1. FDIC Legal Division eDiscovery RFP_Read Me First.pdf

RFP. No. LEGAL-2024-001

Federal Deposit Insurance Corporation 3501 Fairfax Drive, Arlington, VA 22226-3500 Legal Division

REQUEST FOR PROPOSALS 1

FOR 2

DATA HOSTING EDISCOVERY PROVIDERS 3

1.0 Executive Summary & Key Information. 6

This request for proposals (RFP) is issued by the Federal Deposit Insurance Corporation’s 8 (FDIC) Legal Division. This RFP solicits proposals from all interested and capable cloud-based 9 data-hosting eDiscovery companies to serve as the FDIC’s primary eDiscovery vendor(s). 10

The FDIC anticipates awarding 3 Basic Ordering Agreements (BOAs or Agreements) from 12 this RFP, each with a 5-year ordering period. The FDIC reserves the right to make more or fewer 13 than three awards. The FDIC anticipates making these awards in August 2024. 14

Due Date for Proposals: Proposals are due no later than 30 days after the issuance of this 16

RFP. 17

Agency Contacts: Questions about this RFP should be directed to 19 FDIC Counsel Charles McCarthy (cmccarthy@fdic.gov) and 20 Senior Attorney Michael Pangia (mpangia@fdic.gov). 21 The due date for questions is May 9, 2024 at 3:00 p.m. ET. 23

Eligibility to Bid: This RFP has 3 eligibility criteria, which vendors must satisfy in 25 order to be able to have their proposals considered: 26

• Eligibility Criterion 1: All of the Vendor’s managed hosting and processing of FDIC 28 electronically stored information must be either: 29 o performed by a solution that has a Federal Risk and Authorization 31 Management Program (FedRAMP) MODERATE impact level authorization, 32 or 33 o performed entirely within a FedRAMP MODERATE impact level authorized 34 environment. 35 o Note, this RFP contains a process to request a waiver from this requirement 37 during the Q&A period for compelling circumstances. For example, if an 38 interested vendor was already involved in and had substantially completed the 39 FedRAMP certification process, the FDIC may (but is not required to) 40 consider a waiver under those circumstances. 41

• Eligibility Criterion 2: Vendors must be registered in SAM.gov at the time of 43 proposal submission and must have an “Active” SAM registration by the time of 44 award. See https://www.sam.gov for information on registration. 45

RFP. No. LEGAL-2024-001 2

• Eligibility Criterion 3: Vendors must be willing to accept the FDIC’s agreement 46 terms. See Attachment 1, Basic Ordering Agreement. (For example, the Vendor 47 must be willing to invoice the FDIC monthly in arrears, rather than be paid at the time 48 of service). 49

2.0 Background. 51

2.1 About the FDIC. 53

The FDIC is a mixed-ownership government corporation and independent agency of the 55 federal government. Congress created the FDIC under the Banking Act of 1933 to maintain 56 stability and public confidence in the nation’s financial system by insuring deposits, examining 57 and supervising financial institutions, and managing receiverships of failed banks. The FDIC 58 operates in three distinct capacities: corporate, receivership and conservatorship. This RFP is 59 being issued, and the Basic Ordering Agreements are being awarded, in the FDIC’s corporate 60 capacity. Task Orders may be issued in any of the FDIC’s capacities, to be determined at the 61 time of Task Order award. 62

2.2 About the FDIC Legal Division and the Contracting Process. 64 The FDIC is neither an executive branch agency, nor funded by appropriated funds. The FDIC 66 also has independent statutory authority for entering into contracts, 12 U.S.C. § 1819(a). The 67 FDIC’s Legal Division ensures FDIC’s adherence to laws and regulations, interprets laws for and 68 provides advice to FDIC divisions and offices, identifies and assesses risks to the FDIC, and 69 represents and advocates for the FDIC. Relevant to this RFP, the FDIC Legal Division also 70 contracts for legal services and legal support services and has its own delegated procurement 71 authority. 72

For the reasons stated above, the FDIC Legal Division and this RFP are not governed by the 74

