72012118C00004-09-ERA_Justification.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN COMPETITION ACTION

MEMORANDUM

TO: Carter Sanders, Regional Contracting Officer

CC: Deborah Broderick, Agency Competition Advocate

FROM: Larissa Piskunova, Project Management Specialist, Office of Economic Growth

DATE: June 23, 2023

RE: Economic Resilience Activity (ERA), Contract No. 72012118C00004

SUBJECT: Justification and Approval for Other than Full and Open Competition (J&A) under the Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova

1. This document sets forth the facts and rationale justifying the use of other than full and open competition.

Approval is requested for the justification for use of other than full and open competition pursuant to the authorities under the Expedited Acquisition and Assistance Procedures (EPP) for Ukraine, Belarus, and Moldova, approved on March 6, 2022. Your approval of this Justification and Approval (J&A) constitutes the justification for other than full and open competition as required by Tab 1 (D&F for the Authorization of Less than Full and Open Competitive Procedures in the Modification or Award of Contracts) of the EPP.

RECOMMENDATION

We recommend that you approve this justification for use of other than full and open competition pursuant to the Action Memorandum “Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova” approved on March 6, 2022. Your approval of this J&A constitutes the justification for other than full and open competition as required by Tab 1 (D&F for the Authorization of Less than Full and Open Competitive Procedures in the Modification or Award of Contracts) of the EPP.

2. The nature and/or description of the action being approved.

This is a request to approve a contract modification to increase the total estimated cost (TEC) of contract No. 72012118C00004, the Economic Resilience Activity (ERA), implemented by DAI.

The proposed modification will increase the TEC by $195,000,000, from $130,000,000 to a new TEC of $325,000,000, including new optional quantities for BCP beyond the initial maximum of nine.

Carter Sanders, Regional Contracting Officerff

Deborah Broderick, Agency Competition Advocate

Larissa Piskunova, Project Management Specialist, Officeff of Economic Growth

DAI.

ERA is a program designed to foster Ukrainian economic resilience in the face of Russia’s invasions. ERA is part of the interagency Agricultural Resilience Initiative to bolster Ukrainian agricultural production and exports and to help alleviate the global food security crisis exacerbated by Putin’s brutal war on Ukraine. The additional funding would allow ERA to work to eliminate bottlenecks and increase Ukrainian agricultural exports and to engage in new areas of reconstruction. Specifically, ERA will procure equipment to facilitate grain export and renovate in their entirety two or more border crossing points (BCPs) and design and provide construction management services for up to seven additional BCPs that are needed along Ukraine’s borders, pending optional quantities as described below.

3. Description of the supplies or services required, including an estimated value:

Specifically, increased support to mitigate the economic impacts of Russia’s expanded invasion will be provided under the Activity’s objective 3:

Objective 3. Build confidence in the future of the Ukrainian economy: The contractor will continue to address the long-term economic trajectory by helping MSMEs and partner communities thrive in the transformed economy. Additionally, under Objective 3, the Contractor will help MSMEs and partner communities thrive in the transformed economy by: 1) delivering bulk agricultural product conveyors, telehandlers, loading tractors, and generators to grain producer alliances; 2) securing temporary grain storage facilities for grain producers; 3) researching and procuring port terminal ferry transshipment equipment including loaders, trailers, and container stuffers; 4) providing targeted support for manufacturing revival, with accent on localizing the reconstruction and energy transformation value chains; and 5) improving border crossing facilities through design and rehabilitation.

