JTP JA No. 24-094 - 6.12.2024.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION (J&A)

TO: Deborah Broderick, Agency Competition Advocate (ACA)

FROM: Cassandra Wheeler de Vides, DGO/COR

SUBJECT: Justification and Approval for Other than Full and Open Competition (J&A)

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 Agency: U. S. Agency for International Development Contracting Activity: USAID/Guatemala Project Title: Justice and Transparency Project Contract Number: 72052020C00001 Contractor: Dexis Consulting Inc.

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

This is a request to approve a non-competitive Total Estimated Cost (TEC) increase to the Justice and Transparency Project, contract number 72052020C00001, for $8 million from the current TEC of $49,369,382 to a revised TEC of $57,369,382 and a 24 month extension from an end date of April 29, 2025 to April 29, 2027. The TEC of this contract was increased in August 2022 from the original TEC of $29,369,382 by $20 million via modification No. 05 resulting in the current TEC of $49,369,382. A J&A was executed as the authority for this increase. The contract is implemented by Dexis Consulting Inc. (the “contractor”), a firm with vast experience and expertise in rule of law in Latin America. This is a Cost Plus Fixed Fee Completion Contract. The purpose of this contract is to strengthen security and justice sector institutions to more effectively and efficiently investigate, prosecute, and adjudicate crime in order to reduce corruption and impunity in Guatemala.

The increase in the total estimated cost will allow USAID to provide technical assistance to respond to priorities led by the new administration of the Government of Guatemala (GOG) on transparency and anti-corruption.

Since 2021, co-option of the state by nefarious actors and democratic backsliding, aggravated by frivolous prosecution and lawfare, led to a political crisis which peaked during Guatemala’s 2023 elections and continued throughout the Presidential transition. Entrenched elites and political brokers challenged certified election results. Indigenous Authorities, aided by civil society, led nationwide blockades demanding democracy be upheld. Efforts to stop the transition continued up until the day of the inauguration. The new administration led by Bernardo Arévalo and Karin Herrera represents a new democratic era. Opportunity to address entrenched corruption and rebuild democratic institutions based on transparency and accountability has never been greater.

USAID’s Justice and Transparency Project has the trust of the current administration and provided key support throughout the transition. The Project has proposed a Guatemalan-built model to promote transparency from within the Executive Branch institutions to address, document, and analyze corruption complaints. The purpose is to root out corruption from within. Since the new administration took office, the Project has received numerous requests for assistance from Executive Branch entities and the National Anticorruption Commission (CNC for its acronym in Spanish) to replicate the models and support other key initiatives that will strengthen the fight against corruption. This Guatemalan administration has only four years to revert a decade of democratic backsliding and weakening rule of law.

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

President Arévalo campaigned on an anti-corruption platform. Now is the time to help him deliver on those promises and expand USAID’s existing project activities within the Executive Branch entities, strengthen civil society's capacity to hold the government accountable, and provide assistance to the CNC. Arévalo’s anti-corruption agenda is aligned with the USG's Strategy on Combating Corruption, and USAID's Anti-Corruption Policy. At this moment, USAID/Guatemala has the opportunity to exercise holistic and responsive support to help anti-corruption champions deliver on their promises and sustain windows of opportunity.

Specifically, the contractor will:

Strengthen the anti-corruption efforts: The Arévalo administration has a window of opportunity to revert democratic backsliding. This requires USAID to mount a diplomatic and programmatic response, drawing on our partners from the interagency, civil society, the philanthropic community, and multilateral organizations, grounded in the communities most impacted. Support to the recently created CNC is the primary means to this end. However, because the CNC is new, and it is not built off of the previous administration's framework, they still do not have technical staff nor the budget to execute their ambitious plans. Accordingly, the contractor must work closely with the CNC to determine their needs for assistance and provide technical assistance and support for the implementation of their plans while the CNC waits for GOG resources to become available.

(Estimated value: $1,000,000)

Counter corruption across sectors: Leading up to and since the inauguration, USAID has received many requests to expand the anti-corruption work with which the Justice and Transparency Project has already had significant success in four Executive Branch entities. Within the Tax Administration, the Institute of Migration, the Internal Affairs office of the national police, and the Ministry of Labor, the contractor established and/or strengthened and expanded internal affairs units. On April 1, 2024, Guatemalan news agency AGN published an article in which the CNC stated that the establishment of probity units are a key means to detect, prevent, and respond to corruption. Under this extension, the contractor will expand this model to the following ministries/entities:

Ministry of Health Guatemala's Solicitor General Ministry of Education Guatemalan Institute of Tourism (InGuat) and one additional ministry to be determined.

