FDIC-LEGAL-003 Independent Investigations RFP.pdf

Federal Deposit Insurance Corporation www.fdic.gov

REQUEST FOR PROPOSALS

FDIC INDEPENDENT INVESTIGATION SUPPORT

FDIC-LEGAL-2024-003

(For U.S. law firms only)

The Federal Deposit Insurance Corporation (“FDIC”) is soliciting proposals from U.S. law firms to provide non-criminal administrative investigative services involving federal employment law and Title VII support (“Services”) for allegations received by the FDIC’s Office of Professional Conduct (“OPC”) and Office of Equal Employment Opportunity (“OEEO”).

Allegations that your firm may investigate for the above offices include: allegations of harassment; bullying; hostile workplace environment; discrimination; and other forms of misconduct. These allegations may involve FDIC employees, including executives, and contractors.

This Request for Proposal (“RFP”) and appendices describe the scope of the Services required, the information required about the proposing firm including the personnel of the firm who will be assigned to the matter, the FDIC’s selection criteria, contractual terms, and proposal submission instructions.

The FDIC may make more than one award from this solicitation. This solicitation is not to conduct any specific investigation, but rather, is to select the firm(s) to whom OPC and OEEO will refer investigation work. This RFP covers immediate (already pending) investigations as well as new investigations that may arise.

While no amount of work is guaranteed, the FDIC anticipates it could have over 100 investigations in a given 1-year period. Regarding the place of performance, the FDIC has a national presence. Investigations may be located anywhere in the United States and may require travel.

I. SCOPE OF SERVICES

The FDIC expects that the selected law firm(s) will perform the following Services:

1. Investigative services:

A. Conducting thorough and timely investigations to identify facts, including gathering and reviewing evidence (including with FDIC and its vendors for this purpose) and conducting transcribed interviews.

B. Applying FDIC policies and Federal employment law, including Merit Systems Protection Board (MSPB) and Equal Employment Opportunity Commission (EEOC) case law (e.g., Hillen v. Army, 35 M.S.P.R. 453, 458 (MSPB 1987)) to facts gathered during the investigation to determine whether allegations are substantiated or not substantiated.

http://www.fdic.gov/

C. Preparing a comprehensive report of investigation that includes the underlying evidence, labeled as exhibits.

D. Preparing recommendation memoranda for the FDIC, including whether corrective action or discipline is warranted and the basis for that corrective action or discipline (e.g., case law or FDIC policies).

E. Complying with the guidelines in Appendix A for matters referred by OPC and Appendix B for matters referred by OEEO, and any adjustments or supplements made by those (after award or for individual investigations).

2. Legal support and counsel to OPC and OEEO, including assisting with the development of policies and providing legal advice and recommendations related to the functions of the respective offices.

3. Meeting and participating in conference calls with representatives of the FDIC to discuss the proposed Services.

In providing these Services, the firm will be subject to FDIC’s Outside Counsel Deskbook.

Notwithstanding the language in the Deskbook, the Legal Division and its Oversight Attorney may not request, obtain, or discuss matter-specific information with the firm. Instead, the Oversight Attorney’s role is solely to administratively support the firm and OPC and OEEO.

II. REQUIRED INFORMATION

Please address the items listed below in the order shown as specifically and succinctly as possible (but in no case, to exceed six pages (excluding the attachment referenced in number 11), of standard 8.5 x 11 inch pages, with the page limit to include any cover page and table of contents).

1. Firm ID. State your firm’s taxpayer identification number.

2. Experience.

(a) Provide a narrative summary of your firm’s experience in the last ten years with administrative, non-criminal investigations of harassment, bullying, and allegations of violations of law, or violations of internal policies or procedures, preferably related to federal employees.

(b) Provide a narrative summary of your firm’s experience in the last ten years with equal employment opportunity (Title VII) investigations, including allegations of discrimination, preferably related to federal employees.

When describing your firm’s experience, please highlight specific experience examples performed by the team/attorney(s) proposed in response to paragraph 5, below (Proposed Team and Rates).

