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F. OGC Procedures for Procuring Nonexpert Litigation Support Services

Contents

  1. Introduction
    1. Contract Authority
    2. Contract Officers
    3. “Contract” Defined
    4. Contract Lingo: Micro Purchases, Small Purchases, and Simplified Acquisitions
    5. Overview of this Subsection
  2. Initial Steps in Nonexpert Procurement Process
    1. Identifying the Need for Nonexpert Litigation Support Services
    2. Identifying Potential Vendors
  3. Micro Purchases (Services of Less than $2,500)
  4. Small Purchases (Services of $2,500 to $25,000)
    1. Preparing the Procurement Request
    2. Regional Attorney Review and Approval
    3. Field Office Processing and Issuance of Purchase Order
  5. Simplified Acquisitions (Services of More Than $25,000)
    1. Soliciting Contracts through “Full and Open Competition”
      1. (1) Trial Attorney Prepares Procurement Request
        1. (a) EEOC Form 123, Requisition for Supplies, Equipment, Services, Furniture
        2. (b) Statement of Work (SOW)
      2. (2) Regional Attorney Review and Approval
      3. (3) Office of General Counsel Review and Approval
      4. (4) Commission Approval, Where Required
      5. (5) PMD Reviews Procurement Request, Publishes Notice of Intent to Contract, and Prepares Request for Proposal
      6. (6) OLC Reviews Draft RFP
      7. (7) PMD Issues RFP
      8. (8) Vendors Submit Proposals
      9. (9) Trial Attorney Evaluates Proposals
      10. (10) PMD Prepares Contract
      11. (11) OLC Reviews Proposed Contract
      12. (12) PMD Secures Executed Contract
    2. Soliciting Contracts through Noncompetitive Procedures
      1. (1) Trial Attorney Prepares Procurement Request
      2. (2) Headquarters Processing of Request, Including Justification
  6. Resources on the Web

Appendix 1: Optional Form 347: Order for Supplies or Services
Appendix 2: EEOC Form 123: Requisition for Supplies, Equipment, Services, Furniture
Appendix 3: EEOC Form 615: Justification for Other Than Full and Open Competition


E. OGC Procedures for Procuring Nonexpert Litigation Support Services 1

1. Introduction

The trial attorney is likely to need one or more of the following nonexpert support services in prosecuting each case: (1) court reporter services; (2) outside copying services; (3) assistance with identifying and locating claimants or witnesses; (4) database construction services; and (5) process and subpoena servers. Other nonexpert services may also be required from time to time. Generally, the trial attorney will obtain these services through a contract negotiated using the federal and EEOC acquisitions process described in this subsection of the Manual.

a. Contract Authority

The EEOC derives its contracting authority from several federal acts and from the Federal Acquisition Regulation or FAR, 48 C.F.R. Chapter 1, the principle regulation governing federal executive branch agencies, that was jointly issued by the Defense Department, NASA, and the General Services Administration. The EEOC has promulgated internal orders governing various aspects of the contracting process. They are:

  • EEOC Order 360.001, EEOC Acquisitions Policy Guidelines, as amended (July 27, 1994). See Appendix A to the Order, Acquisitions Policies and Procedures Handbook.
  • EEOC Order 360.002, Small Purchase Procedures Handbook (Oct. 1, 1993). See Appendix A to the Order, which is also called Small Purchase Procedures Handbook.
  • EEOC Commercial Purchase Card User Guide (revised June 2000).

b. Contract Officers

In accordance with federal acquisition law and Commission policy, only officially designated contracting officers may enter into, administer, and/or terminate contracts. The FAR vests EEOC's contracting authority in the Chairperson, who in turn has redelegated it to contracting officers. In the field, Office Directors are the contracting officers, with delegated authority to enter into contracts for $25,000 or less. For contracts over $25,000 the Commission's contracting officer typically is the Director, Procurement Management Division, or his designee. Purchases of under $2,500 may be made without the signature of a contract officer. Any EEOC employee with authority to use a government purchase card may make a purchase of less than $2,500.

c. "Contract" Defined

EEOC Order 360.001, EEOC Acquisitions Policy Guidelines, 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." Appendix A thereto, Acquisitions Policies and Procedures Handbook, at p. 1-2. The typical EEOC contract is a two-signature document in which the selected contractor signs first ("the offer") and the authorized Commission Contract Officer signs second (the "acceptance"), resulting in a binding legal relationship. Another form of EEOC contract is a purchase order. With a purchase order, the EEOC Contract Officer signs first ("the offer"). The purchase order becomes binding when the selected contractor accepts in writing or performs the requested services (the "acceptance").

