SOURCES SOUGHT
R -- Distribution Fund Administration Services
- Notice Date
- 9/2/2010
- Notice Type
- Sources Sought
- NAICS
- 541990
— All Other Professional, Scientific, and Technical Services
- Contracting Office
- Securities and Exchange Commission, Office of Acquisitions, Operations Center, 6432 General Green Way, MS 0-20, Alexandria, Virginia, 22312-2413, United States
- ZIP Code
- 22312-2413
- Solicitation Number
- SEC-RFI-09-01-2010
- Archive Date
- 10/16/2010
- Point of Contact
- Nancy M Foster, Phone: 202-551-8267, Angela Dunson, Phone: 202-551-8084
- E-Mail Address
-
fostern@sec.gov, dunsona@sec.gov
(fostern@sec.gov, dunsona@sec.gov)
- Small Business Set-Aside
- N/A
- Description
- SECURITIES AND EXCHANGE COMMISSION OFFICE OF COLLECTIONS AND DISTRIBUTION DIVISION OF ENFORCEMENT Request for Information and for Expressions of Interest 1.Request for Information and for Expressions of Interest The purpose of this RFI is (1) to conduct market research and gather industry input which will be used to formulate a strategy to support the Securities and Exchange Commission’s (SEC) Division of Enforcement, Office of Collections and Distribution (OCD) to obtain a better understanding of the sources that can provide efficient and cost-effective administration services for distribution of funds collected in SEC enforcement actions to injured investors (Distribution Funds); (2) to collect and analyze data on the usefulness and possible design of effective incentive payments to promote efficient and effective distributions, and (3) to identify sources that are capable of and express an interest in performing the required services. THERE IS NO SOLICITATION AVAILABLE AT THIS TIME. HOWEVER THE SEC INTENDS TO PROVIDE A SOLICITATION TO THOSE FIRMS THAT ARE INTERESTED IN PERFORMING THE WORK AND THAT RESPOND TO THIS REQUEST FOR INFORMATION. THERE WILL BE NO ADDITIONAL NOTICE POSTED, AND FIRMS THAT DO NOT RESPOND TO THIS REQUEST FOR INFORMATION WILL NOT RECEIVE A SOLICITATION. Submission of any information in response to this request is strictly voluntary. This market survey does not constitute a Request for Proposal(s) (RFP) or an invitation/request for sealed bids (IFB), nor does its issuance restrict the SEC as to its ultimate appointment process. The SEC will neither appoint a fund administrator solely on the basis of this notice, nor pay for any information submitted in response to this sources sought request. The SEC is conducting this sources sought market survey to determine capability, estimated price and availability from potential sources for fulfilling the requirements. This effort is conducted by the SEC, Office of Acquisitions on behalf of the SEC’s Division of Enforcement, Office of Collections and Distributions and seeks responses from all business concerns. No appropriated funds of the SEC are used for payment of Distribution Fund expenses. 2.Description of Distribution Fund administration services: The fund administrator will be required to: •Provide efficient and cost-effective Distribution Fund administration services, which permit injured investors world-wide to receive monetary disbursement from distribution funds. •Provide systems that are scalable to meet current and future program requirements. •Provide the SEC access to matter-specific investor and financial transaction information through standard and ad hoc reports. •Provide eligible injured investors with easily accessible points of contact through consistent, timely and professional responses to their inquiries. Objective: The stated objective for purposes of this request is to complete distributions in as many cases or matters as possible within 24 months after the Distribution Fund is fully funded and to complete all required distribution tasks within 36 months unless special circumstances prevent completion within this time period, such as the payment of the Distribution Funds in installments over an extended time period, insufficient claimant data, or claimant data available only through intermediaries. 3.General Background The SEC’s mission is to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation. The SEC’s Division of Enforcement investigates possible violations of securities laws, recommends Commission action when appropriate, conducts litigation either in federal court or before an administrative law judge, and negotiates settlements. The SEC's enforcement actions may result in the payment of disgorgement and/or penalties that may be returned to investors affected by the violations. The Fair Funds provision of the Sarbanes-Oxley Act (Section 308(a)) (15 U.S.C. 7246(b)) permits civil penalties and/or disgorgement to be distributed to eligible injured investors. Disbursement of money in the Distribution Fund is made pursuant to a distribution plan either approved by the court or the Commission. A major component of the distribution process requires management of the Distribution Fund in order to preserve and enhance the fund. Each Distribution Fund constitutes a Qualified Settlement Fund for tax purposes, and the SEC appoints a Tax Administrator, who obtains a tax identification number for each Distribution Fund and prepares and files tax returns for all Distribution Funds. The Division of Enforcement’s OCD is responsible for administering and coordinating the SEC’s distribution program. OCD’s objective is to return funds to eligible injured investors as expeditiously and effectively as possible given the circumstances of the particular case/matter. To facilitate this, the services