3. References. Provide a list of clients who may be contacted for reference purposes (no more than three). Please provide a telephone number, email, and contact person for each reference.

https://www.fdic.gov/about/doing-business/outside-counsel/deskbook.pdf

4. Proposed Team and Rates. Provide a matrix, or other form of presentation, that identifies all professionals of the firm expected to work on this matter and that clearly sets forth their:

(a) relevant state bar licenses;

(b) areas of expertise and relevant experience as related to the practice area set forth in section 2 above (Experience);

(c) years of practice;

(d) time with the firm;

(e) billable rate under the firm’s usual rate structure; and

(f) proposed discounted hourly rate to the FDIC.

(g) Please also identify the attorney who will serve as the project leader for the firm and as the FDIC’s primary contact.

5. Conflicts.

Conduct a conflicts screening and disclose the relevant facts and a waiver request for any conflicts of interest as defined under (a) the Minimum Standards of Integrity and Fitness for an FDIC Contractor in 12 C.F.R. Part 366; (b) applicable state bar rules of professional conduct; (c) the American Bar Association Model Rules of Professional Conduct to the extent those Model Rules are not contrary to applicable state bar rules; and (d) Chapter 2 of the FDIC Outside Counsel Deskbook

Based on the unique nature of the Services contemplated by this RFP, there may be limited exceptions to the FDIC conflicts policy available. All questions regarding potential conflicts should be directed to the POCs identified in Section V (Submission Procedures).

6. Acceptance of Terms. Confirm that, if your firm does not have a Legal Services Agreement (“LSA”) with the FDIC, that you (and the other necessary members of your firm) have reviewed the requirements to enter into an LSA and that your firm is prepared to enter into an LSA as soon as possible if your firm is selected, and it has reviewed and agrees to the LSA’s terms including those of the Outside Counsel Deskbook. To receive an LSA, your firm must be registered to do business with the U.S. Government in SAM.gov. If your firm is not registered in SAM.gov, you may wish to register your firm.

Note: With rare exception, the FDIC does not negotiate the terms of its standard Legal Services Agreement or the Outside Counsel Deskbook. The standard LSA is available here: Information for Prospective Outside Counsel | FDIC

7. Prior FDIC Work. Provide a statement indicating whether your firm or attorneys who would provide Services have previously completed significant work on behalf of or for the FDIC, including the types of work performed, the approximate time periods for that work, and the approximate cost billed to the FDIC for that work.

Also note whether the work was performed for or in conjunction with FDIC senior executives.

https://www.fdic.gov/about/doing-business/outside-counsel/deskbook.pdf https://sam.gov/content/home https://www.fdic.gov/doing-business-fdic/information-prospective-outside-counsel

8. Sample Budget. Estimate the budget for one single-allegation harassment investigation, assuming between 8 and 12 witnesses, remote interviews, 500 pages of relevant documents/emails, and completed within 30 days. Please also advise whether the firm would be able to conduct more than one investigation at a time, and if so, how many simultaneous investigations the firm would be able to handle with the proposed team.

9. Starting Date. Provide an estimate of when your firm would be able to begin work on the Services.

10. Sample Work Product. Attach a copy of a deidentified report of investigation conducted by one of the attorneys who would provide Services or a sample report of investigation by such an attorney.

III. SELECTION CRITERIA

The FDIC will make its selection based on criteria that include the following (in descending order of importance):

1. Experience, including but not limited to,

(a) experience with investigations of harassment and other violations of law or policy, including investigations of executive-level individuals;

(b) experience with investigations of discrimination under Title VII;

(c) experience with federal personnel law, including Merit Systems Protection Board and Equal Employment Opportunity case law;

(d) experience in rendering legal advice or representing U.S. Government clients;

2. Whether Counsel has previously completed significant work in conjunction with the FDIC;

3. Proposed fees; and

4. The existence and nature of any conflicts of interest. (Significant conflicts may make this selection criterion dispositive.)

IV. TERMS OF SERVICE

The referral of a matter to the firm selected from this solicitation is subject to the provisions of the LSA between the firm and the FDIC and the FDIC’s Outside Counsel Deskbook. The LSA and the Outside Counsel Deskbook set forth the policies, procedures, and forms that the FDIC requires its outside counsel to use for budgets and billing and other matters.

