Adubos_Moema_July_2018_S02_JA_and_Sole_Source_Justification-_Redacted.pdf

Ver: May 2017

EXPORT-IMPORT BANK OF THE US

Justification and Approval for Other Than Full and Open Competition

1. Contracting Activity: Export-Import Bank of the US, Recoveries Group, Asset Management Division.

New Contract with Varella & Advogados Associados based in Rio de Janeiro, Brazil, to replace Contract No. EXIM-13-P-0066 that expired on 5/30/2018 (copy attached for ease of reference).

2. Nature and/or Description of the Action Being Processed: Claim No. I024825 – Obligor; Adubos

Moema Industria e Comercio, Ltda. for $709,120.54 – is already under litigation within Brazilian courts. Entire proceedings have been handled by the fore mentioned law firm, which has had this recovery assigned since 2013.

3. Description of Supplies/Services Required to Meet the Agency’s Needs: Continued legal services by processing through the litigation in Brazil. Estimated monitoring legal costs is Line 2 - $1,000.00 under Category No. 252077 (Non-Admin. Exp. – legal costs) and Line 3 - $106,368.08, which represents the 15% contingency fee contracted on the principal amount due of $709,120.54.

4. Statutory Authority Permitting Other than Full and Open Competition: 41 USC §253(g), as implemented by FAR 6.302. The specific paragraph must be cited. Most likely, only the -1 or -2 authorities will be cited. Please be aware that failure to adequately plan for future requirements does not constitute appropriate use of the unusual and compelling urgency statutory authority.

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

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

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 contractor is experienced in litigating the collecting matter at all levels of courts through Brazil. Varella & Advogados Associados is a law firm duly registered / licensed in the Brazilian Bar Association to practice in Brazil. In addition, and importantly, this law firm has worked on behalf of this Agency and for other similar agencies from several other countries for over 15 years. The Contractor is therefore able to fully understand legal risks that may be raised during representation of foreign government entities.

These risks include the risk of counter-suits, referrals for criminal prosecution, withholding tax questions, and the ability to communicate in the local language,

a. Only One Responsible Source (FAR 6.302-1) – Varella & Advogados Associados is already fully involved in the ongoing litigation to recover this debt and therefore any change in local legal counsel representation would unnecessarily delay proceedings and jeopardize prompt response(s) to proceedings as the Court makes its decision(s) in order to protect EXIM Bank’s interests.

b. Unusual and Compelling Urgency (FAR 6.302-2, 6.303-2(a)(9)(ii)) – Litigation is already ongoing and therefore immediate action could be required to protect EXIM Bank’s interests as court proceedings / decisions are made. Varella & Advogados Associados has already been registered in http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/far/Far06.doc#b63021 http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/far/Far06.doc#b63022 http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/far/Far06.doc#b63032

Court as representing legally EXIM Bank and appropriate powers of attorney, duly Apostilled, have already been registered in the Brazilian court system. Any changes in legal representation at this stage would signify disruption of representation to protect the Agency’s interests.

6. Description of Efforts Made to ensure that offers are solicited from as many potential sources as deemed practicable: EXIM Bank’s Recoveries Group is composed of seasoned practitioners with decades of experience in recovery work. Several law firms have been vetted, sometimes contracted, and ongoing survey of legal practitioners is an essential part of the group’s mandate and responsibility. For this particular case, Varella & Advogados Associados has been involved since the inception of the collection and therefore became fully familiar with the recovery options and the nuances required for a successful location of this defaulted loan in Brazil.

7. Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable: The cost and its effectiveness fall within the overall recovery profile of EXIM Bank’s defaulted loan portfolio in the Brazilian market. (FAR 6.303-2(a)(7)).

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

Market Research Was Not Conducted: EXIM Bank also has contracted with another agent, Global Recovery Group for collections around the world including Brazil, and the pricing for this recovery is fully competitive comparatively FAR Part 10 prior to assigning this recovery to this law firm in 2013.

A priori, some form of market research has been conducted, and it is most critical when citing the authority of FAR 6.302-1, only one (or a limited number of) responsible source(s). Under such circumstances: “As described in Section VI above, market research, in accordance with FAR Part 10, was conducted by synopsis of the proposed acquisition, advising industry of the pending acquisition and comparing inquiries from interested parties.”

9. 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:

Litigation in Brazil under the Ordinary proceedings invariably average ten years. Contract granted in 2013 for five years (maximum allowed each time by U.S. regulations) to this law firm does not cover the time period required for the full cycle of the litigation. This new Contract for 5 years ought to be sufficient for a final resolution from the Brazilian courts and ability to complete EXIM Bank’s recovery efforts in this case through Varella & Advogados Associados’ current litigation.

10. 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.

(This signature is the requestor’s supervisor), http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/far/FAR10.DOC http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/af_afmc/far/Far06.doc#b63021

Name: Richard D. Brackley Date: July 23, 2018 Title: Managing Director, Recoveries Group Asset Management Division

11. Approvals in accordance with FAR 6.304

a. 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