Justification for an Exception to Fair Opportunity.pdf

DATE: April 15, 2020

TO: Linda McElroy, Contracting Officer

FROM: Lissette Dumit, Technical Officer, Task Order Contracting Officer Representative

(TOCOR)

SUBJECT: Justification for an Exception to Fair Opportunity

1. This document sets forth the facts and rationale justifying the exception to the fair opportunity, in accordance with FAR 16.505(b)(2)(i)(C) which states that “The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.”

This document was prepared by the U.S. Agency for International Development (USAID), Youth, Education, and Security (YES) Office at USAID/Dominican Republic.

Contracting Agency: U.S. Agency for International Development (USAID)

Contracting Activity: USAID Dominican Republic/YES Project Title: Criminal Justice System Strengthening Project (CJSSP) Task

Order Contractor: Chemonics International Contract Number: AID-OAA-I-13-00032 IDIQ Ordering Period:02/08/2013 – 08/07/2020 Order Number: AID-517-TO-15-00001 Order PoP: 06/08/2015-06/07/2020 Order proposed Extension: 06/08/2020-06/07/2021

In the last four years, the Criminal Justice System Strengthening Project (CJSSP) (which will be referred to as the activity or CJSSP in this document) has made significant progress toward its planned targets and outcomes, in many cases surpassing them. Examples include the following:

● Improving prosecutor effectiveness in Santo Domingo West (SDW), the activity established and operationalized best practices to strengthen prosecutor performance. For example, because 74 percent of all cases are now properly filed and registered digitally, wait times to receive a response to a complaint dropped substantially, from an average of 15 days to just five.

● Alleviating the burden on the formal criminal justice system and lower prosecutor caseload, the activity expanded alternative dispute resolution more than anticipated, reaching more than 166,000 people through community justice services, including conciliation and mediation.

● Increasing the number of vulnerable people benefiting from activity-supported services, which is now twice as high as the original target, demonstrating a substantial contribution to expanding access to justice, particularly for victims of family- and gender-based violence (F/GBV) and people in high-crime communities.

These illustrative results offer evidence that CJSSP is poised to take full advantage of an extension to deepen its impact and make cost-effective use of USAID/DR’s resources, capitalizing on lessons learned from the last several years of implementation.

The objective of CJSSP is to strengthen the Dominican Republic’s criminal justice system by improving the quality and effectiveness of prosecutions and increasing access to justice for vulnerable groups. The original contract was organized along two results packages: 1) prosecutor effectiveness improved, and 2) prosecutor and police oversight strengthened. Each results package had individual results defining expected achievements; there were four results under results package one, and three results under results package two.

This proposed TEC increase of $178,900.45 is the second modification that increases the TEC of the Task Order and the requested one-year extension is the first proposed time extension to the Task Order. The first TEC increase was executed through modification 09 to the Task Order that was signed on September 6, 2018 and it increased the TEC by $504,000 from $21,534,654 to $22,038,654. USAID/Washington provided the $504,000 additional funds to be implemented through a grant under the Task Order with the International Association of Women Judges (IAWJ) for one specific cross program activity for improving justice for victims of gender based violence in the Dominican Republic, to decrease the rate of “GBV case collapse” in selected courts. For this modification a Justification for an exception to the fair opportunity was approved by the Contracting Officer and the exception used was FAR 16.505(b)(2)(i)(C) “The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.”

On May 2, 2018, an external whole of project mid-term evaluation was performed for this Task Order. The evaluation recommended that USAID revise the focus of several of the ongoing activities, within the same Scope Of Work, to focus the activities on areas where the current Government of the Dominican Republic (GODR) evinced political will to support USAID’s work, and to narrow the geographical focus of ongoing activities to better align with the GODR’s support. Specifically, the evaluation recommended that the strategy to target several large legal jurisdictions be revised to the legal jurisdiction where USAID could more clearly gain traction with GODR partners to ensure best and cost-efficient results. Subsequently, Modification 10, dated February 19, 2020 called for the activity to focus more intensively on the GBV work originally defined in the contract; and to focus on two specific municipalities which handle a high-volume of GBV cases and where other USAID/DR interventions could complement efforts and increase the achievement of cost-effective results to the USG.

