FDIC Answers to Vendor Questions for Transformation Monitor Solicitation_Final.pdf

Questions and Answers for Transformation Monitor Solicitation LEGAL-2024-002 (Ver. 20240531)

# Vendor Questions FDIC Answers (These answers have the same force and effect as a solicitation amendment)

1 How do I access the RFP for consulting firms to propose on the Transition Monitor work (that is, LEGAL-2024-002B)?

The Transformation Monitor RFP for both law firms (LEGAL-2024-002A) and consulting firms (LEGAL-2024-002B) is posted on SAM.com here:

https://sam.gov/opp/1146999765e1449994521a6130da794c/view

Additionally, the Culture Transformation Advisory & Assistance Services RFP (CORHQ-24-R-0300, for implementation, as distinct from monitoring and auditing, is available here:

https://sam.gov/opp/220e52af7daf45118294ed39fa0c155a/view

Will the services to be provided on this Transformation Monitor be paid for with congressionally appropriated funds (i.e., public funds), or with non-appropriated funds?

Non-appropriated funds.

3 Is an extension available for submitting a proposals to the RFPs?

The FDIC will not extend the deadline for proposal submission.

What guidance can you offer to organizations that are positioned to apply for both the “Culture and Transformation” and the “Transformation Monitor” RFPs? Is it possible to apply for both? Is it possible to be awarded both?

Interested and eligible entities may submit proposals for Transition Monitor work and for the Culture Transformation Advisory & Assistance Services work.

That said, due to potential conflicts of interest (e.g., monitoring itself), the entity performing the Advisory & Assistance Services – either as a prime contractor or subcontractor – would almost certainly be determined by the FDIC to be ineligible to perform any of the Transformation Monitor work.

In the event an applicant is not selected as the prime contractor, would it be considered for subcontracting portions of the work?

The FDIC will only have an agreement/contract with the “prime” vendor/contractor. If the prime elects to propose the use of subcontractors for certain aspects of work, that is a decision of the entity submitting the proposal. The FDIC will neither dictate nor prohibit the appropriate use of subcontractors.

Are there any governmental registration processes that contractors must follow before applying for these RFPs?

Yes. To receive award under any the RFPs, an entity must be registered (i.e., have an "Active" registration) to do business with the U.S. Government in SAM.gov. There are also required Representations and Certifications.

Before considering establishing hotline services as part of the present project, we would like to ask about any existing hotlines that the FDIC might have put into place since this report was issued. If such a hotline exists, who staffs it and how are the hotline staff trained?

Establishing/staffing hotline(s) is presently outside the scope of the contemplated Transformation Monitor work.

In addition to the Transformation Monitor work, the FDIC is also soliciting proposals for an independent third party expert with substantial and credible experience in the topics of sexual harassment, discrimination, and other interpersonal misconduct to advise and assist with implementation of the FDIC’s Action Plan and the Cleary Gottlieb report recommendations. Here is a link to that Culture Transformation Advisory & Assistance Services (i.e., implementation) solicitation: https://sam.gov/opp/220e52af7daf45118294ed39fa0c155a/view. This question is best answered in the course of the FDIC eventual work with that independent third party expert.

Does the FDIC have current initiatives to address power imbalances between commissioned and non-commissioned employees? If so, please describe those initiatives.

This information is not required to develop a successful proposal for the Transformation Monitor work.

In addition to the Transformation Monitor work, the FDIC is also soliciting proposals for an independent third party expert with substantial and credible experience in the topics of sexual harassment, discrimination, and other interpersonal misconduct to advise and assist with implementation of the FDIC’s Action Plan and the Cleary Gottlieb report recommendations. This question is best answered in the course of the FDIC eventual work with that independent third party expert.

Does the FDIC currently have specific programming, policies, and reporting processes to address situations where bank examiners visiting other institutions may encounter sexual harassment or other inappropriate behavior? To what degree should this work include scoping to address internal FDIC reporting mechanisms for employees experiencing misconduct?

This information is not required to develop a successful proposal for the Transformation Monitor work.

In addition to the Transformation Monitor work, the FDIC is also soliciting proposals for an independent third party expert with substantial and credible experience in the topics of sexual harassment, discrimination, and other interpersonal misconduct to advise and assist with implementation of the FDIC’s Action Plan and the Cleary Gottlieb report recommendations. This question is best answered in the course of the FDIC eventual work with that independent third party expert.

