Amendment_01_RFP_SOL_72016718R00014_Commercial_Justic.pdf

Request for Proposals (RFP) No.: SOL#72016718R00014 Issue Date: July 13, 2018 Questions Due Date: July 27, 2018 at 5pm, Kosovo local time

Pre Proposal Conference:

August 3, 2018 at 10:00am Kosovo local time.

Venue: Hotel Sirius Agim Ramadani St. Pristina 10000

Answers to the questions Due Date: August 10, 2018 at 5pm, Kosovo local time Stage 1, Proposal Submission Due Date: August 27, 2018 at 5pm, Kosovo local time Selection Decision for Stage 1 and Invitation for Stage 2 o/a Beginning of October Stage 2, Proposals Submission Due Date: o/a Mid-October Oral Presentations of the Offerors in Stage 2 TBD

SUBJECT: Request for Proposal (RFP) SOL#72016718R00014 Commercial Justice activity in Kosovo

Dear Prospective Offeror:

The United States Government, represented by the U.S Agency for International Development (USAID), through the Regional Contracting Office in Kosovo, is seeking proposals from qualified organizations to implement Commercial Justice activity in Kosovo, as described in this solicitation. USAID/Kosovo anticipates awarding one cost plus award-fee type contract as a result of this solicitation covering an estimated period of five (5) years from the date of contract award. Subject to availability of funds, USAID estimates funding available for the activity up to $9,000,000. The principal geographic code for this contract is 937. The North American Industry Classification System (NAICS) code for this acquisition is 541990. This requirement is subject to the availability of funds.

This procurement will be conducted under full and open competition, pursuant to Part 15 of the Federal Acquisition Regulation (FAR) (48 CFR Chapter 1). All types of organizations are eligible to compete;

USAID encourages the participation to the maximum extent possible of local Kosovar organizations, small business concerns, veteran owned small business, service-disabled veteran small business, HUB zone small business, small disadvantaged business, and women-owned small business concerns and small business concerns in this activity as the prime contractor or as subcontractors. USAID discourages the use of exclusive agreements as this limits USAID’s and Kosovo’s ability to receive the best services.

This applies to personnel and subcontractors, international and local organizations.

Only electronic proposals will be accepted. Proposals must be submitted in via email to Dukagjin Hasani at: dhasani@usaid.gov and Nadeem Shah at: nshah@usaid.gov. If your organization decides to submit a proposal in response to this solicitation, detailed requirements for Offerors’ proposals are outlined in Section L of this solicitation. Proposals must be signed by an official who is authorized to bind the organization and are to be submitted to USAID no later than the closing date and time stated above.

Any questions regarding this solicitation must be submitted in writing via email to Dukagjin Hasani at:

dhasani@usaid.gov and Nadeem Shah at: nshah@usaid.gov by the date and time specified above.

SOL#72016718R00014

Commercial Justice activity in Kosovo

USAID reserves the right to amend or rescind this solicitation at any time. This solicitation, amendments to this solicitation, and announcement of contract award will be made available through the government point of entry at https://www.fbo.gov/. It is the Offeror’s responsibility to check this site periodically for official updates to this solicitation. Issuance of this solicitation and the submittal of a proposal do not constitute a commitment on the part of the U.S. Government nor USAID to make an award; neither does it constitute an obligation for any costs incurred in the preparation and submission of a proposal.

USAID appreciates the time and effort put into preparing proposals in response to this solicitation.

Sincerely, Nadeem Shah Regional Contracting Officer

Contents

PART I – SCHEDULE

SECTION B – SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE STATEMENT

B.2 CONTRACT TYPE

B.3 ESTIMATED COST, AWARD-FEE, AND OBLIGATED AMOUNT

B.4 PRICE SCHEDULE

B.5 INDIRECT COST

B.6 ADVANCE UNDERSTANDINGS ON CEILING INDIRECT COST RATES AND FINAL

REIMBURSEMENT FOR INDIRECT COSTS

B.7 COST REIMBURSABLE

B.8 PAYMENT OF AWARD FEE

B.9 MULTI-YEAR CONTRACT AND CANCELLATION CEILING

SECTION C – STATEMENT OF WORK

TITLE OF ACTIVITY

C.1 GOAL

C.2 DEVELOPMENT CHALLENGE

C.3 THEORY OF CHANGE

C.4 OBJECTIVES

C.5 GUIDING PRINCIPLES

C.6 COLLABORATION WITH USAID AND OTHER DONOR ACTIVITIES

C.7 MONITORING, EVALUATION, AND LEARNING

C.8 LINKS TO MISSION AND USG STRATEGIES

C.9 KOSOVO AND EU ALIGNMENT

SECTION D – PACKAGING AND MARKING

D.1 AIDAR 752.7009 MARKING (JAN 1993)

D.2 BRANDING

D.3 BRANDING AND MARKING POLICY

SECTION E – INSPECTION AND ACCEPTANCE

E.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

E.2 INSPECTION AND ACCEPTANCE

SECTION F – DELIVERIES AND PERFORMANCE

F.1 NOTICE LISSTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

F.2 PLACE OF PERFORMANCE

F.3 PERIOD OF PERFORMANCE

F.4 PERFORMANCE STANDARDS

F.5 KEY PERSONNEL

F.6 REPORTS AND DELIVERABLES OR OUTPUTS

F.7 DISTRIBUTION OF PROJECT MATERIALS, PARTICIPATION PARTNER MEETINGS

AND PUBLIC EVENTS

F.8 SUBMISSION REQUIREMENTS FOR DEVELOPMENT EXPERIENCE DOCUMENTS

(Sept 2013)

