Amendment 2_RFP 72011720R00002_Moldova Effective Justice_SF_April 15.pdf

Issuance Date: February 28, 2020 RFP Amendment 1 : March 17, 2020 RFP Amendment 2 : April 15, 2020 Closing Date/Time for Questions: March 13, 2020, 9:00 a.m. Chisinau Time Closing Date/Time for Receipt of Proposals: May 15, 2020, 10:00 a.m. Chisinau Time

Subject: Request for Proposals (RFP) No. 72011720R00002, Effective Justice, Moldova

The United States Agency for International Development (USAID) is seeking proposals to provide the Effective Justice Contract for USAID’s Mission in Moldova, as described in the attached Request for Proposals (RFP).

USAID anticipates to award simultaneously one Indefinite Delivery, Indefinite Quantity Contract (IDIQ) and Task Order 01, cost-plus fixed fee contract, with a period of performance of three years and a total estimated cost between $5,000,000 and $6,000,000.

USAID anticipates that the maximum aggregate ordering limitation for contracts resulting from this RFP will be $19.5 million over the five-year ordering period. Task Orders could be issued on a cost reimbursement and/or fixed price basis and can continue for two years beyond the ordering period. The maximum aggregate dollar value of task orders cannot exceed this contract ceiling. There is no guarantee on the number of task orders that the successful contractor will receive or the amount of money beyond the minimum order guarantee set forth in the RFP.

USAID invites all interested and responsible organizations to submit offers in accordance with the requirements of this solicitation. USAID will conduct this procurement as a full and open competition. The procedures set forth in Federal Acquisition Regulation (“FAR”) Part 15 will govern the procurement. Proposals will be accepted from eligible organizations. The geographic code for this procurement is 937 and 110, and the NAICS code is 541990. USAID encourages the participation of small business organizations.

Please refer to Section L for information regarding proposal requirements. Offerors should take into account the expected delivery time required by the proposal transmission method, and they are responsible for ensuring proposals are received at USAID by the due date and time as specified above. Failure to comply with the submission date will deem any submission unacceptable and it will not be reviewed or evaluated. Section M states the criteria by which proposals will be evaluated. Faxed proposals are not acceptable, nor will they be reviewed or evaluated. Pursuant to Block 12 of Standard Form 33 of this RFP, offers must remain valid for 220 days.

Any questions regarding the RFP’s requirements must be submitted no later than the time and date stated above to Contracting Officer Maria Televantos, mtelevantos@usaid.gov, and Acquisition and Assistance Specialist, Lucia Martinenco at moldovasolicitations@usaid.gov.

This RFP in no way obligates USAID to award a contract nor does it commit USAID to pay any cost incurred in the preparation and submission of a proposal. Award of a Contract under this RFP is subject to availability of funds and other internal USAID approvals. This RFP can be viewed and downloaded from beta.sam.gov. USAID bears no responsibility for data errors resulting from transmission or conversion processes. Further, be aware that amendments to solicitations are occasionally issued and will be posted on the same website from which you downloaded the solicitation. USAID advises to regularly check the above website for amendments.

Sincerely, ________/s/_________

Maria Televantos Regional Contracting Officer, USAID mailto:mtelevantos@usaid.gov mailto:moldovasolicitations@usaid.gov http://www.fedbizopps.gov/

72011720R00002

SOLICITATION, OFFER AND AWARD

4. TYPE OF SOLICITATION2. CONTRACT NUMBER 3. SOLICITATION NUMBER

7. ISSUED BY CODE 8. ADDRESS OFFER TO (If other than Item 7)

ORDER UNDER DPAS (15 CFR 700)

6. REQUISITION/PURCHASE NUMBER

NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder".

NEGOTIATED (RFP)

SEALED BID (IFB)

5. DATE ISSUED

1. THIS CONTRACT IS A RATED RATING PAGE OF PAGES

1 124

C. E-MAIL ADDRESS

EXT.NUMBERAREA CODE

B. TELEPHONE (NO COLLECT CALLS)A. NAME

10. FOR

INFORMATION

CALL:

CAUTION: LATE Submissions, Modifications, and Withdrawals: See Section L, Provision No. 52.214-7 or 52.215-1. All offers are subject to all terms and conditions contained in this solicitation.

(Date)(Hour) local timeuntildepository located in copies for furnishing the supplies or services in the Schedule will be received at the place specified in Item 8, or if hand carried, in the

SOLICITATION

9. Sealed offers in original and

PART IV - REPRESENTATIONS AND INSTRUCTIONS

OTHER STATEMENTS OF OFFERORS

EVALUATION FACTORS FOR AWARD

INSTRS., CONDS., AND NOTICES TO OFFERORS

REPRESENTATIONS, CERTIFICATIONS AND

LIST OF ATTACHMENTS

CONTRACT CLAUSES

PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.

I

J

K

L

M SPECIAL CONTRACT REQUIREMENTS

CONTRACT ADMINISTRATION DATA

DELIVERIES OR PERFORMANCE

INSPECTION AND ACCEPTANCE

PACKAGING AND MARKING

DESCRIPTION/SPECS./WORK STATEMENT

SUPPLIES OR SERVICES AND PRICES/COSTS

SOLICITATION/CONTRACT FORM

PART II - CONTRACT CLAUSESPART I - THE SCHEDULE

H

G

F

E

D

C

B

A

SEC. DESCRIPTION PAGE(S) (X) DESCRIPTION SEC. (X)

11. TABLE OF CONTENTS

18. OFFER DATE17. SIGNATURE

SUCH ADDRESS IN SCHEDULE.