Federal Acquisition Regulation nor by the FDIC’s Acquisition Procedures and Guidance 75 Manual. This procurement of eDiscovery vendors is governed primarily by the terms of this RFP 76 and the Legal Support Services Deskbook. In the event of conflict between this RFP and the 77 Deskbook, the terms of the RFP control; once the Agreements are awarded, they control over 78 any conflicting terms of the Deskbook. For clarity, the following government procurement laws 79 and policies do not apply to this procurement: 80

• Office of Federal Procurement Policy Act 82

• Competition in Contracting Act 83

• Federal Acquisition Streamlining Act 84

• Contract Disputes Act 85

• Federal Acquisition Regulation 86

• FDIC Acquisition Procedures & Guidance Manual (APGM), except for the specific 87 contract clauses that are expressly incorporated by reference in the awarded Agreements. 88 The Legal Division’s Legal Services and Special Contracts Group (LSSCG) is, functionally, 89 the “contracting office” for this procurement. The Legal Division’s eDiscovery Group (eDG) is, 90 functionally, the program office/requiring activity for this procurement. Within the FDIC’s Legal 91 Division, eDG is responsible for managing and coordinating legal support services at the FDIC 92 https://www.fdic.gov/formsdocuments/apgm.pdf https://www.fdic.gov/formsdocuments/apgm.pdf https://www.fdic.gov/about/doing-business/legal-support-services-deskbook/

RFP. No. LEGAL-2024-001 3 relating to electronically stored information (ESI) and for the full spectrum of the FDIC’s 93 eDiscovery needs. 94

2.3 About the Awarded Contracts. 96

Based on vendors’ ability to meet the criteria set forth in this RFP – as demonstrated by 98 written proposals – certain qualified vendors will be selected to execute a BOA. The “ordering 99 period” of the awarded BOAs will be 5 years, meaning the FDIC may issue Task Orders 100 (normally on a competitive basis) for the full spectrum of the FDIC’s eDiscovery needs over the 101 5-year ordering period. 102

An awarded BOA itself is not a contract. Rather, a BOA is a written instrument of 104 understanding between the FDIC and the Contractor for future delivery of unspecified quantities 105 of goods or services. A BOA becomes a binding contract when a Task Order is issued (the Task 106 Order and BOA terms, together, form the contract terms for any given work the Contractor 107 performs). Importantly, award of a BOA itself is not a guarantee that any Task Orders will be 108 awarded to an individual vendor. 109

3.0 Agreement Scope. 111

The purpose of this RFP is to obtain best-in-class eDiscovery cloud-based managed hosting 113 and processing of ESI that may be required by the FDIC, to include during investigations, 114 inspections, examinations, and/or litigation. Although this RFP’s primary objective is to obtain 115 secure data hosting, any awarded BOA(s) will be broadly scoped to include services in relation 116 to any phase of the eDiscovery reference model (EDRM), an industry-standard approach to ESI 117 that incorporates the following phases: information governance, identification, preservation, 118 collection, processing, review, analysis, production, and presentation. 119

The scope of awarded BOA(s) includes, but is not limited to: 121

• managed data hosting, database creation, paper document processing, early data 123 assessment tools, analytics, technology assisted review, managed review, and forensic 124 services; 125

• assistance responding to information requests from many sources, including, for example, 127

Congressional requests for information, third-party subpoenas and audits, FOIA requests, 128 and internal and external investigations; and 129

• providing assistance to FDIC Legal Division personnel and FDIC outside counsel and 131 other legal support providers to preserve, collect, process, review, analyze, produce, and 132 host electronically stored information as part of unofficial or official discovery in a 133 lawsuit or investigation. 134

More information on the Agreement scope and desired services is contained in BOA 136

