Final_J&A_for_posting.pdf

ACTION MEMORANDUM

TO: DEBORAH BRODERICK, AGENCY COMPETITION

ADVOCATE

DATE: APRIL 25, 2018

FROM: JEANNE BRIGGS, DG OFFICE DIRECTOR, USAID/BURMA

REFERENCE: TCNPSC CONTRACT NO. AID-482-S-15-00003

SUBJECT: JUSTIFICATION AND APPROVAL FOR OTHER THAN

FULL AND OPEN COMPETITION (J&A) FOR EXTENSION

OF A PERSONAL SERVICES CONTRACT

1. This document sets forth the facts and rationale justifying the use of other than full and open competition in accordance with AIDAR 706.302-70(b)(5):

This document was prepared by the Democracy, Governance and Humanitarian Assistance (DGHA) Office, USAID/Burma, for the extension of a Third Country National Personal Services Contract (TCNPSC) issued to an off-shore hired Rule of Law and Governance Advisor.

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

This is a request to approve a follow-on specialized services award modification of Contract No. AID-482-S-15-00003 issued to an off-shore hired TCNPSC, Rule of Law and Governance Advisor. The award will be modified to extend the contract by 25 months on a full term basis and increase the total estimated cost (TEC) by approximately $257,630 from the current TEC of $368,291 to a revised TEC of $625,921. The extension is from the current end date of June 6, 2018 to a revised end date of July 5, 2020. Under this action, the incumbent will continue to provide services as the Rule of Law and Governance Advisor to USAID/Burma.

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

The incumbent is an expert advisor and technical authority responsible for providing strategic, technical and programmatic leadership to the U.S. Mission in Burma in the broad areas of rule of law and governance. He provides analysis, technical advice and recommendations to senior Mission Management, the Ambassador and other senior officers of the Embassy, Asia Bureau leadership and technical staff regarding the areas of rule of law and governance. Expertise in rule of law includes legal framework development, reform of criminal and civil justice systems, transitional justice, land rights, security sector reform, human rights, building human and institutional capacity within the justice sector, creating constituencies for legal reform and increasing access to justice. Areas of expertise in

TCNPSC CONTRACT NO. AID-482-S-15-00003

J&A for 25 Months Extension governance will include strengthening the public sector executive function to provide transparent and accountable governance at national and local levels (spanning anti-corruption, civil service reform and local governance). He collaborates with sector program managers to provide guidance on maximizing prospects for improved governance in all relevant areas of the USAID portfolio. As the principal expert and advisor on rule of law and good governance policy and management for the entire U.S. Mission, he routinely provides sensitive briefings to the Ambassador, the Deputy Chief of Mission, the USAID Mission Director and Deputy Director and inter-agency working groups.

The estimated value of the contract modification is $257,630.

The extension is within the HTCM approved period of performance.

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

In accordance with AIDAR 706.302-70 (a) and (b)(5)

(a) Authority

(1) Citation: 40 U.S.C. 474

(2) Full and open competition need not be obtained when it would impair or otherwise have an adverse effect on programs conducted for the purposes of foreign aid, relief, and rehabilitation.

(b) Application. This authority may be used for:

(5) An award 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 that the proposed contractor's unique qualifications or the nature of the acquisition that requires use of the authority cited:

The Contractor has more than 20 years of professional experience in the field of international development, with a specific focus on rule of law. He has a highly specialized educational background, professional experience serving as a barrister in the U.K., and more than 17 years with USAID, working on rule of law issues in complex conflict environments, including Sri Lanka and Burma. The Contractor combines the attributes of a seasoned sectoral expert with substantial project management experience including active Contracting/Agreement Officer’s Representative certification and extensive project design experience focused on the judicial and legal sectors. Additionally, the Contractor has developed a range of government and local contacts in Burma that provide significant value to the Agency in carrying out its development objectives and programming, including close relationships with Burma’s Supreme Court, Constitutional Tribunal and Attorney General’s Office, in addition to political activists, international donors, the academic community, and local civil society. The Contractor’s expertise and experience is further critical to the Mission’s internal staff development, as he will serve as the primary mentor for an expected Cooperating Country National to be hired within this fiscal year.