The approach for this cross sectoral anti-corruption work implies implementing these new offices in two phases: 1) analysis/assessment and 2) technical support and implementation. Initially, the contractor must analyze the phenomenon of corruption (the type of corruption that happens, how it happens, internal control weaknesses, etc.) They must also conduct an analysis of the players and the regulatory framework of the entity. Once the analysis results are presented to the minister, the contractor will draft a plan to define the structure of the office, support the definition of staff profiles, redefine the regulatory framework, and train all staff. The contractor will furnish and equip the office and embed consultants to provide real time training, mentoring, and guidance on how to address corruption complaints as they are registered in the new office. (Estimated value: $5,000,000)

Forge new partnerships and coalitions. The Arévalo administration relaunched the Open Government Partnership in Guatemala as a crucial initiative to re-engage with a diverse range of civil society organizations in combating corruption, safeguarding civic space, and advancing digital governance, among other objectives. Edie Cux, former Legal Director of Acción Ciudadana (the local chapter of Transparency International), was appointed head of the Presidential Commission for Open and Electronic Government (GAE for its acronym in Spanish) on February 4. This Commission is tasked with developing and implementing policies, strategies, and initiatives aimed at enhancing government transparency, efficiency, and responsiveness to citizen needs and demands.

Its responsibilities include promoting the use of electronic tools for public service delivery, facilitating access to government information, and fostering collaboration between government institutions and civil society organizations to uphold open government principles. To date, the Commission has engaged with representatives from all Indigenous Authorities and secured their active participation and engagement in these issues. As Indigenous Authorities played a pivotal role in upholding democracy after the 2023 elections, their participation in this Commission will give them an active role in government oversight and the implementation of transparency and anti-corruption efforts. Through support to this Commission, the contractor will enhance a purpose-driven partnership between a diverse array of anti-corruption champions from civil society and grassroots organizations, including Indigenous Authorities and the GOG. (Estimated value:

$1,300,000)

Reform: The implementation of the anti-corruption agenda under the Arévalo administration will require reforms at different levels. Regulatory and procedural reforms within ministries, policy reforms, and reforms to legislation. The contractor will provide technical assistance to draft requested reforms and subject matter technical opinion on proposals presented for review.

(Estimated value: $700,000)

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

This justification sets forth the facts and rationale for use of other than full and open competition under Agency for International Development Acquisition Regulation (AIDAR) 706.302-70(b)(5) Impairment of foreign aid programs: “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 requires use of the authority cited:

Full and open competition would result in unacceptable delays, which would harm USAID/Guatemala’s Justice and Transparency Project and thus a USG foreign policy objective in combating corruption. The window of opportunity to support the GOG’s aggressive anti corruption and transparency agenda is small, and the current administration continues under threat of prosecution by the Attorney General’s Office. Guatemalan society is already demanding results with regard to the fight against corruption, which was Arévalo's key campaign promise that got him elected. Without continuing citizen support, which the activity proposed under this extension will help maintain, the current administration's ability to revert democratic backsliding and strengthen rule of law will be significantly limited.

The contractor has established relationships and presence that allows them to immediately initiate proposed activity implementation. The contractor has successfully implemented its planned activities and obtained results despite difficult political changes in the country, and within a challenging environment characterized by a pervasive culture of impunity and entrenched corruption. The contractor has designed a model within the Ministry of Labor, the Tax Superintendency, the National Civil Police and the Migration Institute that allows for the detection, reporting and analysis of corruption complaints. This model responds to the specific institution’s regulatory framework and Guatemalan laws and regulations. Additionally, the contractor, in conjunction with the new administration's Anti-Corruption Commision, is drafting a series of policies and codes that require continued support for their approval and immediate implementation. The Project has also supported the development of plans and methodologies for promoting and strengthening the GOG’s plans for open government and bridging the digital gap.