Attachment A, Statement of Objectives. 137

RFP. No. LEGAL-2024-001 4

4.0 Proposal Instructions and Requirements. 139

4.1 Intention to Bid. 141

Vendors that anticipate submitting a proposal should notify (via email) the FDIC points of 143 contact listed in paragraph 4.2 below of their intention to bid no later than May 9, 2024 at 144 3:00 p.m. ET. While submitting a notice of intent to bid is not mandatory (and the FDIC will 145 accept proposals from vendors that did not previously declare an intention to bid), submitting 146 an intent to bid is in a vendor’s interest and will ensure the vendor continues to receive the 147 most up-to-date information about the RFP. 148

4.2 Proposal Due Date and Submission Method. 150

Proposals must be submitted by email to Charles McCarthy (cmccarthy@fdic.gov) and 152 Michael Pangia (mpangia@fdic.gov). 153 Proposals must reach the FDIC designated recipients by May 23, 2024 at 3:00 p.m. ET. 155 Absent extenuating circumstances, late proposals are likely to be excluded and not considered 156 for award. Each vendor may only submit a single proposal. 157

4.3 Questions from Offerors. 159

Questions about this RFP should be submitted in writing, via email, to the FDIC points of 161 contact listed in paragraph 4.2 above. The due date for questions is May 9, 2024 at 3:00 p.m. 162 ET. The answers to questions of general applicability may be provided to all known interested 163 vendors. 164 Vendors may submit a waiver request for Eligibility Criteria 1 during the Question and 166 Answer period. A waiver request should include sufficient justification to permit evaluation. 167

4.4 Proposal Organization. 169

Volume Name Factor Name Page Limit

Administrative Proposal Volume

N/A (Use this volume to provide eligibility criteria information and required Attachments C, D, E, and F)

No page limit, and attachments may be provided as separate digitally-signed documents.

Technical Proposal Volume

Technical Factor

- Capacities Subfactor

- Corp. Experience Subfactor

10 page limit

Price Volume Price Factor No page limit

4.5. Administrative Proposal Volume. 172

In the Administrative Proposal Volume, the vendor shall not include marketing material. The 174 vendor shall include: 175

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• The vendors full/legal company name, address, and point(s) of contact for the proposal 176 (email and phone); 177

• Confirmation/proof of Eligibility Criteria 1: FedRAMP MODERATE authorization; 179

• Confirmation/proof of Eligibility Criteria 2, SAM.gov registration (a screenshot is 181 acceptable); 182

• Acknowledgement of Eligibility Criteria 3, such as a statement that the vendor has 184 reviewed the proposed Basic Ordering Agreement and agrees to its terms if the vendor 185 is selected for award; 186

• FDIC Contractor Representations and Certifications, BOA Attachment E; 188

• FDIC Representations and Certifications For Legal Support Services Provider, BOA 190 Attachment F; 191

• Confidentiality Agreement (For Contractors/Subcontractors/Consultants), BOA Attachment C; 192

• Confidentiality Agreement (For Contractor/Subcontractor/Consultant Personnel), 193 BOA Attachment D (At the time of proposal submission, a Confidentiality Agreement 194 is only required from the vendor’s FDIC Program Manager/POC; additional 195 Confidentiality Agreements and Background Investigation Questionnaires may be 196 requested around time of award and/or during BOA performance). 197

4.6. Technical Proposal Volume. 199

The vendor’s technical proposal volume shall be divided into two sections, Technical 201 Capability and Corporate Experience. The vendor may divide the available 10 page limit 202 for the volume between these two sections using the Vendor’s own discretion. 203 The Technical Proposal Volume shall not include proposed prices, but the Corporate 205 Experience section will necessarily include pricing and/or contract values for the 206 referenced past experience examples. 207

4.6.1 Technical Capability Section. 209

In the Technical Capability section, the Vendor shall describe in detail its technical 211 capabilities and product offerings to provide the 9 types of services listed in paragraphs 212 2.1–2.9 of the Statement of Objectives. 213 Vendors should place an emphasis on fully describing the services listed in paragraphs 215 2.1–2.5 of the Statement of Objectives, as these are the most important scope areas to the 216

