83310127Q0009 JOFOC Signed_09202_Redacted.pdf

EXPORT-IMPORT BANK OF THE UNITED STATES

JusƟficaƟon and Approval for Other Than Full and Open CompeƟƟon Commercial

Services AcquisiƟon under FAR 13.106-1(b) and FAR 13.501

1. ContracƟng AcƟvity:

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

2. Nature and/or DescripƟon of the AcƟon Being Processed:

The purpose of this JusƟficaƟon for other than Full and Open CompeƟƟon is to award a new Firm Fixed Price (FFP) Purchase order to Bertone, SanƟago in ArgenƟna 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, negoƟaƟons, liƟgaƟon, documentaƟon of agreements (Guaranty Addendum), embargoing assets and execuƟng upon assets.

3. DescripƟon 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 collecƟon on EXIM Bank defaulted loan “standard recovery contract with the Bertone, SanƟago law firm, for claim No. for a total buyer debt of $ The Contractor shall aƩempt recovery on behalf of EXIM Bank and, if provided EXIM Bank’s express instrucƟon to do so, insƟtute legal proceedings and/or provide credit restructuring services to EXIM Bank’s Recoveries Group, Asset Management Division (“AMD”) related to the referenced claims, involving the referenced debtor and guarantor(s), located in ArgenƟna. The esƟmated value for this contract is represenƟng fee on recoveries and preparaƟon of legal documents for transfer of Ɵtle to a third party payer of outstanding balance.

The Period of Performance for this contract will be five (5) years.

4. Statutory Authority Permiƫng Other than Full and Open CompeƟƟon:

41 USC §3304), as implemented by FAR 6.302. FAR 13.106-1(b) permits the ContracƟng Officer to consider the types of factors listed under FAR Part 6.302 when making the determinaƟon to solicit only one source. FAR 13.106-1(b) does not require that the ContracƟng Officer select only one of the listed authoriƟes, as is the case when the CompeƟƟon in ContracƟng Act applies.] For acƟons exceeding the simplified acquisiƟon threshold procedures in FAR subpart 13.5 were used in accordance with 41 U.S.C.

(x) (1) Only One Responsible Source and No Other Supplies or Services Will SaƟsfy

Agency Requirements per FAR 6.302-1;

5. DemonstraƟon that the Contractor’s Unique QualificaƟons or Nature of the AcquisiƟon Requires the Use of the Authority Cited Above (applicability of authority):

The contract acƟon involves collecƟng on EXIM Bank’s claim in a foreign country. It is imperaƟve to hire local counsel in ArgenƟna where the claims are to be monitored/liƟgated with experience in: locaƟng assets, especially potenƟal hidden assets, and embargoing and execuƟng upon such assets; draŌing and negoƟaƟng restructuring agreements appropriate for debtors of the type in this maƩer; and liƟgaƟng the collecƟon maƩer in all levels of courts throughout the debtor’s country. It is also imperaƟve that the local counsel have experience handling collecƟon maƩers of this sort on behalf of foreign enƟƟes, and especially foreign government enƟƟes such as EXIM Bank, because such representaƟon oŌen raises issues and creates legal risks for the foreign government enƟty. These risks include the risk of counter-suits, referrals for criminal prosecuƟon, and withholding tax quesƟons. AddiƟonally, it is imperaƟve 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, facilitaƟon of payments, and fraud.

The firm of Bertone, SanƟago is uniquely qualified to pursue this case in ArgenƟna. The Contractor has extensive experience in dealing with the complex U.S. Government administraƟve requirements. The contractor is cerƟfied to complete this type of work under the law of ArgenƟnian jurisdicƟons.

Bertone, SanƟago is registered in SAM. Finally, Bertone, SanƟago has experience in recovery maƩers in ArgenƟna. The contractor possesses a comprehensive understanding of work under this procurement.

Bertone, SanƟago will not require a familiarizaƟon period or training prior to immediately commencing performance of the Performance Work Statement. Accordingly, Bertone, SanƟago is the only firm capable of providing the services described in SecƟon 3 above without EXIM Bank experiencing duplicaƟon of cost for familiarizaƟon/training nor unacceptable delays in fulfilling its requirements.

Geƫng a quick start in assigning a new claim to a contractor in a foreign country is key.

By the Ɵme an insured files a claim with EXIM Bank and the Ɵme that it is reviewed by the Claim Processing unit and paid by the OCFO a few months at least may have lapsed, not taking into consideraƟon the Ɵme from the last shipment to the buyer, which could very well add nine months to the process. By the Ɵme the RO receives the claim for collecƟon close to one year may have gone by before any aƩempt is made to collect from the foreign buyer, a definite disadvantage to the taxpayer. A debtor may be in hiding, it could have sold the company/operaƟng under a different name, it may have transferred assets to avoid collecƟon, its financial condiƟon may have suddenly changed and/or its local currency may have depreciated. There’s only a handful of contractors that understand the scope of recovery work required by EXIM Bank.

6. DescripƟon of Efforts Made to ensure that offers are solicited from as many potenƟal sources as deemed pracƟcable:

In accordance with 41 U.S.C. 3304, the Bank has sought to idenƟfy as many potenƟal sources as pracƟcable under the circumstances. The specialized knowledge required to minimize the risks and maximize the chances of success in EXIM Bank’s execuƟng its rights under the Finance Documents and the need for confidenƟality, limits the likelihood of idenƟfying mulƟple firms possessing the requisite skill set. Offerors are located through SAM registry, U.S. Embassy contacts, conferences, with the ability to work in recovery maƩers in ArgenƟna.

7. DeterminaƟon by the ContracƟng Officer that the AnƟcipated Cost to the Government will be Fair and Reasonable:

The ContracƟng Officer has determined that the anƟcipated 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 collecƟon percentages assessed by similar firms in the same and similar jurisdicƟons, and by review of published rates publicly available.

8. DescripƟon 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 enƟƟes without disƟncƟon. EXIM Bank has worked with the Bertone, SanƟago law firm and demonstrated a high degree of competence in the advisory/documentary role. A review of legal support for EXIM indicated that the Bertone, SanƟago law firm is uniquely posiƟoned to provide the services required for this instance. No other firms were idenƟfied that possess similar knowledge of EXIM, its transacƟons, and legal experience with projects situated in ArgenƟna.

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

The Bertone, Santiago legal firm provides seasoned collection specialist(s) who have been involved both in the private and public sectors in Argentina. In addition, the firm is fully cognizant of the process of litigation within Argentinian courts.

10. LisƟng of Sources that Expressed, in WriƟng, an Interest in the AcquisiƟon:

No other sources expressed interest, in wriƟng, in this acquisiƟon.

11. A Statement of the AcƟons, if any, the Agency May Take to Remove or Overcome any Barriers to CompeƟƟon before Making subsequent acquisiƟons for the supplies or services required: