Approved JandA 21 081 ROLP AID169C1700005.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION (J&A)

DATE: April 06, 2021

TO: Deborah Broderick, Agency Competition Advocate (ACA)

FROM: Milena Jenovai, Contracting Officer’s Representative (COR), USAID/Serbia, ODEG

SUBJECT: Justification and Approval for Other than Full and Open Competition (J&A) for a funded extension of the Contract No.AID-169-C-17-00005, “Rule of Law Project” (ROLP), with Development Professionals Inc.

(DPI)

1. This document sets forth the facts and rationale justifying the use of exception to competition, in accordance with AIDAR 706.302.

This document was prepared by Milena Jenovai, COR for the subject contract, from USAID Serbia’s Office of Democratic and Economic Growth (ODEG).

2. The nature and/or description of the action being approved:

This is a request to approve the use of other than full and open competition for a contract modification to increase the total estimated cost (TEC) of the Contract with DPI AID-169-C-17- 00005 by $500,000, from the current TEC of $9,936,162 (exclusive of maximum award fee) to a revised TEC of $10,436,162 (exclusive of maximum award fee) and extend the activity’s period of performance by seven (7) months, from the current end date of July 6, 2021 to February 6, 2022.

If this action is approved, the Rule of Law Project (ROLP) will extend technical assistance within a limited scope to solidify the results of its key activities, thereby securing U.S Government investments and allowing the newly-implemented IT solutions to fully take hold in operational practices and rendering them sustainable.

3. Description of the supplies or services required, including an estimated value:

ROLP is a four-year activity (from July 7, 2017 until July 6, 2021), with a TEC of $9,936,162 (exclusive of maximum award fee), which was competitively procured through a full and open competition. Overall, ROLP is focused on strengthening judicial efficiency, transparency and accountability. The project’s goal is to enhance the timely delivery of justice for Serbian citizens through support to strategic advancement of Serbia’s judicial reform process; and increase of judicial efficiency and access to justice.

Developments with COVID 19, as well as 2020 parliamentary elections and postponed formation of the Government, caused unexpected delays in project interventions. With a limited contract extension, the Contractor would focus on solidifying and sustainability of results of its interventions.

Continued support to the roll-out of judicial IT tools: Introducing upgraded modules to the case management system operating in basic courts that cover the administrative segments of court operations – service of process and court fees – occurred in the midst of the pandemic and the state of emergency in Serbia in April and May 2020. In order for the courts to be able to fully utilize these modules and achieve the time and cost savings intended, have judges relieved of undue administrative burdens, and make overall operations of the courts more efficient, the Contractor needs to physically go into the courts and provide intensive hands-on assistance to court staff. Moreover, the service of process software requires careful change management as in this segment the courts need to transition from prior entirely paper-based operations to automated and streamlined procedures, which must be carefully facilitated by the Contractor to ensure its success and sustainability. This is especially true for one of the Contractor’s pilot courts whose operations have been particularly affected by the coronavirus, and has raised significant obstacles for the Contractor in extending sufficient on-the-job assistance to its staff.

Additionally, the court fee software (an upgraded module enabling automatic court fee processing and calculation, and a centralized application allowing system-level statistics of the court fees assessed and collected), has also generated a need to provide data cleaning in the case management system, and institutionalize a change in courts’ business processes so that they discontinue utilization of old case control numbers for court fees and enable the centralized application to deliver accurate reports. Given the current epidemiological conditions, although implementation of the new modules will be effectuated in pilot courts by the end of the current project end date, an additional targeted amount of time and resources will enable the new IT tools to become institutionalized and ensure their continued sustainability within the operations of the court system as a whole. This will ensure the effectiveness and permanence of the USG investment in this essential area of improving judicial efficiency.