10 Is there an expectation regarding how much time the Monitor spends onsite/in the field?

The FDIC does not have a preconceived notion regarding how much, if any, “on-site” time is required to successfully serve as a Transformation Monitor. The selected entity should plan on not having dedicated FDIC office space and would normally be expected to perform the Transformation Monitor work from its own offices/facility (other than meetings, presentations, audit visits, etc., that may need to be performed at FDIC locations.)

Entities proposing for the Transformation Monitor work should discuss their proposed approach to in-person, virtual, or hybrid monitorships, especially if proposing an individual not local to the National Capital Region as the named monitor. In sum, the FDIC invites the marketplace's expertise on this issue.

What steps is the FDIC taking to ensure that employees do not have to describe the same difficult experiences over and over?

In addition, will the Transformation Monitor have access to raw data from the interviews and focus groups already completed for the initiatives mentioned above?

This information is not required to develop a successful proposal for the Transformation Monitor work.

The Transformation Monitor reports directly to the Board of Directors. What additional layers of government oversight might the Transformation Monitor anticipate?

The transformation monitor should expect to receive administrative oversight from an FDIC Legal Division employee designated as an “Oversight Attorney.” For example, Oversight Attorney will work with the Transformation Monitor on day-to-day matters; develop a matter budget; facilitate necessary contacts with the FDIC; monitor progress and performance; review and approve invoices;

etc. The Transformation Monitor should also expect and anticipate to be the subject of inquiries from the Office of the Inspector General, Congress, or members of the public and the media via FOIA requests.

Does the FDIC envision members of the Board of Directors receiving training and/or participating in the culture assessment?

This information is not required to develop a successful proposal for the Transformation Monitor work, nor is conducting training within scope of the Monitorship.

In addition to the Transformation Monitor work, the FDIC is also soliciting proposals for an independent third party expert with substantial and credible experience in the topics of sexual harassment, discrimination, and other interpersonal misconduct to advise and assist with implementation of the FDIC’s Action Plan and the Cleary Gottlieb report recommendations. This question is best answered in the course of the FDIC eventual work with that independent third party expert.

It seems like the correct procedure for completing this application is simply to prepare a pdf with responses, and accompanying documentation, and submit that all to Messrs.

Posey, McCarthy, and Pangia at the emails provided. Is that correct? It is important to us that we meet all your requirements for both formatting and content, so if more detailed submission instructions exist, could you please send them to us?

The Transformation Monitor RFP provides all necessary instructions. But yes, for the Transformation Monitor work, the FDIC Legal Division expects to receive a relatively short PDF (or PDF with Excel rate information), containing the information outlined in the “Required Information” section of RFP LEGAL-2024-002, delivered by email to Messrs. Posey, McCarthy, and Pangia prior to the time and date proposals are due.

The Culture Transformation Advisory & Assistance Services RFP (CORHQ-24-R-0300) provides its own submission instructions and required information. Communication and proposals regarding CORHQ-24-R-0300 should be directed to the Contracting Officer identified in that RFP; none of these Q&A responses for the Transformation Monitor RFP are binding on the Advisory & Assistance Services Contracting Officer.

What is the expected duration of the Office of Transformation Monitor?

The FDIC has not pre-determined the duration of this engagement. The Transformation Monitor will be required to report to the FDIC Board of Directors on a monthly basis for at least one year, with additional reporting required until the structural and cultural transformation work is completed, or until such a time as determined by the FDIC Board.

Do you have expectations for the size and composition of the staff supporting the Transformation Monitor?

The FDIC has not pre-determined the staffing levels for Transformation Monitor. The FDIC invites the vendor's expertise on this issue. To be clear, the vendor is responsible for proposing and providing all staff, materials, etc. necessary to complete the work. The FDIC is “providing” the Transformation Monitor staff by virtue of funding the staff proposed by the monitor.

17 Do you have an estimate of the expected cost(s) for the Transformation Monitor and supporting staff?

The FDIC has not pre-determined the expected costs for Transformation Monitor. The FDIC invites the vendor's expertise and effort to deliver the best value.