Under the FAR, executive branch agencies must contract through competitive procedures, using what is known as "full and open competition," 41 U.S.C. § 253(a), unless the contract is for less than $2,500 in services or other narrow exceptions apply.

d. Contract Lingo: Micro Purchases, Small Purchases, and Simplified Acquisitions

In its contract guidance, the EEOC uses different terminology to describe contracts, based on contract size (dollar amount) and Contract Officer authority:

  • contracts for less than $2,500 are called "micro purchases,"
  • contracts for $25,000 or less are called "small purchases," and
  • contracts for more than $25,000 and less than $100,000 are called "simplified acquisitions"

e. Overview of this Subsection

This subsection of the Manual describes how to obtain nonexpert litigation support service contracts as efficiently as possible.2 Subsection 2., below, addresses the initial steps in the procurement process for all nonexpert services contracts, identifying the services needed and the potential vendors. Subsection 3. describes two simple ways to purchase services of less than $2,500, which are exempted from the "full and open competition" rule. Section 4. describes the required paperwork and procurement process for requests for $25,000 or less (small purchases). These contracts can be completed within the field office within several business days. Subsection 5. describes the procurement process for contracts for more than $25,000. This is a more cumbersome process and headquarters approval alone may take more than 100 business days (five months). When the trial attorney anticipates needing nonexpert services for more than $25,000, s/he may wish to first find out whether the services are available through the EEOC-DOJ agreement (discussed in Part 4, section I.D.), since the services of DOJ vendors can be secured more quickly and with less paperwork.

2. Initial Steps in Nonexpert Procurement Process

Before preparing the paperwork required to start the contracting process, the trial attorney must determine what nonexpert litigation support services are needed and identify potential vendors. These two steps will be the same regardless of the estimated cost of the contract, although advanced planning is more important for the contracts for more than $25,000 since approval will take more time.

a. Identifying the Need for Nonexpert Litigation Support Services

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 nonexpert litigation support services.

b. Identifying Potential Vendors

Once the trial attorney has identified the needed services, the trial attorney will next identify possible sources for the services. Federal procurement rules and EEOC policy require that a certain percentage of EEOC contracts over the $2,500 micro purchase ceiling and under the $25,000 small purchase ceiling, be reserved for small businesses, including businesses owned by minorities, women, or economically or socially disadvantaged individuals. The Small Business Administration (SBA) and the General Services Administration (GSA) have electronic databases which include vendors meeting these criteria.

As with expert services, the trial attorney will benefit from discussing the requirements of the case with legal unit staff and other Commission staff, and if necessary outside organizations, who should be helpful in identifying prospective vendors.

SBA is also a source of potential vendors. The SBA is responsible for establishing small business standards within each industry, setting size standards by number of employees or millions of dollars. See 13 C.F.R. § 101. SBA also has a program for identifying minority businesses and businesses located in historically underdeveloped zones (HUBZone). Profiles of SBA-certified small businesses (including identification of the business, organization and ownership information, products and services, and the business' performance history) are available on the Central Contractor Registration (CCR) database,3 at www.ccr.gov. These businesses can be searched by Standard Industrial Classification, business type, location, etc.

GSA is another source of potential contractors. GSA contracts with firms to provide products and services for federal government use through its Multiple Award Schedules Program and various other contracting vehicles at prices associated with volume buying. Currently more than 79 percent of FSS Multiple Award Schedule contractors are small businesses. The small businesses with which GSA contracts include those with minority, veteran, and women business owners, as well as businesses employing blind and disabled employees and HUBZone businesses. EEOC legal units might contract for litigation support services (such as temporary clerical services, document technology services, and foreign language interpretation services) through FSS. See GSA's Web page on Services for more information.

In sum, when the attorney expects that a contract will fall into the small purchase range ($2,500 to $25,000), the attorney should find out whether any of the small businesses listed on the SBA or GSA lists are available and qualified to perform the needed services. If so, bids should be solicited from these small businesses. If a responsible small business is not available, the EEOC contract officer may waive the small business set aside. Chapter 4 of the Commission's Acquisitions Policies and Procedures Handbook has more information on the small business program.

