resultant contract. The tasks set out in the SOW should be specified in sufficient detail that the Contract Monitor will have no difficulty in determining whether the selected expert has complied with the contract. At a minimum, the SOW should contain the following:
Although, as noted earlier, legal units no longer need to competitively bid for expert services procurements, legal units are nevertheless required to promote competition to the maximum extent possible. The procurement package must include a completed Market Survey indicating what steps were taken to identify prospective experts and whether any particular expert is recommended. (See appendix 2, Market Survey Form.) Where legal units have solicited written proposals from a number of potential experts, the legal units prepare evaluation criteria which contain the standards for selecting the expert.
The Regional Attorney should play an active role in selecting experts. The Regional Attorney should review and approve each request for an expert services contract, regardless of the cost, to ensure that the needed services are correctly identified and the proposed contract costs are reasonable. When the expert services requested are $25,000 or less, the Regional Attorney has authority to approve the contract.
Once the Regional Attorney approves a request for expert services for $25,000 or less, the package should be forwarded to the field office administrative officer or budget analyst (collectively referred to here as "administrative officer") for processing. In the usual case, where the trial attorney has recommended that a specific expert be awarded the contract, the administrative officer will contact the proposed expert to confirm his/her availability and the costs of the various services that the expert is expected to provide. The administrative officer will then obtain the signature of the Commission's Contracting Officer -- for contracts for $25,000 or less, this is usually the Office Director - and will issue the purchase order.
While it is unusual, the trial attorney may instead identify more than one potential expert without making a specific recommendation. Where this occurs, the administrative officer should prepare a request for proposal (RFP) and forward it to each of the potential experts identified by the trial attorney. Typically the experts will be given five business days to submit their proposals. The administrative officer should then submit the potential experts' proposals to the trial attorney, who will evaluate them and recommend which expert to select to the Regional Attorney. The administrative officer will then complete the contracting process.
Preparing a request for expert services for more than $25,000 is more time consuming than requesting a contract for $25,000 or less. Unlike the expert contract for $25,000 or less, headquarters must approve the expert contract for more than $25,000. In the wake of the simplifications to the federal acquisition process embodied in the Acquisition Streamlining Act of 1994, headquarters approval of these expert contracts usually takes a little bit more than 30 business days (or about six weeks), which is substantially less time than it takes to obtain approval of a nonexpert services contract for a like amount.
The procurement package for more than $25,000 contains the same elements that are required for the expert contract for $25,000 or less, described in subsection 3.a., above, with two permutations. First, when the contract is for more than $25,000, the signature of the requestor on the Form 123 must be that of the Regional Attorney, instead of the supervisory trial attorney or trial attorney. Second, all expert contract requests for more than $25,000 will require a detailed Statement of Work (SOW).
Where the legal unit is seeking expert litigation support services for more than $25,000, the Regional Attorney must still review and approve the package. Thereafter, the package must be submitted to headquarters for approval.
After obtaining Regional Attorney approval, the legal unit should forward the request for expert services to OGC's Administrative and Technical Services Staff (ATSS). ATSS is responsible for coordinating procurement requests throughout the process to ensure their timely completion, and questions concerning the process should be addressed to ATSS. The procurement package should be submitted to ATSS in electronic format as well as hard copy.
ATSS will first review the procurement package to ensure that it is complete. ATSS will return an incomplete package to the field office legal unit for completion. After ATSS's Program Officer approves the procurement package, ATSS will transmit it to LMS and/or RAS 8 for review.
LMS and/or RAS will review the procurement package for sufficiency. This will include determining whether the tasks described in the SOW are appropriate and the estimated costs are reasonable. In the event ATSS, LMS, or RAS determines that the procurement package is incomplete or requires modification, ATSS, LMS or RAS will consult with the Regional Attorney or his/her designee concerning the recommended steps to complete or modify the package. The Regional Attorney or designee should expeditiously complete or modify the procurement package.