FDIC. 217

The pre-trial and trial support listed at SOO paragraph 2.7, and the transcription, 219 translation services, and court reporting services listed at paragraph 2.9 are optional 220 agreement scope, meaning it is acceptable for a vendor to decline to provide/propose 221 these services. 222

RFP. No. LEGAL-2024-001 6

Although the FDIC desires to generally avoid the use of too many subcontractors, a 223 vendor may propose to subcontract one or more of the scope areas listed at 2.6, 2.7, 2.8 or 224

2.9 if the vendor does not offer those services. Services proposed to be subcontracted 225 must include the identity of the specific subcontractor as well as pricing (in the pricing 226 volume). 227 The Technical Capability section shall also demonstrate the Vendor’s ability to meet the 228 security requirements of the BOA and the Statement of Objective (SOO). 229

4.6.2 Corporate Experience Section. 231

In the Corporate Experience section of the Technical Proposal volume, the vendor shall 233 demonstrate its capacity to successfully perform the requirements contained in the SOO 234 through the use of past experience examples. In the Corporate Experience section, the 235 Vendor shall submit the following information for up to 3 federal or commercial 236 contracts performed by the proposing vendor within the last 3 years since the RFP issue 237 date. The vendor may also include up to 1 corporate experience example from a proposed 238 subcontractor (creating the opportunity for a maximum of 4 experience examples in a 239 given vendor’s proposal). 240 Because certain types of experience examples may be evaluated more favorably than 242 others, the FDIC recommends the vendor review the evaluation criteria in paragraph 243

5.3.2 when selecting its experience examples. 244 For each experience example, the vendor shall include (or state not applicable): 246

a. Name and type of client (federal or commercial); 248

b. Contract name and number; 249

c. Contract dates (performance start and expiration); 250

d. Type of contract (e.g., cost reimbursement, fixed price, T&M, etc.); 251

e. Client and/or contracting organization (name, phone, and email) 252

f. Best point of contact for a reference check; 253

g. If a government contract, whether the vendor received an agency Authority to 254

Operate (ATO) and the point of contact for questions about that ATO; 255

h. Contract value by year and total contract value; in the case of contract types 256 where the total contract value is different than the value of the work actually 257 performed, for example ID/IQs and BPAs, also provide the value of the work 258 actually performed to date; 259

i. A description of the contract work, including an explanation of how the nature of 260 the work on this experience example is relevant to the FDIC work described in 261 SOO sections 1.0 and 2.0; 262

j. Size of project (e.g., GBs, number of documents reviewed or produced, number of 263 review attorneys, etc.); 264

k. Cure/show cause notices. Include an affirmative statement whether your firm has, 265 or has not, received any cure notices or show cause notices from the government 266 related to this past performance reference. If such notice(s) have been received, 267 provide a copy of those notice(s) and an explanation of the surrounding 268 circumstances. 269

RFP. No. LEGAL-2024-001 7

4.7 Price Proposal Volume. 271

The Pricing Proposal Volume shall consist of the Excel File titled “Pricing Workbook” 273 completed and returned by the vendor in Excel format. 274 The vendor may make minor adjustments to the Pricing Workbook to more accurately match 276 its service offerings, but the vendor shall explain any changes made in the Vendor Notes 277 Column (Column D). 278

The Price Proposal Volume must be aligned with the vendor’s Technical Proposal. 280

The prices provided in the Pricing Workbook shall be “not-to-exceed” prices for the duration 282 of the BOA. The FDIC typically requests Task Order specific pricing when awarding Task 283 Orders and Vendors may offer lower prices for individual Task Orders. Vendors will not be 284 able to bill or charge the FDIC for categories of items or services that are not listed in the 285 Vendor’s price proposal, unless a revised Price Proposal is provided and agreed to in writing 286 by the FDIC prior to performance of the task at the new price. 287

The Price Proposal Volume should not assume a minimum term (e.g., 5 years) for hosting nor 289 a minimum number of GBs/TBs to be hosted. 290

