S02_JA_and_Sole_Source_Justification_-_Sanfrut_-_Redacted.pdf

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 Lic. Cesar Nieves to provide 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 defaulted loan of $185,000.00 Claim No. I200425, Sanfrut SA de CV located in Mexico. Recovery work must continue through litigation, which has now been ongoing for five years. 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 $27,750.00 which includes recovery fees of 15% of recovery estimated at $27,750.00. 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 th 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;

( x) (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.

The firm of Lic. Cesar Nieves/Mexico is uniquely qualified to pursue this case in Mexico. Lic. Cesar Nieves has worked with EXIM Bank and provided services of this nature for the Bank for many years.

The Contractor therefore has extensive experience in dealing with the complex U.S. Government administrative requirements. The contractor is certified to complete this type of work in Mexico.

Lic. Cesar Nieves is registered in SAM. Finally, Lic. Cesar Nieves has a strong presence in recovery matters in Mexico and has pursued several cases in that market for the Recovery Unit over the last fifteen years. Because of Lic. Cesar Nieves’ experience on like claims and work with EXIM Bank, the contractor possesses a comprehensive understanding of work under this procurement. Lic. Cesar Nieves will not require a familiarization period or training prior to immediately commencing performance of the Performance Work Statement. Accordingly, Lic. Cesar Nieves 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:

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 Lic. Cesar Nieves 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 Lic. Cesar Nieves 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.

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

Lic. Cesar Nieves provides seasoned collection specialist(s) who have been involved both in the private and public sectors of Mexico. In addition, the firm is fully cognizant of the process of litigation within Mexico courts.

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: Eric Bernard Date Title: Senior Recovery Officer Facility: Recoveries Group, Asset Management Division

13. Approvals in accordance with FAR 13.501

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

ROBYN L. MOORE Date Contracting Officer