Attachment 2 Performance Work Statment 9.18.2024.pdf

DEPARTMENT OF COMMERCE ENTERPRISE SERVICES

PERFORMANCE WORK STATEMENT

1331L525R13OS0001

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Attachment 1

PERFORMANCE WORK STATEMENT:

EQUAL EMPLOYMENT OPPORTUNITY

INVESTIGATIONS

FOR

OFFICE OF CIVIL RIGHTS

OFFICE OF THE SECRETARY

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1.0 Task Order Overview

This is a non-personal services task order. The Government will not exercise any supervision or control over the task order service providers performing the services herein. Such task order service providers shall be accountable solely to the Contractor who, in turn is responsible to the Government as defined in this Performance Work Statement (PWS). The Contractor shall perform to the standards in this task order.

2.0 Background

The Office of the Secretary, Office of Civil Rights, administers the internal Department of Commerce (DOC) discrimination complaint program. Part of this responsibility is to conduct or provide for the investigation of discrimination complaints based on race, color, religion, sex (including sexual orientation, transgender status and pregnancy), pregnancy accommodation, national origin, age, disability, genetic information, or retaliation brought by employees and job applicants within the Department. The investigations must comply with the regulations of the Equal Employment Opportunity Commission (EEOC) and meet the specific requirements of the Department.

Complaints must be processed in accordance with the procedures and within the time limits set forth in the regulations of the EEOC at 29 Code of Federal Regulations, Part 1614. Failure to comply with the EEOC regulations may result in the agency being sanctioned, which may include a finding of discrimination in the complainant’s favor and payment of monetary relief and attorney’s fees. The scope of complaint processing is beyond the resources OCR allocates under the Working Capital Fund.

The DOC requires services from the private sector to conduct and report discrimination complaint investigations by traditional interview and interrogatory methods. The investigations shall be conducted under the authority of and on behalf of the DOC, for the express purpose of gathering all relevant facts of the complaint, and for meeting the regulatory requirements. The deliverables shall be completed/final Reports of Investigation, prepared in accordance with 29 C.F.R. section (§)1614, EEOC Management Directive 110, and the DOC requirements, as set forth in the Statement of Work.

The service estimates for investigations are 80-170 investigations for the base year and each renewal year dependent upon the actual requirements of the Government and the availability of funds. No travel requirements are anticipated; however, the contract will allow provisions for travel assignments if required. The minimum award for the base year and for each renewal option year will be one (1) investigation to be assigned by the Contractor Officer Representative (COR) under the prime contract (base year).

Additional assignments will be placed at the discretion of the Government.

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2.1 Objective

This statement of work (SOW) provides the required methods for conducting and reporting discrimination complaint investigations under the terms of the award, the standards of coverage and presentation for acceptable delivery, and the legal and regulatory authorities for the contractor to conduct the investigations on behalf of the Department.

The statement of work both defines the professional services to be performed under the award and serves as an instructional manual to the contract investigators providing the services ordered. The specifications and terms specified by the contract at the time of the award and those that may be specified by individual assignments placed by the COR will be controlling.

3.0 TASK Assignments Administration of Investigations

3.1 Each assignment placed under the award shall require the investigation of complaints to be conducted via telephone, mail, encrypted e-mail, facsimile or in-person at the concerned Government facility of a specific EEO complaint. In person interviews are only required if the Government facility is within the local commuting area of the assigned EEO Investigator and requested by the parties being interviewed. The investigations shall be conducted under the authority of and on behalf of the DOC, for the express purpose of gathering all relevant facts of the complaint, and for meeting the regulatory requirements of the Department.

3.2 The maximum period of performance for providing acceptable delivery to the Department will be defined when assigned by the COR. All completed investigations must be delivered to the COR no later than six (6) weeks prior to the regulatory due date. Early submissions are accepted and encouraged.

3.3 If cases are rejected for material fault of coverage, a detailed correction memorandum will be prepared by the COR. The contractor will have until the defined date assigned by the COR to fix and return the investigation to the COR. Early submissions are accepted and encouraged.

3.4 Each delivery shall comprise of the completed digital Report of Investigation (ROI) as one

(1) original in final form sent electronically using secure file transfer technology providing FIPS 140-2 validated encryption modules. Vendors certified under the validation program may be searched on the NIST Computer Security Resources Center (CSRC) web site located at the following URL: https://csrc.nist.gov/projects/cryptographic-module-validation-program/validated-modules/search. An acceptable solution is the DOC Accellion Secure File Transfer solution i.e.

Kiteworks.

3.5 The electronic copy of the ROI shall meet the requirements of MD-110 (Bates numbered, word searchable and bookmarked). The index/summary must also be submitted to the COR in word format electronically at the same time as the ROI.

3.6 Each investigation requires identifying, locating, obtaining, and putting into evidence the testimony and the documents of the involved parties applicable to each complaint.

https://csrc.nist.gov/projects/cryptographic-module-validation-program/validated-modules/search https://csrc.nist.gov/projects/cryptographic-module-validation-program/validated-modules/search

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3.7 Every assignment shall remain an active, on-going investigation until the completed ROI is accepted by the COR or the Contracting Officer.