IS DIFFERENT FROM ABOVE - ENTER

15C. CHECK IF REMITTANCE ADDRESS

EXT.NUMBERAREA CODE

15B. TELEPHONE NUMBER

(Type or print)AND

ADDRESS

OF

OFFEROR

CODE FACILITY

16. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER15A. NAME

DATEAMENDMENT NO.DATEAMENDMENT NO.

and related documents numbered and dated):

amendments to the SOLICITATION for offerors

(The offeror acknowledges receipt of

14. ACKNOWLEDGEMENT OF AMENDMENTS

CALENDAR DAYS (%)30 CALENDAR DAYS (%)20 CALENDAR DAYS (%)10 CALENDAR DAYS (%)

(See Section I, Clause No. 52.232.8)

13. DISCOUNT FOR PROMPT PAYMENT

designated point(s), within the time specified in the schedule.

by the offeror) from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the price set opposite each item, delivered at the

NOTE: Item 12 does not apply if the solicitation includes the provisions at 52.214-16, Minimum Bid Acceptance Period.

OFFER (Must be fully completed by offeror)

IMPORTANT - Award will be made on this Form, or on Standard Form 26, or by other authorized official written notice.

28. AWARD DATE

(Signature of Contracting Officer)

27. UNITED STATES OF AMERICA

25. PAYMENT WILL BE MADE BY

26. NAME OF CONTRACTING OFFICER (Type or print)

CODE 24. ADMINISTERED BY (If other than Item 7)

ITEM

(4 copies unless otherwise specified)

23. SUBMIT INVOICES TO ADDRESS SHOWN IN

41 U.S.C. 253 (c) ( 10 U.S.C. 2304 (c) (

22. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION:

21. ACCOUNTING AND APPROPRIATION20. AMOUNT19. ACCEPTED AS TO ITEMS NUMBERED

AWARD (To be completed by government)

CODE

02/28/2020 X

720117

USAID/Moldova 00000

1000 Chisinau LT 05/15/2020

Lucia Martinenco +37 42 lmartinenco@usaid.gov

322-2018

X

X

X

X

X

X

X

X

X

X

X

X

X

PAGE(S)

AUTHORIZED FOR LOCAL REPRODUCTION

Previous edition is unusable

STANDARD FORM 33 (Rev. 9-97)

Prescribed by GSA - FAR (48 CFR) 53.214(c)

12. In compliance with the above, the undersigned agrees, if this offer is accepted within _____220_________ calendar days (60 calendar days unless a different period is inserted

REQ-117-20-000004

Maria Televantos

U.S. Agency for International Development (USAID) Project Title: Effective Justice Solicitation #: 72011720R00002

Table of Contents

I. PART I - THE SCHEDULE

SECTION B - SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE

B.2 CONTRACT TYPE AND SERVICES

B.3 MINIMUM OBLIGATED AMOUNT

B.4 MAXIMUM CONTRACT CEILING

B.5 FIXED FEE CEILING (Cost Plus Fixed Fee Task Orders Only)

B.6 APPROVED MAJOR SUBCONTRACTORS

B.7 INDIRECT COSTS AND ADVANCED UNDERSTANDING ON CEILINGS

SECTION C –STATEMENT OF WORK

SECTION D - PACKAGING AND MARKING

D.1 AIDAR 752.7009 MARKING (JAN 1993)

D.2 BRANDING STRATEGY

D.3 BRANDING IMPLEMENTATION PLAN (BIP) AND MARKING PLAN (MP)

SECTION E - INSPECTION AND ACCEPTANCE

E.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

E.2 INSPECTION AND ACCEPTANCE

E.3 RESPONSIBLE OFFICIAL

SECTION F - DELIVERIES OR PERFORMANCE

F.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

F.2 PERFORMANCE PERIOD

F.3 PLACE OF PERFORMANCE

F.4 PERFORMANCE MONITORING AND STANDARDS

F.5 DELIVERABLES

F.6 KEY PERSONNEL

F.7 ORDERING PROCEDURES

F.8 AIDAR 752.7005 SUBMISSION REQUIREMENTS FOR DEVELOPMENT

EXPERIENCE DOCUMENTS (SEP 2013)

SECTION G - CONTRACT ADMINISTRATION DATA

G.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

G.2 CONTRACTING OFFICER

G.3 IDIQ CONTRACTING OFFICER’S REPRESENTATIVE (COR)

G.4 CONTRACTOR’S PRIMARY POINT OF CONTACT

G.5 PAYING OFFICE

G.6 INVOICING INSTRUCTIONS

G.7 CONTRACTOR'S PAYMENT ADDRESS

G.8 TECHNICAL DIRECTION/RELATIONSHIP WITH USAID

SECTION H - SPECIAL CONTRACT REQUIREMENTS

NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

H.1 AIDAR 752.7007 PERSONNEL COMPENSATION (JUL 2007)

H.2 ADDITIONAL REQUIREMENTS FOR PERSONNEL COMPENSATION

H.3 AUTHORIZED GEOGRAPHIC CODE

H.4 AIDAR 752.225-70 SOURCE AND NATIONALITY REQUIREMENTS (FEB 2012)

H.5 USAID-Financed Third-party Web Sites (November 2017, ADS 302.3.5.19)

H.6 AIDAR 752.7004 EMERGENCY LOCATOR INFORMATION (JUL 1997)

H.7 AAPD 17-01 “Defense Base Act (DBA) Insurance for 2015-2020”

H.8 MEDICAL EVACUATION (MEDEVAC) SERVICES (JUL 2007) 752.228-70

H.9 AIDAR 752.245-1 GOVERNMENT FURNISHED FACILITIES OR PROPERTY (January 2017) 45

H.10 LANGUAGE REQUIREMENTS

H.11 ENVIRONMENTAL COMPLIANCE

H.12 CONFIDENTIALITY AND OWNERSHIP OF INTELLECTUAL PROPERTY

H.13 AUTHORIZED WORK WEEK

H.14 AIDAR 752.7034 ACKNOWLEDGMENT AND DISCLAIMER (DEC 1991)

H.15 AIDAR 752.231-71 SALARY SUPPLEMENTS FOR HOST GOVERNMENT

EMPLOYEES (MAR 2015)