3. Micro Purchases (Services of Less than $2,500)

The process of contracting for services of less than $2,500 is quite simple and can be done in the field office. The FAR exempts micro purchases from the requirement for "full and open competition." Therefore, the attorney need identify only one vendor, as long as the vendor's price is reasonable. See EEOC Small Purchase Procedures Handbook, p. A-8.

The attorney may make a micro purchase by using a government commercial purchase card or by filling out Optional Form 347, Order for Supplies or Services. The government commercial purchase credit card, which is different from the credit card most EEOC employees have received for travel expenses, has been issued to all Directors and field office administrative officers and will be issued to all Regional Attorneys in the near future. Attorneys should ask the Regional Attorney or the field office administrative officer for authority to use a commercial purchase credit card for nonexpert litigation support services for under $2,500. Use of commercial purchase credit cards is governed by the EEOC Commercial Purchase Card Program User's Guide. The alternative to using the government commercial purchase credit card is filling out Optional Form 347. A copy of Optional Form 347, Order for Supplies or Services, is attached as appendix 1.

4. Small Purchases (Services of $2,500 to $25,000)

Procuring a nonexpert services contract for $2,500 to $25,000 is also simple and can usually be completed within a few weeks or less. The trial attorney prepares the paperwork for the Regional Attorney's approval and then the legal unit support staff or administrative unit solicits price quotations and completes the contracting process.

a. Preparing the Procurement Request

The trial attorney will prepare EEOC Form 123, Requisition for Supplies, Services, Equipment, Furniture, to request nonexpert litigation support services.4 EEOC Form 123, Requisition for Supplies, Services, Equipment, Furniture is attached in appendix 2. The Form 123 must contain the following information:

  1. (1) A brief description of the services or supplies requested (e.g., the estimated total number of pages to be copied or the estimated number of depositions to be taken and total deposition pages to be transcribed).
  2. (2) The estimated date by which the services are needed.
  3. (3) The name, office, and telephone number of the proposed Contract Monitor, who will be the Commission's point of contact with the selected vendor. As discussed below in Part 4, section II. of the Manual (Contract Monitors' Duties and Responsibilities), the Contract Monitor is responsible for reviewing the selected vendor's performance under the contract and certifying the acceptability of the services or supplies rendered. The Contract Monitor usually will be the supervisory trial attorney or trial attorney.
  4. (4) Whether the request is for a new service or a modification to an existing contract.
  5. (5) The proposed duration of the contract or modification.
  6. (6) The estimated cost of the proposed contract.
  7. (7) A list of suggested vendors.5 Generally, at least three suggested vendors should be identified to promote competition to the maximum extent practicable. Trial attorneys may contact possible vendors to determine if they could provide the services. Trial attorneys should also ask each vendor to provide an oral estimate of costs. The trial attorney may use the vendors' estimates to calculate the approximate cost of the proposed contract. However, the trial attorney should leave solicitation of price quotations to the legal unit support staff or field office administrative officer, who will solicit price quotations only after the Regional Attorney has approved the procurement package. If only one source is reasonably available, an office may limit its request for quotations to a single source. In this event, the office must prepare a detailed memorandum to the file (called a "Justification for Noncompetitieve Purchase") explaining why only one source was solicited and how the contracting officer determined that the price was fair and reasonable. EEOC Small Purchase Procedures Handbook at p. A-9.
  8. (8) The signature of the requestor, usually the supervisory trial attorney or trial attorney.

b. Regional Attorney Review and Approval

The Regional Attorney should review and approve each nonexpert support services request, regardless of the cost, to ensure that the needed services are correctly identified and the proposed contract costs are reasonable.

c. Field Office Processing and Issuance of Purchase Order

Once the Regional Attorney approves a request for nonexpert support services for $25,000 or less, the legal unit support staff or field office administrative officer will solicit cost quotations from the suggested vendors , generally by telephone. If the contract is expected to be for $10,000 or more, the FAR requires the administrative officer to post the proposed acquisition in a "public place," such as on EEOC's Web page or in the field office's public reception area, for a minimum of 10 days. This requirement promotes the goal of competition. The legal unit support staff or field office administrative officer will analyze the bids -- including any from vendors who responded to the posting -- to determine the most reasonable price. Next, the trial attorney will review the vendors' quotations and will make a recommendation. The administrative officer will then prepare a purchase order using Optional Form 347, Order for Supplies or Services, for the signature of the Office Director -- the contracting officer for contracts for $25,000 or less -- and will issue the purchase order to the selected vendor. A copy of Optional Form 347, Order for Supplies or Services, is attached as appendix 1.