Notwithstanding the language in the Deskbook, the Legal Division and its Oversight Attorney may not request, obtain, or discuss matter-specific information with the firm. Instead, the Oversight Attorney’s role is solely to administratively support the firm and OPC and OEEO.

V. SUBMISSION PROCEDURES

Questions about this RFP are due no later than Tuesday, November 26, 2024, by 2:00 p.m. ET.

Proposals are due no later than Wednesday, December 4, 2024, by 2:00 p.m. ET

Please know that transmission of messages from commercial email to government email is not instantaneous or infallible. The FDIC recommends offerors submit their proposals in advance of all the stated deadline to minimize the potential of a proposal being rejected for lateness.

Questions and proposals must be submitted via email to: Mark Posey (mposey@fdic.gov), Charles McCarthy (cmccarthy@fdic.gov), and Michael Pangia (mpangia@fdic.gov).

We look forward to receiving your questions and proposal.

APPENDIX A

Standards for Firms Conducting Investigations on Behalf of the FDIC Office of Professional Conduct (OPC)

Appendix A

1. Legal Requirements:

a. Compliance, to the extent possible, with CIGIE Quality Standards for Investigation.

b. Compliance with National Treasury Employees Union (NTEU) Collective Bargaining

Agreement (CBA) when communicating with Bargaining Unit Employees (BUEs).

c. Compliance with current laws applicable to Federal employees, including interpretations from the Merit Systems Protection Board, Equal Employment Opportunity Commission (see example here), and Federal courts.

d. Compliance with applicable FDIC policies (to be provided by FDIC as applicable).

2. Standards:

a. All investigations must be conducted through an impartial and non-adversarial process.

b. Firms performing work should always conduct themselves in a manner that reflects the highest standards of integrity, impartiality, and competence. To maintain the credibility of the Office of Professional Conduct (OPC), investigators and other individuals interacting with FDIC employees must conduct themselves in keeping with professional standards. FDIC employees should be treated with dignity and respect. While an individual performing an investigation may challenge a witness, they may not berate, coerce, or harass the witness.

c. The firm will provide OPC with weekly updates about cases under investigation.

d. Matters of urgency, such as witness non-compliance or complainant non-participation, should be communicated to OPC as early as possible.

e. Communications and documents produced by the firm should be thorough (e.g., proofread and free of typos), accurate (e.g., proper application of case law and citations to evidence and law), and timely (see timeframes and goals below).

3. Timeframes/Process: All dates below are calendar days. OPC may grant exceptions to the firm for these timeframes (e.g., if the complainant, respondent, or witnesses are not available). Total timeframe goal for the firm to submit a report of investigation (ROI) to OPC is 44 calendar days from date of referral by OPC. This timeframe does not include paragraph 3g. It also excludes the time required for FDIC to produce responsive documents. The FDIC will endeavor to provide documents as quickly as possible.

a. OPC receives complaint.

b. OPC refers complaint to firm for investigative assessment and investigation, if applicable (no later than 2 calendar days from 3a).

c. Firm conducts clarification interview (see paragraph 4) (no later than 5 calendar days from 3b).

d. Firm notifies OPC of assessment recommendation (no later than 7 calendar days from

3b):

(1) Option 1: In-Scope: Firm proposes investigative plan and makes initial request for documents from FDIC;

(2) Option 2: Out of Scope: Firm recommends closure to OPC with rationale; or

(3) Option 3: Additional information needed by the firm to make a determination and timeframe for gathering that information.

https://www.ignet.gov/sites/default/files/files/invprg1211appi.pdf https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace

e. OPC notifies firm of response to assessment recommendation (no later than 5 calendar days from 3d):

(1) Option 1: OPC approves investigative plan and gathers initial documents from

FDIC;

(2) Option 2: OPC approves closure recommendation and OPC notifies complainant; or

(3) Option 3: OPC requests clarification from the firm.

f. Firm investigates and prepares ROI (see paragraph 7) and makes a recommendation

(see paragraph 8) (no later than 30 calendar days from 3e).

g. Once OPC receives an ROI (and, if applicable, accompanying recommendation), OPC may:

(1) Option 1: Accept the ROI (and, if applicable, accompanying recommendation)

(2) Option 2: Ask the firm to revise the ROI (and, if applicable, accompanying recommendation). In this scenario, OPC and the firm will identify a timeframe for the revised ROI to be transmitted to OPC.