H.16 FOREIGN GOVERNMENT DELEGATIONS TO INTERNATIONAL

CONFERENCES (ADS REFERENCE 350MAA)

H.17 EXECUTIVE ORDER ON TERRORISM FINANCING

H.18 AIDAR 752.229-71 REPORTING OF FOREIGN TAXES (July 2007)

H.19 USAID DISABILITY POLICY - ACQUISITION (DEC 2004)

H.20 CONFLICTS OF INTEREST

H.21 STANDARDS OF CONDUCT -- IMPROPER BUSINESS PRACTICES

H.22 AIDAR 752.7025 APPROVALS (APR 1984)

H.23 AIDAR 752.7032 INTERNATIONAL TRAVEL APPROVAL AND NOTIFICATION

REQUIREMENTS (APR 2014)

H.24 BUSINESS CLASS TRAVEL

H.25 CONTRACTOR’S USE OF PROJECT VEHICLES AND LIABILITY INSURANCE

REQUIREMENTS FOR PRIVATELY OWNED VEHICLES

H.26 DISCLOSURE OF INFORMATION

H.27 CONSENT TO SUBCONTRACT

H.28 NONDISCRIMINATION (JUN 2012) ADS 302.3.5.9

H.29 AIDAR 752.245-71 TITLE TO AND CARE OF PROPERTY (APR 1984)

H.30 MOBILE BANKING

H.31 GENDER CONSIDERATION

H.32 GRANTS UNDER CONTRACT (GUC) ADS 302.3.4.13

H.33 CONFERENCE PLANNING AND REQUIRED APPROVALS (AUG 2013)

H.34 LOGISTIC SUPPORT

H.35 SUBMISSION OF DATASETS TO THE DEVELOPMENT DATA LIBRARY (DDL) . 55

H.36 AIDAR 752.7036 USAID IMPLEMENTING PARTNER NOTICES (IPN) PORTAL

FOR ACQUISITION (JUL 2014)

H.37 RESTRICTIONS AGAINST DISCLOSURE (MAY 2016 AAPD 16-02)

H.38 MEDIA AND INFORMATION HANDLING AND PROTECTION

H.39 LIMITATION ON ACQUISITION OF INFORMATION TECHNOLOGY (APR 2018)

PART II - CONTRACT CLAUSES

SECTION I - CONTRACT CLAUSES

I.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

I.2 FAR 52.204-1 APPROVAL OF CONTRACT (DEC 1989)

I.3 FAR 52.229-8 TAXES-FOREIGN COST-REIMBURSEMENT CONTRACTS (MAR 1990)

I.4 FAR 52.203-19 PROHIBITION ON CONTRACTING WITH ENTITIES THAT

REQUIRE CERTAIN INTERNAL CONFIDENTIALITY AGREEMENTS (JAN 2017)

I.5 FAR 52.216-18 ORDERING (OCT 1995)

I.6 FAR 52.216-19 ORDER LIMITATIONS (OCT 1995)

I.7 FAR 52.216-22 INDEFINTE QUANTITY (OCT 1995)

I.8 FAR 52.204-25 PROHIBITION ON CONTRACTING FOR CERTAIN

TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT ... 66

I.9 FAR 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND

REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (APR 2014) .. 68

I.10 AIDAR 731.7013 CONTRACTOR-MISSION RELATIONSHIPS

I.11 FAR 52.204-23 PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE,

AND SERVICES DEVELOPED OR PROVIDED BY KASPERSKY LAB AND OTHER

COVERED ENTITIES (JUL 2018)

I.12 ELECTRONIC AND INFORMATION TECHNOLOGY ACCESSIBILITY

II. PART III – LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS

SECTION J - LIST OF ATTACHMENTS

PART IV – REPRESENTATIONS AND INSTRUCTIONS

SECTION K - REPRESENTATIONS, CERTIFICATIONS AND OTHER STATEMENTS OF

THE OFFEROR

K.1 NOTICE LISTING SOLICITATION PROVISIONS INCORPORATED BY

REFERENCE

K.2 FAR 52.204-8 ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2020)

K.3 FAR 52.204-24 REPRESENTATION REGARDING CERTAIN

TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT

(AUG 2019)

K.4 FAR 52.204-26 COVERED TELECOMMUNICATIONS EQUIPMENT OR SERVICES-

REPRESENTATION (DEC 2019)

K.5 FAR 52.209-5 CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT

2015) 77

K.6 FAR 52.209-7 INFORMATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)

K.7 FAR 52.209-11 REPRESENTATION BY CORPORATIONS REGARDING

DELINQUENT TAX LIABILITY OR A FELONY CONVICTION UNDER ANY FEDERAL

LAW (FEB 2016)

K.8 FAR 52.209-13 VIOLATION OF ARMS CONTROL TREATIES OR AGREEMENTS-

CERTIFICATION (JUNE 2018)

K.9 FAR 52.222-22 PREVIOUS CONTRACTS AND COMPLIANCE REPORTS (FEB 1999) . 81

K.10 FAR 52.222-25 AFFIRMATIVE ACTION COMPLIANCE (APR 1984)

K.11 FAR 52.225-2 BUY AMERICAN CERTIFICATE (MAY 2014)

K.12 FAR 52.230-1 COST ACCOUNTING STANDARDS NOTICES AND

CERTIFICATION (OCT 2015)

K.13 FAR 52.230-7 PROPOSAL DISCLOSURE – COST ACCOUNTING PRACTICE

CHANGES

K.14 INSURANCE - IMMUNITY FROM TORT LIABILITY

K.15 AGREEMENT ON, OR EXCEPTIONS TO, TERMS AND CONDITIONS

K.16 SIGNATURE

SECTION L – INSTRUCTIONS, CONDITIONS, AND NOTICES TO OFFERORS OR

RESPONDENTS

L.1 FAR 52.252-1 SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

L.2 FAR 52.252-1 SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

L.3 FAR 52.215-1 INSTRUCTIONS TO OFFERORS - COMPETITIVE ACQUISITION (JAN

2004) 86

L.4 FAR 52.233-2 SERVICE OF PROTEST (SEP 2006)