As per Modification 10, it kept the original two results packages, 1) prosecutor effectiveness improved, and 2) prosecutor and police oversight strengthened, and revised the original seven results into four result areas, to better define expected results and achievements of the project in the political environment at that time, and measure progress in a more specific way. These new result areas are the following: under results package one, 1) more effective pre-trial disposition in the Santo Domingo West (SDW) and the National District legal jurisdictions; 2) expanded availability of community justice, psychosocial, and violence and crime prevention services in priority high-crime communities; and 3) increased access to effective and humane justice for victims of F/GBV and other vulnerable groups; and, under results package two, 4) improved justice practitioner transparency, accountability, and integrity.

The proposed TEC increase and extension to the period of performance will deepen the impact and make cost-effective use of USAID/DR’s resources, capitalizing on lessons learned and taking advantage of the current political will of GODR counterparts to effect real and measurable change. During the extension period, from June 8, 2020 to June 7, 2021, USAID/DR will support the GODR and Dominican civil society to expand the availability of community dispute mediation and conciliation and related criminal justice guidance and referral services. These services include: access to justice for vulnerable groups, capacity-building in ADR for at-risk youth, and activities that lead to diminishing and ultimately preventing violence and criminal activity. This will complement the existing work with the Units of Attention to Victims of Gender Based Violence and Sexual Abuse (GBV units) under the District’s Attorney’s supervision. In addition, USAID/DR proposes to continue the work on coordination of justice, legal and protection services for GBV and TIP victims, through GODR beneficiaries, private sector and civil society organizations. Finally, USAID/DR proposes to work on capacity-building for corruption case preparation, tactics, inspection, prosecutions and performance evaluation of judges.

The current Total Estimated Cost (TEC) of the CJSSP Task Order is $22,038,654. As of September 30, 2019, USAID has obligated $20,155,554 to CJSSP. The requested TEC increase is for $178,900.45, bringing the new TEC to $22,217,554.40. If this modification is approved, CJSSP will be able to comply with its current grant obligations to the Community Justice Houses organization and to the Dominican NGO PACAM for psychological services to victims and strengthen GODR psychologists and ensure these specific protection services are sustainable.

With this TEC increase, CJSSP will also be able to implement interventions to promote sustainability of the activity’s impact, engage the private sector, and support the Dominican government as it replicates CJSSP’s models nationally.

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

This is a request to approve an increase in the Total Estimated Cost (TEC) of the CJSSP Task Order without fair opportunity because it is a logical follow-on to an existing order and all awardees under the award were given fair opportunity to be considered for the original order.

The TEC increase requested is in the amount of $178,900.45, to bring the TEC to $22,217,554.45, which is an increase over the current TEC of $22,038,654. This request necessitates a justification for an exception to fair opportunity. Please note that on February 26, 2020, the Contracting Officer in charge of administering the “Internal Rule of Law Technical Services” ROL IDIQ # AID-OAA-I-13-00032-00, confirmed to USAID/Dominican Republic that there is sufficient IDIQ ceiling to cover a $178,900.45 increase to the CJSSP task order. On April 3, 2020, the IDIQ COR confirmed that the Statement of Work (SOW) for the proposed Task Order modification falls within the IDIQ SOW.

3. Description of the supplies or services required to meet agency’s needs (including an estimated value):

Results Area 1: More Effective Pre-Trial Disposition in Santo Domingo West (SDW) During the extension period, the activity will focus on enhancing current initiatives and launching other interventions that reinforce these efforts. The activity will systematize lessons learned and scale best practices from within the District Attorney’s (DA) offices in SDW, and will establish an adaptable and scalable management model for DA offices nationwide In addition, the activity will seek to promote wider use of alternatives to incarceration that would reduce the cost and resource burden on courts, particularly for non-violent juvenile offenders.

Results Area 2: Expanded Availability of Community Justice, Psychosocial, and Violence and Crime Prevention Services in Priority High-Crime Communities During the extension period, CJSSP will continue expanding sustainable, community-based services for dispute mediation, conciliation, navigating the criminal justice system, and referrals.