4. Clarification interview: Firm conducts a clarification interview with complainant to:

a. Identify allegations;

b. Identify respondent;

c. Scope investigation;

d. Identify witnesses;

e. Identify evidence, events, and dates;

f. Identify/clarify whether complainant wants to have their identity be confidential (see paragraph 5); and

g. Identify corrective action, if any, that complainant is seeking.

5. Confidentiality

a. Information gathered as part of this process, including information that is requested to be confidential, is protected by law and may not be disclosed outside of OPC without a lawful purpose (e.g., a court order or to the OIG, when requested).

b. If a complainant requests confidentiality, the clarification interview will confirm how much information about their identity complainant is willing to consent to sharing;

allegations that will be investigated with the confidentiality restrictions in-place;

allegations that may be investigated, but where the firm or OPC may need further consent from complainant; and allegations that the firm or OPC may not be able to investigate without divulging complainant’s identity. This information will be shared with the complainant.

c. If the complainant raises allegations that involve criminal conduct, the firm will notify OPC, who will refer those allegations to the OIG. If the OIG declines to investigate the criminal conduct or allows OPC to continue to investigate the criminal conduct, the firm will be notified by OPC.

d. If the complainant raises allegations that involve FDIC executives, the firm will notify OPC within one business day. OPC will then notify OIG as required under the MOU between FDIC and OIG dated August 29, 2024. The firm may continue to investigate these allegations.

6. Gathering evidence:

a. Utilize primary sources of information. Firm can request documents from the FDIC

(e.g., emails) through OPC. Document requests should be limited in scope to perform the work set forth in this Appendix and RFP. The FDIC will endeavor to provide documents as quickly as possible.

b. Avoid hearsay, where possible, and rely on direct evidence.

c. Must interview complainant during investigation in addition to clarification interview.

d. Must interview respondent.

e. Must interview witnesses identified by the complainant or respondent or be able to explain why those individuals were not interviewed in the report of investigation.

f. Interviews should be transcribed.

g. Interviews may be conducted via Microsoft Teams or telephonically.

h. Interviews may need to be conducted before or after regular work hours (e.g., if complainant does not feel comfortable talking in their office).

7. Report of investigation (ROI)

a. ROI should be self-contained and allow for examination/review by a third-party regardless of whether allegations are substantiated or not. If allegations are substantiated, ROIs may be used as an evidence file in a personnel action.

b. ROI must contain underlying evidence, including interview transcripts, labeled as exhibits

c. ROI must contain footnote citations to exhibits, including applicable page/line numbers

d. Where appropriate, ROI should contain quotes. Avoid block quotes where possible.

e. ROI should contain findings of fact and conclusions on whether allegations are substantiated or not substantiated.

f. When drawing conclusions, including on conflicting testimony, ROI must apply legal principles, including the factors in Hillen v. Army, 35 M.S.P.R. 453, 458 (MSPB 1987).

g. ROIs should include an executive summary synthesizing the allegations, findings, and conclusions.

8. Recommending disciplinary, non-disciplinary, and corrective action

a. When allegations are substantiated, firm should prepare a separate recommendation memorandum. A similar memorandum should be prepared, even if allegations are not substantiated but the underlying facts reveal challenges that the agency should address.

b. Recommendation memorandums should recommend disciplinary or non-disciplinary action for the respondent or other wrongdoers when allegations are substantiated.

When recommending discipline, recommendation memorandum must apply MSPB and applicable Federal Circuit case law (and Table of Penalties, once developed) to identify penalty or range of penalty that would be applicable. Non-disciplinary recommendation includes, for example, training or written counseling.

c. If a complainant has requested corrective action, recommendation memorandum should address complainant’s requested corrective action.