L.5 GOVERNMENT OBLIGATION

L.6 GENERAL INSTRUCTIONS

L.7 DELIVERY INSTRUCTIONS

L.8 INSTRUCTIONS FOR THE PREPARATION OF THE TECHNICAL PROPOSAL

L.9 INSTRUCTIONS FOR THE PREPARATION OF THE COST/BUSINESS PROPOSAL . 96

SECTION M - EVALUATION FACTORS FOR AWARD

M.1 GENERAL INFORMATION

M.2 TECHNICAL EVALUATION CRITERIA

M.3 COST/PRICE EVALUATION

M.4 COMPETITIVE RANGE DETERMINATION

M.5 SOURCE SELECTION

M.6 AWARD

ATTACHMENT J.1 - TASK ORDER 01

I. PART I - THE SCHEDULE

SECTION B - SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE

The purpose of this contract is to provide services that fall within the Scope of Work (SOW) specified in Section C for Effective Justice. USAID Task Order Contracting Officer s (TOCOs) will request the work through the issuance of task orders during the ordering period as specified in Section F of the contract.

B.2 CONTRACT TYPE AND SERVICES

This is an Indefinite Delivery/Indefinite Quantity (IDIQ) type contract. The Government will issue task orders that are Cost-Plus-Fixed-Fee (CPFF) (term or completion) or any Firm Fixed-Priced type.

B.3 MINIMUM OBLIGATED AMOUNT

As required by FAR 16.504(a)(1), the minimum amount of services to be ordered under this IDIQ is $100,000. USAID shall be required to order, and the Contractor shall be required to furnish, the minimum amount of services. Following this initial obligation, individual task orders will obligate funds to cover the work required under that task order.

B.4 MAXIMUM CONTRACT CEILING

This is a single award Indefinite Quantity Contract (IDIQ) with an overall ceiling price of $19,500,000 for Justice sector. The maximum aggregate dollar value of task orders awarded cannot exceed the contract ceiling.

B.5 FIXED FEE CEILING (Cost Plus Fixed Fee Task Orders Only)

NOTE: The ceiling on fixed fee does not apply to Fixed-Priced Task Orders.

(a) For each cost-reimbursement task order issued under this IDIQ, the TOCO and Contractor agree to negotiate a set dollar amount for fixed fee. In negotiating the fixed dollar amount for fee, the TOCO must consider the policies and factors for establishing fee in FAR 15.404-4 as well as any applicable USAID policy on establishing a fixed fee amount. In no event, however, may the amount of fixed fee in any individual task order exceed [TBD]% of the task order’s estimated cost, excluding fee.

The fixed fee ceiling applies to the prime contract and all cost reimbursement subcontracts. This fee must not be applied in addition to sub-grant cost fees (if applicable) which has a separate ceiling established below.

(b) The Total Estimated Cost -Plus- Fixed- Fee for each Task Order must be negotiated in accordance with the terms of this contract.

(c) Fixed Fee Payment. For any Task Order issued under this Contract, at the time of each payment of allowable costs to the contractor, the USAID paying office ordinarily pays the contractor a percentage of fixed fees that directly corresponds to the percentage of allowable costs being paid. Two exceptions to paying fixed fee in this manner apply:

(1) If the TOCO determines that this method results in paying a disproportionately higher ratio of fixed fee than the percentage of work that the contractor has completed, then the TOCO may suspend further payment of any fixed fee until the contractor has made sufficient progress to justify further payment, up to the agreed percentage.

B.6 APPROVED MAJOR SUBCONTRACTORS

Major subcontractors are those expected to perform at least 20% or a prominent part of the technical effort and approved by the IDIQ CO in accordance with FAR part 52.244-2 and part 44.202-2.

Name TBD

TOCO’s may grant separate subcontract approvals for subcontractors not listed above for task orders in accordance with FAR part 52.244-2 and 44.202-2.

B.7 INDIRECT COSTS AND ADVANCED UNDERSTANDING ON CEILINGS

[Indirect rates are only applicable to cost reimbursement task orders.]

Pending establishment of revised provisional or final indirect cost rates, allowable indirect costs must be reimbursed on the basis of the following negotiated provisional or predetermined rates and the appropriate bases for prime contractors. and their major subcontractors (“major subcontractors” are those subcontractors expected to perform at least 20% or a prominent part of the technical effort):

Offeror Fringe Rate

Overhead Rate %

Overhead Ceiling Rate %

G&A Rate %

G&A Ceiling Rate %

PRIME (Insert Name) Base of Application Source: (insert) Period: (insert)

SUBCONTRACTOR(S)

Name (s))

Base of Application Source: (insert) Period: (insert)

NOTE: Insert additional indirect rates as needed for all primes and major subcontractors in the above table.

*Special Note: The un-shaded columns in the indirect cost table are the current approved indirect cost rates for the prime and major subcontractor(s).

The Contractor will make no change in its established method of classifying or allocating indirect costs that impacts this contract without the prior written approval of the Contracting Officer.

Reimbursement for indirect costs must be at final negotiated rates, but not in excess of ceiling rates specified above.

The Government must not be obligated to pay any additional amount associated with indirect costs above the ceiling rates established in the contract. This advance understanding must not change any monetary ceiling, cost limitation, or obligation established in the contract.

NOTE: For Fixed-priced Task Orders, the overhead ceilings serve as a basis for negotiation only.

Note: Contractors are allowed to recoup indirect costs (OH, G&A, etc.) as other direct costs if it is part of the contractor’s usual accounting procedures, consistent with FAR Part 31 and the contactor’s NICRA.

