JA TCN Extension Sr Human Rights Advisor.pdf

Justification and Approval for Other Than Full and Open Competition (J&A) Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador

JUSTIFICATION AND APPROVAL FOR OTHER THAN

FULL AND OPEN COMPETITION (J&A)

TO: Kent Benson, Deputy Executive Officer

FROM: Christopher Schaffer, Office of Democratic Governance & Security Director

SUBJECT: Justification and Approval for Other Than Full and Open Competition

(J&A) for the contract extension of the Senior Human Rights Advisor

DATE: June 26, 2020

1. This document sets forth the facts and rationale justifying the use of other than full and open competition, in accordance with USAID Acquisition Regulation (AIDAR) 706.302- 70(a)(2) which states that “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.” AIDAR 706.302-70(b)(5) states that this authority may be used for 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”. This document was prepared by the USAID/El Salvador Office of Democratic Governance and Security (DGS).

2. The nature and/or description of the action being approved: This is a request to approve an exception to competition for a one-year extension of the Third Country National Personal Services Contract (TCNPSC) of Ms. Cyntia Cardenas. Under this action Ms. Cardenas will provide continued critical support to DGS and the US Mission to El Salvador through: 1) the management of two ongoing activities with a combined ceiling of $49 million; 2) expert analysis and recommendations regarding events, policies, laws, and other political actions affecting human rights and migration in El Salvador and the broader region; and 3) convening and guiding key stakeholder groups for the promotion of human rights and migration policies benefiting U.S. foreign objectives in Central America.

3. Description of the supplies or services required, including an estimated value: DGS requires an experienced Senior Human Rights Advisor who is an expert in the fields of human rights, protection of vulnerable populations, and rule of law and has more than seven years of relevant experience. Given USAID/El Salvador’s high-profile human rights and migration activities in Central America, the Mission also requires this advisor to have previous regional project management experience in complex and politically sensitive environments.

This TCNPSC will manage a five-year, $34 million migration activity, Integrated Responses to

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador

Migration (IRM), and a five-year, $15 million human rights activity, Rights and Dignity. In addition to the full suite of activity management tasks typically required of an activity manager, this portfolio will also require the TCNPSC to convene and facilitate working groups of governmental, non-governmental, and international stakeholders; provide expert legal and policy analysis and recommendations to high-level U.S. government officials; maintain close working-level coordination with U.S. government interagency counterparts; and provide briefings to key U.S. government policy makers, including members of Congress, Congressional staff, and high-ranking administration officials.

The TCNPSC requires native level proficiency in Spanish and extensive experience and knowledge of key governmental counterparts and civil society groups working on human rights and migration issues in the region. The individual must excel in advancing core mission strategies and bring strong experience working in the region on sensitive human rights issues faced by vulnerable populations, including internal displacement, irregular migration, extrajudicial killings, disappearances, unlawful detention, labor rights, and other human rights violations.

The estimated total cost of this TCNPSC extension is $149,179.00, including compensation, benefits. Other local support costs for the extension period are estimated at $137,650.00.

4. Statutory authority permitting other than full and open competition: As noted above, AIDAR 706.302-70(a)(2) states that “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.”

AIDAR 706.302-70(b)(1) states that the authority given by AIDAR 706.302-70(a)(2) may be used for an “award under section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, involving a personal services contractor serving abroad.”

Further, AIDAR 706.302-70(b)(5) states that the authority given by AIDAR 706.302-70(a)(2) may be used for 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.”

AIDAR 706.302-70(c) provides the following limitations on use of this authority: "(1) A contract awarded using the authority in paragraph (a) of this section must be supported by the written justification and approval (J&As) described in (48 CFR) FAR 6.303 and 6.304 . . . (2) Proposals must be requested from as many potential offerors as is practicable under the circumstances . . . or (3) ... when the authority at 706.302-70(b)(5) is used advance notice of the proposed contract action is not required in accordance with (48 CFR) FAR 5.202.”

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador

5. A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition that requires use of the authority cited: Four factors related to the services envisioned under this TCN-PSC have aligned in such a way as to justify an exception to competition for a one-year TCNPSC extension. These factors are: 1) the critical nature of the work; 2) the lack of a U.S. Direct Hire (USDH) to manage this work; 3) the lack of a USAID Foreign Service National (FSN) to manage this work; and 4) Ms. Cardenas’ unique qualifications in the fields of human rights and migration.