5. Simplified Acquisitions (Services of More Than $25,000)

From start to finish, the process of contracting for nonexpert litigation support services for more than $25,000 (a simplified acquisition) takes more time than that of contracting for services of $25,000 or less. First, the paperwork that the legal unit must prepare is more detailed. Second, the request must be processed and approved by OGC, the Procurement Management Division (PMD) of the Office of the Chief Financial Officer and Administrative Services, and the Office of Legal Counsel (OLC). The headquarters approval process alone may take more than 100 business days (five months). Finally, because federal acquisition law requires "full and open competition" when contracting for nonexpert litigation support services, unless justified, 41 U.S.C. . 253(a), an agency may use noncompetitive procedures for such contracts only if it can invoke narrow exceptions. The procurement process differs depending upon whether the trial attorney is seeking a competitive or a noncompetitive contract. Competitive and noncompetitive procurements are discussed separately below.

a. Soliciting Contracts through "Full and Open Competition"

As stated above, federal procurement law requires "full and open competition" for almost all nonexpert contracts. This is the process:

(1) Trial Attorney Prepares Procurement Request

The procurement request is more detailed than for the contract for $25,000 or less, described in subsection 4.a. It contains:

(a) EEOC Form 123, Requisition for Supplies, Equipment, Services, Furniture

The Form 123 will contain all of the information listed in subsection 4.a. However, with requests for more than $25,000, the signature of the requestor will usually be the Regional Attorney's rather than the trial attorney's or STA's. The Form 123 must also state that the request is competitive.

(b) Statement of Work (SOW)

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 vendor has complied with the contract. At a minimum, the SOW should contain the following:

  1. (i) An introduction identifying the Commission and the case for which the request is made.
  2. (ii) The purpose of the proposed contract, including the reasons the Commission needs the services.
  3. (iii) A detailed description of the services to be performed or the supplies to be obtained.
  4. (iv) The period of performance for the proposed contract.
  5. (v) The quantity and/or due date of all deliverables, such as any reports by the vendor on the progress of the work.
  6. (vi) The identification of the proposed Contract Monitor.
  7. (vii) The estimated cost of the contract. Specifically describe the types of services the vendor will perform (e.g., copying, court reporting, data input). Separately estimate the cost for each type of service described. As discussed above, the trial attorney may obtain assistance in estimating costs from legal unit staff (including the Regional Attorney, STAs, and others with experience with similar contracts), other Commission staff (including RAS, LMS, and Systemic Litigation Services), and if necessary outside organizations. Where litigation will be protracted, the contract should be divided into phases to avoiding tying up limited Commission resources. Each contract will contain a clause that will provide the Commission with the option to extend the contract's period of performance, if necessary.
  8. (viii) The Evaluation Criteria. The solicitation should generally describe how the government will evaluate proposals, providing enough information to allow vendors to compete intelligently. Evaluation criteria can include price, technical capability, management capability, prior experience, key personnel and past performance of the offeror. Cost or price must always be considered. The RFP may state the order of importance of the evaluation criteria, and may include numerical points to be assigned to each evaluation factor. Evaluation criteria should be chosen to enable the evaluator of the bids to choose the best bid for the government. In some acquisitions, an evaluation panel is established to consider and rate the proposals submitted by offerors. In all instances, the individual or panel evaluating bids must follow the evaluation criteria established in the RFP.
  9. (ix) List of suggested vendors, if known.

(2) Regional Attorney Review and Approval

Where the legal unit is seeking nonexpert 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.

(3) Office of General Counsel Review and Approval

After the Regional Attorney has approved the request for nonexpert support services for more than $25,000, the legal unit should forward the request to OGC's Administrative and Technical Services Staff (ATSS). The procurement package should be submitted to ATSS in electronic format as well as hard copy. 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.

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 (if the request involves areas within RAS' expertise such as database construction) for review.

LMS and/or RAS will review the procurement package for sufficiency, including 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 should expeditiously complete or modify the procurement package.

Once LMS 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 LMS's statement and either approve or disapprove the procurement request. Where the Deputy approves the request, ATSS will submit the procurement package to 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 review, including any necessary modifications to the package and another two days for the Deputy General Counsel's review. Throughout the entire procurement process, ATSS will be responsible for notifying the Deputy General Counsel and the field office legal unit of any significant delays.