5.0 Evaluation Process and Criteria. 292

5.1 Individualized Communications. The FDIC may award BOAs based on initial proposals 294 received, without communications or negotiations with Vendors. As the Legal Division uses 295 more of a commercial than federal contracting process, the FDIC reserves the right to 296 communicate with some or all of the proposing vendors, if determined to be in the FDIC’s 297 interest. Following receipt of a proposals – and before or after evaluations – the FDIC may 298 inquire verbally or in writing to better understand any vendor’s proposal or to request 299 revisions to a vendor’s proposal. The FDIC is not obligated to contact any individual vendor 300 and the FDIC may contact/communication/negotiate with one vendor, or some vendors, but 301 not others. 302

5.2. General Process. The FDIC will screen proposals for eligibility criteria and general 304 compliance with RFP instructions. Eligibility/compliant proposals will be evaluated in 305 accordance with the below criteria for the Technical Factor and the Price Factor. A proposal 306 may be found ineligible for award for reasons including but not limited to: 307

• Failing to meet Eligibility Criteria; 308

• Failing to comply with RFP instructions; 309

• Receiving lower than an “Acceptable” rating for either of the Technical Subfactors; 310

• Proposing other than fair and reasonable prices (in the FDIC’s assessment); 311

• Other deficiencies identified either in the vendor’s proposal (such as in the 312

Representations and Certifications) or identified when performing diligence on the 313 Vendor; or 314

• Information received from other federal agencies regarding a Vendor’s prior breach of 315 contract, consistently poor performance, or unlawful activity. 316

RFP. No. LEGAL-2024-001 8

5.3 Technical Factor Evaluation. The Technical Capabilities Subfactor and Corporate 318 Experience Subfactor will be evaluated separately and each will receive its own rating. 319

5.3.1 Technical Capabilities Subfactor. 321

The Technical Capabilities Subfactor will assess the degree to which the vendor’s 323 capabilities demonstrate an understanding of and ability to meet the technical 324 requirements of this RFP and SOO. 325 The FDIC will evaluate the vendor’s proposed service offerings to meet SOO paragraphs 327 2.1–2.9 and the vendor’s ability to meet IT security requirements. 328 The FDIC will assign strengths, weaknesses, and deficiencies with respect to the 330 Technical Capabilities Subfactor, as well as assign one of the following overall factor 331 ratings: 332

• Outstanding: Vendor’s proposal demonstrates an exceptional approach to 333 providing the services required by the SOO. 334

• Acceptable: Vendor’s proposal demonstrates an adequate approach to providing 335 the services required by the SOO. 336

• Unacceptable: Vendor’s proposal does not demonstrate an adequate approach to 337 providing the services required by the SOO, or does not meet requirements of the 338 RFP, or is otherwise not awardable. 339

5.3.2. Corporate Experience Subfactor. 341

Sources of Information. When evaluating the Corporate Experience Subfactor, the 343 FDIC may use any information available to it, including but not limited to information 344 submitted by the vendor, information obtained during reference checks, and information 345 personally known to FDIC subject matter experts. 346

• Recency. For the Corporate Experience Subfactor, the FDIC will first evaluate 348 each experience example for recency (that is, some aspect of performance 349 occurred within the 3 years preceding the RFP release). 350

• Relevancy. Next, the FDIC will evaluate the relevancy of each experience 352 example by comparing the experience example of the requirements of the SOO. 353 o All other aspects of an experience example being the same, the FDIC may 354 consider experience examples from federal government contracts to be 355 more relevant than commercial contracts. 356

• Experience Confidence Rating. After assessing each individual experience 358 example for recency and relevancy, the FDIC will assign one overall Experience 359 Confidence Rating for the Corporate Experience Subfactor, using the following 360 rating definitions: 361

RFP. No. LEGAL-2024-001 9 o High Confidence. The FDIC has a high expectation that the vendor will 363 successfully perform the required work. 364 o Satisfactory Confidence. The FDIC has a reasonable expectation that the 365 vendor will successfully perform the required work. 366 o Unsatisfactory/Unacceptable Confidence. The FDIC has a low 367 expectation that the vendor will successfully perform the required work. 368