The activity will work with the Center for Community Justice Houses (CCJH) - the organization that manages all the Community Justice Houses through a Board of Directors - to gradually phase out the houses’ dependence on USAID funding by expanding sources of income.

Results Area 3: Increased Access to Effective and Humane Justice for Victims of F/GBV and Other Vulnerable Groups During the extension period, CJSSP will continue to contribute to mitigating the consequences that violence has on the well-being, health, and safety of victims, and assist in the recovery and empowerment of these victims. victims to access the services and support they need to break the cycle of violence.

Results Area 4: Improved Justice Practitioner Transparency, Accountability, and Integrity Building on results to date, during the extension period, the activity will emphasize the consolidation and continued support of efforts now underway. These efforts include continuing to strengthen judicial inspections and performance evaluations for judges.

The estimated cost for the above new activities is $178,900.45.

4. Identification of the exception to fair opportunity (see 16.505(b)(2)) and the supporting rationale, including a demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the exception cited. If the contracting officer uses the logical follow-on exception, the rationale shall describe why the relationship between the initial order and the follow-on is logical (e.g., in terms of scope, period of performance, or value):

FAR 16.505(b)(2)(i) lists six possible statutory exceptions to the fair opportunity process for a delivery-order or task-order exceeding $3,500. In accordance with the exception requested, FAR 16.505(b)(2)(i)(C), the order may be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided all awardees were given a fair opportunity to be considered for the original order.

Please note that on January 15, 2015, Request for Task Order Proposal (RFTOP) number SOL- 517-15-000003 was issued by USAID/Dominican Republic and sent to all “Rule of Law'' IDIQ holders, in order to comply with the fair opportunity process and allow all IDIQ holders the opportunity to submit proposals and compete for the task order/contract.

In this case, the issuance of a sole-source order through the existing CJSSP mechanism for the extension of the interventions detailed above, is in the best interest of the U.S. government due to the enhanced cost-savings and efficiencies of this approach. CJSSP is a five-year task order that works to strengthen the enabling environment for youth crime and violence prevention. With the extension, CJSSP will support eight Community Justice Houses (CJH) and will open a new CJH in Puerto Plata for a total of nine CJHs. These CJHs have provided services to over 166,000 beneficiaries, many of whom fit into USAID’s current definition of vulnerable populations, including victims of F/GBV. Extending CJSSP is critical to ensuring the sustainability of the CJHs. While the CJHs are not currently financially independent, during the extension period, CJSSP will work with the CCJH on expanding sources of income, so that the CJHs will be able to operate independently without USAID funding. In addition, extending CJSSP will be critical to ensuring that the management model that systematizes lessons learned and best practices in case and data management, chain of custody for evidence, and treatment of victims is scaled to DA’s offices around the country. This management model is adaptable and cost effective, has proven successful in the SDW DA’s office, and has the potential to have great impact once replicated in the country’s largest DA’s offices. While CJSSP has made significant progress in strengthening prosecution effectiveness and oversight, an extension period will be critical to the activity being able to fully implement the interventions required for sustainable impact and scaling its successes in the country’s highest-crime communities. Because of the demonstrated success of CJSSP’s interventions and the Dominican Republic’s high rates of F/GBV, crime, and violence, CJSSP’s interventions will prove critical to improving treatment for victims, saving lives, and strengthening the enabling environment for effective crime and violence prevention.

Furthermore, because the Dominican Republic is holding municipal, congressional, and presidential elections in 2020, extending CJSSP will be critical to ensuring continuity into the next administration for the improvements the activity has made in the Dominican government’s ability to prosecute crime and protect victims.

Finally, this case, the issuance of a sole-source order through the existing Chemonics mechanism and the contract period one-year extension detailed above, is in the best interest of the U.S.

Government due to the enhanced cost-savings and efficiencies of this approach. Both money and time will be saved on behalf of USAID due to the working knowledge Chemonics has developed of USAID/Dominican Republic’s portfolio and current familiarity with technical challenges and opportunities.

5. 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 government will be fair and reasonable based on historical data.

6. Any other facts supporting the justification:

N/A.