Once LMS and/or RAS determines that the procurement package is satisfactory, it will submit a written statement about the appropriateness of the tasks in the SOW and the reasonableness of costs to the Deputy General Counsel. The Deputy then will review the statement and either approve or disapprove the procurement request. Where the Deputy approves the request, ATSS will submit the procurement package to the Procurement Management Division of the Office of the Chief Financial Officer and Administrative Services (PMD), accompanied by the Deputy General Counsel's authorization.
Normally the OGC review process described above takes six business days, four days for the ATSS and LMS/RAS review, including any necessary modifications to the package, and another two days for the Deputy General Counsel's review.
Most requests for expert contracts do not require Commission approval. However, the Commission must vote to approve any request for a contract for $100,000 or more. Obtaining Commission approval will take ten to 15 business days.
PMD reviews the procurement package, prepares a Request for Proposal (RFP), and solicit proposals from prospective experts within seven business days. During its review of these documents, PMD will consult with the ATSS Program Officer on questions regarding the SOW and on any changes to the procurement package PMD believes are necessary. OGC and/or the Regional Attorney or designee will be required to make any necessary changes before PMD can complete processing of the procurement package. Once PMD is satisfied that the procurement package is satisfactory, it will prepare and submit an RFP to the proposed expert or experts. The RFP contains the SOW and any additional information required by federal acquisition law and Commission policy or otherwise necessary for the expert to respond to the RFP.
Once PMD forwards the RFP to the proposed expert, PMD normally allows five business days for the expert to submit his or her proposal based on the tasks, estimated number of hours and the other requirements listed in the RFP. If the trial attorney will need an expedited procurement action, s/he should contact PMD, and it in turn will arrange for submission of the proposal in a shorter time.
Once PMD receives it, PMD will submit the expert's proposal to the trial attorney, who will have three days to review and evaluate it. If the trial attorney is not available during the evaluation period, the Regional Attorney should appoint an alternate evaluator. Using the evaluation criteria contained in the SOW, the trial attorney will evaluate the prospective expert's technical and cost proposals, including travel and other direct costs (e.g., copying and costs to create exhibits) to determine whether they are appropriate. The trial attorney must submit his/her evaluation of the proposal -- including any questions about direct costs -- to PMD in writing.
Once PMD receives the trial attorney's written evaluation, PMD will have three business days to review it, determine that the proposed labor rates are reasonable, and award the contract. An additional three days may be required if negotiations with an expert are necessary. PMD will confer with the Deputy General Counsel to determine whether the Deputy General Counsel wishes to participate in negotiations on technical or cost matters.
Where the expert services will be provided by a corporation or partnership, the contract should contain "key personnel" clauses that: (1) identify names and/or categories of all personnel considered essential to the work being performed; (2) make all such personnel subject to government review in accordance with the defined labor categories; (3) require the contractor to provide qualified personnel within a set number of days after the contract award; and (4) require that invoices identify hours worked by various personnel either by name or by labor category.
Following its approval, PMD will submit the proposed contract to OLC, which has two days to review the proposed contract for legal and technical sufficiency.
PMD will have four days from the completion of OLC's review to mail the contract to the selected expert for signature. Once returned, PMD will cause the Commission Contracting Officer -- for contracts for more than $25,000, this is the Director of PMD or his/her designee -- to sign the contract on behalf of the Commission. The contracting process is completed when PMD notifies ATSS of the expert's acceptance of the contract terms and forwards a copy of the executed contract to the trial attorney and/or the Contract Monitor listed in the SOW.
The following is a timetable, beginning with submission of the expert services request to OGC for review and ending with execution of the contract.
|1.||OGC review and approval. ATSS, LMS and/or RAS review and approve expert request and send statement on sufficiency, appropriateness and reasonableness to Deputy General Counsel. Deputy General Counsel recommends to PMD that contract be approved.||6|
|2.||Commission approval (only required with contracts for $100,000 or more).||0 -15|
|3.||PMD reviews requisition and supporting documentation and develops RFP.||7|
|4.||Experts submit proposals.||5|
|5.||Trial attorney evaluates proposals.||3|
|6.||PMD reviews evaluation, determines reasonableness of cost, selects contractor and prepares contract for award.||3-6|
|7.||OLC reviews contract for legal and technical sufficiency.||2|
|8.||PMD mails contract to expert for signature. EEOC signs contract.||4|
|Total business days to award||30 - 50|
As part of its monitoring function, ATSS will be responsible for notifying the Deputy General Counsel and the field office legal unit submitting the procurement request of any significant delay beyond the times outlined in the expert procurement schedule set forth above.