5.4 Price Evaluation. 371

The FDIC will evaluate the fairness and reasonableness of the proposed prices by using 373 methods including but not limited to: 374

• Comparison of the prices proposed by different vendors against each other; 375

• Comparison of proposed prices to prices typically paid by the FDIC for similar 376 services; or 377

• Comparison to known market conditions by subject matter experts. 378

The agency reserves the right to reject a proposal that includes prices that the FDIC believes 380 are out of touch with industry standards. 381 In the FDIC’s discretion, the FDIC’s review of proposed prices may be conducted either at a 383 holistic level (i.e. Workbook level), at a category level (e.g. Managed Data Hosting or 384 Document Services), or at the line-item level. 385

5.5 Award Decision. 388

Technical capability is of paramount concern to the FDIC and the FDIC may obtain additional 390 price competition at the Task Order level. Therefore, the FDIC’s award decision at the BOA-391 level (i.e., which vendors will receive BOA awards) will be based on the Highest Technically 392 Rated proposals with Fair and Reasonable Pricing. 393 The FDIC encourages minority and women owned business (MWOB) to participate in this 395 contract opportunity and may consider that status as part of its award decision. 396 The FDIC reserves the right not to award one or more SOO scope categories to any given 398 vendor based on undesirable technical ability or pricing. 399

5.6 Post Award “On-Ramping” of New Vendors. 402

Because the Agreements will have 5-year ordering periods and because technology is rapidly 404 evolving, the FDIC may establish future “open periods” where the FDIC uses this RFP (or a 405 substantially similar RFP) to “on-ramp” additional vendors into the FDIC’s stable of 406 eDiscovery providers. The on-ramp procedure may be used for reasons such as to: 407

• promote further competition at the task order level; 408

• obtain access to a vendor with unique capabilities not already in the BOA vendor pool; 409 or 410

RFP. No. LEGAL-2024-001 10

• increase contracting opportunities for minority and women owned businesses 411 (especially those that may not meet Eligibility Criteria at the time of initial RFP 412 release). 413

In sum, regardless of the number of initial awardees, the FDIC reserves the right to on-ramp 415 additional BOA awardees at any time during the BOA’s ordering period. 416

6.0 Attachments 418

RFP Attachment 1 Basic Ordering Agreement for Legal Support Services (for vendor 420 review, not required to be submitted with proposal) 421

BOA Attachment A Statement of Objectives (for vendor review, not required to be 422 submitted with proposal) 423

BOA Attachment B Pricing Workbook (required part of proposal) 424 BOA Attachment C Confidentiality Agreement (For Contractors/Subcontractors/Consultants) 425

(required part of proposal) 426 BOA Attachment D Confidentiality Agreement (For 427

Contractor/Subcontractor/Consultant Personnel) (required part of 428 proposal for Program Manager/POC) 429

Below listed Attachments E-H made available online and incorporated by reference 431

BOA Attachment E FDIC Contractor Representations and Certifications (required part 432 of proposal) https://www.fdic.gov/formsdocuments/f3700-04a.pdf 433

BOA Attachment F FDIC Representations and Certifications for Experts and Legal 434 Support Services Providers (required part of proposal) 435 https://www.fdic.gov/formsdocuments/f5210-09.pdf 436

BOA Attachment G Background Investigation Questionnaire for Contractors (not 437 required part of proposal; to be completed at FDIC request) 438 https://www.fdic.gov/formsdocuments/f1600-07.pdf 439

BOA Attachment H Background Investigation Questionnaire for Contractor Personnel 440 and Subcontractors (not required part of proposal; to be completed 441 at FDIC request) https://www.fdic.gov/formsdocuments/f1600-442 04.pdf 443 https://www.fdic.gov/formsdocuments/f3700-04a.pdf https://www.fdic.gov/formsdocuments/f5210-09.pdf https://www.fdic.gov/formsdocuments/f1600-07.pdf https://www.fdic.gov/formsdocuments/f1600-04.pdf https://www.fdic.gov/formsdocuments/f1600-04.pdf