USAID/Burma has several ongoing high-profile Rule of Law projects and new programming in development. It is critical that the Contractor’s expertise be retained for the duration of this extension period. Due to recent political developments in Burma, primarily precipitated by the crisis in Rakhine state that caused more than 700,000 people to flee into Bangladesh and which the Secretary of State termed ethnic cleansing, U.S.- Burma relations are extremely tenuous and not expected to improve in the near-term. In order to ensure that USG-funded rule of law projects, which deal with an extremely sensitive area of governance institution-building, are implemented in accordance with USAID development objectives, the Mission requires retention of a senior Rule of Law and Governance Advisor who has trusted relationships with high level government actors, including the Attorney General and the Chief Justice of the Supreme Court. The already difficult task of building trusted relationships in Burma, which is still recovering from seventy years of closed military dictatorship, combined with the precarious nature of US- Burma relations, requires that the Mission retain a Rule of Law and Governance Advisor whom these high level actors trust to oversee implementation of projects that support their strategic objectives in enhancing rule of law institutional capacity building. The Mission cannot have a gap in service delivery or a diminishment in key relationships at this sensitive time.

The extension of this contract by 25 months is in the best interest of USAID/Burma as it meets a critical need for the Mission and the USG. USAID/Burma intention to extend the contract up to 25 months was posted on the Federal Business Opportunity website on April 10, 2018 in accordance with FAR 5.201.

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) 5.201 [AIDAR 705.2).

USAID/Burma’s intention to extend the contract up to 25 months was posted on the Federal Business Opportunity website on April 10, 2018.

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

Appendix J of the AIDAR applies to all personal services contracts with Cooperating Country and Third Country Nationals to provide assistance abroad under Section 636(a)(3) of the FAA. This TCNPSC position received Mission Director approval on February 20, 2015 to be paid in dollars rather than local currency with salary not limited to the local compensation plan of Burma. The TCNPSC position is classified based on the General Service (GS) schedule to determine what USAID considers to be the market value and salary range of the TCNPSC position. This position was classified at a GS- 14 level and the incumbent's salary was determined based on the prevailing market rates for the position along with his salary history thus ensuring that the anticipated costs to the Government are fair and reasonable. A budget analysis has been performed for the extension of the contract and USAID/Burma has adequate funding to cover the expenses and the Contracting Officer has determined that the costs associated with the extension to 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:

As indicated in paragraph 7 above, the incumbent's salary was determined based on the prevailing market rates for the position along with his salary history. The anticipated costs of this activity have also been compared with the prevailing market rates for similar services.

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

The solicitation was publicized as such and opened to all qualified applicants with salary set at GS-14 level on pay scale. After a full and open competition, the incumbent was selected and has been working in the position. The classification of the position has not changed and the salary for a GS-14 remains fair and reasonable. The incumbent is immediately available to fulfill the continuing needs of the Agency. USAID/Burma has a continuing and immediate need for the services that are performed under this contract. As noted above, given the sensitive nature of the subject matter and the status of US-Burma relations, continuity in this position is required to ensure achievement of USAID’s development objectives.

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

As mentioned in Section 6, USAID/Burma’s intention to extend the contract up to 25 months was posted on the Federal Business Opportunity website on April 10, 2018. No other source expressed interest in this position.

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

The TCNPSC contract will be extended resulting in a total of five years period of performance. In the event that the Mission determines that similar services will be required after the five-year period of performance, a new contract will be competed.

12. Technical or requirement personnel certification:

I hereby certify that the technical statements included above and which form a basis for the justification for the extension of TCN/PSC contract are complete and accurate.

Signed 04/25/2018 Technical Officer – Jeanne Briggs Date

13. Contracting Officer Certifications:

I hereby certify that this J&A is accurate to the best of my knowledge and belief.

James Mayer, Executive Officer Date

14. Clearance:

Julie Southfield, Resident Legal Officer Date

15. Approving Official:

Use of the authority in 706.302-70(b)(5) for proposed follow-on amendments in excess of one year or over $250,000 is subject to the approval of the Agency Competition Advocate.

Signed 04/27/2018 Approval: _________________________________ _________________ Deborah Broderick Date Agency Competition Advocate