JA Limited Sources Justification DEI Contract Final_Redacted.pdf

FEDERAL SUPPLY SCHEDULE LIMITED-SOURCES JUSTIFICATION

Acquisition Title: Diversity, Equity, & Inclusion Consulting Services

Agency: Centers for Medicare & Medicaid Services

Acquisition Year: 2022

Author: Deanna Miller

1. Description of Action:

Nature

• New Requirement

• Follow-On Order

• _X_ Modification of Existing Contract - GS-02F-0130W 75FCMC20F0119

Contract Type

• Firm-Fixed Price

• _X_ Time and Materials

• Cost Plus Fixed Fee (CPFF)

• Term

• Completion

• Cost Plus Award Fee (CPAF)

• Other: _

Projected Cost / Price:

Funding Source (s): Federal Appropriation Program Administration Project

Name of Proposed Contractor(s): Deloitte Consulting LLP Street Address: 1919 N. Lynn Street, Suite 800 City, State, Zip: Arlington, VA 22209-1742

2. Description of Supplies or Services:

The estimated value of the proposed action, including all options, is

Federal government agencies, in conjunction with the U.S. Equal Employment Opportunity Commission, have the responsibility to prohibit discrimination within the civil service on the basis of race, color, religion or religious accommodation, sex, national origin, age, disability or disability accommodation, genetic information and reprisal for opposition to discrimination or participation in the complaint process.

Federal government agencies must provide reasonable accommodations to the known physical and mental limitations of employees and applicants with disabilities pursuant to the Rehabilitation Act of 1973 and 29 Code of Federal Regulations Part 1630. Federal agencies must also develop and implement a strategic plan on Diversity, Equity, and Inclusion (DEI) in order to implement Federal anti-discrimination laws and pursuant to Executive Order 14035.

The Office of Equal Opportunity and Civil Rights (OEOCR), which is a component of the Centers for Medicare & Medicaid Services (CMS), within the U.S. Department of Health and Human Services (HHS), is the entity that is responsible for providing guidance, oversight, and enforcement of Federal antidiscrimination laws including the Civil Rights Act, the Rehabilitation Act, Executive Orders, and other antidiscrimination laws, regulations, Management Directives, and policies. The U.S. Equal Employment Opportunity Commission regulates these programs.

Among these legal authorities, the most significant with regard to the DEI Program are:

Title 5 of the Code of Federal Regulations (CFR), which governs the Federal workforce and aspects related to fairness, equity, performance, conduct, and engagement;

29 CFR 1614, which is the EEOC regulation that both prohibits discrimination on the bases of race, color, religion, national origin, sex, age, disability, genetic information, or retaliation, and also mandates that Federal agencies operate an affirmative employment program that promotes these protections, diversity, equity, and inclusion;

Executive Order 13583, which established the coordinated government-wide initiative to promote diversity, equity, and inclusion in the Federal workforce;

Executive Order 14035, which mandates the establishment and implementation of an agency-specific strategic plan on diversity, equity, inclusion, and accessibility; and

Management Directive 715, which is both a mandatory directive from EEOC and the annual mandatory report each Federal agency must submit to EEOC to report on its affirmative employment, DEI, anti-discrimination, and reasonable accommodation efforts.

In order to comply with the above, the OEOCR contractor shall perform an annual diagnostic review of CMS DEI data. This data review includes, but is not limited to, data from the Management Directive 715 report, hiring and promotion data, Employee Viewpoint Survey results, Organization Effectiveness assessment and CMS Modernize & Invest strategies and initiatives data.

The contractor then provides a diagnostic report describing the current state of CMS based on existing data, to inform delivery of DEI interventions and/or strategies to be implemented or deployed. This comprehensive analysis and report assist CMS in identifying the current organizational state and set the foundation for measuring effectiveness and outlining the Strategic Plan.

In addition, the results of the diagnostic report are used to evaluate CMS’ current DEI maturity, providing a score between mere compliance and full inclusion. The contractor will use strategies, tools, diagnostics, and assessments approved by CMS to assess the overall CMS’ DEI program’s progress toward full inclusion.

As the five-year strategic planning implementation period continues to 2025, the contractor must follow the existing maturity index and collect and analyze data along that index, following the maturity index and assessing change.

The contract was originally awarded for a base year and one option, with a base year period of performance of September 30, 2020 to September 29, 2021, and the option year running from September 30. 2021 to September 29, 2022. Because this was such a new field and a brand new Federal requirement, as determined by the EEOC, CMS believed that the DEI consultant would be necessary for helping develop and launch the strategic plan and to determine where CMS scores in terms of DEI maturity. However, as additional requirements have been issued through President Biden’s Executive Orders on January 20, 2021, and as HHS has issued its own DEI Strategic Plan in compliance with the Executive Orders, CMS work on its strategic plan and strategic plan implementation has both evolved and expanded. At the time the contract was awarded, CMS would have no way of knowing how significantly the requirements would change and be augmented in such a short time. Thus, what was initially believed to be a need to launch the strategic plan has now evolved, in order to comply with the Biden era Eos and HHS strategic plan, into a significantly more complex project.