END OF SECTION B

SECTION C –STATEMENT OF WORK

C.1 EFFECTIVE JUSTICE (IDIQ) GOAL

The goal of Effective Justice is to foster an efficient, accessible and transparent justice system that uniformly applies the rule of law. Effective Justice will be implemented nationwide, including national level institutions based in Chisinau, in courthouses, with legal professionals at all levels, and with justice service users throughout Moldova.

C.2 BACKGROUND AND CONTEXT

Moldova is a small Eastern European country strategically located between Ukraine and Romania. Historically, Moldova has been a part of greater Romania, the former Soviet Union, and, since 1991, an independent republic.

After declaring independence in 1991, the country has undertaken several series of judicial reforms to harmonize national legislation and practice with international norms, particularly with regards to rule of law, human rights and fundamental freedoms. The Republic of Moldova is a civil law country and has been a party to the European Convention on Human Rights (ECHR) since 1997 and of the International Covenant on Civil and Political Rights since 1993. According to Moldova’s Constitution the country is governed, “by the rule of law, is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed."

Over the past decade, Moldova has made progress reforming legislation that governs the judiciary, but complete implementation of many of these reforms has proven difficult. Subservience of the judiciary to political interests, both in actuality and in perception, remains a challenge. Institutional impediments to complete judicial independence remain, including a five-year probation period for new judges, non-transparent and non-merit-based promotion and transfers, the threat of criminal prosecution for decisions, and political influence over the hierarchy of justice sector institutions. In practical terms, the lack of judicial independence is reflected particularly in high profile cases where political or commercial interests are present. The situation has resulted in low public trust in the judiciary with Transparency International Global Corruption Barometer (GCB) survey indicating that 71 percent of Moldovans perceive that there is corruption in Moldovan courts. This perception is exacerbated by events of the past several years. In late 2014, $1 billion or approximately 12% of the country's gross domestic product disappeared from the banking system and few people have been prosecuted. In addition, Moldovan courts played a prominent role in facilitating the global laundromat scheme, whereby upwards of $20B in illicit funds were transferred from Russia to banks in Europe and the United States. Later in 2018, political control of the courts was used to overturn the results of the election for the mayor of Chisinau, prompting major donors to suspend budget support.

2019 began a new wave of judicial reform attempts, including development of draft legislation proposing the creation of an extraordinary judicial vetting commission which would evaluate leadership of Moldova’s judicial institutions, in particular the judges of the Supreme and Appellate courts and other bodies of justice (the Superior Council of Magistracy and its colleges; the Superior Council of Prosecutors and its colleges; the National Integrity Authority;

and the National Anticorruption Center). Efforts towards these reforms have been incremental and highly politicized, slowed by the complexity and sometimes obstructed by embedded interests. This indefinite-delivery, indefinite-quantity (IDIQ) contract is designed with the recognition that as the situation in Moldova develops, there remains an opportunity to improve accessibility, quality and accountability of justice. Whether these attempts are macro level and systemic or micro-level targeted at the end-user, will be determined by the operating environment.

As current events allow, this IDIQ will enable the issuance of Task Orders to respond to both ongoing efforts as well as respond to windows of opportunity.

Structure of the Judiciary The Superior Council of Magistracy (SCM) is the main governing body of the judiciary, with responsibility for judicial appointments, evaluation of judicial performance, promotions, inspection and disciplinary matters. The SCM has been composed of 12 members, including three ex officio members: the President of the Supreme Court of Justice (SCJ), the Minister of Justice (MJ), and the Prosecutor General (PG); three law professors elected by Parliament; and six judges elected by the General Assembly of Judges representing all court levels. In early 2020, legislation passed which adds two additional law professors selected by the Ministry of Justice and a 7th judge that would increase the total council members to 15, as well as reform the procedure for the election of judicial members.

This reform is occurring while an active effort by a group of judges is underway to remove and replace the judicial members of the SCM.

The Moldovan court system is organized in three levels: first instance district courts (15), appellate courts (4) and the SCJ. Moldova has approximately 2,600 judges and court staff among these levels.1 Law number 76, passed in 2016, stipulates the process for complete reorganization of the judiciary. It sets out a ten-year process (2017-2027) for complete restructuring, reducing the number of district courts by collapsing the jurisdiction of 44 district courts to its current level. Each court (trial, appellate and the SCJ) is headed by a President of the Court (Chief Judge), who coordinates the work of other judges, and appoints a head of administration. By law, Moldovan judges are independent, impartial and immovable in the exercising of their authority. In practice, this independence is constrained by other laws, policies, norms and pressures, which are discussed further below.

C.3 CHALLENGES

The last decade can be characterized by the declared intention of a succession of Moldovan governments to undertake drastic judicial reforms. In 2011, the Justice Sector Reform Strategy (JSRS) 2011-2016 was developed and adopted. In 2016, the JSRS was extended for an additional year to allow for the implementation of unfulfilled activities, as well as the drafting of a new strategy, both of which were not completed. Although implementation is incomplete, one of the most visible outcomes of the Justice Sector Reform Strategy was increasing judges’ salaries.

These increases occurred in three stages, in 2014, 2016 and 2018 salaries for judges are now triple those of 2013.

While this is an improvement for what was once the lowest salaries of any Council of Europe member, it is still below recommendations of the European Charter on the Statue of Judges which calls for a level of remuneration to “shield them from pressures intended to influence their decisions or judicial conduct in general, impairing their independence and impartiality.”2

During the years of the JSRS, improvements were made in the legislative and regulatory environment of the judicial sector. Moldova is now considered to have a relatively well-developed legal framework which, if properly enforced, would support a well-functioning justice sector. However, adoption and implementation of these reforms has been limited. This is in large part resulting from obstructive efforts by key actors in the system, as well as the lack of political will of successive governments to actually and meaningfully reform the system. Additionally, systemic difficulties of resource allocation, adequate infrastructure, data collection, staff turnover, access, and transparency hinder the effectiveness of Moldova’s rule of law institutions.