3.8 When notified by COR of an acceptable product and authorization of payment each assignment will be paid via invoices submission to NIST with approval of N162 by the COR.

3.9 The contractor, contract investigators, and all contract employees must demonstrate the Department’s neutral fact-finding efforts at every stage of the investigation and with every person contacted during the investigation.

Task Limitations

3.10 Each investigation is limited to the specific claims accepted by the DOC, Office of Civil Rights, as defined in the Department’s acceptance document(s) sent to the complainant and/or their representative. The accepted claims, the incidents relevant to them, and the background under which they arose constitute the purview of the investigation. Refer any new claims raised by the complainant and/or representative to the COR.

3.11 DO NOT INVESTIGATE, AGREE TO INVESTIGATE OR COMMENT ON THE

ACCEPTABILITY OF ANY NEW CLAIM AT ANY TIME.

3.12 The complainant may add or delete the bases for their claim(s) at any time during the Federal EEO complaint process. Change in basis does not need to be referred to the COR.

Changes in bases arising during the period of performance must be covered by the investigation without modification of the assignment.

3.13 The regulations of the Equal Employment Opportunity Commission [EEOC] allow complainants to request to amend their complaints to include additional claims. Such requests must be made by the complainant in writing to the Program Implementation Division as outlined in the Department’s acceptance document. The Program Implementation Division will determine whether to accept or dismiss the request to amend in whole or in part. Should this occur during the investigation of any assignment under the award, the Contracting Officer and COR reserves the right to modify any assignment to reflect the increased level of effort, to extend the period of performance, and to change the price under the terms of the contract, and/or to issue a new assignment for a separate or modified investigation. See Attachment 3 for Proposed Public Pricing Design.

Withdrawal/Resolution/Settlement

3.14 DO NOT DELAY ANY INVESTIGATION AT ANY TIME DUE TO AN OFFER OF

SETTLEMENT OR FOR SETTLEMENT NEGOTIATIONS UNLESS SPECIFICALLY

INSTRUCTED TO DO SO BY THE COR.

3.15 DO NOT ATTEMPT TO SETTLE OR BROKER A SETTLEMENT OF ANY COMPLAINT

AT ANYTIME.

3.16 Should a complainant announce their desire to settle his or her complaint, the contract investigator shall have the complainant contact the COR. The investigator shall proceed with the balance of the investigation to conclusion without delay, UNLESS relieved of the assignment by the COR. If a definitive settlement of the complaint is reached and fully executed

5 | P a g e by all necessary parties, the case assigned will be officially stopped by the COR and considered complete.

Upon acceptance of the fully executed settlement agreement contract investigators should send the COR any documents drafted, created, or obtained during the investigation. The contract investigator shall also stop all outstanding document requests, requests for statements and cancel any scheduled interviews. If settled, the contractor will be paid for actual time spent under the discontinued order terms of the contract.

3.17 Complaints may be withdrawn, and the investigation stopped/canceled at any time by a written statement from the complainant (See Appendix VII).

3.18 Should a complainant announce their desire to withdraw his or her complaint in full, the contract investigator shall have the complainant execute a written, dated, signed statement announcing the withdrawal of their formal discrimination complaint without recourse. [Appendix VII]. Send the signed withdrawal document to the COR who will confirm the withdrawal. The COR will then accept the signed withdrawal as the completed, full delivery of the assignment if the withdrawal is valid and occurred during the period of performance. Upon acceptance of the signed withdrawal the COR will officially stop the investigation.

Upon notification of stopping the investigation the contract investigator should send the COR any documents drafted, created, or obtained during the investigation. The contract investigator shall also stop all outstanding document requests, requests for statements and cancel any scheduled interviews. If withdrawn in full the contractor will be paid for actual time spent under the discontinued order terms of the contract.

If a Complainant wishes to withdrawal, one claims and not the entire complaint, they may do so in their declaration. Once their declaration is fully executed the investigator may stop investigating that specific claim that was withdrawn. The vendor should notify the COR of the withdrawn claim.

3.19 Assignments ordered under the award may be canceled and the investigation discontinued by the Contracting Officer at any time due to unforeseeable legal requirements. If so, the contractor will be paid for actual time spent under the discontinued order terms of the contract.

DELIVERY ACCEPTABILITY STANDARDS

Analysis Theory

3.20 The method of analyzing discrimination claims and allocating the burden of proof was developed by the Federal and Supreme courts. Although the burden of proof shifts between the complainant and the agency, the complainant always bears the ultimate burden of persuading the Department, EEOC or the court that discrimination occurred.

3.21 In the Federal complaint process, the complainant bears the initial burden of proof. He or she must establish facts which, if unexplained by the agency, would allow a reasonable person to infer that discrimination occurred. This is the prima facie case.