of a fund administrator are obtained. The fund administrator may be required to develop a distribution plan, determine economic harm or loss, manage the Distribution Fund, process claims, determine eligibility, implement the distribution, perform a final accounting and provide reporting and record keeping services. SEC Staff provide instructions to the fund administrator on each distribution plan in accordance with applicable laws, regulations, policies and procedures. The distribution plan or other order may provide that fund administration expenses shall be paid from the Distribution Fund or may provide that such expenses be paid by the respondent or defendant in the underlying action. SEC funds are not used for payment of Distribution Fund expenses. Generally, however, each matter shall include Distribution Fund management, periodic and final accounting, along with reporting and record-keeping. 4.Fund administrator Requirements - Scope: These requirements are for distribution administration relating to the SEC’s distribution of funds to eligible injured investors. 1)The fund administrator is required to carry out an efficient and cost-effective distribution administration, which permits eligible injured investors world-wide to receive monetary disbursement from respondent/defendant Distribution Funds established by court or administrative order. 2)The fund administrator shall maintain in confidence investor identifying information. The fund administrator, however, may share such information with its service providers or other parties, including the Commission and its staff, to the extent necessary to perform its duties under a distribution plan, and the fund administrator shall require that such service providers and other parties maintain such information in confidence. 3) For each Distribution Fund, the fund administrator shall provide the SEC access to investor and financial transaction information through standard and ad hoc reports for each Distribution Fund. 4) The fund administrator shall provide eligible injured investors with easily accessible points of contact through consistent, timely and professional responses (written, telephonic or Internet-based) to their inquiries. 5) If required, the fund administrator shall be prepared to expand services to support new requirements, and/or provide any special project support needed to analyze, plan, design, implement, operate and manage distribution services that may be needed to meet the evolving needs of the SEC. 4.0.1 Tasks Defined – SEC Needs 4.1 DEVELOP A DISTRIBUTION PLAN: The fund administrator may be required to draft a distribution plan in accordance with relevant Commission or court orders, applicable laws, regulations, policies and procedures and, if applicable, outline a notice and claims process. The plan will address the method for calculating loss and allocating the Distribution Fund. An economist may need to be retained to provide economic analysis relating to loss calculation and Distribution Fund allocation. 4.2 DISTRIBUTION FUND MANAGEMENT: The assets of the Distribution Fund will always be subject to the continuing jurisdiction and control of the SEC. Some Distribution Funds, as designated by the SEC, will be deposited in the Department of the Treasury’s Bureau of Public Debt (BPD). Upon approval of a distribution plan and in accordance with the SEC’s instructions, the fund administrator shall open both a dedicated interest-bearing FDIC-insured escrow account and a non-interest-bearing FDIC-insured account (either a controlled distribution account or a managed distribution account) within five business days of being instructed to do so by the assigned SEC Staff. 1) The fund administrator will account to the SEC Staff for all distribution payments whether made by check or ACH wire transfer. The fund administrator will maintain records of all distribution payments and shall maintain the originals and/or images of all checks which were voided or otherwise spoiled and all checks that were returned by the Post Office and remained undeliverable. The fund administrator also shall maintain records of all checks issued but not cashed prior to the expiration date of the check and all electronic payments that were rejected; 2) An administrator bond may be required per Commission rule or court order. The cost of the bond may be reimbursed as a distribution expense. 4.3IDENTIFICATION AND NOTIFICATION: If required by the distribution plan, the fund administrator will identify and notify eligible injured investors. The method of identification and notification will depend on whether the eligible injured investor purchased shares as a direct purchaser or through an intermediary. 4.3.1. Securities held by intermediaries. If the eligible injured investor purchased securities through an intermediary (where the securities are held by a third party on behalf of the eligible injured investor, for example, securities held by an investment advisor, a broker, or a custodian), the fund administrator will, in accordance with the distribution plan, identify the intermediaries, determine the securities held by the intermediaries, and calculate the amount of loss due the intermediaries as set forth in the distribution plan. In accordance with the distribution plan, the fund administrator will contact the intermediaries and request investor records or certifications of holdings of eligible injured investors. The fund administrator will maintain records of responses or certifications of the intermediaries, including where no response or certification was provided. 