Major challenges faced by the Moldovan judiciary include the following:

1. The system for selection and promotion of judges has major deficiencies.

1 World Bank Report No. 124516-MD. Improving Access to Justice: From Resources to Results. 2018.

http://documents.worldbank.org/curated/en/683491537501435060/Main-Report 2 Council of Europe. European Charter on the Status of Judges. July 1998. https://rm.coe.int/16807473ef http://documents.worldbank.org/curated/en/683491537501435060/Main-Report https://rm.coe.int/16807473ef

Despite recent changes to legislation to strengthen a merit-based selection and appointment process, the most recent selection committee to fill position vacancies held in August of 2019, while improved, still did not fully follow procedures. The SCM conducted more than 50 interviews consisting of only three questions in a single day. When final results were published, candidates with the highest scores before interviews were supplanted by interviewees with personal connections with the committee. The decision providing final scores did not provide sufficient justification for these results. Moreover, judges are still appointed for an initial mandate of 5 years before having to reapply for a permanent career appointment, a condition that may seriously affect their independence. In addition, the Parliament continues to play a dominant role in appointing judges of the Supreme Court, which politicizes the appointment of SCJ judges.

2. The mechanism for disciplining judges is flawed.

The present mechanism for disciplining judges is not effective. The Judicial Inspection Board is severely under resourced to adequately review the number of disciplinary cases and there are not enough judicial inspectors. There are also questions of conflict of interest, as the same officials who initially review cases are also members of the final Disciplinary Board and vote on cases they previously heard. Judicial Inspectors are current or retired judges calling into question whether they can fully be impartial when reviewing cases involving current and former colleagues.

Anecdotal stories emerged for cases where inspectors were inclined to dismiss errors among people they know as inadvertent mistakes, thus avoiding sending incidents for further disciplinary review. There is a widespread public perception that the SCM and its review mechanism does not act uniformly in dealing with disciplinary cases, favoring certain judges over others.

3. Transparency and accountability of courts are negatively affected by excessive anonymization of court judgments.

In particular, since 2016, the courts have started anonymizing court judgments (using “XXX” in place of names) of the parties involved in the trial, including legal entities, and, in some cases, even redacting the names of judges, prosecutors and state authorities. Such practices contradict the standards on data protection representing a severe barrier for investigative journalists, civil society and interested citizens and diminishing transparency and accountability.

4. Court resources are limited.

Although Moldova’s court system receives a comparatively high percentage of government expenditures relative to other countries in the region, currently at 0.48 percent of GDP, the country’s persistent poverty provides only EUR 8 per inhabitant leaving courts chronically under resourced and well below the EUR 52 per inhabitant median for the region.3 Equipment utilized within the courts has largely been provided by international donors. Although the equipment is maintained to remain operational, there is no adequate budget for its replacement resulting in dated equipment that is beyond its useful life span and often unable to run modern software.

5. IT infrastructure is not appropriately planned.

In addition to upgrading physical locations, Moldova plans to modernize its justice sector information systems. The World Bank’s recent assessment4 indicated that advances in technology and good practices from neighboring

3 Council of Europe. European Judicial Systems: Efficiency and Quality of Justice. CEPEJ Studies No. 26. 2018 Edition. https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c 4 World Bank Group. Report No. 124516-MD. Moldova--Improving Access to Justice: From Resources to Results, A Justice Sector Public Expenditure and Institutional Review. 2018 https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c countries, if adopted in Moldova, could reduce corruption and performance issues while reducing operational costs.

However, current GOM information and communication technologies (ICT) modernization plans address each sector entity individually and are not taking the opportunity to develop solutions in coordination with relevant justice entities or leveraging existing applications and capacities. Moldova’s current justice sector ICT environment has numerous stakeholders, objectives and activities that are not aligned under a single ICT sector strategy.

Implementers find a fragmented and complex organizational structure to operate in with the Ministry of Justice (MOJ) and its Agency for Court Administration (ACA), the SCM, the SCJ and the Center for Special Telecommunications (CST) all tasked with different aspects of implementing an e-justice system. Domestic funding in this area does not match the level of priority the government claims. Annual allocations are currently inadequate for medium-to-long-term planning and there is no allocation for maintaining, supporting and enhancing existing systems.

6. Access to justice is limited.

Access remains an issue for vulnerable groups. The report of the UN’s Special Rapporteur5 on the right of person with disabilities found that persons with disabilities face a number of issues when dealing with the court system.

Issues include denial of procedural accommodations, accessibility of court buildings even after renovation, lack of court staff understanding appropriate accommodations for persons with disabilities, and access to legal assistance. In addition to those with disabilities, Moldova’s population is still primarily rural, which directly increases the difficulty of accessing justice. The planned reduction in courthouses and the preference for judges to be located in Chisinau create shortages outside urban areas. Outside of a few locations, the majority of physical court facilities are in disrepair and not suitable for modern court operations. Chronic overcrowding and a shortage of dedicated courtrooms in Moldova’s courts regularly lead to hearings in judges’ offices, where they cannot benefit from existing audio recording systems nor be uploaded to the Integrated Case Management System (ICMS), reducing transparency and integrity. The GOM’s current strategy is to build new central courthouses. However, this process is expected to take ten years and resources for construction have not been identified.

For victims of domestic violence, once inside the court system other challenges remain. Those suspected of committing offences are by law, but not always in practice, provided legal representation for free if they cannot afford it. Additionally, judges, prosecutors and law enforcement often harbor dismissive attitudes to female victims of domestic violence.