APPENDIX B

Standards for Firms Conducting Investigations on Behalf of the FDIC Office of Equal Employment Opportunity (OEEO)

Appendix B

1. Reference Documents:

a. Compliance with EEOC Management Directive 110;

b. Compliance, where possible, to U.S. Equal Employment Opportunity Commission

(EEOC) guidance and best practices (see e.g. CM-602 Evidence);

c. Compliance with applicable FDIC policies (to be provided by FDIC as applicable).

2. Standards of Conduct:

a. All investigations must be conducted through an impartial and non-adversarial process. This means the investigator collects evidence regardless of the complainant’s and the agency's positions with respect to the items of evidence.

b. Firms performing work should conduct themselves at all times in a manner that reflects the highest standards of integrity, impartiality, and competence. To maintain the credibility of the Office of Equal Employment Opportunity (OEEO), investigators and other individuals interacting with FDIC employees must conduct themselves in keeping with professional standards. FDIC employees should be treated with dignity and respect. While an individual performing an investigation may challenge or confront a witness, they may not berate, coerce, or harass the witness.

3. Timeline of Deliverables:

a. Notice of Acceptance or Dismissal of Claims: Within nine (9) business days from the date on which a complainant files a Formal Complaint, Firm must provide designated OEEO personnel a final Notice of Acceptance or Dismissal of Claims for review and issuance by the Director, OEEO. OEEO will forward the Formal Complaint and Counselor’s Report within two (2) business days of receipt of the Formal Complaint.

b. Investigative Plans: Within 21 calendar days of receipt of the Formal Complaint, Firm must provide designated OEEO personnel an Investigative Plan.

c. Reports of Investigations: Within 60 days from each assigned investigation, unless another time is agreed to in writing by the OEEO, the Firm must provide a draft error-free Report of Investigation in accordance with the standards below for approval by authorized OEEO personnel. Within 15 days of receipt of OEEO’s review of the draft Report of Investigation, the Firm must provide a final Report of Investigation.

d. Recommended Conclusions of Law: Within 15 days from each finalized ROI, unless another time is agreed to in writing by the OEEO, the Firm shall provide in a separate memorandum to the Director, OEEO, recommended legal analysis in connection with the applicable law based on the ROI.

e. Extensions of Time: Extensions of time may be granted in OEEO’s sole discretion in writing. Extensions of time will be granted in accordance with applicable regulations if the complaint is amended or consolidated with another complaint. If the Firm is https://www.eeoc.gov/federal-sector/management-directive/management-directive-110 https://www.eeoc.gov/laws/guidance/cm-602-evidence unable to complete the investigation within the prescribed timeline, it must notify the Director, OEEO in writing as soon as possible, but no later than 10 days prior to the investigative deadline. The notification must include the anticipated completion date and the reasons for the additional time for investigation.

f. Status Updates: An update on all pending matters with the Firm related to the OEEO shall be provided to the OEEO Director every other Monday. Matters of urgency, such as witness non-compliance or complainant non-participation should be communicated to the OEEO Director as early as possible.

g. Exclusion of Time: The time set forth above excludes the time it requires the FDIC to provide responsive documents requested by the Firm. Document requests should be limited in scope to perform the work set forth in this Appendix and RFP. The FDIC will endeavor to provide documents as quickly as possible.

4. Quality and Standards of Performance:

a. Notice of Acceptance: The Notice of Acceptance must contain the claim(s) asserted and to be investigated. If the Notice of Acceptance statement of the claim(s) asserted and claim(s) to be investigated differ, the letter must explain the reasons for the difference, including whether a portion of the claim(s) is being dismissed. The letter shall advise the complainant that s/he/they may submit a statement to the Agency concerning the articulation of the claim, which shall become a part of the complaint file.

b. Notice of Partial Dismissal: The Firm must draft a letter to notify the complainant of a partial dismissal and further inform the complainant that there is no immediate right to appeal the partial dismissal. The letter should advise the complainant that the partial dismissal shall be reviewed either by a Commission Administrative Judge, if the complainant requests a hearing before an Administrative Judge, or by the Commission, if the complainant files an appeal of a final agency action or final agency decision

c. Notice of Dismissals: Notices of Dismissal should clearly set forth its reasoning for dismissing the complaint and include evidence in the record that supports the grounds for dismissal. To avoid common errors in dismissing complaints of discrimination see EEOC, Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds, issued in September of 2014 on the Commission's website.