These works can quickly alleviate pressures on Ukraine’s degraded and inadequate infrastructure, providing rapid economic returns as a result of increased throughput of goods and people. The Ukrainian Ministry of Restoration (MOR) places a high priority on the reconstruction of the BCPs. The MOR identified the following nine priority border checkpoints (BCPs) requiring various types of improvements: Yagodyn/Dorogusk (Poland); Ustulug/Zosyn (Poland); Chop/Zakhon (Hungary); Uzhhorod/Vyshne Nemetske (Slovakia); Maly Berezny/Ublya (Slovakia); Luzhanka/Beregshuran (Hungary); Bila Tserkva/Sigetu (Romania); Porubne/Siret (Romania); and Reni (Moldova). The contractor will reconstruct two or more of these nine and provide design and construction management services on up to seven of the remaining BCPs. Needed assistance includes expanding an “electronic queue” system, installing new and improved signage, reconstructing/improving border buildings to improve movement flows, building renovations, maintenance of cargo weighing systems, and reconstruction/construction of canopies, etc. These improvements are expected to increase throughput between 40% and 100% depending on the BCP.

There are a total of approximately 42 BCP identified for reconstruction in order to support the overarching objective of tripling Ukraine’s export capacity. As noted above, ERA will reconstruct a minimum of two and a maximum of nine BCPs at an initial wachakzai Highlight estimated cost of approximately $500,000 each, meaning provide design and infrastructure services (e.g. construction and A&E). If Ukraine’s new State Agency for Restoration and Development of Infrastructure (SARDI) can not undertake the reconstruction under a Government-to-Government (G2G) with USAID, then the best alternative for USAID is to utilize ERA’s construction capability for those also beyond the initial planned maximum of nine. The remainder of the BCP construction will be an optional quantity to be exercised at USAID’s discretion and contingent upon USAID not completing the preferred approach of completing the remaining construction works via G2G with the GOU.

None of this assistance, either in terms of structures designed/constructed, equipment purchased, or training to accompany construction or equipment, will be provided as assistance to the State Border Service of Ukraine or other law enforcement entities.

4. Statutory authority permitting other than full-and-open competition:

AIDAR 706.302-70(b)(3)(ii) and 40 U.S.C. §113; see Action Memorandum entitled, Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova, approved on March 6, 2022.

5. A discussion of the proposed contractor’s unique qualifications or the nature of the acquisition that requires use of the authority cited:

DAI is uniquely positioned to implement the new activities that will focus on work to eliminate bottlenecks and expand Ukrainian agricultural exports, for the following reasons:

a. Complementarity with Existing Programming: DAI is the current implementer of ERA, and an increase in funding will allow DAI to seamlessly build upon the activities and efforts already supported through ERA. For example, DAI is already responding within current scope working closely with the government authorities, private and public logistics and transport companies, and rail, port, and terminal operators in Ukraine and in bordering countries to identify emerging needs and doing relevant assessments.

b. Operations: Since ERA’s inception in 2018, DAI has demonstrated the ability to adjust staffing to the fluid activity implementation needs since Russia’s invasion and will be able to adjust in response to programming expansion needs now. DAI staff have continued to perform admirably and without interruption since Russia’s invasion.

DAI has established processes, systems, and mechanisms including for A&E to effectively implement these interventions and has already developed the networks, confidence among stakeholders, and trust among beneficiaries to successfully complete the proposed work. A new Contractor would require significant additional time and resources to establish itself in the volatile and fluid operating environment in Ukraine—where there is an ongoing war—and put operational systems and processes in place, thereby causing unnecessary delay and risking delays in providing assistance to the people of Ukraine.

DAI

DAI

DAI

wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight

c. Technical Expertise: DAI has a pool of highly qualified short- and long-term staff and consultants to implement technical activities, including A&E. DAI’s technical team has developed great expertise as a result of working with Oblast Administrations in eastern and throughout Ukraine and with several Ministries and Agencies nationwide during the past five years of successful performance. This collaboration has provided DAI technical staff with a wide knowledge and a deep understanding of the economic strengths, weaknesses, and opportunities across the eastern region and nationwide. This uniquely qualifies DAI to effectively implement the increased requirements and pursue activities to effectively eliminate bottlenecks and expand Ukrainian agricultural exports.

d. Relationships with Key Stakeholders: Over the course of almost five years, DAI has developed strong relationships with stakeholders in eastern Ukraine and nationwide.