(4) Commission Approval, Where Required

Ordinary requests for contracts for nonexpert support services for less than $100,000 do not require Commission approval, as long as they are bid competitively. But the Commission must vote to approve all requests for contracts for $100,000 or more. Obtaining Commission approval will take 10 to 15 business days.

(5) PMD Reviews Procurement Request, Publishes Notice of Intent to Contract, and Prepares Request for Proposal

PMD's initial role in the procurement process is to review the procurement package, obtain the names of vendors who may be interested in bidding on the contract, and prepare a draft Request for Proposal (RFP). During its review of the procurement package, 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 sufficient, PMD will publish an electronic notice of intent to contract in Federal Business Opportunities (FedBizOps). 6 for a 30-day period. The notice will summarize the proposed contract and ask prospective vendors to contact PMD if they are interested in receiving a RFP.

During the notice period, PMD will prepare the RFP using Standard Form 33, Solicitation, Offer, and Award and a number of attachments. The RFP typically contains the following major items:

  1. (a) Standard Form 33, Solicitation, Offer and Award. Form 33 states when proposals are due, and identifies the Commission contact person who is always the Contracting Officer or Contract Specialist assigned by PMD.
  2. (b) The Statement of Work.
  3. (c) Contract clauses required by law.
  4. (d) Instructions on how to submit proposals.
  5. (e) Evaluation Criteria.
  6. (f) Description of all other information that prospective vendors are required to furnish to permit a meaningful and fair evaluation of the vendors' proposals.

(6) OLC Reviews Draft RFP

PMD then submits the draft RFP to the Office of Legal Counsel (OLC), which is responsible for reviewing the RFP for legal and technical sufficiency.

(7) PMD Issues RFP

After PMD and OLC have approved the RFP, PMD will mail the RFP to all of the prospective vendors who responded to the notice of intent to contract during the 30 days since it appeared in FedBizOps.

(8) Vendors Submit Proposals

Prospective vendors have 30 days to submit their proposals to PMD.

(9) Trial Attorney Evaluates Proposals

Once PMD receives the proposals from the prospective vendors, it will evaluate them to make sure that the proposals are responsive and that the vendors are responsible before forwarding the proposals to the attorney. Using the evaluation criteria contained in the SOW, the attorney will evaluate the prospective vendors' technical and cost proposals and make a recommendation as to which vendor should receive the award. The trial attorney will have 15 days to submit a memorandum to PMD that contains a written evaluation of each prospctive vendor and the attorney's recommendation. If the trial attorney is not available during the evaluation period, the Regional Attorney should appoint an alternate evaluator.

(10) PMD Prepares Contract

Once PMD receives the trial attorney's written evaluation and recommendation, PMD will have 14 days to review it and determine which vendor will be awarded the contract. In the event that negotiations with one or more prospective vendors are necessary to resolve differences between the RFP and the proposals, PMD will have approximately 10 to 15 days in which to conduct such negotiations and to receive and review the final revised proposals. PMD's Contracting Officer always leads the negotiation team, and generally is assisted by the trial attorney and an attorney from OLC.

(11) OLC Reviews Proposed Contract

Following its selection of the vendor, PMD prepares the proposed contract and submits it to OLC, which has ten days to review it for legal and technical sufficiency.

(12) PMD Secures Executed Contract

After OLC completes its legal and technical sufficiency review, PMD will have15 days to mail the contract to the selected vendor for signature. Once the vendor signs and returns the contract to PMD, the Contract Officer in PMD will sign the contract on behalf of the Commission. The contracting process is completed when PMD notifies ATSS of the vendor'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.

b. Soliciting Contracts through Noncompetitive Procedures

An agency may use noncompetitive procedures (or enter into "sole source" contracts) for nonexpert support services contracts only when:

(1) the . . . services needed by the executive agency are available from only one responsible source and no other type of . . . services will satisfy the needs of the executive agency; [or]

(2) the executive agency's need for the . . . services is of such an unusual and compelling urgency that the Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals.

41 U.S.C. § 253(c) (exceptions generally inapplicable to EEOC omitted); see also EEOC Acquisition Policies and Procedures Handbook, at pp. 2-4 to 2-8.