SECTION G – CONTRATC ADMINISTRATION DATA

G.1 ADMINISTRATIVE CONTRACTING OFFICE

G.2 CONTRACTING OFFICER'S AUTHORITY

G.3 CONTRACTING OFFICER'S REPRESENTATIVE (COR)

G.4 TECHNICAL DIRECTIONS/RELATIONSHIP WITH USAID

G.5 PAYMENT AND INVOICES

G.6 ACCOUNTING AND APPROPRIATED DATA

SECTION H – SPECIAL CONTRACT REQUIREMENTS

H.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

H.2 FOREIGN GOVERNMENT DELEGATIONS TO INTERNATIONAL CONFERENCES

H.3 AIDAR 752.225-70 SOURCE AND NATIONALITY REQUIREMENTS (FEB 2012)

H.4 INSURANCE AND SERVICES

H.5 AIDAR 752.228-70 MEDICAL EVACUATION (MEDEVAC) SERVICES (JULY 2007)

H.6 AUTHORIZED GEOGRAPHIC CODE

H.7 LOGISTIC SUPPORT

H.8 EXECUTIVE ORDER ON TERRORISM FINANCING

H.9 PROHIBITION AND ASSISTANCE TO DRUG TRAFFICKING

H.10 752.7007 PERSONNEL COMPENSATION (JUL 2007)

H.11 ADDITIONAL REQUIREMENTS FOR PERSONNEL COMPENSATION

H.12 LANGUAGE REQUIREMENTS

H.13 CONFIDENTIALITY AND OWNERSHIP OF INTELLECTUAL PROPERTY

H.14 CONSENT TO SUBCONTRACTS

H.15 INTERNATIONAL TRAVEL APPROVAL

H.16 GOVERNMENT FURNISHED FACILITIES OR PROPERTY

H.17 ENVIRONMENTAL COMPLIANCE AND REQUIREMENTS

H.18 GENDER CONSIDERATION

H.19 USAID IMPLEMENTATION OF SECTION 508 OF THE REHABILITATION ACT OF 1973

AND FEDERAL ACQUISITION CIRCULAR (FAC) 97-27 "ELECTRONIC AND INFORMATION

TECHNOLOGY ACCESSIBILITY

H.20 ADS 302.3.5.9 NONDISCRIMINATION (JUNE 2012)

H.21 USAID DISABILITY POLICY - ACQUISITION (DECEMBER 2004)

H.22 ADS 302.3.5.17 LIMITATION ON SUBCONTRACTING TO NON-LOCAL ENTITIES

(JULY 2014)

H.23 ADS 302.3.5.21 USAID IMPLEMENTING PARTNER NOTICES (IPN) PORTAL FOR

ACQUISITION (JULY 2014)

H.24 ADS 302.3.5.19 USAID-FINANCED THIRD-PARTY WEB SITES (AUG 2013)

H.25 ADS 302.3.5.22 SUBMISSION OF DATASTS TO DEVELOMENT DATA LIBRARY (OCT

2014) 46

H.26 ELECTRONIC PAYMENTS SYSTEM

H.27 ADS 302.3.5.5 REPORTING OF FOREIGN TAXES (JULY 2007)

PART II CONTRACT CLAUSES

SECTION I – CONTRACT CLAUSES

I.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

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

I.3 FAR 52.204-23, PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE,

AND SERVICES DEVELOPED OR PROVIDED BY KASPERSKY LAB AND OTHER COVERED

ENTITIES (JULY 2018)

I.4 FAR 52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)

I.5 FAR 52.229-8 TAXES – FOREIGN COST-REIMBURSEMENT CONTRACTS (MAR 1990)

I.6 FAR 52.247-67, SUBMISSION OF TRANSPORTATION DOCUMENTS FOR AUDIT (FEB

2006) 54

I.7 AIDAR 752.7013 CONTRACTOR-MISSION RELATIONSHIPS (JUNE 2018)

I.8 AIDAR 752.7032, INTERNATIONAL TRAVELAPPROVAL AND NOTIFICATION

REQUIREMENTS (APR 2014)

I.9 AIDAR 752.7037 CHILD SAFEGUARDING STANDARDS (AUG 2016)

I.10 FAR 52.252-2, CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

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

OFFERORS

K.1 NOTICE LISTING SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

K.2 FAR 52.204-3, TAXPAYER IDENTIFICATION (OCT 1998)

K.3 FAR 52.204-8, ANNUAL REPRESENTATIONS AND CERTIFICATIONS (FEB 2018)

K.4 FAR 52.204-17 OWNERSHIP OR CONTROL OF OFFEROR (JUL 2016)

K.5 FAR 52.209-5, CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT 2015)

K.6 FAR 52.209-7, INFORMATION REGARDING RESPONSIBILITY MATTERS (JUL 2013) . 66

K.7 FAR 52.209-11 REPRESENTATION BY CORPORATION REGARDING DELINQUENT

TAX LIABILITY OR A FELONY CONVICTION UNDER ANY FEDRAL LAW (FEB 2016)

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

CERTIFICATION (JUNE 2018)

K.9 FAR 52.219-1, SMALL BUSINESS PROGRAM REPRESENTATIONS (OCT 2014)

K.10 FAR 52.222-22, PREVIOUS CONTRACTS AND COMPLIANCE REPORTS (FEB 1999)

K.11 FAR 52.222-25, AFFIRMATIVE ACTION COMPLIANCE (APR 1984)

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

(APR 2005)

SECTION L – INSTRUCTIONS TO OFFERORS

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

1998) 77

L.2 FAR 52.216-1 TYPE OF CONTRACT (APR 1984)

L.3 FAR 52.233-2 SERVICE OF PROTEST (SEP 2006)

