ESEASA_Sole_Source_Justification_Mexico_FAcosta_2018_May.pdf

Ver: May 2017

EXPORT-IMPORT BANK OF THE US

Justification and Approval for Other Than Full and Open Competition

Commercial Services Acquisition under FAR 13.106-1(b) and FAR 13.501

1. Contracting Activity:

The requirement is being conducted by the Export Import Bank of the United States, Office of Contracting Services (OCS) at 811 Vermont Avenue, NW, Washington, D.C. 20571.

2. Nature and/or Description of the Action Being Processed:

The purpose of this Justification for other than Full and Open Competition is to award a new Firm Fixed Price (FFP) Purchase order to Acosta González, Fausto to provide legal recovery services to assist EXIM in its efforts to collect outstanding amounts owed to EXIM by the obligor/buyer and all guarantors, if any. These efforts will include, asset searches, site visits, negotiations, litigation, documentation of agreements, embargoing assets and executing upon assets.

3. Description of Supplies/Services Required to Meet the Agency’s Needs:

The Contractor is required to provide all professional services, including all labor, materials, postage, tools, travel, supervision, and incur expenses necessary that entail the judicial process to undertake the asset recovery Scope of Work. The contractor shall perform non-personal services necessary to perform collection on EXIM Bank The defaulted loan of $1,104,910.00 Claim No. G561540, Mexican debtor ESEASA Construcciones S.A. de C.V. The Contactor shall attempt recovery on behalf of EXIM Bank and, if provided EXIM Bank’s express instruction to do so, institute legal proceedings and/or provide credit restructuring services to EXIM Bank’s Recoveries Group, Asset Management Division (“AMD”) related to the referenced claim, involving the referenced debtor and guarantor(s), located in Mexico. The estimated value for this contract is $167,736.50 which includes Asset Investigation fees estimated at $2,000.00 and recovery fees of 15% of recovery estimated at $165,736.50. The Period of Performance for this contract will be five (5) years

4. Statutory Authority Permitting Other than Full and Open Competition:

41 USC §3304), as implemented by FAR 6.302. [check all that apply] [Note: FAR 13.106-1(b) permits the Contracting Officer to consider the types of factors listed under FAR Part 6.302 when making the determination to solicit only one source. FAR 13.106-1(b) does not require that the Contracting Officer select only one of the listed authorities, as is the case when the Competition in Contracting Act applies.] For actions exceeding the simplified acquisition threshold procedures in FAR subpart 13.5 were used in accordance with 41 U.S.C. 1901

(X ) (1) Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements per FAR 6.302-1;

( ) (2) Unusual and Compelling Urgency per FAR 6.302-2;

( ) (3) Industrial Mobilization, Engineering, Developmental or Research Capability or Expert Services per FAR 6.302-3;

( ) (4) International Agreement per FAR 6.302-4

( ) (5) Authorized or Required by Statute FAR 6.302-5;

( ) (6) National Security per FAR 6.302-6;

( ) (7) Public Interest per FAR 6.302-7;

5. Demonstration that the Contractor’s Unique Qualifications or Nature of the Acquisition Requires the Use of the Authority Cited Above (applicability of authority

The contract action involves collecting on EXIM Bank’s claim in a foreign country. It is imperative to hire local counsel in Mexico where the claim is to be litigated with experience in: locating assets, especially potential hidden assets, and embargoing and executing upon such assets; drafting and negotiating restructuring agreements appropriate for debtors of the type in this matter; and litigating the collection matter in all levels of courts throughout the debtor’s country. It is also imperative that the local counsel have experience handling collection matters of this sort on behalf of foreign entities, and especially foreign government entities such as EXIM Bank, because such representation often raises issues and creates legal risks for the foreign government entity. These risks include the risk of counter-suits, referrals for criminal prosecution, and withholding tax questions. Additionally, it is imperative to hire local counsel that is familiar with EXIM Bank’s policies and procedures so as to avoid problems with payment procedures, handling of funds, facilitation of payments, and fraud. EXIM Bank recovery officer Enrique Sotelo made an effort to meet / collect directly from the debtor’s principals but who evaded him upon a business trip / previously arranged meeting in April 2018 in Mexico City. Thus, it became evident that the most effective way to collect from ESEASA Construcciones is through direct and constant pressure in situ at the debtor’s headquarters in Mexico. The recovery agent, Lic. Fausto Acosta, must be able to move around the business circles within which the principals of this business operate, including access to Mexican government entities that can provide up to date information on project payments from which collection efforts can be pinpointed to. The debtor has a unique combination of private sector construction business to the Mexican government, while quite simultaneously active in the private sector with a prominent market dominance on leased heavy construction equipment. To collect from a debtor of this nature, there is need for a collection agent to be fully cognizant / experienced on how the Mexican government operates and how their payment approvals flow. Simultaneously, there is need for a recovery agent that understands fully well the Mexican private sector activities and its inter-actions with a foreign government owned entity such as EXIM Bank.