Because the exceptions are stringent, sole source contracts for nonexpert litigation support services are the exception rather than the rule. Rarely is there only one vendor (i.e., "responsible source") with the requisite skills, experience, staffing, and equipment to provide the required services. It would also be unusual for the need for nonexpert services to meet the "unusual and compelling urgency" standard. 7 Because of the unusual nature of this procedure in EEOC contracting, only the differences between the procedures for described above and the procedures for noncompetitive (or "sole source") contracts and are discussed below.

(1) Trial Attorney Prepares Procurement Request

The Form 123 will contain all of the information discussed above, except that it must state that the request is noncompetitive (other than "full and open competition"). The Statement of Work will remain unchanged. The trial attorney must also include an EEOC Form 615, Justification for Other Than Full and Open Competition, as a part of the procurement package. (A blank copy of EEOC Form 615, Justification for Other Than Full and Open Competition, is appendix 3, hereto). The Justification will contain the following information:

  1. (a) The name of the litigation.
  2. (b) A description of the required services, including their estimated costs.
  3. (c) The identification of the statutory authority under which the request is made (the "only responsible source" or "unusual and compelling urgency" standard).
  4. (d) A demonstration that the proposed vendor is the "only responsible source" or the Commission's need is of "unusual and compelling urgency."
  5. (e) A description of the market survey that was conducted to ascertain whether other qualified sources capable of providing the services exist. The market survey usually may be conducted through written or telephonic contacts with persons knowledgeable about the required services.
  6. (f) Any other facts that may support use of noncompetitive procedures.
  7. (g) Certification that the facts supporting noncompetitive procedures are complete and accurate.

(2) Headquarters Processing of Request, Including Justification

PMD will review the Justification for Other Than Full and Open Competition. If PMD disagrees with the Justification, PMD will return the request to the field office legal unit with appropriate comments and recommendations. If PMD agrees with the Justification, it will submit it to OLC for a legal sufficiency ruling. If OLC approves the Justification, PMD will submit the RFP and Justification to the Commission for its approval.

Once the Commission has approved the RFP and Justification, PMD will publish a notice in the FedBizOps stating that the Commission intends to contract for the requested services through other than "full and open competition". The notice must run for 30 days. Before PMD determines if the procurement will be pursued through other than "full and open competition", PMD and the requesting office will consider any responses to the notice. If other than "full and open competition" will be used, the Contracting Officer will certify that the Justification is accurate and complete and PMD will mail the RFP to the proposed vendor.

6. Resources on the Web

Title Description and inSite or Web Address
Central Contractor Registration Central Contractor Registration (CCR) - integrated database of small businesses available to contract with federal government agencies. CCC combines the former databases of the Small Business Administration (SBA), Department of Defense, Office of Management and Budget, and the General Services Administration (GSA). http://www.ccr.gov/
Commerce Business Daily Net Until January 2002, Commerce Business Daily Net (CBD Net) was the electronic database of public notices of government-wide federal procurement opportunities for amounts over $25,000. It has been superceded by FedBizOpps. Maintained by U.S. Government Printing Office. http://cbdnet.access.gpo.gov/index.html
Federal Business Opportunities As of January 2002, FedBizOpps superceded CBD Net as the electronic database of public notices of government-wide federal procurement opportunities for amounts over $25,000. Maintained by GSA. www.fedbizopps.gov
Federal Acquisition Regulation Net Federal Acquisition Regulation Net (FAR Net) is a Web site that contains the federal regulations governing acquisitions. It is maintained by the Office of Federal Procurement Policy. http://www.arnet.gov/far
GSA Services GSA's Web page on services has links to information on the various services and products available to federal government agencies under the GSA Schedules and other programs. http://www.gsa.gov/Portal/gsa/ep/home.do?tabId=3

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 While this discussion is intended to assist Regional Attorneys and legal unit staff understand and navigate the sometimes complex area of federal procurement procedure, all legal unit staff members whose job duties may include involvement in the procurement process should become familiar with EEOC Order 360.001 and EEOC Order 360.002. These Orders are available in all EEOC district office libraries.

3 CCR was developed by the Defense Department (DOD). However, the SBA, GSA, and the Office of Management and Budget, are working with DOD to merge their separate databases into CCR, making it into an integrated database of small businesses that want to do business with the government.