L.4 GENERAL INSTRUCTIONS TO OFFERORS

L.5 SUBMISSION/DELIVERY INSTRUCTIONS

L.6 INSTRUCTIONS FOR THE PREPARATION OF THE TECHNICAL PROPOSAL

L.7 INSTRUCTIONS FOR THE PREPARATION OF THE COST PROPOSAL STAGE 2

SECTION M – EVALUATION CRITERIA

M.1 GENERAL INFORMATION

M.2 TECHNICAL EVALUATION CRITERIA

M.3 EVALUATION OF PAST PERFORMANCE

M.4 COST PROPOSAL EVALUATION

M.5 DETERMINATION OF COMPETITIVE RANGE

M.6 SOURCE SELECTION

PART I – SCHEDULE

SECTION B – SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE STATEMENT

The purpose of the Commercial Justice activity is to improve commercial dispute resolution and enforcement to reduce opportunities for economic corruption, thereby encouraging investment in Kosovo.

B.2 CONTRACT TYPE

This is a Cost Plus Award Fee (CPAF) type Contract for an estimated duration of five (5) years. For the consideration set forth below, the Contractor shall provide the deliverables or outputs described in Sections C, and F, and comply with all contract requirements.

B.3 ESTIMATED COST, AWARD-FEE, AND OBLIGATED AMOUNT

a) Total Estimated Cost:

The estimated cost for the performance of the work required hereunder in section C and F exclusive of Award Fee, is $ TBD.

b) Award Fee

i. The Base Fee is max. 2% of estimated cost $ TBD by the offeror

ii. The maximum award fee pool, is $ TBD by the offeror

c) Obligated amount

1) Within the estimated cost specified in paragraph a) plus base fee specified in paragraph b)i.

above , the amount currently obligated and available for reimbursement of allowable costs incurred by the contractor and payment of base fee, for performance hereunder is $ TBD. The Contractor must not exceed the aforesaid obligated amount.

2) Funds obligated hereunder are anticipated to be sufficient through $ TBD.

B.4 PRICE SCHEDULE

Budget Summary Cost Category Total Total Direct Costs TBD Total Indirect Costs TBD Base Fee (max 2%) TBD Total Estimated Cost Plus Base Fee

TBD

Estimated Award Fee Pool TBD

These amounts may not be adjusted without a written modification signed by the Contracting Officer. The contractor will not bill any amounts against this contract in excess of the amounts specified for each line item as illustrated above.

B.5 INDIRECT COST

Pending establishment of revised provisional or final indirect cost rates, allowable indirect costs shall be reimbursed on the basis of the following negotiated provisional or predetermined rates and the appropriate bases:

Description Rate Base Type Period

% 1/ 1/ 1/ % 2/ 2/ 2/ % 3/ 3/ 3/

1/Base of Application:

Type of Rate:

Period:

2/Base of Application:

Type of Rate:

Period:

3/Base of Application:

Type of Rate:

Period:

B.6 ADVANCE UNDERSTANDINGS ON CEILING INDIRECT COST RATES AND FINAL

REIMBURSEMENT FOR INDIRECT COSTS

(a) Reimbursement for indirect costs shall be at the lower of the negotiated final (or predetermined) rates or the following ceiling rates:

Description Rate Base Period

% 1/ 1/ % 2/ 2/ % 3/ 3/

1/ Base of Application:

Period:

2/ Base of Application:

Period:

3/ Base of Application Period

(b) The Government will not be obligated to pay any additional amount should the final indirect cost rates exceed the negotiated ceiling rates. If the final indirect cost rates are less than the negotiated ceiling rates, the negotiated rates will be reduced to conform to the lower rates.

(c) This understanding shall not change any monetary ceiling, obligation, or specific cost allowance or disallowance. Any changes in classifying or allocating indirect costs require the prior written approval of the Contracting Officer.

B.7 COST REIMBURSABLE

The U.S. dollar costs allowable will be limited to reasonable, allocable, and necessary costs determined in accordance with FAR § 52.216-7, “Allowable Cost and Payment,” FAR § 52.216-8, “Limitation of Cost,” and FAR § 52.232-22, “Limitation of Funds,” if applicable, and AIDAR 752.7003, “Documentation for Payment.”

B.8 PAYMENT OF AWARD FEE

1) Base Fee

USAID will pay 85% of the base fee each month pursuant to FAR § 52.216-8, upon the receipt of an invoice deemed proper by the USAID/Kosovo Financial Management Office. USAID will pay all fee withholds under this contract after receipt of an adequate certified final indirect cost rate proposal covering the year of physical completion of this contract, provided the Contractor has satisfied all other contract terms and conditions.

2) Award Fee Poll

1) The maximum award fee pool for this contract is $TBD and it is not part of the total estimated cost plus base fee. The Contractor may earn and be paid all or a portion of an award fee for performance under this contract. The Government's purpose in granting an award fee is to encourage and reward superior contract performance.

2) The award fee shall be made available to the Contractor for each evaluation period; the table below reflects evaluation periods, estimated available award fee and actually earned award fee for each evaluation period.

Period of Performance

Evaluation Period*

(Start/End date)

Estimated Percentage of Award Fee Available

Estimated Amount of Award Fee Available

Actually Earned Award Fee Amount

First Evaluation Period (First Six Months Year 1)

/2019 - /2020

Second Evaluation Period (Second Six Months Year 1)

/2019 - /2020

Third Evaluation Period (Year 2)

/2020- /2021

Fourth Evaluation Period (Year 3)

/2021 - /2022

Fifth Evaluation Period (Year 4)

/2022 - /2023

Sixth Evaluation Period (Year 5)

/2023 - /2024

Maximum Award Fee Available

100%

*Exact dates of each Evaluation Period will be determined upon contract award.