Framework to improve position of judicial assistants: The Contractor carried out a range of activities centered on analyzing and formulating proposals for improving the position of judicial assistants in the judiciary of Serbia to bolster their retention and maximize their contribution to judicial efficiency and cost-effective case resolution, which specifically related to changing their status (from civil servants to the judiciary), and establishing a clear career path that includes professional advancement and training. The progress and stakeholder priority for these efforts have been hindered by the aforementioned delay in amending the constitution (since the regulatory changes will need to be implemented within the judicial packages of laws, and stakeholders want to first address constitutional amendments before turning their attention to any changes in the relevant judicial laws). In order to solidify these proposals, and strategically take advantage of momentum generated by a new Minister of Justice, the upcoming new High Court Council in spring 2021, and the anticipated continuation of the process of constitutional changes, the Project will work with stakeholders on identifying/drafting a full package of regulatory solutions comprised of proposed changes to the legislative framework (e.g. the set of judicial laws), which will be accompanied by new job descriptions and recommended court procedural/operational changes. This package would encompass both the problem definition and specific proposed solutions, thereby enabling future decision-makers to easily implement them once the constitutional amendments are finalized. As the constitutional amendments will not be fully considered during the current mandate of the Contractor, it is expected that a limited extension to the contract will enable the judicial assistant package to be delivered and advocated for at a time when they are most likely to be accepted and implemented by the Government, thereby providing better assurances for USAID’s investment in this area.

Roll-out of the case management system with the State Attorney Office (SAO): The Contractor has expended a great deal of time and effort to improve the quality, business processes and efficient operations of the State Attorneys Office (SAO) due to the enormous number of cases that this institution handles within the Serbian courts and the outsized effects its operations have on judicial efficiency, the costs and duration of litigation, and the rights of citizens. A large part of this support has been to upgrade the case management system of the SAO (Luris), which currently operates solely in the SAO Headquarters, and then roll-out the new system to the SAO’s 11 regional offices. The upgraded Luris system will (1) streamline the institutions business processes, (2) yield data and analysis that will help SAO leadership make informed decisions related to the need/delegation of human and financial resources, and (3) support the SAO to build its capacities to perform analytics on cases identified from its institutional caseload that entail the same or similar circumstances (e.g. repetitive cases), and examine whether case outcomes have included financial gain or loss. The SAO intends to use these latter assessments as objective justifications when negotiating with clients, i.e. Ministries, as to whether and to what extent certain cases are worth pursuing and/or develop alternative methods for resolving them.

Due to the pandemic and restrictions in working in regional SAO offices, the pace of the roll-out and implementation of the Luris upgrades has been delayed. Although the Contractor will meet its expected results by having the upgraded Luris operational in all SAO regional offices by the end of its current mandate, a targeted extension of time will enable the Contractor to supervise the initial utilization of upgraded Luris in all regional offices, ensure its sustainability in SAO business operations, and work with the SAO leadership to generate and formulate strategic recommendations based on accurate inaugural reports from the upgraded Luris system. This is anticipated to lead to the identification of further repetitive cases, and the formulation of recommendations for how to more quickly and efficiently resolve them for the benefit of the parties/citizens.

Increased monitoring and accountability of Public Enforcement Officers (PEOs): At present the Contractor is working with the Ministry of Justice and Chamber of Public Enforcement Officers to strengthen their mechanisms and procedures for monitoring the work of Public Enforcement Officers (PEOs). The Contractor is working with the MOJ to refine and implement a red flag system within the business intelligence tool they have developed, which will automate the monitoring of PEO activities through the analysis of data entered by PEOs in their regular reporting to the MOJ and the E-cadastre system. By the end of its current mandate, the Contractor expects that this innovation will be completed (work has been delayed by the pandemic and resulting temporary shifting urgencies within the MOJ), however, a limited extension for the contract will enable the Contractor to ensure that this new tool is properly piloted and utilized in an effective and sustainable manner, thereby protecting the USG investment in this field and further ensure the rigorous and sustainable monitoring and supervision of PEOs.

In line with the areas described above, under the proposed 7-month extension, the Contractor will provide critical services during unforeseen circumstances caused by COVID 19 and political environment.

The additional cost of this 7-month extension is estimated at a value of $500,000. All the planned services would be market-driven, targeted, and within the current scope of the contract.

4. Statutory authority permitting other than full and open competition:

AIDAR 706.302-70(b)(5) permits other than full and open competition “for the continued provision of highly specialized services when award to another resource would result in substantial additional costs to the government or would result in unacceptable delays.”

5. A demonstration of the proposed contractor’s unique qualifications or the nature of the acquisition that requires use of the authority cited:

The nature of the acquisition requires the provision of highly specialized services and approaches.