4 Generally a Statement of Work (SOW) is not required for contracts for $25,000 or less. However, if the proposed contract would require the vendor to perform multiple tasks, such as different types of copying or data inputting, the supervisory trial attorney, after consulting with the Regional Attorney, may ask the trial attorney to prepare a SOW to explain the requested services in more detail. If so, the trial attorney should follow the procedures in subsection 5. a. (1) (b), below, in preparing the SOW.

5 See subsection 2.b., supra, which discusses the Commission’s policy to award a certain percentage of its contracts in the $2,500 to $25,000 range to small businesses.

6 Recently FedBizOps was designated in the FAR as the universal electronic point of public access on the Internet to government-wide federal procurement opportunities that exceed $25,000. See 66 Fed. Reg. 27,407 (May 16, 2001). As of October 1, 2001, all public notices of procurement actions above $25,000 must appear in FedBizOps. Previously, notices were to be placed in the Commerce Business Daily.

7 Lack of litigation planning by the district office legal unit or the potential loss of fiscal year funding will not justify invoking an exception to the requirement for “full and open competition.” See EEOC Acquisition Policies and Procedures Handbook, at p. 2-5.

Appendix 1:
Optional Form 347: Order for Supplies or Services

Appendix 2:
EEOC Form 123: Requisition for Supplies, Equipment, Services, Furniture

Appendix 3: EEOC Form 615:
Justification for Other Than Full and Open Competition

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FINANCIAL AND RESOURCE MANAGEMENT SERVICES PROCUREMENT MANAGEMENT DIVISION

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION (FOR ALL NONCOMPETITIVE CONTRACT ACTIONS EXCEEDING $25,000)

(NOTE: TO COMPLETE THIS FORM, PLEASE SEE INSTRUCTIONS ON PAGE 4. SEPARATE SHEETS MAY BE ATTACHED WHEN ADDITIONAL SPACE IS REQUIRED TO PROVIDE SUFFICIENT BACKGROUND INFORMATION. EACH SHEET MUST CLEARLY IDENTIFY THE APPLICABLE ITEM NUMBER(S).

1. REQUIRING ACTIVITY:


2. NATURE AND DESCRIPTION OF ACTION BEING APPROVED:


3. DESCRIPTION AND ESTIMATED VALUE OF SUPPLIES/SERVICES REQUIRED:


4. STATUTORY AUTHORITY PERMITTING OTHER THAN FULL AND OPEN COMPETITION (CHECK APPROPRIATE ITEM):

____(a) 41 U.S.C. 253(c)(1); FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. (NOTE: This authority should not be used if 4(b) or 4(c) is applicable).

____(b) 41 U.S.C. 253(c)(2); FAR 6.302-2 Unusual and Compelling Urgency. Full and open competition is impractical because any delay in award of this procurement would result in serious injury, financial or other, to the Government. This authority requires offers from as many potential sources as practical under the circumstances.

____(c) 41 U.S.C. 253(c)(5); FAR 6.302-5 Authorized or Required by Statute. A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source, e.g., SBA Section 8(a), Purchases from the Blind and Other Severely Handicapped, or Federal Prison Industries (UNICOR) and Government Printing and Binding. This Authority shall not be used when a provision of law requires an agency to award a new contract to a specified non-Federal Government entity unless the provision of law specifically: (1) identifies the entity involved; (2) refers to Section 303(h) of the Federal Property and Administrative Services Act of 1949 for civilian agency acquisitions; and (3) states that award to that entity shall be made in contravention of the merit-based selection procedures in Section 303(h) of the FPR Act.

5. DEMONSTRATION THAT THE ACQUISITION REQUIRES USE OF THE AUTHORITY CITED:



6. DESCRIPTION OF ANY EFFORTS MADE TO ENSURE OFFERS WERE SOLICITED FROM AS MANY POTENTIAL SOURCES AS PRACTICABLE:



7. DETERMINATION THAT ANTICIPATED COST IS FAIR AND REASONABLE:



8. DESCRIPTION OF MARKET SURVEY CONDUCTED AND RESULTS (If a market survey was not conducted, please state reason):



9. OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL AND OPEN COMPETITION:



10. LIST OF SOURCES EXPRESSING WRITTEN INTEREST IN THIS ACQUISITION, IF ANY:



11. STATEMENT OF ACTIONS THE AGENCY MAY TAKE TO REMOVE OR OVERCOME ANY BARRIERS TO COMPETITION BEFORE TAKING ANY SUBSEQUENT ACQUISITION FOR THE SUPPLIES OR SERVICES:



12. CONTRACTING OFFICER/TECHNICAL CERTIFICATION

I CERTIFY THAT THE ABOVE JUSTIFICATION IS ACCURATE AND COMPLETE TO THE BEST OF MY KNOWLEDGE AND BELIEF.