The firm of Acosta González, Fausto and its local office in Mexico City is uniquely qualified to pursue this case in Mexico due to the seasoned recovery expertise, accompanied by commercial legal know-how, blended with a full understanding of EXIM Bank’s activities, collection processes and rules and regulations that comply with the U.S. government guidelines.

Acosta González, Fausto will not require a familiarization period or training prior to immediately commencing performance of the Performance Work Statement. Accordingly, Acosta González, Fausto is the only firm capable of providing the services described in Section 3 above without EXIM Bank experiencing duplication of cost for familiarization/training nor unacceptable delays in fulfilling its requirements.

6. Description of Efforts Made to ensure that offers are solicited from as many potential sources as deemed practicable:

In accordance with 41 U.S.C. 3304, the Bank has sought to identify as many potential sources as practicable under the circumstances. The specialized knowledge required to minimize the risks and maximize the chances of success in EXIM Bank’s executing its rights under the Finance Documents and the need for confidentiality, limits the likelihood of identifying multiple firms possessing the requisite skill set.

7. Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable:

The Contracting Officer has determined that the anticipated cost to the Government for the supplies/services covered by the J&A will be fair and reasonable based upon prior experience with this contractor, comparison to rates and collection percentages assessed by similar firms in the same and similar jurisdictions, and by review of published rates publicly available.

8. Description of the Market Research Conducted and the Results, or a Statement of the Reasons

Market Research Was Not Conducted:

As described in Section VI above, market research, in accordance with FAR Part 10, was conducted by actual contracts already in place within Mexico through several agents, advising industry of the pending acquisition and consulting inquiries from interested parties. The latest such action was during EXIM Bank’s annual conference in Washington D.C. in April 2018 whereby several attendees / potential contractors’ opinions / conditions were sought. AMD confirmed that the types of services to be undertaken by the Contractor are commercial in nature. These services are provided to private and public sector entities without distinction. EXIM Bank has worked with Acosta González, Fausto on several heavily structured EXIM Bank transactions and demonstrated a high degree of competence in the advisory/documentary role. A review of legal support for EXIM indicated that Acosta González, Fausto is uniquely positioned to provide the services required for this instance. No other firms were identified that possess similar knowledge of EXIM, its transactions and legal experience with project situated in Mexico. EXIM Bank has been utilizing Acosta González, Fausto since 2013 on this particular project and is satisfied with the services being provided.

9. Any Other Facts Supporting the Use of Other than Full and Open Competition:

Acosta González, Fausto is uniquely qualified for this contract because of his firm’s physical propinquity to the debtor’s headquarters, thorough know-how on Mexico government operations with emphasis on payment flows, and especially for the blend both his legal commercial experience in collections and having held related work as a public official [Attorney General in the State of Sonora].

10. Listing of Sources that Expressed, in Writing, an Interest in the Acquisition: NA

11. A Statement of the Actions, if any, the Agency May Take to Remove or Overcome any Barriers to

Competition before Making subsequent acquisitions for the supplies or services required:

For the reasons set forth in Paragraph 5, EXIM Bank has no plan at this time to compete future contracts for the types of services covered by this document. If another potential source emerges, the Agency will assess whether competition exists.

12. Requirements Certification:

I certify that the requirement outlined in this justification is a Bona Fide Need of the Export-Import Bank of the US and that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Name: Richard D. Brackley Date: May 7, 2018 Title: Managing Director Facility: Recoveries Group, Asset Management Division

13. Approvals in accordance with FAR 6.304

Contracting Officer's Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief.

Name Date Title Facility