Is the work of the Transformation Monitor expected to take place entirely at the Washington, D.C. and/or Arlington, VA headquarters? Will field work be required at other FDIC offices?

The FDIC does not have a preconceived notion regarding how much, if any, “on-site” time is required at the D.C. and Arlington, VA headquarters to successfully serve as a Transformation Monitor.

Similarly, the FDIC has not pre-determined an "on-site" approach for the FDIC field offices. Entities proposing for the Transformation Monitor work should discuss their proposed approach to in-person, virtual, or hybrid monitorships, especially if proposing an individual not local to the National Capital Region as the named monitor.

In sum, the FDIC invites the marketplace's expertise on this issue.

19 Is the FDIC open to two smaller firms submitting a joint proposal?

Offerors may choose to submit a "joint proposal" or form teaming arrangements in developing a response to this opportunity.

However, note that the FDIC will only have an agreement/contract with the “prime” vendor/contractor in the case of prime/subcontractor teaming arrangement.

As a reminder for all offerors, but especially for those considering a joint proposal, ensure the single individual proposed to serve as the Transformation Monitor is clearly identified along with what organization they work for.

20 Is the third-party review firm (CGSH) precluded from participating in this solicitation?

It is anticipated that the third-party review firm, Cleary Gottlieb Steen & Hamilton, will be precluded from submitting a proposal for this Transformation Monitor opportunity.

21 Is prior work with the FDIC a requirement? No

Are there clearance or other requirements for the Transformation Monitor / supporting staff (other than customary confidentiality agreements and background checks)?

Security clearances are not required. Confidentiality agreements and background checks are required.

In addition to board oversight and liaising with the OMWI, do you have an organization chart detailing other functional areas and key individuals who will have meaningful involvement in the work of the Transformation Monitor / supporting staff?

This information is not required to develop a successful proposal for the Transformation Monitor work.

Can you describe the expected interface and overlap of the Transformation Monitor / supporting staff and the work to be performed by the contractor selected to provide FDIC Culture Transformation Advisory & Assistance Services (CORHQ-24-R- 0300)?

This information is not required to develop a successful proposal for the Transformation Monitor work.

However, we would refer you to the Culture Transformation Advisory & Assistance Services RFP (CORHQ-24-R-0300). That procurement provides, the Advisory & Assistance Services “Contractor may periodically interface with the Transformation Monitor, who will independently monitor and audit the FDIC’s cultural transformation efforts.”

We noted that the FDIC has issued separate RFPs for law firms and consulting firms. Is it acceptable for a law firm to partner with a consulting/accounting firm to submit a joint proposal?

Offerors may choose to submit a "joint proposal" or form teaming arrangements in developing a response to this opportunity. However, note that the FDIC will only have an agreement/contract with the “prime” vendor/contractor in the case of prime/subcontractor teaming arrangement. As a reminder for all offerors, but especially for those considering a joint proposal, ensure the single individual proposed to serve as the Transformation Monitor is clearly identified along with what organization they work for.

The FDIC has issued a version of this RFP targeted towards law firms and one targeted towards consulting firms. Does the FDIC anticipate making more than one award for the Transformation Monitor work? Does the FDIC have a preference for which type of entity will engage the Transformation Monitor work?

The FDIC anticipates making one award for this opportunity, and does not have a preference for either a law firm or a consulting firm. Further, offerors are advised that teaming arrangements between law firms and consultancies are neither encouraged nor discouraged.

In order to assist us in forming our staffing decisions to be included in our response, does the FDIC anticipate a certain range of hours per month the Transformational Monitoring Team would dedicate to this work?

The FDIC does not have a preconceived notion regarding how many hours are required per month to successfully perform the monitorship at a high level of performance. The FDIC invites the marketplace's expertise on this issue.

Can the FDIC confirm that this work consists exclusively of internal regulatory/investigative work, and not external litigation work?

It is correct that litigation is outside of the scope of the engagement to serve as a Transformation Monitor. That said, the FDIC also would not characterize the monitorship work as “regulatory” or “investigative” work as the question suggests.

Does the FDIC want the Transformation Monitor to design/implement trainings or just review related trainings that the FDIC develops?