3) The determination of the award fee earned by the Contractor and payment of award fee, if any, shall be in accordance with the terms of the Award Fee Plan in Section J.

4) In the end of each evaluation period, the contract shall be modified in order to increase the total estimated cost to add the award fee amount earned for the respective evaluation period and the contractor can invoice for the earned amount as soon as the modification is completed.

5) Unearned award fee cannot rollover from one award fee evaluation period to the next evaluation period.

6) Payment of any award fee earned by the Contractor shall not be subject to the withholding provisions of the clause of this contract entitled "Allowable Cost and Payment" (FAR 52.216-7) clause.

The paying office is USAID/Kosovo, Financial Management Office, as specified in Section G.5.

B.9 MULTI-YEAR CONTRACT AND CANCELLATION CEILING

This contract is considered non-severable, and is therefore a multi-year contract as defined in FAR

17.103. Therefore, this contract is subject to the requirements of FAR 17.106.

a) Performance under this contract during the second and subsequent years is contingent upon the appropriation of funds. All program years except the first are subject to cancellation. Cancellation shall occur by the dates specified below if the Contracting Officer:

1. notifies the Contractor that funds are not available for contract performance for any subsequent program year or

2. fails to notify the Contractor that funds are available for performance of the succeeding activity year.

b) Cancellation Ceiling:

This is a CPAF type contract where the Contractor is authorized to be reimbursed for all costs which are allowable in accordance with FAR 52.216-7, “Allowable Costs and Payment.” Therefore, the Contractor will not incur any costs which would have been amortized over the life of the contract should the contract be cancelled in accordance with FAR 52.217-2. The Government’s liability for cancellation charges shall not exceed $TBD. This amount will be reduced in accordance with FAR 17.106-1(c)(1) at the conclusion of each program year, as follows:

Activity Year Cancellation Date Cancellation Ceiling Year 1: 2019/2020 N/A N/A Year 2: 2020/2021 DATE TBD, 2020 $TBD Year 3: 2021/2022 DATE TBD, 2021 $TBD Year 4: 2022/2023 DATE TBD, 2022 $TBD Year 5: 2023/2024 DATE TBD, 2023 $TBD

[END OF SECTION B]

SECTION C – STATEMENT OF WORK

List of Acronyms

ADR Alternative Dispute Resolution

AWP Annual Work Plan

CLE Contract Law Enforcement (activity)

COR Contract Officer’s Representative

CPEA Chamber of Private Enforcement Agents

EU European Union

GoK Government of Kosovo

GiZ Deutsche Gesellschaft für Internationale Zusammenarbeit

JSSP Justice System Strengthening Program

KJC Kosovo Judicial Council

MEL Monitoring, Evaluation, and Learning

MOJ Ministry of Justice

OECD Organisation for Economic Co-operation and Development

PEA Private Enforcement Agents

PRP Property Rights Program

TOC Theory of Change

TEAM Transparent, Effective and Accountable Municipalities

UN United Nations

UNDP United Nations Development Programme

USAID United States Agency for International Development

TITLE OF ACTIVITY

Commercial Justice

C.1 GOAL

The goal of the Activity is to improve commercial dispute resolution and enforcement to reduce opportunities for economic corruption, thereby encouraging investment in Kosovo.

C.2 DEVELOPMENT CHALLENGE

In the last 10 years, Kosovo has made significant progress in the areas of commercial law and justice sector institution building, including case backlog management. Kosovo now ranks 40th out of 190 economies on the World Bank Doing Business Report. However, these improvements have not resulted in the necessary economic growth, and investor trust needs to be further increased. Ineffective dispute resolution, enforcement and insufficient implementation of laws remain the most significant challenges, which create an uncertain business environment and high perception of corruption.

While the World Bank ranks Kosovo 49th in terms of ‘enforcing contracts,’ this indicator does not measure the actual time of the resolution of a case, instead it measures the time provided in legal provisions. Moreover, there is only one case used for the sampling of cases by the World Bank’s Doing Business Report. So while this is an important benchmark, it does not tell the full story of problems with contract and commercial law enforcement.

The perception of grand corruption is widespread in Kosovo and at the same time, Kosovo’s judicial system lacks the competency and business orientation to enforce commercial contracts, which leads to an increased perception of and opportunities for corruption. In Kosovo, commercial judgements are not decided and enforced in a timely manner, which creates uncertainty in the business environment. Lengthy proceedings are a serious impediment that discourages potential investors to do business in Kosovo. The impact of not deciding commercial cases quickly or accurately has an outsized impact on investment. The World Bank Kosovo Systematic Country Diagnosis found that the poor performance of the justice sector creates obstacles for business growth. Further, because of the inefficient and unpredictable decision-making, costs and risks associated with doing business rise, encouraging the offering, giving, receiving and solicitation of bribes.1

From 2013 to 2018, USAID has helped develop the legal framework (including the Law on Late Payments, Law on Bankruptcy, Draft Law on Bills of Exchange, Draft Law on Mediation and Amendments to the Law on Enforcement Procedure) to provide a better legal environment for business development and foreign investment. Ensuring that sustainable systems are in place to implement these and other laws and assist with secondary legislation, if needed, is of vital importance to commercial law development. USAID was also successful in introducing the use of written contracts by businesses.