4.4INVESTOR SUPPORT SERVICES: The fund administrator shall maintain support services to assist potential injured investors in obtaining the following: •information relating to the Distribution Fund (investor eligibility and fund distribution); and •requirements for participation in the distribution. At a minimum, support services may include responding to requests and inquiries received via telephone, written mail, or e-mail from potentially eligible injured investors. The fund administrator shall have the ability to respond in the languages for the required assistance to investors. A.WEBSITE HOSTING: The fund administrator may be required to create, develop and host a website, acceptable to the SEC, listing: 1) matter status; 2) web links to the URL for the SEC’s matter; 3) responses to frequently asked questions; 4) claim forms and instructions; and 5) matter and contact information. Note: For all web based features, the system shall be compatible with and have complete functionality using the latest version of the industry standard browsers and two previous versions (e.g., Firefox, Internet Explorer, and Safari.) B. TOLL-FREE CALL CENTER: The fund administrator may be required to provide a toll-free call center with trained personnel using pre-approved scripts to answer frequently asked questions. 4.5 DISTRIBUTION LIST: The fund administrator shall prepare a proposed distribution list. This task may include one or more of the following items:. A.NOTICE AND CLAIMS PROCESS: If required by the distribution plan, the fund administrator shall conduct a notice and claims process based on the Defendant/Respondent’s records or those of its transfer agent or other records, which may include those obtained during the course of the SEC’s investigation or action. B.OBTAINING INVESTOR DATA: If the plan does not require a notice and claims process, the fund administrator shall obtain investor data from the Defendant/Respondent’s records or those of its transfer agent or other records, which may include those obtained during the course of the SEC’s investigation or action. C. DISTRIBUTION LIST FINALIZATION: 1) The fund administrator shall ensure that the eligible recipients receive only their approved portion of the Distribution Funds. 2)Where a claims process is required by the distribution plan, the fund administrator may be required to notify all persons filing a claim against the Distribution Fund but who are not allocated a distribution. (a)The fund administrator shall provide a remedy process for potential eligible investors who have submitted incomplete claims, which can be cured. (b)The fund administrator shall also provide a process for responding to potential eligible investors whose claims cannot be honored. 3) Where a claims process is required by the distribution plan, the fund administrator shall prepare and maintain listings of the following, where applicable: (a) Potential eligible injured investors who inform the fund administrator, in writing or via email, of their desire not to participate in the distribution; (b) Potential eligible injured investors whose notification remains undeliverable even after attempts to obtain corrected name and address information; (c) Potential eligible injured investors who do not respond to the notification within the time period specified for filing claims against the Distribution Fund; (d) Duplicate entries and claims not eligible to participate in the Distribution Fund; and (e) Potential eligible injured investors whose claim forms remain insufficient or whose claims may be fraudulent. Note: No disbursement from the Distribution Fund may be made without prior written authorization from the SEC or the court, as applicable. 4.6DISTRIBUTION: In accordance with the distribution plan, the fund administrator shall disburse the Distribution Fund to eligible injured investors. A. The fund administrator shall distribute the funds and include any accompanying cover letter or other communication, as appropriate. 1) Multiple distributions to eligible injured investors, up to 100% of loss, are sometimes required to complete the distribution. 2) Subsequent distributions of funds from uncashed checks and/or returned checks may be requested by the SEC Staff. 4.7 MISCELLANEOUS SERVICES: The fund administrator may be requested to provide miscellaneous services as provided under the distribution plan, in accordance with the laws, regulations, policies and procedures. All miscellaneous services shall be pre-approved in writing by OCD prior to the fund administrator proceeding with such miscellaneous services. 4.8 ACCOUNTINGS: A. During the implementation of the distribution, the fund administrator will file an accounting, in electronic format, during the first ten days of each calendar quarter on a Standardized Fund Accounting Report provided by the SEC Staff. B. Upon completion of all activities required to administer and disburse the Distribution Fund money, the fund administrator shall prepare and provide to the SEC Staff a final accounting on a Standardized Fund Accounting Report. C. When the SEC Staff directs the fund administrator to close the distribution, the fund administrator shall prepare and forward to the SEC Staff for authorization, a closing package, including a final accounting and final invoice detailing the work performed under the distribution plan. D. All final closing documents will be provided to the SEC Staff. 