Designing and implementing training is outside of the scope of the Monitorship. The Transformation Monitor will be monitoring and auditing the FDIC’s progress in implementing recommendations and transforming its culture and structure.

We appreciate that the FDIC may be willing to consider tailored approaches to conflicts of interest. Would the FDIC willing to provide interpretative guidance that might apply to this engagement?

The FDIC Legal Division has interpretive conflicts guidance for law firms that would apply to this matter and that is available upon request via email to Mark E. Posey (mposey@fdic.gov), copying Charles McCarthy (cmccarthy@fdic.gov) and Michael Pangia (mpangia@fdic.gov).

We would like to clarify whether the FDIC would consider dual or co-monitors from the same law firm for this engagement.

We noted the language in the Cleary Report and the RFP regarding the appointment of a “single individual” to serve as monitor. Recently, the DOJ has increasingly appointed dual or co-monitors from the same firm in order to optimize subject matter expertise and diversity of skill sets. Would the FDIC consider co-monitors from one law firm in this instance?

No. The FDIC requests that proposals identify a single monitor. Vendors may propose additional personnel to supplement the proposed monitor’s expertise, but these additional persons should not be proposed as “co-monitors.”

FDIC is open to considering an arrangement other than an Legal Services Agreement (LSA) or a Legal Support Services Agreement (LSSA) that would not require registering on SAM.gov?

SAM.gov registration is a firm requirement to be awarded the Transformation Monitor work, either as a law firm or a consulting firm. If an entity has not completed its full/active SAM.gov registration prior to submitting a proposal, its proposal should expressly state an intent and willingness to do so if considered for award.

Is it possible to submit proposals for and be selected for both the Transformation Monitor RFP and the FDIC Culture Transformation Advisory & Assistance Services RFP or must an entity select one or the other?

See response to Question #4

For the labor category rates used in the proposal, do they need to be based on applicable categories in the GSA schedule, if available, or does that not necessarily apply?

The RFP is not subject to the Federal Acquisition Regulation or any GSA schedule rates. That said, absent good cause, the FDIC would expect a vendor not to propose or charge the FDIC higher rates than it charges other US Government customers.

Government contractors are typically subject to the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP) and required to comply with the equal employment opportunity and affirmative action requirements in EO 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans Readjustment Assistance Act, among other obligations.

Those obligations are mentioned in the FDIC’s Acquisition Procedures & Guidance Manual [applicable to ASB contracts], but not in the RFP [issued by the Legal Division], nor the Legal Services Agreement (FDIC Form 5210/13), nor the FDIC Outside Counsel Deskbook. Can you please confirm that the Transformation Monitor will not be subject to OFCCP jurisdiction or required to comply with these authorities?

We have no experience with OFCCP asserting jurisdiction in connection with FDIC contract efforts.

Please see the webpage of statutes determined to be applicable to Legal Services Agreements here:

https://www.fdic.gov/about/doing-business/outside-counsel/statutory.html (Appendix A), which includes Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act. Additionally, Appendix A includes 42 U.S.C. §§ 2000e et seq, which prohibits employers from discriminating in hiring, discharging, compensation, or terms, conditions, and privileges of employment based on race, color, religion, sex or national origin. For non-law firms, see the webpage featuring the statutes determined to be applicable to Legal Support Services Agreements here: https://www.fdic.gov/about/doing-business/legal-support-services-deskbook/statutory.html

The FDIC Outside Counsel Deskbook also states, “Pursuant to Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act, Public Law 111-203), Outside Counsel must confirm its commitment to equal opportunity in its own employment and in any subcontracting for FDIC legal matters.” The FDIC Legal Support Services Deskbook states that “the FDIC expects its contractors and sub-contractors to take action to ensure that all individuals have equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a qualified covered veteran as defined in 38 U.S.C. § 4212(a)(3).”

Finally, the subject matter of the contract and the overall context surrounding the solicitation underscores the importance of strong, legally compliant anti-discrimination policies.

Are there any contractual terms or other obligations that apply to the Transformation Monitor as an FDIC contractor (if a law firm) beyond those contained in the Legal Services Agreement (FDIC Form 5210/13) and the FDIC Outside Counsel Deskbook?

You are correct that the essence of the contractual terms (if a law firm is selected for award) will be the Legal Services Agreement and the Outside Counsel Deskbook it incorporates by reference.