Eighty-two percent of survey respondents in 20162 said they now use formal contracts. Due to the increased use of written agreements, there is also an increase in disputes. Businesses and investors need to be able to rely on (and have trust in) the Economic Departments of the courts to resolve and enforce the disputes in a timely and fair manner. Failure to do so, would further reduce confidence in the system. The business community expresses frustration with the rule of law in Kosovo, in particular, problems resolving commercial disputes. During consultations, businesses claimed that court procedures take three years to resolve. The money and time invested and the uncertainty of such processes prevent businesses

1 World Bank (2017). Republic of Kosovo Systematic Country Diagnostic 2 2016 Survey conducted by USAID Contract Law Enforcement activity.

from growing. Overall, there is a distrust in the judiciary pertaining to cases being resolved professionally in a timely matter.

Limited capacity at several institutions involved in commercial dispute resolution and enforcement significantly contributes to the inefficiency and untimely resolution of proceedings. The Kosovo Judicial Council (KJC) does not assign enough specialized judges to the Economic Departments. There is only one judge who serves in the Economic Department of the Appellate Court. The reputation of the Economic Department suffers from the general backlog in the Pristina Basic Court as the Economic Department is within the Basic Court. There is also interdependence and conflicting competencies between the Economic and Administrative Departments, where elements of a commercial case need to be resolved in the Administrative Department prior to being considered in the Economic Department. Both the KJC and the President of the Pristina Basic Court believe that increasing the number of judges will alleviate the workload in the Economic Departments. However, increasing the number of judges will not change the complexity of commercial law. The complexity of these cases require specialized judges, professional legal assistants, and court support staff. The Kosovo Judicial Academy (KJA) only includes a five day commercial law training for all judge candidates, which is not enough time for any judge to gain expertise in commercial matters, especially not on international commercial law. More importantly, every judge interviewed questioned the quality of these trainings. There is currently no available training for support staff. Nevertheless, the Government of Kosovo (GoK) approved an increased budget for the KJC to include more positions for legal associates and clerks during 2018, which should also help the Economic Departments by increasing the number of staff, but not necessarily the expertise. The GoK has also begun a review of the justice sector, which includes a review of commercial law. The review aims to result in providing decision-making points to leaders about needs of the system and then a resulting Rule of Law (RoL) Strategy to serve as a guiding document for all RoL reforms in Kosovo.

Kosovo has also developed Alternative Dispute Resolution (ADR) mechanisms, adopted a Law on Arbitration and Law on Mediation, and has a solid basis for alternative dispute resolution to help address the large number of unresolved cases. According to the European Commission’s Kosovo Report (2016)3, public awareness and familiarity with alternative dispute resolution tools remain low, but the number of cases utilizing and being resolved using ADR mechanisms is continuously increasing. Between 2012 and July 2015, 2,598 cases were dealt with through mediation. However, ADR mechanisms are not sufficiently utilized by businesses, institutions, or courts. Two ways to increase the use of ADR mechanisms are to encourage disputants and judges to transfer appropriate cases from the courts, and to incentivize individuals, institutions and businesses to use ADR in resolving private and public contract issues.

With support from USAID, the GoK established the Private Enforcement System as a tool to relieve the courts from enforcing civil law decisions as well as providing creditors with a faster and more efficient method of debt collection and contract enforcement. Within the limited time of its existence, the private enforcement system has contributed to a decrease in the interest rate as the financial system can now rely on Private Enforcement Agents (PEAs) for enforcement and recovery of funds; thus decreasing the risk of lending (more than €100 million recovered; interest rate dropped from 12.86% (2014) - 6.68% (2018)).

The system has also contributed to reducing opportunities for corruption by automatizing wage garnishment and removing in-person communication. Nevertheless, the system is still very new (three years old) and while functional, many issues have risen threatening its full utilization and overall enforcement capabilities. The Chamber of Private Enforcement Agents (CPEA) is in need of institutional support for organizational capacities, such as strategic planning, financial planning, staff retention and recruitment, and communicating its successes.

3https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2016/20161109_report_kosovo.pdf

Additionally, the Inspection Committee for the PEAs, located at the MOJ, which supervises the work of the PEAs, is coming across cases of fraud, collusion, suspected money-laundering and “double cases”— cases whereby a client that decides he/she does not like the action of the enforcement agent, can then take the case to a new agent and re-initiate the action. The Inspection Committee is currently placed under the MOJ Division on Overseeing the Implementation of Legislation, Legal Support and Cross- Institutional Cooperation in the area of Legislation/ Legal Department. There has not been proper oversight of the PEAs as the current structure of inspection is loose and under regulated, diminishing accountability of the PEAs.

The reforms and changes should be systemic and not individual interventions. But, even when the reforms happen, it takes time until the public is introduced to them and starts using them. Changes in legislation or systems are not promoted at a satisfactory level, thus resulting in underusage or misinformation. For example, the Law on Bankruptcy has been approved since 2016. There have been a few cases that have used the new law. On the other hand, some international organizations are asking the MOJ to review the bankruptcy regime while referring to the old law. The lack of simple and easily accessible information on the developments can lead to unnecessary confusion.

C.3 THEORY OF CHANGE

IF the capacity of Kosovo's judicial and legal institutions to resolve commercial disputes and enforce judgments is strengthened, AND contract and commercial law reform is promoted, AND legal literacy is improved among businesses and investors, THEN commercial dispute resolution will improve, leading to an increase in investment, reduced opportunities for corruption, and a strengthened business environment, thus contributing to economic growth and employment.

C.4 OBJECTIVES

The purpose of this Activity is to reduce opportunities for corruption and improve business’ and the public’s perception of corruption by improving commercial dispute resolution, enforcement, and an understanding of the processes that promote investment and economic growth in Kosovo.

These objectives are closely related and it is expected that some interventions will address more than one.