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3.22 Generally, the complainant can establish a prima facie case by showing that: 1) he or she belongs to one or more groups protected by federal civil rights laws; and 2) employees outside the protected group and who are similarly situated to the complainant were treated more favorably. To be “similarly situated”, all relevant aspects of a comparable employee’s situation must be nearly identical to the Complainant’s. The relevant question is whether the complainant and the comparable employees were treated differently under similar circumstances.

Complainant’s alleging age discrimination, disability discrimination or retaliation for participating in the EEO process can also establish a prima facie case by showing that the action complained of would not have occurred “but for” their protected basis (example age, disability, or participation in EEO activity).

The Complainant’s Testimony

3.23 If a complainant is represented by an attorney, the investigator’s contact will be with the attorney unless the complainant and attorney agree that the investigator may contact the complainant directly.

3.24 The complainant’s declaration or replies to interrogatories must establish that the investigator asked the complainant to identify the basis for the complaint (race, sex, age, etc.), to describe the treatment complained of, and to identify others whom he or she believes received more favorable treatment. Even if the complainant is unable to identify any comparable employees, the investigator must ask what the factual basis for the complainant’s belief that he or she was discriminated against.

3.25 Complainant’s declaration or replies to interrogatories must also demonstrate that the complainant was given the opportunity to define a claim for compensatory damages and to set out fully how he or she was damaged, what relief is requested and the nature of that relief.

3.26 Complainant must be asked to identify witnesses who otherwise have personal direct first-hand knowledge of the matter(s) giving rise to the complaint. The Complainant should provide the contact information for each witness on their behalf. The complainant should explain what direct first-hand knowledge each witness can testify to.

3.27 Complainant must be provided with the legitimate non-discriminatory reasons provided by management for each claim under investigation. Complainant must be given the opportunity to provide a pretext declaration or replies to interrogatories regarding management’s reason(s).

The Agency Witnesses

3.28 Once the complainant has produced his or her evidence in support of the prima facie case, the burden of proof shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. The agency must explain why it took the action complained of, but it does not need to disprove the complainant’s allegations.

3.29 The investigator must get testimony from the agency officials who were involved in the decision-making process or who otherwise have personal direct first-hand knowledge of the

7 | P a g e matter(s) giving rise to the complaint. The report must also demonstrate that agency officials were asked to provide evidence in support of their position.

The Standard of Proof

3.30 The standard of proof in discrimination claims is the “preponderance of the evidence.” This means that a party must prove his or her case by evidence which is more creditable and convincing than the evidence presented by the other side.

ACCEPTANCE AND REQUIRED METHODS

Standards for Acceptability

3.31 Conduct and report each investigation using the required methods described in this statement of work. The contractor is responsible for clarifying all instructions with the COR.

3.32 Each delivery shall include a thorough review of the circumstances under which the alleged discrimination occurred, and shall define the agency organization, the involved and comparable employees, and the agency's mission as it pertains to the accepted claims in the complaint.

3.33 The investigation must discover and exhibit the evidence to clearly establish the allegations and evidence of the complainant, the replies and evidence of the agency, what events/actions happened in fact, which employees are similarly situated to the complainants, what comparable treatment they received from the agency, and what corroboration exists to support the charge of discrimination or its denial.

3.34 The investigation must develop and report sufficient evidence to allow an independent tier of fact to adjudicate the charges of discrimination using the ROI as the sole source of evidence to make a final decision. The ROI must also contain adequate descriptions and explanations to allow a person unfamiliar with the DOC, its bureaus and organizations, and any concerned employment practices, to understand the results of the investigation using only the delivered report as his/her source of information.

3.35 The information needed for an appraisal of the utilization of persons by basis group(s) shall be recorded in statistical form in the investigation, unless specific information as to a individual’s membership or non-membership in the complainant's group is needed to facilitate an adjustment of the complaint or to make an informed decision on the complaint because the person(s) have been named as part of the complainant's allegations and/or the agency reply.

3.36 If necessary, such as the case for investigating bases of national origin or religion, the investigator shall seek information regarding the membership or non-membership of a person in complainant's protected group by asking each person concerned to provide the information voluntarily. The investigator shall not require or coerce anyone to provide this information but shall note declinations in the report.

3.37 Completed reports of investigation shall contain the following minimum evidence: [See also Appendix VI. Completed ROI Content Check List]

a. The formal complaint, provided by the COR. Leave all documents attached to the formal as provided, even if this causes duplication of the record.

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b. EEO Counselor's Report and attachments, provided by the COR. Leave all documents attached to the counselor’s report as provided, even if this causes duplication in the record.

c. Complaint transmittal, acceptance, and decision letters, provided by the COR. Leave all documents attached to the acceptance and decision letters as provided by the COR.

d. Investigator’s letter of authority, provided by the COR.

e. An accurate complaint organization chart prepared by the contract investigator identifying and defining the relationships of the organizations and the offices, showing the involved parties, the testifying witnesses, and the comparable persons by name, unit, job title, series, grade, and basis group(s).