7. The career progression of judges is not merit-based.

A merit-based system of appointing candidates is an essential condition for ensuring an independent, responsible and professional judiciary, yet the current structure of judicial hiring enables both outside and inside influence and reduces independence. As noted in the World Bank’s recent assessment6, the system for selecting and promoting judges is flawed. Two issues emerge from the current process: ignoring impartial candidate scoring and reserving slots for non-competitive appointments.

documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13- 2018.pdf 5 UN General Assembly Human Rights Council. Report of the Special Rapporteur on the rights of persons with disabilities on her mission to Moldova. Febarury 2016. undocs.org/en/A/HRC/31/62/Add.2 6World Bank Group. Report No. 124516-MD. Moldova--Improving Access to Justice: From Resources to Results, A Justice Sector Public Expenditure and Institutional Review. 2018 documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13- 2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://undocs.org/en/A/HRC/31/62/Add.2 http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf

Currently, the SCM appoints judges through a Selection Board after applicants have successfully completed several stages, including testing. However, the SCM frequently selects candidates who do not have the highest scores and fail to justify the decision. Although the legal framework is generally in line with European standards, its implementation results in a non-merit-based system for selecting judges. Recent reforms have reduced the SCM’s ability to affect final scores but implementation by enacting officials remains an issue.

Hand-picking candidates and reserving slots for preferred judges is an issue at all levels of the Judiciary. In recent years, the majority of court leadership positions (court presidents and vice presidents) have been noncompetitively filled. A single candidate was considered in 65% of appointments at first instance courts, 83% in courts of appeal and 100% of appointments to the SCJ.7 The prevalent belief is that these positions are retained for those with political connections. This belief is supported by the lack of sufficient reasoning and reporting by the SCM on their decisions.

8. Access to information is restricted.

Given the apparent influence of interest groups over the judiciary, it is not surprising that surveys indicate that more than 60 percent of citizens and businesses feel that an ordinary citizen or a businessman is unlikely to get a fair trial8.

The World Bank assessment found income levels are a determinant in accessing information and resources related to the justice sector. Lower-income individuals had the least access to information and found cost to be a barrier.

It is not only the public facing limited information. During the selection process, a mandatory integrity assessment is conducted by the intelligence service. These reports are not shared and a candidate is unable to refute accusations or appeal a decision. Under this procedure, candidates without connections can be removed from consideration without explanation and a sitting judge can be dismissed with no reason offered to the public record.

In terms of information on particular cases, measures have been undertaken to increase the transparency of the judicial system. Utilizing the Integrated Case Management System Version 5, trial decisions are made publicly available through web portals of Moldova’s courts and each courtroom has the ability to audio-record hearings.

However, steps are often taken to work around these constraints. The Group of States against Corruption’s (GRECO) fourth evaluation9 noted that the rule on public disclosure of decisions has not been consistently implemented with “numerous” links to decisions leading to a blank page. High-profile cases are held in private hearings for “national security reasons.” In other cases, information is redacted from court decisions citing the law on data protection. Reports have noted that the SCM and the SCJ do not release nor provide sufficient reasoning in cases involving the disciplining of judges.

USAID’s recipient Legal Resources Centre of Moldova (LRCM) found that the SCM does not have a written and publicly available policy on the criteria and procedure for granting bonuses for jubilees, professional holidays and non-working holidays in the judiciary. Even the drafting of the sector’s budget is not transparent. Court presidents

7Legal Resources Center Moldova. Selection and Promotion of Judges in the Republic of Moldova—Challenges and Needs. July 2017. http://crjm.org/wp-content/uploads/2017/12/CRJM-Selectia-si-cariera-jud-2017-ENG.pdf 8World Bank Group. Report No. 124516-MD. Moldova--Improving Access to Justice: From Resources to Results, A Justice Sector Public Expenditure and Institutional Review. 2018 documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13- 2018.pdf 9 Council of Europe Group of States Against Corruption. Fourth Evaluation Round. July 2016.

www.cna.md/public/files/grecoeval4rep20166_moldova_en.pdf http://crjm.org/wp-content/uploads/2017/12/CRJM-Selectia-si-cariera-jud-2017-ENG.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://www.cna.md/public/files/grecoeval4rep20166_moldova_en.pdf and judges are not involved in budgetary planning and drafting, nor is the draft budget published to allow for public consultation and comments, a phenomenon criticized in evaluation reports.10

9. Use of Alternative Dispute Resolution is limited.

Legislation establishing mediation and arbitration as a means to resolve commercial and civil disputes was codified only in the last decade. While use of ADR has increased year on year, it represents only a small percentage of reviewed disputes compared to the number of lawsuits filed in courts. For instance in 2018, there were 4,589 commercial cases submitted to courts of first instance, and 372 commercial cases submitted to the Mediation Council (only 8%).11 With no formal mechanism for disputes to be mediated before trial, Moldova’s courts have seen an increase in their case backlog in recent years. This represents a missed opportunity for disputes to be quickly resolved both reducing resource demands on courts and facilitating rapid resolution of commercial disputes to enable an improved business and investment climate.

10. Rights and protections for underage victims and witnesses

The Moldovan justice system has traditionally treated children in contact with the law as adults, applying the same investigative and interviewing techniques. This approach is also applied to adolescent victims of violence and abuse potentially furthering mental harm. Surveys indicate Moldovan youth face higher levels of sexual and physical violence then are reported to authorities. Victims express the stigma, fear of additional trauma during legal procedures, low levels of prosecution, and lack of support as reasons for not reporting crimes.12

11. Judicial and legal environment for businesses

Various issues found within Moldova’s justice sector directly affect the business enabling environment. and other systemic issues in the handling of commercial law inhibit Moldova’s standing as an investment destination. The latter includes ambiguity in enforcement and reporting responsibilities in matters regarding commercial law, and unequal application of the law. According to a 2017 survey of court users, almost two thirds of businesses have a negative opinion of the Moldovan courts and 68% believe that fair court proceedings are not available for an ordinary business.13 Businesses also report that precedents created by court decisions that affect their commercial interests are not well communicated or disseminated to the wider business community. This creates and uneven playing field where connected individuals can operate with impunity and increases the risk of investing in Moldova.