Whereas CMS believed it could itself handle strategic implementation of the CMS DEI strategic plan or otherwise obtain some minor contract support for this effort, the changes in the law have rendered it necessary to obtain significant more assistance both revising the strategic plan and implementing it.

Moreover, at the time the contract began, the industry was just beginning to develop in this area for the Federal sector, and it was not clear that the DEI maturity index would be tied to the strategic plan or strategic implementation. It was also not predictable that determining where CMS sits on the DEI maturity index would tie CMS to that same maturity index and method of gathering and analyzing data for regular scoring on that matrix for the duration of the strategic plan period.

The modification would add three option years to the requirement so that the work on DEI maturity evaluation and advancement can continue. The scope of the additional three years would follow the scope of the initial two years, as the contract provides strategic planning and consulting services, strategic implementation, and maturity indexing based on analysis of qualitative and quantitative data; that maturity indexing analysis informs manner and method of strategic implementation. This means that while the initial base year facilitated the data gathering and analysis that resulted in DEI maturity indexing for CMS, which then formed the basis for the strategic plan, the second year set the groundwork for strategic implementation of that plan based on the indexing score. The three years will continue strategic implementation as well as annually assessing the progress CMS has made or not made in advancing on the DEI maturity index, using qualitative and quantitative data. The maturity indexing results each year will inform the manner and method of strategic implementation in the subsequent year.

Period of Performance: Option Year 2 - 9/30/2022-9/29/2023; Option Year 3 – 9/30/2023-9/29/2024;

Option Year 4 – 9/30/2024-9/29/2025

3. Authority:

X : ORDER AGAINST FSS: Authority of the Multiple Award Schedule Program, Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251, et seq.); Title 40 U.S.C. 501, Services for Executive Agencies; and Section 803 of the National Defense Authorization Act of 2002 (PL 107-107) and implemented by FAR 8.405-6. Mark the applicable exception and for each discuss how the cited authority applies in accordance with FAR 8.405-6(c)(2)(iv).

: An urgent and compelling need exists, and following the procedures would result in unacceptable delays (FAR 8.405-6(a)(1)(i)(A));

_X_: Only one source is capable of providing the supplies or services required at the level or quality required because the supplies or services are unique or highly specialized (FAR 8.405-

6(a)(i)(B)); or o The work is aligned with the strategic plan, which is five years in length. Industry standards related to DEI strategic planning includes a critical component of assessing where an agency falls on a maturity index for DEI. Essentially, each entity can be scored in terms of where in its organizational journey it is currently with regard to incorporating DEI into its culture; that baseline index score enables the organization to map its pathway forward so it can determine how to more effectively incorporate DEI over time. CMS has done the preliminary work to determine where it falls on the DEI maturity index and has undertaken efforts to incorporate principles and plans to move the agency further along the index to more fully and effectively incorporate DEI into the organization’s culture. The work done thus far is intertwined with where OEOCR and CMS fall on the maturity index, and measuring progress on that same index as OEOCR continues with the DEI strategic plan implementation is critical to the project.

o Based on market research, there is no industry standard for the DEI maturity index at this time, and different entities use different indexes.

o Therefore, there is no ability to crosswalk, at this time, the maturity index currently in use by the incumbent contractor, with another new contractor system. (See market research below) o It is critical to keep the same contractor in place and use the same maturity index assessment system so that future analysis completed for CMS can be compared with accuracy to past results already completed by the incumbent contractor. Otherwise, the significant work already done on determining CMS baseline indexing, including cost, time, effort, will be wasted and CMS would need to duplicate all efforts, cost, time to begin again from scratch; more, since there is not yet an industry DEI maturity index, there is no guarantee repeating the effort to determine baseline maturity score wouldn’t once again be invalidated once that next contract ended. More, aspects of strategic implementation have already begun in reliance on the existing DEI maturity index baseline score; those efforts would have to be scrapped, set on hold, and not pursued until another new indexing score was determined. This would put the Agency well behind the deadline imposed by the Executive Order to implement a DEI strategic plan. The Agency would need to expend approximately to scrap the existing work and start from scratch, and the strategic implementation of the DEI strategic plan would run at least three years behind schedule, in violation of the Executive Order. Additionally, the EEOC, which regulates Federal agency EEO programs, may sanction CMS both monetarily and publicly, which would result in significant embarrassment and costs to the Agency.