Note: Comparable employees or applicants shall not be named but identified only by number/letter and/or job title, unless they were specifically named as part of the complainant's allegations and/or the agency reply.

f. Complainant's declaration or replies to interrogatories sufficient to explain the allegations and reasons for them, to establish complainant's prima facie case, claims for compensatory damages, and to develop what evidence and prospective witness(s) the complainant must prove his or her complaint.

g. Declarations or replies to interrogatories of responding agency witnesses sufficient to fully articulate the agency's reply to all allegations raised by the complaint or developed by the investigation and to fully report the existing evidence to defend the agency's actions.

h. Declarations or replies to interrogatories of corroborating and developed witnesses sufficient to resolve the claims in the complaint, or to otherwise provide evidence of what actions occurred to complainant and to similarly situated employees or candidates, why, and if the reasons are legitimate and nondiscriminatory.

i. Complainant's declaration or replies to interrogatories allowing the opportunity to provide a pretext statement.

j. Documentation relevant to the matters at issue sufficient to substantiate the events and claims in the complaint; to provide the existing evidence of what happened to complainant and to similarly situated employees or candidates; and to provide the regulations, authorities and/or standing practices of the agency which may have authorized, required, or prohibited the actions being investigated.

k. A summary of raw data obtained and exhibited in the ROI of the comparable treatment of similarly situated employees or candidates, identified by basis group membership(s), that is directly relevant to the complained of actions or decisions covering the most recent two-year period, or the actual period since the program or practice began if less than two years. Likewise, if there are no comparable actions, employees or candidates, the report must provide a clear explanation and corroboration of that fact. [NOTE. This is a separate study by the investigator and not the same as the organization chart specified above.]

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l. Any investigator’s testimony of record reviews, research, necessary observations, unsigned witness information, attempts and certifications of service to gather evidence, indications of tampering with a document that may not be apparent from the copies to be exhibited, and reporting any situation affecting the full coverage of the investigation, to be presented as Investigator’s Memoranda, under exhibit.

REQUIRED METHODS FOR CONDUCTING THE INVESTIGATIONS

Planning the Investigation

3.38 Analyze the accepted claims in the complaint and the information disclosed with the assignment. The places of investigation, the evidence to be obtained, and the direction of the investigation will vary from case to case, and often will vary during the investigation as information develops.

3.39 Determine the actual Bureau/Agency involved in the complaint.

3.40 The COR, Chief Investigator or the Chief, Program Implementation Division, will provide a Letter of Authority [Appendix II] and copies of the formal complaint, EEO Counselor's report, acknowledgment of receipt of formal complaint, acceptance document(s) defining the claims accepted by the Office of Civil Rights, and any related complaint history documents. Develop your initial investigative plan from these documents.

3.41 Assigned Investigator or vendor must contact the Complainant and or their representative no later the 30 calendar days from assignment to introduce yourself and answer any questions.

Provide them with a copy of your Letter of Authority as soon as possible after investigative assignment.

3.42 Use face-to-face interviews for local complainants and/or witnesses at the concerned Government facility when requested by complainant/witness and when Government facility is within the local comminuting area of assigned investigator. Use direct telephone interviews and/or interrogatories for witnesses outside of the assigned investigators commuting area.

Interviewing Witnesses

3.43 Interview the complainant and agency witnesses to obtain their testimony and to develop leads to other witnesses and to locate documentary evidence. Testimony should be obtained using declarations or interrogatories. Interrogatories should only be used in limited circumstances.

3.44 The agency official(s) whose actions are alleged to be discriminatory, whether identified by the formal complaint or during the investigation, must respond to any and all allegations made against them or against the agency. If agency official(s) request all pertinent documents (i.e., documents in which the agency official is named and charged with discrimination or other wrongdoing), including the EEO Counselor's report, the formal complaint, and the complainant's declaration, please obtain permission from the COR prior to providing this documentation. Do not provide documents related to the investigation itself, any evidence being developed by the investigation, or any contract documents, COR communications or assignment orders, except for the Letter of Authority.

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3.45 Decide which witnesses suggested by the complainant or by the agency managers will have direct first-hand knowledge regarding the allegations under investigation or can provide necessary, clarifying background or policy information. Each witness should be interviewed if they have direct first-hand knowledge. Each witness should be provided with a declaration or interrogatories to execute. The investigator may not assume that one witness’ testimony is identical to another and therefore not needed. Investigator’s memoranda to document witness testimony should only be used in limited circumstances. If testimony is not taken from any witness(s) specifically requested by the complainant or by the involved agency officials, please explain why the testimony was not obtained in an Investigator’s Memorandum.

3.46 Notify the COR immediately of any lack of cooperation, incident, confusion, or question of propriety which would impact on the integrity and the objective results of the investigation.

3.47 All interviews or interrogatories of parties with pertinent testimony should be reduced to standard declarations in formats admissible as evidence to Federal appellate agencies and Courts. (Appendix III., General Declaration Format).