The contractor’s performance has exceeded government requirements thus far. The quality of the services provided and commitment is recognized not only by USAID but also by Guatemalan authorities, and the project's work products have been instrumental in informing the interagency on relevant legal matters. The contractor’s performance is an indicator of its unique qualifications, and it has established the recognition, respect, and relationships with key GOG institutions to swiftly and effectively implement the new activities described in this request, without delay.

The new GOG administration has specifically requested the replication of the model which the Justice and Transparency Project implemented in the Ministry of Labor to detect, analyze, and report corruption complaints. Replication of this model has been requested in the Ministry of Health, Ministry of Education, Ministry of Energy and Mines, Guatemalan Institute of Tourism, Solicitor General’s Office and the National Institute for Victim’s Assistance. The contractor developed the model and it has been adopted by the GOG as the gold standard under the Arévalo-Herrera administration.

With regard to the authority cited for this justification, compliance with full and open competition procedures would impair or otherwise have an adverse effect on programs conducted for the purpose of foreign aid. The Biden-Harris Administration has consistently stated that combating corruption is a key USG foreign policy objective. On February 2, 2021, President Biden issued an Executive Order (EO) calling for the preparation of a strategy for Addressing the Root Causes of Migration (“Root Causes Strategy'') which, among other elements, recognizes the priorities of combating corruption, strengthening democratic governance, and advancing the rule of law. The uninterrupted provision of these highly specialized services is required to respond to the GOG’s priorities at this juncture. The contractor has designed a model within the Ministry of Labor, the Tax Superintendency, the National Civil Police and the Migration Institute that allows for the detection, reporting and analysis of corruption complaints. This model responds to the specific institution’s regulatory framework and Guatemalan laws and regulations.The Government of Guatemala has identified this specific model as part of their anti-corruption strategy which is why these services are considered highly specialized. An award to another resource would result in substantial additional costs to the Government and in unacceptable delays. The current contractor is positioned to provide the highly specialized services which the GOG has specifically requested. They have the recognition from the government and the relationships to continue the work seamlessly. The current administration has a limited term, only four years in office. Accordingly, the first two years are critical for the presentation of results in order to continue to maintain the citizen support that has shielded the government from the nefarious actors seeking to undermine its fight to uphold democracy, strengthen rule of law and combat corruption. The current award ends in April of 2025 and a new instrument will require time to start up and establish the relationships needed. Full and open competition would result in unacceptable delays and missed opportunities given the current political juncture in Guatemala.

6. Description of the efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was publicized as required by

FAR 5.2 [AIDAR 705.2].

USAID/Guatemala examined alternative options to meet the Agency’s immediate needs, such as issuing a new mechanism or having a gap in programming. Given the time sensitivity of this action and the window of opportunity presented by the election of the new GOG authorities, these options were not considered feasible.

As required by FAR 5.201, an advance notice of the proposed contract action was publicized in the Government-wide point of entry (GPE) on April 24, 2024, providing notice of the Government’s intention to modify the contract pursuant to AIDAR 706.302-70(b)(5). In accordance with FAR 5.203(a), 15 days of response time was provided to potential sources. No comments were received in response to the posting.

7. A 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 costs to the U.S. Government will be fair and reasonable. The current rates, negotiated following a full and open competition in connection with the original contract, will remain the same in accordance with the formula established in the original contract.

The amount of resources requested is consistent with funding that has been provided through the Justice and Transparency Project for similar activities in other GOG institutions. Based on these costs USAID has drafted a government estimate for the expected results.

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

USAID/Guatemala conducted a market assessment by reviewing existing USAID mechanisms in this sector. The required actions fell only within the scope of the Justice and Transparency Project.

Outside of the publication of the Mission’s notice of intent to extend the award noncompetitively as discussed in Section 6 above, no additional market research was conducted.

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

None.

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

As required by FAR 5.201, USAID issued a notice of intended contract action on SAM.gov. No expressions of interest were received as documented in Section 6 above.

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 and potentially a set aside for small businesses and local organizations.

12. Technical or Requirements Personnel Certification:

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

Cassandra Wheeler de Vides,Technical Office Representative Date

13. Contracting Officer Certification:

In accordance with FAR 6.303, I hereby certify that the justification is accurate and complete to the best of my knowledge and belief.