A. Critical nature of the envisioned work: Reducing illegal migration from Central America to the U.S. is a top foreign policy priority of the U.S. government. This has been demonstrated by multiple recent changes in U.S. immigration policy, such as the signed Asylum Cooperation Agreements (ACAs) with the governments of El Salvador, Guatemala, and Honduras. The IRM activity, as USAID’s flagship migrant reception and reintegration project, is crucial to achieving this foreign policy goal. Moreover, the Governments of El Salvador, Guatemala, and Honduras will need assistance to fulfill their commitments under the ACA implementation plans. These governments currently have little capacity to process asylum seekers. This capacity will need to be significantly increased for the ACAs to successfully reduce illegal migration. IRM is well positioned to provide this support.

Finally, the current U.S. Administration directly demonstrated its support for, and the significance of, the IRM activity by approving the activity’s commencement. This has been the only new USAID/El Salvador bilateral or regional activity to receive approval to operate in FY 2020. For the reasons mentioned in this paragraph, IRM requires a highly skilled and experienced manager who is an expert on migration in Central America.

B. Lack of USDH staff (primary management preference): DGS had originally planned on the IRM activity being managed by a USDH. The justification for the previous exception to competition for an extension of this TCNPSC was that the USAID bidding cycle would leave a gap in USDH Foreign Service Officers (FSOs) of approximately six months. Given the complicated nature of this activity, a new FSO would then require an added six to nine months to gain the needed situational awareness to provide adequate leadership of the IRM activity. This created a total projected gap in FSO activity management of one year or more. Ms. Cardenas is currently filling this gap while USAID/El Salvador attempts to find a suitable FSO during the 2019-2020 bidding cycle.

However, USAID’s Human Capital and Talent Management Office did not fill this FSO position during the 2019-2020 major listing round of bidding despite USAID/El Salvador certifying the only two interested bidders. Moreover, no FSOs bid on this position during the 2020 Update 1 round of bidding, making it virtually certain that this position will go

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador unfilled during the entire 2020 bidding cycle even without considering the potential implications of Covid-19 on the bidding cycle. USAID/El Salvador now faces a very significant gap in the management of this portfolio, as a bidder selected during the 2021 bidding cycle would not arrive until mid-2021, leaving at least a year-long management gap from the current expiration date of Ms. Cardenas’ TCNPSC; and which would certainly have an adverse effect on the activity. This extended gap is much less manageable for the Mission, particularly given that combating illegal migration in Central America is one of, if not the, highest priorities of the Administration, and thus USAID/El Salvador’s overarching goal.

Further, an incoming FSO would require an additional six to nine months to acquaint her/himself with the highly complex human rights and migration situation in Central America. In practical terms, this would extend the management gap of this important portfolio to a year and a half or more.

C. Lack of FSN staff (secondary management preference): If transition of IRM management to a USDH turned out to be impractical, as in this case as explained above, the DGS Office’s secondary plan was to name a current FSN staff member as manager of this activity. During the planning for the turnover of this activity from Ms. Cardenas to a new manager, DGS had a staff of 11 FSN and TCN activity managers. However, a senior DGS FSN left the office in July 2019 leaving DGS with 10 local staff capable of activity management. These 10 staff members currently manage 13 activities with plans to initiate up to five new activities in the coming months. If Ms. Cardenas’ contract is not extended, there would be only nine staff members available to manage the both new and continuing activities. The average DGS activity has a TEC of $17 million, a level requiring a dedicated staff member for adequate activity management. Accordingly, DGS FSN staff are already operating at full capacity and will be under even more strain with the impending planning and management of future activities. Moreover, as U.S. foreign assistance to El Salvador, Honduras and Guatemala resumes, the Mission anticipates receiving new tranches of funding under an uncertain timetable, with the expectation of rapid programming. As citizen security is a major pillar of the Mission’s development strategy, DGS teams will be expected to undertake significant design and planning for future activities, potentially, on an accelerated timeframe. This secondary IRM management option of transition to an FSN is, therefore, also not feasible.