3.48 The DOC, Office of Civil Rights, has adopted uniform time requirements for complainant and witness to respond to requests from EEO investigators. (See, Appendix II., Letter of Authority). The standard reply time for all parties is 15 calendar days from the date of receipt of the investigator’s request such as: a written request to provide information, to provide documents, to review, edit and execute a draft declaration, or to provide replies to a set of interrogatories. [See Appendices IV and V] The 15-day notice must be sent with every request for documentation and draft declaration or interrogatories.

3.49 To invoke the time requirement, the ROI must evidence certification of service by documenting the date of hand-delivery, a Federal Express receipt, United Parcel Service (UPS) receipt, United States Postal Service (USPS) Express Mail receipt, Certified-Return Mail Receipt, encrypted e-mail notification of receipt or some form of written acknowledgment of the date of receipt by the receiving party. E-mail replies may meet this requirement if the reply acknowledges the date received and the character of the request. FAX reception does not meet this requirement.

3.50 Perform the following tasks at the inception of each interview:

a. Provide clear identification by Letter of Authority (Appendix II) and if a face-to-face interview is being conducted, a photographic identification or contractor issued ID card.

b. Inform each witness of the investigation’s purpose and how their testimony shall be used.

c. Answer any questions by the witness regarding their rights and obligations in the complaint process.

d. If uncertain about how to answer any question, consult with the COR.

3.51 Permit complainants, the principal agency witness(es), and all witnesses placed in an adversary posture by the facts of the complaint or by the developing evidence produced during the investigation, to seek counsel or to consult representatives in answering questions or executing declarations, if requested.

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3.52 Standard declarations or replies to interrogatories are required by EEOC regulations and specified by EEOC Administrative Judges and the EEOC Office of Federal Operations. Obtain and exhibit the testimony of all parties to the complaint, witnesses to the events, or those having relevant direct knowledge about the claims in the complaint using declarations or interrogatories declared and signed under the penalties of perjury that the information is true and correct. See Appendix III, General Declaration Format.

3.53 Declarations should be typed, using 1.5 line spacing or double spaced. The declarant must initial each page and sign and date their statement on the last page. (Appendix III, General Declaration Format). Their signature should be pen and ink or adobe digital signature.

3.54 A handwritten declaration is acceptable; however, a typed facsimile must be prepared after the declaration is executed.

a. Label the facsimile in a clear manner on each page of the facsimile. Locate the facsimile in the report under the same exhibit preceding the handwritten copy.

b. The facsimile face page shall identify the typist -- "Prepared by (name/date)".

c. The Report Index shall describe that both documents are under the same exhibit.

d. The investigator shall provide each witness with a copy of his/her own declaration, and a copy of the facsimile if one is prepared, when it is executed or by return mail. Or the investigator may request that each witness make and keep a copy of their executed declaration prior to providing the original to the investigator.

3.55 Use interrogatories, in limited circumstances, such as when specifically requested by Complainant, witness or when mailed response may be necessary due to individual circumstances to facilitate a timely investigation. Always telephone the proposed witness prior to sending the interrogatories to verify the receiving address and to answer any questions the witness may have.

3.56 Prepare an appropriate cover letter for interrogatories or telephone interview to meet the same informational and advisement obligations as imposed by a face-to-face interview. Require the replies to the interrogatories or draft declaration developed from the telephone interview within 15-calendar days from the date of receipt. [See Appendices IV and V]

3.57 Send interrogatories and/or draft declarations by Hand Delivery, Federal Express, UPS, USPS Express Mail, Certified Mail-Return Receipt, FAX, or by encrypted e-mail, obtain and evidence certification of service to prove the date received.

3.58 Respondents must sign and date their replies to interrogatories under the same penalty of perjury as in declarations.

3.59 Former employees of the DOC must still be contacted by phone, email and/or at their home address to try and attempt to obtain their testimony. If you cannot reach the witness by phone or email you must send interrogatories to their last known mailing address, with 15 calendar days to respond.

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3.60 Encrypted e-mail messages may be used to request information and to provide written replies in the report of investigation; however, they cannot ensure certification of service or the identity of the correspondent unless confirmation is specifically stated in a reply to the e-mail.

3.61 All e-mails sent should contain the following confidentially statement: Confidentiality Notice: The information contained in this e-mail and any attachments may be legally privileged and confidential. If you are not the intended recipient, you are hereby notified that any dissemination, distribution and copying of this e-mail is strictly prohibited. If you receive this e-mail in error, please notify the sender and permanently delete this e-mail and any attachments immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all of any part of the contents to any other person.

3.62 Documents containing PII cannot be transmitted using e-mail unless it is encrypted.

Documents containing PII must be received by the contract investigator by encrypted e-mail, mail or by a personally owned fax machine. Contract investigators will be provided with a doc.gov email address. This email address must be used when conducting DOC business. This doc.gov email address will also give you access to the Department’s encrypted email system Secure File Transfer (Kiteworks).