The Contractor will seek to consolidate earlier gains in commercial law development, improvement of quality and timeliness of commercial decisions, as well as enforcement that were addressed under the Contract Law Enforcement (CLE) Activity; however, this Activity is not a continuation or a replication of

CLE.

The Contractor must undertake interventions that work towards the objectives stated below to improve commercial dispute resolution in Kosovo. The Contractor must apply systemic and sustainable capacity building approaches and improvements in commercial dispute resolution and enforcement mechanisms.

The Contractor will employ a flexible, demand-driven approach that builds on consultations with all stakeholders, other donors, and USAID. The operating environment can be unpredictable and the Contractor will need to adapt quickly per the needs of the environment in achievement of the stated objectives. Thus, it is essential that the Contractor practice adaptive management of the Activity in order to seize new opportunities and adjust to challenges as they develop. For additional details, see Section C.6 “Guiding Principles”.

OBJECTIVE 1: Strengthen Kosovo’s Capacity to Resolve Commercial Disputes and Enforce Judgments

This objective will expand the advances Kosovo has made to improve the resolution and enforcement of commercial disputes and judgments, such as improved legislation, technical assistance to the Economic Departments in courts, Private Enforcement System, etc. The Contractor must provide technical assistance to the institutions dealing with and regulating commercial dispute resolution and enforcement to improve efficiency of commercial dispute resolution and enforcement.

The Contractor must also assist the Ministry of Justice (MOJ) to implement amendments to the Law on Enforcement Procedure regarding strong oversight of PEAs and work with the CPEA to improve efficiency and cooperation with Ministries.

Expected Results:

1. The Economic Department of the Pristina Basic Court and Appellate Court resolve cases and issue decisions more efficiently and professionally;

2. The Economic Department of the Pristina Basic Court and Appellate Court improve timely enforcement of decisions;

3. Ministry of Justice provides appropriate oversight over and holds Private Enforcement Agents accountable as set forth in amendments to the Law on Enforcement Procedure;

4. Improved organizational capacity of the Chamber of Private Enforcement Agents to more effectively manage its resources, improve enforcement, strengthen professional standards, and retain and recruit staff;

5. Increased knowledge and effective application of commercial law by judges, court staff, and other stakeholders; and

6. Perception of corruption and satisfaction of businesses with commercial dispute resolution improved.

The Contractor is encouraged to propose additional expected results in line with the objectives.

OBJECTIVE 2: Enhance Commercial Law, Use of Alternative Dispute Mechanisms, and Improve Public’s Awareness and Legal Literacy

Given that the number of commercial laws is increasing and many have new amendments that are not harmonized, the Contractor must undertake activities to improve the quality, standardization, and harmonization of commercial law in Kosovo. In addition, the Contractor must work with the Kosovo business community, through the relevant active chambers of commerce and business associations to increase legal literacy among businesses and investors. The Contractor must also conduct interventions for judges, support staff, businesses, and other relevant actors to increase their knowledge and proper application of commercial law.

The Contractor must also undertake activities to increase the usage of other existing Alternative Dispute Resolution (ADR) mechanisms that will contribute to more efficient and effective dispute resolution for public and private parties.

The Contractor must seek to strengthen the systems for commercial dispute resolution and enforcement by facilitating the growth of relationships between private sector, government, civil society, and academic stakeholders, as well as other interested actors. The quality of these relationships is key to upgrading and improving the overall business climate in Kosovo. By facilitating through local actors and by instituting strategic communication within Kosovo’s local institutions, the relationships formed and capacities developed will inherently rest within the local system and will be more likely to be sustained over time.

Strategic communication also entails a planned, analytical approach for determining whom the Activity must involve in achieving reform objectives, and for what purpose, when, and how they must be engaged.

The Activity includes strategic communications in order to overcome misconceptions among the public and provide useful information for stakeholders. As part of this objective, the Activity will improve both the quality of information and its availability to stakeholders and will do so jointly with stakeholders of this Activity.

Strategic communications is a cross-cutting theme closely related to both of the Activity’s objectives, and which requires particularly close coordination with any future USAID activities which may also address economic corruption. In addition, interventions under strategic communication may require significant coordination with USAID programming supporting civil society and media.

Expected Results:

1. Increased use of Alternative Dispute Resolution mechanisms;

2. Commercial legislation harmonized with European Union (EU) and international best practices4;

3. Improved strategic communication between commercial justice institutions and the general public; and

4. Increased public awareness of commercial law dispute resolution and enforcement mechanisms, including existence and nature of reforms.

The Contractor is encouraged to propose additional expected results in line with the objectives.

Internship Program

The Contractor must develop an internship program for the duration of this Activity, with the aim of improving commercial law expertise in current students studying in relevant fields (for example- law, economy, business, public administration, management). The interns will work along with Contractor staff on the Activity, both in the Contractor’s office and in implementing activities. Interns must be gender diverse and reasonably balanced between public and private universities. The Contractor must seek to expand the diversity of applicants, and where possible, include ethnic minorities, persons with disabilities, LGBTI, etc. The interns’ work and tasks must be substantive in nature, relevant to commercial law, and not less than six months. The structure of the internship program must benefit the applicants professionally in the future. The Contractor must engage with partner schools to determine if students can receive credit for the internship. The age of interns should comply with local labor law and interns must receive compensation.