DAI maintained productive coordination with public institution beneficiaries before and after Russia’s invasion in February 2022. Since the start of the war, DAI provided assistance to the Ministry of Reintegration of Temporarily Occupied Territories, Ministry of Restoration, Ministry of Economic Development and Trade, Ministry for Communities and Territories Development, Ukrainian Railways, and recently created the State Agency for Reconstruction and Development of Infrastructure, thereby effectively building confidence in the future of the Ukrainian Economy.

6. A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable:

Publication of a notice is not reasonable per the determination at AIDAR 705.202(b) under the circumstances. Due to the urgent nature of the needed assistance to respond to the immediate economic disruption from the wartime, it was not practical to solicit offers from potential sources.

7. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable:

By signing below, the Contracting Officer determines that the anticipated costs will be fair and reasonable, and in the best interest of the USG. The Contracting Officer will review the Contractor’s detailed proposed costs for the expansion and will conduct a thorough cost analysis of the proposal with the same level of rigor as used with competitive procurement to ensure that the actual cost to the U.S. Government is fair and reasonable.

8. A description of the market research conducted (see FAR Part 10) and the results or a statement of the reason(s) market research was not conducted:

No new market research was conducted. DAI was competitively selected through a full and open competition in 2018. The purpose of the proposed expansion is to mitigate the effects of the wartime on the economy of Ukraine and specifically on eliminating bottlenecks and expanding Ukrainian agricultural exports.. DAI is uniquely qualified to implement this modification as indicated above, and considering the increase in activities will begin

DAI

DAI’s wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight immediately responding to wartime needs, it is not feasible or practical to expeditiously conduct an open solicitation to select a contractor that would be able to rapidly implement these activities.

9. Other facts supporting the use of other than full and open competition:

N/A

10. Sources, if any, that expressed, in writing, an interest in the acquisition:

The Mission determined to expand the existing ERA contract to address the additional requirements, and publication of a notice is not required per the determination at AIDAR 705.202(b), so no sources submitted a written expression of interest in this acquisition.

11. The actions the Agency may take to remove or overcome any barriers to competition before any subsequent acquisition of the supplies or services required:

The Mission will continue to use full and open competition procedures whenever possible, including potential set-asides for small businesses.

12. Technical or Requirements Personnel Certification:

In accordance with FAR 6.303, I hereby certify that the technical statements included above and which form a basis for the justification are complement and accurate in accordance with the Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova approved March 6, 2022 (attached Tab 1- EPP D&F for the Authorization of Less than Full and Open Competitive Procedures in the Modification or Award of Contracts).

Larissa Piskunova, Date Contracting Officer’s Representative

13. General Counsel/RLO Clearance:

Martha Dye, Resident Legal Officer Date

Larissa Piskunova Digitally signed by Larissa Piskunova Date: 2023.06.29 14:22:35 +03'00'

MARTHA DYE Digitally signed by MARTHA DYE Date: 2023.06.29 14:20:28 +03'00' wachakzai Highlight wachakzai Highlight

14. Contracting Officer Approval:

Carter Saunders, Regional Contracting Officer Date

CARTER AMES

SAUNDERS (affiliate)

Digitally signed by CARTER AMES SAUNDERS (affiliate) Date: 2023.06.29 08:40:13 -04'00' wachakzai Highlight

CLEARANCE of Justification and Approval (J&A) for Other than Full and Open Competition for Contract No. 72012118C00004, the Economic Resilience Activity.

Drafted: Larissa Piskunova, ERA COR

Cleared: Chris Abrams, OEG (ok) 06/ 14/2023 Greg Swarin, PRO (ok/edits) 06/22/2023 Martha Dye, RLO (ok ) 06/23 /2023 Susan Kutor, DMD (ok ) 06/ 29/2023