1 Since this section was originally written, the Commission has begun using the Interior Department Electronic Acquisition System - Procurement Desktop (IDEAS - PD) to prepare, process, and track procurement documents. In addition, the Commission has required use of the Integrated Financial Management System (IFMS) since October 2002 for all purchases of $2,500.00 and more and for any purchases (awards, purchase requisitions, contracts, and inter-agency agreements) made with purchase orders. This subsection does not address any changes to the procurement process made subsequent to Commission adoption of IDEAS-PD and IFMS.
2 See EEOC Order 360.001, pp. 1-2. While this discussion is intended to assist OGC staff in understanding and navigating the sometimes complex area of federal procurement procedure, all OGC staff whose job duties may include involvement in the procurement process should become familiar with EEOC Order 360.001.
3 Occasionally, it may be possible to obtain expert services through other federal agencies. This will save Commission resources and obviate the need for using the procurement process described here. For example, in the early 1980s the EEOC needed an expert in jet flight simulator testing for an action against a major airline. By contacting the Federal Aviation Administration (FAA), the trial attorney was able to obtain the services of a highly competent flight simulator expert with a commercial pilot's license, whose experience before joining the FAA included managerial jobs in the commercial airline industry. This expert worked with the EEOC sporadically for several years until his services were no longer needed. The only costs that the EEOC bore were for travel, lodging, meals, and incidentals. Consider whether a federal government expert could be an asset to your case.
4 This has also eliminated the requirement to follow the sole-source contracting procedures discussed in Part 4, section I.F.4.b., supra, when retaining experts, in virtually all circumstances.
5 The authority for EEOC to use "other than full and open competition" when the agency retains expert services for any current or anticipated litigation or dispute is provided by 41 U.S.C. § 253(c)(3)(C) and Federal Acquisition Regulation 6.302-3. The statute provides that noncompetitive procedures may be used:
to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify.
6 If the legal unit interviewing the expert knows, based on past experience, the hours that it expects will be needed to perform each of the tasks that will be part of the expert's work, these estimates should be discussed with the expert to determine whether he or she concurs with this assessment. It will also be important to determine whether there are any other tasks the expert believes will be required for the expert to perform the role expected (for example, tests performed by someone other than the expert or his or her staff).
7 If the expert has not testified in a similar case, the legal unit should attempt to determine the expert's rate for comparable services in other litigation.
8 If the request is for expert services outside RASí areas of expertise, the request likely will be reviewed solely by LMS. RAS' areas of expertise include economics; labor economics, particularly in the areas of constructing labor markets and availability estimates; data base conversion or construction; computerized data analysis; psychology, including industrial/organizational and personnel psychology; general social science research, such as racial/age stereotyping or sexual harassment; statistics, particularly complex or multivariate analyses; and financial analysis, such as estimating the value of businesses.
State which of the following procedures were followed in selecting the particular expert(s). If item one (1) is selected, item two (2) need not be addressed. Item (3) requires a response.
The recommended expert is uniquely qualified to perform the expert services in this case (e.g., the expert is the treating physician in a disability case, the expert has developed a database relevant to his or her testimony in this case). If this box checked, please discuss.
The legal unit has surveyed the expert services market. Describe all efforts made to contact different experts and/or any other attempts to promote competition (e.g., explored other experts with OGC's RAS or LMS; spoke with other attorneys in the Commission, in other Federal Government Agencies or in the private sector; reviewed trade journals; spoke with potential experts at educational institutions).
What efforts were made to obtain the services of minority or women contractors? Please discuss.