o The incumbent proprietarily owns the maturity index it uses, it scored the Agency on that index based on data it collected through its proprietary processes, and OEOCR is in the midst of a strategic planning implementation period for which following the maturity index and assessing change is a critical part.

o It would not be in the Government’s interest to duplicate the effort and data collection processes that led to indexing DEI maturity for CMS without duplicating all of the effort already expended, including cost.

o Furthermore, the incumbent used quantitative data that CMS provided but also qualitative data it collected through focus groups and interviews, of which duplication by a new contractor would be impossible for baselining and assessing movement. It would not be possible to produce replicated qualitative data to provide to other offerors in order for them to produce the same results. The determination of where the Agency fell on the maturity index was dependent on this qualitative data, and the inability to duplicate it precisely would jeopardize the integrity of the entire effort. Without the raw materials (qualitative data and information), the Agency can’t move forward with strategic implementation because the foundation for the baselining would be missing, correlating to an inability to compare with baseline later in the strategic implementation period. In other words, if we can’t rely on the qualitative information or use it later, we can’t determine how far we’ve moved down the index later, which is the goal of indexing.

: In the interest of economy and efficiency, the new work is a logical follow-on to an original Federal Supply Schedule order provided that the original order was placed in accordance with the applicable Federal Supply Schedule ordering procedures. The original order or BPA must not have been previously issued under sole-source or limited sources procedures (FAR 8.405- 6(a)(1)(i)(C)); or

: An item peculiar to one manufacturer can be a particular brand name, product, or a feature of a product, peculiar to one manufacturer). A brand name item, whether available on one or more schedule contracts, is an item peculiar to one manufacturer. (FAR 8.405- 6(b);

4. Market Research:

CMS, in addition to standard market research on the GSA schedule and industry and government partner inquiries, issued a Request for Information (RFI) in January 2022 in support of Diversity, Equity, and Inclusion (DEI) Consulting and Project Management Services in order to solicit responses from capable sources to ensure sufficient competition exists to meet the government's requirements.

Responses were received from ten vendors on February 3, 2022. Only two vendors had the ability to perform DEI strategic planning and implementation for Federal agencies, but neither of those two had the ability to: 1) use the same DEI maturity index CMS previously used;

2) articulate how they could crosswalk the existing maturity index to their version; 3) articulate how they would avoid duplicating effort, time, or cost to implement a new method for maturity indexing;

or 4) specify how they would gather qualitative data that was substantially similar to that already gathered.

More, the standard market research CMS conducted in fall 2021 and again in spring 2022 yielded that there is no standard DEI maturity index used across the DEI space, that different vendors use their own indexes and methods for assessing baseline scores as well as moving organizations forward along those indexes. Market research included benchmarking with Federal agencies, internet research, attending industry meetings/trainings, reviewing published works including academic and conference papers, and reviewing vendors from the GSA schedule.

Based on analysis of the responses, though two vendors were able to conduct strategic planning and implementation for Federal agencies on DEI, neither lack compatibility with the DEI efforts CMS has already been utilizing and continues to use at this time with regard to producing the maturity index used to develop the current strategic plan or to crosswalk the data to a different index without repeating the data collection and analysis processes of the previous contract; additionally, we are in the midst of a strategic planning implementation period for which following the maturity index and assessing change is a critical part.

5. Actions to Increase Competition:

Based on the market research we conducted, there is no industry standard for determining the maturity index at this time. CMS believes that the market will improve in this area and will look to move away from need of continuing with the same contractor as the market catches up to the work and hopefully an industry standard for maturity indexing emerges. This appears to be likely as academic circles have begun articulating features of potential industry standardization of such maturity indexes. In addition, the contract period of performance is aligned to the implementation of the DEI strategic plan. At the conclusion of the strategic plan implementation period, the agency will have the opportunity to assess different ways for assessing maturity and DEI health, which creates the opportunity to move away from the current proprietary indexing model.

The Agency believes it will not be locked into the current DEI index even if a standard industry index does not emerge, because once the five-year strategic plan has concluded and been implemented, the Agency will have the freedom and responsibility to create a new DEI strategic plan which is more focused on maintenance and continuous improvement rather than baselining and maturing CMS’ DEI culture.

6. Any other facts supporting the justification: N/A

5. OGC Legal Review – N/A

Name / Date

6. Office of Small and Disadvantaged Business Utilization – N/A

Name / Date

7. Senior Procurement Executive (SPE) Approval – N/A Based on the foregoing justification, I hereby approve the procurement of (state supplies/services being procured) on another than full and open competition basis pursuant to the authority of (state the full statutory authority and FAR cite and title, consistent with paragraph 4, e.g. 41 U.S.C.

253(c)(1)), as implemented by FAR 6.302-1), subject to the availability of funds, and provided that the services herein described have otherwise been authorized for acquisition.

Name / Date