12A. Contracting Officer Certification/Approval:
___________________________________
(Signature of Contracting Officer)
DATE: _____________________
12B. Technical Official Certification:
____________________________________
(Signature of Technical Official If Applicable)
DATE: ____________________

INSTRUCTIONS FOR COMPLETING EEOC FORM 615

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION (FAR 6.302)

BLOCK 1 REQUIRING ACTIVITY. Identify Agency Organization, i.e., service, division and/or program office, for which action is being procured.

BLOCK 2 NATURE AND DESCRIPTION OF ACTION BEING APPROVED. State basis for noncompetitive action, i.e., purchase request from authorized agency personnel and FAR citation of proposed action.

BLOCK 3 DESCRIPTION OF SUPPLIES/SERVICES REQUIRED. Provide a brief narrative description of the specific supplies or services to be procured (Include estimated value).

BLOCK 4 STATUTORY AUTHORITY PERMITTING OTHER THAN FULL AND OPEN COMPETITION. Check appropriate item (a, b, or c). Item must be completed. (NOTE: Selection must meet the criteria relative to circumstances with respect to authority cited under FAR 6.302, permitting the use of other than full and open competition. See FAR 6.303 covering requirements for justifications to support the use of these authorities).

BLOCK 5 DEMONSTRATE THAT THE ACQUISITION REQUIRES USE OF THE AUTHORITY CITED. Provide background data to support the authority cited. For Item (a), describe the unique characteristics of the services or supplies justification, i.e., why these characteristics are essential or mandatory; and why no other source can satisfy the agency needs; For Item (b), demonstrate by time-line and other factors reason there is insufficient time to permit use of full and open competition; For Item (c) cite the specific statute that authorizes or requires this procurement be awarded to the specified source. (NOTE: Lack of advanced planning should not be used to justify use of other than full and open competition.)

BLOCK 6 DESCRIPTION OF ANY EFFORTS MADE TO ENSURE OFFERS WERE SOLICITED FROM AS MANY POTENTIAL SOURCES AS PRACTICABLE. Describe action taken to identify sources that can provide comparable or compatible items. Include whether a Commerce Business Daily (CBD) notice was or will be publicized or, if not, which exception under FAR 5.202 applies. When using 4(b), identify other sources solicited or justify reason only one source was solicited.

BLOCK 7 DETERMINATION THAT ANTICIPATED COST IS FAIR AND REASONABLE. (To be completed by Contracting Officer) State basis for determining price is fair and reasonable.

BLOCK 8 DESCRIPTION OF MARKET SURVEY CONDUCTED AND RESULTS. State whether other qualified sources capable of satisfying the government's minimum needs exist in the commercial marketplace and indicate method used, i.e., written or telephonic to conduct the survey. When a survey is impractical, i.e., unusual and compelling urgency, please explain.

BLOCK 9 OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL AND OPEN COMPETITION. Provide any additional facts not included in Block 5 which support the authority selected. For example, for 4(a), explain why specifications were not developed for competitive solicitation or for 4(b) provide data, estimated cost or other description of the extent and nature of the harm to the government if full and open competition is used.

BLOCK 10 LIST OF SOURCES EXPRESSING WRITTEN INTEREST IN THIS ACQUISITION, IF ANY. List the complete name and address of sources who have indicated, in writing, an interest in providing the required supplies/services.

BLOCK 11 STATEMENT OF FUTURE ACTIONS TO OVERCOME COMPETITIVE BARRIERS. Identify actions, if any, to be taken before subsequent acquisition to reduce or remove any factors, i.e., restricted specifications, that preclude a full and open competitive procurement.

BLOCK 12 CERTIFICATION AND APPROVAL SIGNATURES

12A Contracting Officer Signature and Date required.

12B Technical Official Signature and Date required, if applicable. Signature(s) by Technical or Requirement personnel certifies that any supporting technical data upon which this justification is based, (e.g., verifying agency minimum needs; schedule requirements and/or the rationale for other than full and open competition) is accurate and complete.

EEOC FORM 615 (Revised) (3/96) Previous Editions Of This Form Are Obsolete And Should Not Be Used.