D. Contractor’s unique qualifications: Ms. Cardenas possesses the specific knowledge, skills, and abilities that make her an ideal candidate to continue management of this highly sensitive human rights and migration portfolio. No USDH or FSN in DGS possesses these traits and, based on past experience, it is highly unlikely DGS would find a candidate with

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador these qualities in a full and open competition. Over the past four years, Ms. Cardenas has demonstrated her ability to:

i. Simultaneously manage the $15 million bilateral Rights and Dignity activity and the $18 million regional Northern Triangle Return and Reintegration activity, both highly complicated activities.

ii. Expertly counsel the USAID/El Salvador Front Office and the U.S. Mission to El

Salvador’s Political Section on key migration and human rights issues.

iii. Develop and nurture highly beneficial relationships with key governmental counterparts up to the ministerial level and key international and local actors.

iv. Provide expert overviews of the region’s migration and human rights situation and of the relevant USAID activities to key U.S. government policy makers.

v. Maintain close coordination and cooperation with all relevant U.S. government interagency counterparts for improved activity outcomes, as well as showcasing the activity for high-level visits and responding to all inquiries and communication from Washington.

In addition, Ms. Cardenas’ background as a Mexican national provides her with the Spanish fluency and social awareness to successfully operate in the region yet be seen as a neutral actor in the highly politicized political environments of the countries of Central America.

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].

AIDAR 705.202(b) states, “The head of the U.S. Agency for International Development has determined after consultation with the Administrator of the Office of Management and Budget's Office of Federal Procurement Policy and the Administrator of the Small Business Administration, that advance notice is not appropriate or reasonable for contract actions described in 706.302-70(b)(1) through (b)(3).” DGS is requesting this exception under AIDAR 705.302-70(b)(1) (“An award under section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, involving a personal services contractor serving abroad”), therefore, advance notice is not required. Furthermore, when using the authorities in 706.302-70(b)(5), and in accordance with FAR 5.202, The contracting officer need not submit the notice required by FAR 5.201 when the contracting officer determines that ... (11) The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action;”

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador

7. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable: As per the approval granted pursuant to AIDAR Appendix J, Section 4(c)(2)(ii) by the Mission Director to use Alternate Classification Procedures instead of the Local Compensation Plan, the salary and benefits of this position are based on the current GS Pay Plan and are subject to the terms and conditions for TCN PSC compensated in accordance with the following sub-sections of AIDAR Appendix D, Section 4: (c), (d), (e), (f), (g), (h), and (i). All costs are deemed fair and reasonable by the Contracting Officer approving this action.

8. Description of the market research conducted, and the results or a statement of the reasons market research was not conducted: DGS conducted formal market research during the original recruitment and selection of this TCNPSC. As noted in the selection memo, Ms.

Cardenas’ skills and knowledge far exceeded those of the other applicants. DGS concludes that Ms. Cardenas is the only practicable potential offeror that can provide these services without delays and additional costs to the U.S. government.

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

government would be harmed in the following ways for a period of at least one year -- until a suitable FSO candidate is identify in 2020-2021 bidding cycle (the USDH staffing gap referenced above) if Ms. Cardenas cannot continue her management of this portfolio:

A. Achieving USAID/El Salvador’s key objective of reducing illegal migration to the U.S. would become more difficult.

B. USAID/El Salvador’s ability to support the ACAs, an Administration priority, would be diminished.

C. USAID/El Salvador’s ability to be a convener of international and local stakeholders in the migration and human rights sectors would be weakened.

D. The DGS Office would expend significant resources and face substantial additional costs and unacceptable delays in the selection and training of a new staff member to oversee the migration and human rights portfolios.

E. The DGS Office would divert significant resources away from other priority activities.

F. F. The DGS Office’s ability to respond to urgent requests for information from the U.S.

G. Congress and Executive Branch, in addition to providing in-country briefings and site visits, would be impaired.

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

None.

Contract extension of the Senior Human Rights Advisor, Office of Democratic Governance and Security (DGS), USAID/El Salvador

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: The Agency intends to compete future requirements through full and open competition.

12. Technical or requirement personnel certification: In accordance with FAR 6.303.1(c), I hereby certify that the technical statements included above, and which form a basis for the justification are complete and accurate.

Requiring Officer:

Initial request by email Christopher Schaeffer, DGS 05/13/2020 Edited Christopher Schaeffer, DGS 06/18/2020

13. Clearances:

Cleared by Email with edits *ATG* Alexis Taylor-Granados, Resident Legal Officer 05/27/2020

Cleared by Email with additional edits *ATG* Alexis Taylor-Granados, Resident Legal Officer 06/16/2020

Cleared by Email Laurie de Freese, DDIR Mission Competition Advocate 06/26/2020

14. Contracting Officer Certifications: By approving below, I hereby certify that the justification is accurate and complete to the best of my knowledge and belief.

(X) Approved ( ) Disapproved

Kent Benson, Deputy Executive Officer