C.5 GUIDING PRINCIPLES

The Contractor must ensure that the following guiding principles steer the planning and implementation of this Activity:

● Systems Orientation: The Contractor must adopt a systems-oriented approach to strengthening commercial dispute resolution and enforcement, one that emphasizes the development of the institutions, actors, processes, tools, systems, and incentive structures that collectively enable and empower people to make the law work for them in their daily lives, resolve disputes, and improve the business enabling environment. The Contractor must facilitate the growth of relationships, communication, and coordination amongst these institutions, actors, and processes in order to strengthen the commercial law and the enforcement system as a whole. The quality of these relationships is key to upgrading and improving the overall business climate in Kosovo. By facilitating through local actors the relationships formed and capacities developed will inherently rest within the local system and will be more likely to be sustained over time.

4 For example, EU Acquis communautaire, OECD policies and recommendations, etc.

● Sustainability and self-reliance: The Contractor must provide realistic interventions that can be sustained beyond the life of the project. All interventions under this Activity must be conducted in close cooperation and partnership with local counterparts to ensure their full ownership and transition, future sustainability, and effectiveness of targeted sector. The Contractor must include local stakeholders, including Government of Kosovo (GoK) institutions, into its interventions to seek solutions to its own development challenges. This includes planning, setting priorities, implementing, financing, and sustaining these solutions. The Contractor must propose approaches that take into account the future viability of interventions demonstrating local ownership and leadership in its approaches. To strengthen sustainability of interventions beyond the Activity, the Contractor must examine the different types of incentives that influence behaviors and perceptions of economic corruption and work on alleviating the particular constraints in a way that effectively accounts for incentives. The Contractor’s implementation of the objectives should consistently reflect self-reliance as the end goal of assistance in Kosovo.

● Leverage Existing and New Resources: The Contractor must explore opportunities to leverage resources with other key stakeholders as part of its implementation approach. Co-investment and co-design of interventions is not only critical to maximizing the impact of USAID and Kosovo resources already available, but can also serve as a valuable indicator of the alignment of Activity interventions with government, private sector, and international priorities and interests. Examples of this approach could include, but are not limited to, close donor coordination to leverage resources and synergies between programs that have similar objectives, inclusion or matching of GoK resources, or other development partner resources.

● Gender and Youth: The Contractor must have an innovative approach to target women and youth throughout the lifetime of the activity and address each objective with gender-specific initiatives, approaches, and outcomes. The Contractor should understand the impact of policy and programmatic interventions on gender empowerment and anti-corruption and vice versa and must ensure that the representation and capacity building of women, men, and youth at all levels of interventions will be in line with the USAID policies on gender equality, women’s empowerment, and youth development.

Moreover, the Contractor should mainstream gender among the personnel chain in accordance with the USAID policies.

C.6 COLLABORATION WITH USAID AND OTHER DONOR ACTIVITIES

The Contractor must closely collaborate and coordinate with other USAID and donor-supported activities in alignment with the contract’s objectives. The collaboration and coordination aims to avoid duplication of efforts, ensure synergies, and maximize impact and investments. The Contractor will incorporate lessons learned from ongoing and concluding USAID projects and activities while building upon and extending the gains which have been achieved. This Activity may be implemented simultaneously with one or more other anti-economic corruption activities, and must be closely coordinated with those activities in working toward shared goals. The Contractor must closely collaborate with other USAID implementing partners and donors, such as the Justice System Strengthening Program (JSSP), the Property Rights Program (PRP), Transparent, Effective and Accountable Municipalities (TEAM) and other USAID Economic Growth programs. The Contractor must coordinate with the European Union’s (EU) development projects and activities in various aspects of this Activity (such as EU Free Legal professions Project, EU Civil Code, etc.), GiZ Legal Reform activities, and any other donor activity interrelated with the objectives of this Activity.

C.7 MONITORING, EVALUATION, AND LEARNING

The Activity has been designed to enable adaptive approaches to achieving objectives, informed by ongoing contextual analysis. The Contractor must continually assess the effectiveness of the interventions, evaluate whether those interventions are succeeding, apply lessons learned, and adapt work appropriately. USAID/Kosovo recognizes that the success of the Activity will depend on the contributions of actors directly and indirectly engaged with the Activity, as well as institutions and processes beyond the manageable interests of the Contractor, and those changes in the local context may have implications for the achievement of results. Nevertheless, significant shifts within the broader country context may require the adaptation of approaches and the revisiting of indicators to address these changes. The Contractor must regularly revisit its progress and whether assumptions continue to hold, keeping abreast of new developments that may create challenges or windows of opportunity. If circumstances arise, the Contractor can and should alter its interventions, as reflected in its Annual Work Plan (AWP) and Monitoring, Evaluation, and Learning Plan (MELP), with the concurrence of USAID.

The Contractor must take into account best practices when developing the MELP, which includes an Adaptive Management approach. The MELP should emphasize the systematic process of collecting and analyzing performance data and other information to track progress toward planned results and must be used to proactively learn and adapt for future interventions.

For the portions of this activity that support organizational capacity development, the Contractor should incorporate into the MELP the recommendations listed in ADS 201 Additional Help Document: A Recommended Approach to Measuring Organizational Capacity Development. This resource describes how to prepare and maintain an Activity Monitoring, Evaluation, & Learning Plan. Specifically, the MELP should identify how the Contractor will select appropriate indicators of organizational performance change to track and finalize those indicators in conjunction with the benefitting organizations, encompassing both the organization’s performance in achieving targeted results and the organization’s performance in learning, adapting, and sustaining itself over time. Indicators should therefore span both short-term types (efficiency, project management outcomes, quality, effectiveness, etc.) and long-term types (learning, relevance, fundraising, sustainability, etc.) of organizational performance.