The Rule of Law Project (ROLP) has been USAID/Serbia’s primary mechanism in supporting judicial reform as the key requirement for Serbia’s EU accession. ROLP is supporting justice sector reforms which enhance the timely delivery of justice for Serbian citizens. The project works with the courts, public enforcement departments and officers, and the State Attorney’s Office to increase judicial efficiency, transparency, and access to justice. The DPI’s personnel utilize their expert knowledge of Serbian laws, systems, and procedures, as well as EU standards, to develop appropriate reform interventions and provide technical assistance, training and other services in highly specialized areas concerning case management, staff development, and other fields related to judicial reform. Furthermore, DPI’s personnel have developed unique working relationships with the Serbian judiciary by making the administration of justice more efficient and responsive to the needs of users.

ROLP has been the sole major donor program working on strengthening the capacity of court enforcement departments and public enforcement officers to ensure that civil and commercial court decisions can be executed in a timely, fair and transparent manner; and supporting the State Attorney’s Office to improve the quality and timeliness of legal advice and guidance provided to government bodies, reducing the level of litigation in which the state engages, and improving Serbia’s representation before the European Court of Human Rights. ROLP has also been the single program in Serbia that provides the specialized services that are crucial for advance of judicial reform in Serbia, such as development of – and ongoing support to – the implementation of Serbia’s new 2019-2024 Judicial Development Strategy to improve court operations, reduce in delays in court proceedings and increase public confidence in the courts; increasing utilization of E-justice tools; ensuring efficient delivery of court documents; streamlining court administration;

supporting establishment of judicial assistants career path; and promoting judicial transparency.

Following are illustrative examples of the specialized services that only DPI has been providing:

The adoption of Amendments to the Law on Enforcement and Security – drafted together with stakeholders led by the Ministry of Justice – is contributing to fairer, more efficient, and less costly enforcement.

Drafted the 2019-2024 Judicial Development Strategy with broad stakeholder input Expanded usage of the Judicial Information System has saved more than USD 3 million in costs compared to paper-based document exchanges between courts and outside institutions

Applied settlement guidelines for cases in breach of right to trial within a reasonable timeframe – resulting in 507 settlement agreements in one year that took only 1/3 of the time and cost four times less than full court proceedings.

Created a communications strategy for the High Court Council and courts Redesigned and publicly presented the Appellate Courts’ 2018 Annual Reports which resulted in greater understanding by citizens Developed E-justice tools to provide systemic solutions to service of process and court fees challenges resulting in substantial savings in time and money.

DPI is uniquely qualified to continue work under the proposed extension specifically due to its extensive network with all relevant institutions as well as other donors; the stage that activities are at currently; and the reputation it has built among all actors in the rule of law area. After USAID/Serbia has been inactive in the rule of law area for a couple of years, it took almost a year for DPI to rebuild solid and trustworthy relationships, and gain trust of local partners.

Despite that DPI operates in a very complex environment where the executive branch of the government is using all opportunities to undermine judicial independence and it is extremely difficult to get the two sides to agree on judicial reform direction, DPI has successfully facilitated a series of different interventions engaging both sides of the government. Due to the Covid-19 pandemic, imposed protection measures, restrictions in regard to gathering indoors, as well as travel restrictions and quarantine requirements, the time to become fully operational (which usually takes 6 months) and to establish qualitative relationships with partnering institutions would require significantly more time than usual. This means that a material portion of the additional 7 months of performance and $500,000 of anticipated funding would be consumed by attempting to establish relationships that DPI already maintains.

For all the reasons stated above, USAID/Serbia concludes that the DPI should continue to provide the highly specialized services required under ROLP because a new award would result in unacceptable delays and additional costs to USG.

NOTE: A direct award to a local contractor was not considered due to the lack of capacity for a local firm to fully comprehend and manage the complexity and scope of such an activity.

6. Description of the efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by Federal Acquisition Regulation (FAR) 5.2 [AIDAR 705.2].

A notice of this non-competitive action was publicized from March 19, 2021 to April 05, 2021 on beta.sam.gov in accordance with FAR 5.201. No expressions of interest were received.

7. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable:

Upon approval of this justification, the Contracting Officer will request a full technical and cost proposal from the DPI for the additional work requested. The Contracting Officer will conduct a thorough cost analysis of that proposal, with the same level of rigor as used with a competitive procurement, to endure that the actual cost to the Government will be fair and reasonable.