d. Report of Investigation (ROI): ROIs should be a self-contained, impartial and appropriate factual record upon which to make findings on the claims set forth in the Notice of Acceptance.

https://www.eeoc.gov/federal-sector/reports/preserving-access-legal-system-common-errors-federal-agencies-dismissing https://www.eeoc.gov/federal-sector/reports/preserving-access-legal-system-common-errors-federal-agencies-dismissing https://www.eeoc.gov/federal-sector/reports/preserving-access-legal-system-common-errors-federal-agencies-dismissing

i. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred and must provide a sufficient factual basis from which the Agency may take appropriate action and/or fashion an appropriate remedy. This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome. Investigators need not expend the same amount of investigatory effort on each case, however. The proper scope of an investigation is dictated by the facts at issue. Investigators should not take a cookie-cutter, one-size-fits-all approach, as that wastes resources and delays resolution of the complaint. The investigation and the amount of effort expended should be appropriate to determine the claims raised by the complaint;

ii. The investigator should gather evidence that will allow for an appropriate remedy to be fashioned. This essentially means that a determination of the parameters of relief should be made, and the appropriate inquiries developed.

Evidence on the question of remedies may include evidence of a complainant's interim earnings or subsequent promotions (in a discharge or non-promotion case), compensatory damages, or other mitigating factors. For a source of information concerning compensatory damages, see Enforcement Guidance; Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, N-915.002 (July 14, 1992);

iii. Evidence will be gathered from the complainant, witnesses, and other sources.

In order to support findings and, ultimately, decisions, this evidence should be material to the complaint, relevant to the issue(s) raised in the complaint, and as reliable as possible;

iv. Explanations of a witness' credibility should be included, with the investigator including observations on credibility without making a conclusion as to credibility;

v. ROIs must not make a conclusion or recommendation as to the legal issue of whether discrimination or harassment has occurred;

vi. ROI must contain underlying evidence, including interview transcripts, labeled as exhibits;

vii. ROI must contain footnote citations to exhibits, including applicable page/line numbers;

viii. Where appropriate, ROI should contain quotes. Avoid block quotes where possible;

ix. ROIs should include an executive summary synthesizing the complaints and the findings of fact;

http://www.eeoc.gov/policy/docs/damages.html http://www.eeoc.gov/policy/docs/damages.html http://www.eeoc.gov/policy/docs/damages.html

x. The production of the ROI shall comply with MD-110, including Appendix L EEO-MD-110 COMPLAINT FILE FORMAT | U.S. Equal Employment Opportunity Commission.

e. Recommended Conclusions of Law: In a separate confidential memorandum, the Firm shall provide recommended reasonable conclusions of law, rendered as legal advice, as to whether the Findings of Fact set forth in the ROI establish whether discrimination has occurred.

i. When drawing conclusions, including on conflicting testimony, ROI must apply legal principles, including the factors in Hillen v. Army, 35 M.S.P.R.

453, 458 (MSPB 1987).

ii. Individuals assigned to conducting the investigation and drafting the ROI may not issue or participate in issuing the Recommended Conclusions of Law in accordance with MD-110.

5. Confidentiality

a. Witness testimony provided in connection with a Report of Investigation of a Formal

Complaint must be given under oath or affirmation and without a promise that the agency will keep the testimony or information provided confidential. Information will be limited to those who “need to know.” An investigator cannot promise complete confidentiality because it may be necessary to disclose information obtained during the investigation in order to complete the investigation and take appropriate action.

https://www.eeoc.gov/federal-sector/management-directive/appendix-l-eeo-md-110-complaint-file-format https://www.eeoc.gov/federal-sector/management-directive/appendix-l-eeo-md-110-complaint-file-format https://www.eeoc.gov/federal-sector/management-directive/appendix-l-eeo-md-110-complaint-file-format