The Activity MELP must include a final list of indicators which will be confirmed in collaboration with USAID after award and should include context indicators and also look beyond indicators to incorporate other monitoring approaches. The indicator summary should identify all performance indicators that come from Project MEL plan, the Missions PMP or the annual PPR. Also Performance Indicator Reference Sheets (PIRS) must be completed for all indicators reported to USAID and in it the Contractor must include and analyze gender, age, and ethnic background disaggregated data across interventions as applicable. Other monitoring approaches may also be used, if necessary, to provide ad-hoc qualitative insights. USAID/Kosovo may conduct an independent mid-term performance evaluation to determine the effectiveness of the activity and to provide recommendations for adjustments.

The Activity must establish and utilize a robust monitoring, evaluation, and learning plan reflecting a dynamic implementation context over time which necessitates attention to contextual changes. This system should be integrated throughout the Activity to facilitate feedback loops for learning among interested stakeholders. If necessary, the Contractor may collaborate with an external USAID team to assist in the process of designing a robust, high-quality and efficient monitoring and evaluation (M&E) system that can adequately support the data needs of USAID/Kosovo and a mandatory formal external evaluation process over the life of the activity.

USAID Kosovo encourages the contractor to reflect regularly on the activity progress. The learning plan should identify questions that relate to activity logic model or any potential gaps in the theory of change or technical knowledge base, in addition the learning plan should note how the activity will address the https://usaidlearninglab.org/sites/default/files/resource/files/cleared_-_how-to_note_-_activity_mel_plan_sep2017.pdf above mentioned and identify ways to allow for adjustment as environment and circumstances change.

The opportunities for reflection may be prepared as after action reviews or can be incorporated in the quarterly and annual reports and also in annual reporting of the MELP. The learning plan must detail the time when learning reflection occurs sand who is involved, of course in alignment with the activity work plan. The Contractor must collaborate with local stakeholders and will conduct knowledge sharing amongst partners and stakeholders. For example, the EU is codifying the civil code, which includes the Law on Obligations, which impacts commercial litigation. If required by USAID, the Contractor must develop shared metrics with other economic governance activities and develop Activity specific indicators, benchmarks and targets, and establish baseline data against which subsequent performance can be measured.

C.8 LINKS TO MISSION AND USG STRATEGIES

This Activity supports the USAID/Kosovo’s Country Development Cooperation Strategy (CDCS) 2014- 2019 Democracy and Governance assistance Objectives “Improved Rule of Law and Governance that Meets Citizens’ Needs” and “Increased Investment and Private Sector Employment.”5

C.9 KOSOVO AND EU ALIGNMENT

Priorities related to improvements in the business environment are a significant part of the Competitiveness and Investment Climate pillar of the European Reform Agenda. This is the largest component in terms of the policy scope covered by the Stabilization Association Agreement (SAA), National Programme for Implementation of the Stabilization and Association Agreement (NPISAA) and Economic Reform Program (ERP). The European Reforma Agenda (ERA)6 Pillar I calls for Good Governance and the Rule of Law and identifies rule of law as one of the biggest challenges for Kosovo, with a number of recurring issues, including corruption. One of the identified interventions under ERA is the reinforcement of the capacity of the Economic Departments in Courts.

Moreover, the ERA calls for promotion of foreign direct investments, and the SAA requires that Kosovo properly implement and enforce existing law and future legislation.7 These requirements align with all proposed objectives.

Finally, the SAA requires Kosovo to consolidate the rule of law and administration of justice (recently re-confirmed by the EU Strategy for the Western Balkans)8 by strengthening the independence, impartiality, and accountability of the judiciary and judges, and adequately preparing them for cooperation in civil, commercial, and criminal matters, and to enable them to effectively prevent, investigate, prosecute, and adjudicate organized crime, corruption,9 and terrorism.

[END OF SECTION C]

5 https://www.usaid.gov/kosovo/cdcs 6 Kosovo – EU High Level Dialogue on Key Priorities – European Reform Agenda (ERA) (2016)– https://www.mei-ks.net/repository/docs/era_final.pdf 7 Article 74.1. of the SAA 8 EU Strategy for the Western Balkans - https://ec.europa.eu/commission/sites/beta-political/files/communication-credible-enlargement-perspective-western-balkans_en.pdf 9 Article 83 of the SAA

SECTION D – PACKAGING AND MARKING

D.1 AIDAR 752.7009 MARKING (JAN 1993)

(a) It is USAID policy that USAID-financed commodities and shipping containers, and project construction sites and other project locations be suitably marked with the USAID emblem. Shipping containers are also to be marked with the last five digits of the USAID financing document number. As a general rule, marking is not required for raw materials shipped in bulk (such as coal, grain, etc.), or for semi-finished products which are not packaged.

(b) Specific guidance on marking requirements should be obtained prior to procurement of commodities to be shipped, and as early as possible for project construction sites and other project locations. This guidance will be provided through the cognizant technical office indicated on the cover page of this contract, or by the Mission Director in the Cooperating Country to which commodities are being shipped, or in which the project site is located.

(c) Authority to waive marking requirements is vested with the Regional Assistant Administrators, and with Mission Directors.

(d) A copy of any specific marking instructions or waivers from marking requirements is to be sent to the Contracting Officer; the original should be retained by the Contractor.

D.2 BRANDING

The Offeror shall comply with the requirements of the USAID branding policies available at:

www.usaid.gov/branding and appropriately mark all deliverables and public communications with the USAID brand.

Note: USAID receives “exclusive branding and marking” for the work conducted under all acquisition awards. This means that the foreign assistance delivered is clearly credited to the American people. It also means that competing logos or identities are excluded unless otherwise indicated in the award (Contract).

Activity name: This Activity will be named the “Commercial Justice” activity in Kosovo. It is anticipated that the Final Report under this Award will be visibly branded as a USAID project utilizing the appropriate USAID/Kosovo templates.

Desi…