There are other ancillary documents that will ultimately be incorporated by reference, such as the agreed to rate schedule, any conflicts related disclosures, and importantly, FDIC representations and certifications for legal contractors - available at https://www.fdic.gov/formsdocuments/f5200-01.pdf

Does the FDIC have a preference for the geographic location of the Monitor and team members? Specifically, are there specific geographies in which it will be critical to have team members?

See response to #18

Has the FDIC developed any parameters as to the ideal size of the team? See response to #16

39 What technology platforms or software does the FDIC currently plan to use, if any, to assist in cultural transformation?

The FDIC is technology agnostic on the tools the Transformation Monitor plans on using. The FDIC welcomes the market’s expertise, but envisions that a Transformation Monitor could successfully perform at a high-level using standard commercial tools such as MS Office Suite, MS Teams, One Drive, Acrobat Professional, etc.

Will FDIC share questions asked by other firms and the responses? If so, will they be available on SAM.gov, distributed by email, or by some other method?

The FDIC anticipates posting the answer to vendor questions on SAM.gov, and to the extent practicable, emailing all vendors that have expressed interest in the RFP to let them know answers have been posted. The FDIC will not indicate which vendors asked which questions.

https://www.fdic.gov/formsdocuments/f5200-01.pdf

Will the Transformation Monitor be involved in the selection of the two third-party experts? If so, would it be helpful for the Transformation Monitor to identify in the submission potential third party experts?

No (participation in the selection of other third-party experts is not within scope of the Transformation Monitor solicitation).

Will the agreement be subject to the requirements of EO 11246, Equal Employment Opportunity?

If no, has FDIC had any discussions with the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) regarding whether or not OFCCP agrees that firms that are awarded agreements would be subject to the requirements of EO 11246, Equal Employment Opportunity?

See response to #35

Can FDIC confirm that the agreement is not a “contract” or an “acquisition” that would be subject to various requirements including but not limited to the Service Contract Act or Section 102 of the Consolidated Appropriations Act of 2023 (the “TikTok Ban”) or similar requirements imposed on “contracts,” “contractors,” “subcontractors,” or “acquisitions”?

No, the FDIC cannot provide guidance on every law potentially applicable to a non-FAR based, non-appropriated-fund funded Legal Services Agreement with the FDIC as a Government Corporation.

Please see the webpage of statutes determined to be applicable to Legal Services Agreements here:

https://www.fdic.gov/about/doing-business/outside-counsel/statutory.html. For non-law firms, see the webpage featuring the statutes determined to be applicable to Legal Support Services Agreements here: https://www.fdic.gov/about/doing-business/legal-support-services-deskbook/statutory.html.

Would FDIC consider including provisions in the agreement permitting awardees to terminate the agreement for convenience if the government imposes requirements or conditions on the agreement through passage of a statute or regulation, to which the firm is unable to agree?

No

Are the awardees required to register in SAM as contractors?

Or can the awardees register as grant/cooperative agreement recipients? In the alternative, can awardees only register in SAM for a UEI without making a full registration?

SAM.gov registration is a firm requirement; see also response to #6. Further, obtaining a SAM.gov Unique Entity ID is necessary, but not sufficient. Interested vendors must complete an “All Awards” registration (by selecting the option “I want to be able to bid on federal contracts or other procurement opportunities” when registering) and obtain an “Active” status, or commit to doing so prior to award. Additional instructions are available on SAM.gov

46 Does the cover page and table of contents count towards the six page limit?

The six page limit includes any cover page and table of contents. See RFP Sec. III.

The law firm RFP indicates that the FDIC encourages, where practical, the use of minority and women attorneys on FDIC referrals.

Does that also apply to non-attorney personnel who may be staffed on the engagement?

Does this concept apply to the consultant RFP as well?

Yes to both. For clarity, the two RFPs (002A and 002B) are hereby amended to state: “The FDIC encourages, where practical, the use of minority and women personnel on this engagement.”

https://www.fdic.gov/about/doing-business/outside-counsel/statutory.html https://www.fdic.gov/about/doing-business/legal-support-services-deskbook/statutory.html https://www.fdic.gov/about/doing-business/legal-support-services-deskbook/statutory.html