4.9 REPORTING & GENERAL ADMINISTRATION REQUIREMENTS: The fund administrator shall generate comprehensive, accurate, easy to understand, and timely reports. The SEC may also ask the fund administrator to provide management and operational reports on an ad hoc basis for purposes of gaining insight into specific distribution program needs. Specific formats, content, frequency, and delivery methods of all reports shall be coordinated with and approved by the SEC Staff on an individual report basis. A. Meetings: The fund administrator is expected to participate in meetings, as required, pertaining to the Distribution Fund. Participation may be by telephone. B.Record Keeping: The fund administrator shall maintain, store, and make available, for searching purposes only, in an indexed and readily retrievable form, all records and documentation associated with the case/matter for a period of six years following the transfer of any remaining funds to the SEC or the closing of the account from which the funds were disbursed, whichever is earlier, at the end of which period OCD will provide instructions for the disposition of these records. C.Report of Expenditures: The fund administrator may be asked to provide a report of actual expenditures for each task performed with respect to a particular distribution plan. 5.Incentive Payments: The SEC is gathering data on the use of monetary incentives to promote timely and efficient distributions. In this regard, the SEC requests that fund administrators comment on whether they recommend including incentive provisions in their fund administration engagements. Please provide data in support of your recommendation, including an historical summary of distributions where you provided fund administration services pursuant to an engagement that offered incentives for timely and efficient completion of the distribution; a description of the incentives offered and how they functioned; a discussion, with examples, of whether the incentives promoted a timely and efficient distribution, or whether the incentives hindered the distribution process or whether incentives were beneficial or detrimental to the working relationships among the parties involved in accomplishing the distribution. If you have not provided fund administration under such incentives, the SEC still would like your views on such incentives, their design, operation, and effectiveness. Please include any other factors the SEC should consider when evaluating incentive provisions for fund administration engagements. 6. Costs of Distribution: For each Distribution Fund, all costs of the distribution, including those for fund administrator services, are borne either by the Distribution Fund or by the defendant/respondent. Neither the SEC nor any employee of the SEC shall be liable for payment of any amounts for services provided, nor any other costs, in connection with any distribution. 7. Information to be Submitted: If you are interested and/or can share current information about these services, please respond to the individual identified in this announcement with the following information: A. A capabilities package. The capabilities package is not to be a proposal, but rather statements regarding the company’s existing experience in relation to distribution administration relating to the SEC’s distribution of funds to eligible injured investors. Capabilities packages may not exceed 10 pages (exclusive of the information requested in Items B through E below. B. If your firm is registered, your Central Contractor Registration (CCR) information; C. Description of insurance coverage, including the name of the insurance company, types of coverage and policy limits; D. Identification of no more than five relevant assignments representative of the work performed by your firm. Relevant is defined as work similar in complexity and magnitude to the work described herein. E.Indicate whether you are NIST and/or SAS 70 certified. 8. Contacts for Information Sought and Submission Requirements: Interested parties shall submit an electronic copy and 1 hard copy of the requested information sought. The electronic version shall be submitted no later than 2:00pm Eastern Standard Time, October 1, 2010 to the Contract Specialist, Nancy Foster, at fostern@sec.gov and the Contracting Officer, Angela Bruce Dunson at Dunsona@sec.gov. The e-mail must clearly be marked “SEC-FRI-09-01-2010” in the subject line. The hard copy shall be delivered to the following address: U.S. Securities and Exchange Commission Office of Acquisition Attn: Nancy Foster, Contract Specialist Room 1429/Mail Stop 0-20 6432 General Green Way Alexandria, VA 22312 Both the electronic and hard copy of the requested information are due no later than 2:00pm Eastern Standard Time on October 1, 2010. LATE SUBMISSIONS WILL NOT BE ACCEPTED. Questions regarding this Request for Information must be submitted in writing, sent via email to the attention of Nancy Foster at Fostern@sec.gov no later than 2:00pm Eastern Standard Time on September 15, 2010. Questions received after that date/time may not be addressed.
- Web Link
-
FBO.gov Permalink
(https://www.fbo.gov/spg/SEC/OAPM/PCB/SEC-RFI-09-01-2010/listing.html)
- Place of Performance
- Address: U.S. Securities & Exchange Commission, Office of Collections and Distribution, Division of Enforcement, 100 F Street, NE, Washington, District of Columbia, 20549, United States
- Zip Code: 20549
- Zip Code: 20549
- Record
- SN02266646-W 20100904/100903000526-bc0b1d327efb6e7c500bac2bc533b2e8 (fbodaily.com)
- Source
-
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