Obtaining Documents

3.63 Obtain documents to be entered into evidence from the official agency files, from the agency custodian of record, from an accountable agency witness(es), or from other Departmental offices by verbal or written request. Grant reasonable latitude to custodians requesting supervisory clearance to release requested material, provided that the investigation is not delayed, and the documentation is furnished within 15 calendar days from the date of the request. Refer any questions to the COR.

a. Issue a 15-day letter as required when requesting documents.

b. Provide all written document requests to the COR under separate cover (key).

What documents do HR officials have:

a. Notification of Personnel Actions.

b. Request for Personnel Actions.

c. Home addresses of former employees.

d. Race, date of birth, disability codes for specific employees. Investigators must provide the list of the specific employees (Employee Roster) to HR after obtaining it from management.

e. DAO 202-955 Harassment Investigations conducted by HR. We are only entitled to this investigation if it is complete, and the findings are issued.

f. Disciplinary Actions such as written reprimands, suspensions and documentation used to support these actions.

g. Time and Attendance records of former employees or employees who no longer work for that specific management official.

h. Retirement documentation/paperwork.

i. Vacancy announcement and other related documentation, such as certificates of eligible candidates, resumes and ranking criteria associated with specific vacancies.

j. Agency policy/guidance used for a specific action.

k. Reasonable accommodation file for Complainant for employees of NOAA, Census and

NIST. Office of the Secretary, ITA, NTIA, OIG, MBDA and all other small agencies are

13 | P a g e house within the Office of Civil Rights. Contact the COR for this contact information.

l. Upon the award of the contract, vendors will be provided with specific contact information for the appropriate Human Resources Management Offices within the Department along with some other helpful hints regarding DOC EEO Investigations.

What documents Management Officials have:

a. Evaluation Ratings / Performance Plans and award data.

b. Time and Attendance records for current employees they supervise.

c. Email correspondence between management and Complainant.

f. List of comparable employees they supervise.

g. Possible contact information for former and current employees.

h. Vacancies – any ranking of applicants after applicant review, interview questions, rankings after interview, interview notes, and reference checks.

What documents can the EEO Office (EEO Officer) provide:

a. Reprisal data. The Investigator must provide the EEO Office with a list of employees for them to check against OCR’s database.

b. Possible contact information for current employees.

c. Possible HR contact information if changed.

3.64 Agency documents provided as part of the assignment that were appended to the formal complaint, EEO Counselor’s Report, or were obtained from the Complainant are not considered as coming from an accountable agency record system for the purposes of meeting the agency’s reply to obligations. These documents should stay attached to the formal complaint and/or Counselor’s Report.

a. The individual copy of such documents may be exhibited in the report if they are the most legible, but the investigator must review or obtain the official agency copy of each document to make certain it is identical.

b. The responsibility of determining the existence, relevancy, authenticity, usable copy, and inclusion of documents is the same investigative responsibility as developing and reporting witness testimony.

3.65 Report all file system record reviews as Investigator's Testimony, as described below, or obtain the results of reviews conducted by agency witnesses as signed replies to requests for information. Describe any evidence of tampering with, or incompleteness of, the files reviewed via Investigator’s Testimony.

Investigator’s Testimony

3.66 The word and reliability of the investigator is given great weight in the Federal discrimination complaint process. Information reported by the investigator may not substitute for the obligation of getting required witness testimony, but, if necessary, it may be entered into the report as an Investigator’s Memorandum under exhibit and accepted as evidence.

3.67 If dictated by circumstances during the investigation, the investigator shall personally report information as evidence in the report in two (2) ways:

a. exhibiting a signed and dated Investigator’s Memorandum for each subject matter being

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b. by making written notations on another exhibited document. If so, date and sign the document to identify who made the marked changes.

3.68 Accepted conventions have developed where direct testimony by the investigator is both appropriate and usable. The use of investigator testimony, however, is judgmental and the COR will determine its acceptability in any situation. Standard conventions for investigator testimony, however, generally include:

a. Deleting names and information protected by the Privacy Act.

b. Assigning employee identification numbers or letters and adding comparable basis to agency documents to be exhibited.

c. Reporting file/record reviews conducted by the investigator to summarize comparable treatment or to explain searches for the information.

d. Reporting explanatory information concerning organizations, operations, or functions from witnesses who are not knowledgeable of the events or claims in the complaint to clarify operational and background situations.

e. Reporting results of multiple interviews when sufficient corroboration has already been established by several signed declarations, and the additional testimony is repetitive and substantively identical.

f. Instances where an interview was conducted, and the witness refuses to furnish an admissible declaration or extensively alters their testimony, then the investigator is required to testify as to what was said to him or her. Extensively alters means that the meaning of the statement was changed for example the statement I looked at each application and decided not to interview the Complainant was changed to I did not look at Complainant’s application …

REQUIRED METHODS FOR REPORTING COMPLETED INVESTIGATION

3.69 The ROI itself, by the nature of what the investigator chooses to enter, is testimony as to the work done by the DOC to meet its legal obligations. The contractor is responsible under the terms of the contract for the accuracy of all information contained in the report as a condition of their employment and may be liable for any falsification or misinformation contained in the ROI.