The timeframe to adjudicate cases also increases corporate risk for private sector interests in Moldova. The current estimation is that is it takes 585 days to enforce and resolve a contract dispute through Moldova’s courts.14 Broader use of alternative dispute resolution (ADR) is one means to transfer low level disputes to mechanisms outside of the formal judicial system, fostering earlier resolution and reducing demands on the court system. To date however, 10 Legal Resources Center Moldova. Monitoring Report: Transparency and Efficiency of the Superior Council of Magistracy of the Republic of Moldova January 2015 – March 2016 http://crjm.org/wp-content/uploads/2016/08/CRJM_Raport-CSM-2016-ENG-WEB.pdf 11 SCM. Report on Judicial Statistics. June 9, 2018. https://csm.md/files/Statistica/2018/9_luni/Judecatori.pdf 12 VACS Moldova 2019, Draft CDC Report To be published March 2020 13 Report No. 124516-MD MOLDOVA: Improving Access to Justice: From Resources to Results A Justice Sector Public Expenditure and Institutional Review 2018 Governance Global Practice The World Bank documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13- 2018.pdf 14 https://data.worldbank.org/indicator/IC.LGL.DURS?locations=MD http://crjm.org/wp-content/uploads/2016/08/CRJM_Raport-CSM-2016-ENG-WEB.pdf http://crjm.org/wp-content/uploads/2016/08/CRJM_Raport-CSM-2016-ENG-WEB.pdf https://csm.md/files/Statistica/2018/9_luni/Judecatori.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf http://documents.worldbank.org/curated/en/683491537501435060/pdf/Moldova-JSPEIR-English-Version-Sep-13-2018.pdf https://data.worldbank.org/indicator/IC.LGL.DURS?locations=MD uptake of ADR has been slow both in use of mediation and in arbitration. There have also been issues with judicial validation of decisions made by arbitration courts.

C.4 OPPORTUNITIES

Building on past reforms and programs: Between 2011 and 2017, an ambitious JSRS was put in place as part of the Association Agreement with the EU. Although the strategy was not fully implemented, a number of important legislative and regulatory reforms were passed. Moldova is now considered to have a legal structure substantially in line with international best practices and EU norms. Previous USAID programming assisted the National Institute of Justice (NIJ), SCM, and ACA in building a basic structure for human capital development, resource allocation, and regulatory framework. If there is sufficient political will, the opportunity exists to continue the progress made during the JSRS, with significant focus on evaluating and improving the professionalism and integrity of judges and prosecutors.

Engagement by the International Community: International donors are highly engaged in the justice sector in Moldova.

While this creates challenges in coordinating efforts and the potential for duplication of effort, the increase in resources and the priority of the justice sector provides an opportunity for a whole-of-sector approach to reforming judicial institutions.

Utilization of IT Solutions: Successive years of USAID programming have provided various IT solutions that if fully implemented and thoughtfully deployed in a whole of system approach will bring greater transparency and efficiency to the judiciary. However, too many initiatives remain disjointed and do not function as a whole. Version 5 of the ICMS enables interoperability with other E-governance databases expediting administrative processes and reducing human errors. At the same time, every courtroom has been equipped with audio recording equipment for transparency and record keeping but has yet to be integrated with the ICMS. Each courthouse has also been provided with video conferencing equipment. During piloting, the equipment showed great potential to decrease costs of transporting detainees and improve scheduling. However, regulations creating uniform practices and ensuring protections of litigants’ rights are still in development and the equipment is underutilized. Advances in technology and proven practices from neighboring countries suggest that Moldova could mitigate many corruption and performance issues if ICT-based solutions were harnessed appropriately.

C.5 LINKAGES TO USG POLICIES AND STRATEGIES

As stated in the USAID Policy Framework: Ending the Need for Foreign Assistance15, facilitating equitable access to security and justice, building social and economic ties among communities, and strengthening mediation and alternative dispute-resolution mechanisms are parts of the multi-pronged approached required to confront the underlying dynamics of fragility and prevent crises.

USAID/Moldova’s Country Development Cooperation Strategy16 (CDCS) asserts that by working to consolidate Moldova’s democratic institutions and processes, the country can expedite its economic potential for the benefit of all citizens. At the same time, without improvements in Moldova’s ability to control corruption and give citizens an active voice in government, there is little hope of increasing investor confidence and strengthening the country’s

15USAID Policy Framework: Ending the Need for Foreign Assistance. April 2019.

https://www.usaid.gov/sites/default/files/documents/1870/WEB_PF_Full_Report_FINAL_10Apr2019.pdf 16 USAID Moldova Country Development Cooperation Strategy 2013 – 2020.

https://www.usaid.gov/sites/default/files/documents/1863/moldova-CDCS-FY13-17_updated20202.pdf https://www.usaid.gov/sites/default/files/documents/1870/WEB_PF_Full_Report_FINAL_10Apr2019.pdf https://www.usaid.gov/sites/default/files/documents/1863/moldova-CDCS-FY13-17_updated20202.pdf private sector. This activity falls within CDCS Development Objective 1: More Accountable and Effective Democratic Governance. USAID/Moldova aims to foster an efficient, accessible and transparent justice system that uniformly applies the rule of law. The development hypothesis supporting this objective is that in Moldova, if citizen demand for good governance, enforced by a fair and impartial judicial system, meets with strengthened local government capacity, then more effective and accountable democratic governance will result.

C.6 LINKAGES TO OTHER USG ACTIVITIES

USAID’s Media-M program provides support to independent outlets for quality reporting, including investigative journalism that provides oversight of government reforms, promises, and functioning, including in the justice sector.

USAID also supports the Legal Resources Center Moldova to improve rule of law and accountability of the justice system in Moldova via active civil society oversight and participation in decision-making processes. The State Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL) Law Enforcement and Criminal Justice Sector Programs assist Moldova’s law enforcement institutions to meet European and international standards.