Anthony R. Raneses, Supervisory Contracting Officer Date

14. Approved:

Deborah Broaderick, Agency Competition Advocate Date

Cassandra Wheeler

Digitally signed by Cassandra Wheeler Date: 2024.05.30 14:22:29 -06'00'

ANTHONY RIVERA

RANESES

Digitally signed by ANTHONY

RIVERA RANESES

Date: 2024.05.31 07:42:38 -06'00'

Internal Agency Clearances:

[As required, see ADS 302.3.4.5 and Exceptions to Competition Guide (https://pages.usaid.gov/M/OAA/exceptions-competition]

Clear _____________________________________ __May 14, 2024_________________ Lou Wise, Resident Legal Officer

USAID/Guatemala Clearance Page:

Per the approved Activity Design, Modification, and Close Out Standard Operating Procedures, modifications for acquisition instruments will be approved by the Mission Director through the Justification and Approvals (J&As) or other non-competitive documentation for contracts in accordance with FAR Part 6, AIDAR Part 706, and ADS 302; therefore this memorandum also documents USAID/Guatemala’s Mission Director’s approval for this time extension and TEC increase.

Drafter C.Wheeler, DGO Clear Date: 05/04/2024

Clearances:

C.Savage, Acting DGO Director Clear Date: 4/29/2024

A.Ranases, OAA Clear Date: 5/21/2024

L.Wise, RLO Clear w/comments Date: 5/14/2024

L.M.Alfaro, PPS electronically cleared Date: May 17,2024

D.Sedlacek, A/DDIR __Clear________________ Date: __5/21/2024___

APECS Guatemala e-clearances - Action Record

*APECS Guatemala ID: APC2686 *Package Name: DGO: J&A Justice and Transparency Project

*Description: J&A for a non-competitive TEC increase to the JTP

*File link to review: https://docs.google.com/document/d/19EsPvGl6M0HlR0Eo9Uq9kjGM4Y4j3TO-QIpFudwfA98/edit?usp=sharing

Status summary *RLO / clgarcia@usaid.gov - Clear (15 May 2024 11:23) --Comments: RLO provided clearance and comments already addressed on May 14, 2024 *DGO / clgarcia@usaid.gov - Clear (15 May 2024 11:28) --Comments: DGO Acting Dir., cleared on April 29, 2024 *cwheeler@usaid.gov / clgarcia@usaid.gov - Clear (15 May 2024 11:30) --Comments: Cassandra Wheeler COR, cleared on May 04, 2024 *PPSO_Backstops / lalfaro@usaid.gov - Clear (17 May 2024 09:50) --Comments:

*OAA / araneses@usaid.gov - Clear (21 May 2024 08:07) --Comments:

*OAA_DGO_Backstop / floy@usaid.gov - Clear (21 May 2024 08:14) --Comments:

*Requesting_Office / clgarcia@usaid.gov - Do not clear with reason (21 May 2024 08:58) --Comments:

*DMD / dsedlacek@usaid.gov - Clear (21 May 2024 09:30) --Comments:

URL to APECS Guatemala clearance record https://script.google.com/a/macros/usaid.gov/s/AKfycbzTqYzEtQ1dD-sgwXtnAXGSVRv34dJ614ifh2idDMj0S1VL_99rUPe40nNeKDjyxJA/exec?PID=APC2686

5/21/24, 1:47 PM APECS Guatemala - USAID/Guatemala https://script.google.com/a/macros/usaid.gov/s/AKfycbzTqYzEtQ1dD-sgwXtnAXGSVRv34dJ614ifh2idDMj0S1VL_99rUPe40nNeKDjyxJA/exec?PID=APC2686&statusOnly=0 1/1 https://docs.google.com/document/d/19EsPvGl6M0HlR0Eo9Uq9kjGM4Y4j3TO-QIpFudwfA98/edit?usp=sharing https://script.google.com/a/macros/usaid.gov/s/AKfycbzTqYzEtQ1dD-sgwXtnAXGSVRv34dJ614ifh2idDMj0S1VL_99rUPe40nNeKDjyxJA/exec?PID=APC2686 https://script.google.com/a/macros/usaid.gov/s/AKfycbzTqYzEtQ1dD-sgwXtnAXGSVRv34dJ614ifh2idDMj0S1VL_99rUPe40nNeKDjyxJA/exec?PID=APC2686