8. Description of the market research conducted, and the results or a statement of the reasons market research was not conducted:

No new market research was conducted because of the logical relationship of the support, i.e.

extension of services from the same contractor and the same technical advisors and consultants that have provided assistance for the ROLP project since its inception.

DPI, the contractor implementing ROLP, was selected based on a full and open competitive procurement process in 2017. The size/volume of the proposed modification will not change the nature of the original competition and SOW.

9. Other facts supporting the use of other than full and open competition

The extension of DPI’s highly specialized services is required to meet Serbia's Action plan for the Chapter 23 of EU Acquis. To integrate into the EU, each applicant country must transpose the Community acquis into its national legislation and implement the Community acquis from the moment of the country’s accession into the EU. The EU has prioritized judicial reform and anti-corruption efforts in the negotiation process regarding Serbia’s adoption of the Community acquis, frequently emphasizing that judicial reform and anti-corruption will be among the last to close before Serbia joins the EU. Supporting Serbia’s European integration process and strengthening the rule of law are central goals and objectives of the U.S. Mission, including USAID, in Serbia. Unacceptable delays in extending USAID judicial reform assistance via Rule of Law Project would significantly and negatively impact USAID’s and the U.S. Mission’s ability to achieve key objectives. Thus, if US assistance is delayed, Serbia’s ability to enact and implement key EU-required reforms will be reduced, as will the U.S.’ ability to meet its foreign policy objectives in the country.

ROLP is one of the Mission’s highest performing awards, and flagship project in the rule of law area. To date, it has exceeded nearly all of its targets in the PMEP. Further, the external independent mid-term evaluation confirmed that this has been a high-performing program.

Recommendations highlighted the extremely short timeframe of the award:

Recommendation - Page #28: “The Evaluation Team strongly recommends that ROLP seek a funded one-year extension to complete and fully embed the newly developed systems and processes into the judicial system. It is common practice for USAID projects to last for five years, but due to the expected exit of USAID support to Serbia, the project was designed to last for four years. Consistently, stakeholders commented that there is a strong need for the project to last five years to consolidate gains and finalize all anticipated activities.

An extension of ROLP would also align with EU projects, which are systematically being extended until the end of 2021 During this time, the constitutional amendments will be adopted, elections will take place, and the new government will be formed. The extension will allow time for the project to consolidate its gains and to develop the next project with the new government.”

10. Sources, if any, that expressed an interest, in writing, in the acquisition:

As mentioned above in Section 6, no sources expressed interest to the notice published on beta.sam.gov.

11. The actions the Agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required:

USAID/Serbia does not expect additional needs for subsequent acquisition of these services beyond the end of the proposed extended period of ROLP.

All subsequent requirements for similar goods and services will be procured through full and open competition.

12. Technical or requirement personnel certification:

In accordance with FAR 6.303-2(b), I hereby certify that the technical statements included above, and which form a basis for the justification are complete and accurate.

Gregory Olson Date Acting Director, Office of Democratic and Economic Growth

GREGORY P OLSON Digitally signed by GREGORY P OLSON Date: 2021.04.06 09:39:01 +02'00'

13. Contracting Officer Certifications:

I hereby certify that the justification is accurate and complete to the best of my knowledge and belief.

Tricia Siaso Date Director, Regional Contracting Officer

14. Approved/Disapproved:

Pursuant to AIDAR 706.302-70(c)(4), use of authority under AIDAR 706.302-70(b)(5) for proposed amendments for the continued provision of highly specialized services in excess of one year or over $250,000 is subject to the approval of the Agency Competition Advocate.

APPROVED: _________________________

Deborah Broderick, Agency Competition Advocate

DISAPPROVED: _________________________

Deborah Broderick Agency Competition Advocate

Date: _________________________

15. Clearance

Rebecca Hammel Date Regional Legal Advisor

Digitally signed by PATRICIA M SIASO (affiliate) Date: 2021.04.07 10:18:26 +01'00'

REBECCA ANNE

HAMMEL

Digitally signed by REBECCA

ANNE HAMMEL

Date: 2021.04.07 12:43:27 +02'00'