3.70 To prepare the report, arrange all relevant information and evidence under sequential, numbered exhibits.

3.71 Identify the complainant and witnesses by their basis membership(s) [i.e. race, sex, age, etc.] in their declarations and in the exhibit descriptions of those declarations.

3.72 Delete the names and other sensitive personal information from the agency documents of comparable employees and/or candidates other than the complainant, within the exceptions described next. For documents belonging to the complainant, only delete the complainant’s Social Security number (SSN) and/or military number.

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For each document from which information has been redacted, the investigator will provide the COR with an unredacted copy under separate cover (key).

Exceptions

3.73 Do not delete the names of comparable employees and/or candidates who have been specifically NAMED as part of the complainant's allegations and/or in the agency declarations.

3.74 Always retain action and organization information, employment, experience, and education information, and the pertinent information for which the document is exhibited.

3.75 Assign an identification number or letter to each deleted name that is consistent to/with other numerical or alphabetical reference to the same individual elsewhere in the report and provide a log/key of the names/numbers or letters to the COR under separate cover, along with un-redacted copies of the documents.

a. Delete SSN’s, home addresses, employees' home and office telephone numbers, military service information, names of references and their addresses, and information on relatives or supplemental personal information of comparable employees/applicants that is not needed to adjudicate the complaint.

b. Delete dates of birth and places of birth unless needed for complaints based on age or national origin. Delete pay, disciplinary references, security determinations, T&A data, rating and award information unless needed as evidence to answer the accepted allegation(s).

c. Contact the COR for any question concerning PII requirements or deletions.

3.76 Organize the report exhibits in the following sequence:

a. Administrative complaint documents in this order: Formal complaint, counselor’s report with notices and attachments; notice of acknowledgement of formal complaint;

acceptance/dismissal of complaint; any appeal and appeal decision; and letter of authority.

b. Declarations, statements, Investigator's memoranda, and data, studies and charts prepared during the investigation, in most logical order.

c. All evidence documents, and regulations provided in chronological order from oldest to the most recent or if multiple claims may group evidence by claim, then chronological order.

3.77 Generally, only one copy of any individual document is needed in the delivered report. Use the most legible copy, with the following exceptions:

a. Exception: Documents which came physically appended to the formal complaint, the EEO Counselor’s Report, amendment to complaint, or to complainant/management or witness declarations must remain appended in the same exhibit, unless excessive in size. If excessive in size, consult with the COR.

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b. If there is a substantive difference between two copies of a document that constitutes relevant evidence to the claim(s) in the complaint, exhibit a copy of both and explain the difference via investigator’s memorandum.

3.78 Visibly mark each page of material exhibited in the report with an exhibit and sequential page number, per exhibit. [Exhibit ___ Page ___] at the bottom left corner of each page.

3.79 Construct the Report Index, describing document, the date of the document, and the source of the document copy under exhibit. Describe declarations and written statements submitted to the investigator as possessive, i.e. "<NAME>, declaration of …"; “<NAME>, letter by … “. Descriptions need not be extensive; however, they must be exact and meaningful.

Sources of documents may often be cryptically described, such as -- (OPF), (OHRM Merit File), (Mr. Jones, Wit.), (Bradford Smith, PMS-ITA), (Complainant), (Public), (Budget Div. Chron), (MBDA Vac.#86-119), etc., as a logical continuation of the preceding exhibit description. DO NOT cite the number of pages per exhibit in the report index.

3.80 Placing any document into the report of investigation is a testimonial by the investigator that the document is authentic at sight or is as described in the index of the report.

3.81 Create a title page for each report volume with the following information using the following form:

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OCR COMPLAINT NUMBER: <to be furnished>

UNITED STATES DEPARTMENT OF COMMERCE

OFFICE OF THE SECRETARY

OFFICE OF CIVIL RIGHTS

EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT OF

(NAME OF COMPLAINANT)

(POSITION TITLE/GRADE OF COMPLAINANT)

(NAME OF COMMERCE AGENCY)

(OFFICE, DIVISION, and/or MAJOR SUBDIVISON)

(CITY or LOCATION OF THE OFFICE NAMED IN THE COMPLAINT)

Prepared by:

(Name of the Investigator)

(Company Name and Address)

<Also identify the volume number if more than one volume is reported. Do not use a volume number if the ROI is only one volume.>

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3.82 The ROI, or volume one of the ROI, shall contain a report section with the following information:

United States Department of Commerce

Office of the Secretary

Office of Civil Rights, Room 6012 HCHB

14th and Constitution Avenue, N.W.

Washington, D.C. 20230-0001

Report of Investigation

Complaint Identification

1. Complainant's name: < >

2. Job Title, Series, and Grade: < >

3. Name of organizational unit and address: < >

4. Complaint Reference Date: <formal filing date to be furnished>

5. Complaint Number: <to be furnished>

Nature of action, decision or condition giving rise to the complaint: <Use the exact acceptance statement as in the OCR acceptance document, furnished with the assignment.

Requested Relief: <If none, state “Not Stated”>

Exhibits <The Report Index>

<Describe the exhibits by number, title, and source in a clear, logical and functional manner using the instructions provided above.>

Summary: <The investigators’ brief summary of the complaint claims, agency testimony, and evidence contained in the report. Do not report evidence in the Summary that does not otherwise appear in the report under the exhibits.>

<Name and Signature of the Investigator>

<Company Name>

Date: <Date the ROI is submitted>

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3.83 The investigator and contractor shall be proficient in using Adobe Acrobat. All documents shall be electronically supplied to the investigator to include in the ROI. Investigator should be knowledgeable in converting word and excel files into pdf documents for inclusion in the ROI.

3.84 Electronic volumes of the ROI shall not exceed 100 MB in size. Investigations resulting in reports which exceed this dimension shall be continued in successive volumes in the same form as the primary volume. Successive volumes shall be described in the report index of volume one, and the subsequent volumes shall each contain a single title page and continue the exhibits in numerical sequence.

3.85 All exhibited material shall be fully visible and legible in the report.

4. AUTHORITIES FOR CONDUCTING INVESTIGATIONS

The authority for conducting discrimination complaint investigations within the DOC is delegated to the Director, Office of Civil Rights, by Department Organization Order 20-10. The Department's internal discrimination complaint program is described by Department Administrative Order 215-9.

Contract EEO Investigators will require a security clearance as required by Homeland Security Presidential Directive 12 (HSPD-12).

The authority for the Department's EEO complaint processing program is contained in the regulations of the Equal Employment Opportunity Commission at 29 C.F.R. § 1614, and the policy guidance provided by EEOC Management Directive MD-110. Related laws and regulations governing the Department's authority to process complaints of discrimination include 42 U.S.C. § 20016; 9 U.S.C. § 633a; 29 U.S.C. § 791 and § 794a; 29 U.S.C. § 206(d);.O. 10577, 3 C.F.R. § 218 (1954-1958 Comp.); E.O. 11222, 3 C.F.R. § 306 (1964-1965 Comp.); E.O. 11478, 3 C.F.R. § 133 (1969 Comp.); E.O. 12106, 44 F.R. 1053 (1978); and Reorganization Plan No. 1 of 1978, 43 F.R. 19807 (1978).

The authority for accepting general declarations in Federal proceedings is defined under 28 U.S.C. § 1746.

5. EQUIPMENT REQUIREMENTS

The contractor / Investigator shall have print/scan capabilities, Microsoft Office suite, Adobe Acrobat Professional, internet e-mail, encrypted e-mail and facsimile capability meeting the minimum standards outlined herein, to send and receive documents necessary for the administration of this contract, such as, invoices, correspondence with the COR, Contracting Officer, complainant, management officials etc. Use printing font that is accessible to visually impaired and automatic readers such as Calibri.

The contractor / investigator shall have sufficient office space and support staff to accomplish the tasks ordered under the contract without reliance on copy or office equipment owned by the Government.

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The contractor shall be responsible for safeguarding the property of the Government Possessed and handled during the performance of the contract.

a. All equipment used by contractor / investigators shall meet minimum required standards for processing and storing sensitive personally identifiable information.

Minimum standards are provided in the DOC IT Security Program Policy requirements.

See Cybersecurity Requirements listed below.

b. All vendor staff working on DOC cases will be provided with a doc.gov email address.

This DOC email address shall be used to send and receive any correspondence regarding DOC investigations. All emails containing any PII information shall be sent and received using encrypted email. The investigator and vendor are responsible for keeping the doc.gov email address current, such as logging into webmail every 28 days as required to keep the doc.gov email address from expiring and taking the required annual IT security training.

6. CYBERSECURITY REQUIREMENTS

Office of the Secretary (OS), Cybersecurity Policy Compliance

All aspects of the application development/modification process, including design, development, testing, deployment, operation, and maintenance, shall adhere to the OS, Office of Cybersecurity (OCY) Cybersecurity Program, Policies Standards and Handbooks. The Contractor is responsible for:

• Understanding OS Cybersecurity Program Requirements: Familiarizing themselves with all relevant OCY policies, baselines, and security controls applicable to the application and its intended use.

• Security Integration: Integrating security considerations throughout the development lifecycle, aligning with OCY best practices for secure coding, secure configuration management, and secure deployment.

• Security Testing: Conducting comprehensive security testing methodologies endorsed by OCY, including penetration testing, vulnerability assessments, and security configuration reviews.

• Documentation: Providing complete and accurate documentation, incorporating security best practices as outlined by OCY. This includes user documentation, system administration guides, and security controls documentation.

• Risk Management: Performing a risk assessment aligned with OCY risk management frameworks, identifying potential risks associated with the…