7. A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made:

This justification is for a logical follow-on to the existing order and bridges a period in which the Mission is developing a new Country Development Cooperation Strategy and the Dominican Government is electing a new administration. Any future award for similar work will be fully competed and no further increase in this award will be granted.

USAID/Dominican Republic will also duly consider the use of a Best in Class (BIC) mechanism to comply with the U.S. Government’s requirement of Category Management.

8. The contracting officer’s certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief:

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

Linda McElroy, Contracting Officer Date

9. Evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or requirements or other rationale for an exception to fair opportunity) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel:

In accordance with FAR 16.505(b)(2)(ii)(B)(9), I hereby certify that the technical statements included above and which form a basis for the justification are complete and accurate.

Cleared 03/10/2020 Lissette Dumit , Technical Officer Date

10. A written determination by the approving official that one of the circumstances in (b)(2)(i)(A) Through (E) applies to the order:

In accordance with FAR 16.505, to the best of my knowledge and belief, I hereby determined that the circumstance in FAR 16.505(b)(2)(i)(C) applies to this order.

Approving Official Date Linda McElroy, Contracting Officer

Clearance Page: Justification for an Exception to Fair Opportunity for a Total Estimated Cost (TEC) Increase of $178,900.45 and an extension to the Criminal Justice System Strengthening Project (CJSSP) Task Order from June 8, 2020 to June 7, 2021.

USAID/DR/YES: TLam Cleared Date 12/19/2019 USAID/DR/RLO: MKerr Cleared* Date 03/10/2020 USAID/DR/ROAA: Otrigo Cleared Date 03/10/2020 *subject to this increase falling within the overall award levels/ordering period and the addition of that language.

Agency Competition Advocate (ACA): _______________ Date _____________

Attachment:

Q&A for OAA/ACA

Q&A for OAA/ACA

Chemonics/CJSSP extension

1) Are you saying that in Feb 2019, they changed the RAs and now want to add the original RAs back into the award?

No, and apologies if this was confusing. We have clarified this point in the J&A as follows:

modification 10 kept the original two results packages, 1) prosecutor effectiveness improved, and 2) prosecutor and police oversight strengthened, and revised the original seven results into four result areas, to better define expected results and achievements of the project in the political environment at that time, and measure progress in a more specific way. These new result areas are the following: under results package one, 1) more effective pre-trial disposition in the Santo Domingo West (SDW) and the National District legal jurisdictions; 2) expanded availability of community justice, psychosocial, and violence and crime prevention services in priority high-crime communities; and 3) increased access to effective and humane justice for victims of F/GBV and other vulnerable groups; and, under results package two, 4) improved justice practitioner transparency, accountability, and integrity.

2) It is not clear what this statement in the Justification (Sect.1) means: “For the extension period, from June 8, 2020 to June 7, 2021, USAID/DR proposes to overlay these four RAs with the two original results packages.”

We have changed this statement as per this comment and your last comment as well. The statement reads now: “During the extension period, from June 8, 2020 to June 7, 2021, USAID/DR will support the GODR and Dominican civil society to expand the availability of community dispute mediation and conciliation and related criminal justice guidance and referral services. These services include: access to justice for vulnerable groups, capacity-building in ADR for at-risk youth, and activities that lead to diminishing and ultimately preventing violence and criminal activity. This will complement the existing work with the Units of Attention to Victims of Gender Based Violence and Sexual Abuse (GBV units) under the District’s Attorney’s supervision. In addition, USAID/DR proposes to continue the work on coordination of justice, legal and protection services for GBV and TIP victims, through GODR beneficiaries, private sector and civil society organizations. Finally, USAID/DR proposes to work on capacity-building for corruption case preparation, tactics, inspection, prosecutions and performance evaluation of judges.“

3)There needs to be a better explanation and that it should be presented in a fuller historical perspective with all necessary and relevant information, clearly explaining how the contract has evolved, what has changed since its initial award (pertaining to major actions, not incremental funding or administrative type actions). For example, since the original award with 2 RPs, has the contract been modified non-competitively after that (increasing TEC and/or extending PoP)? When, why, and how many times? Were they authorized via a properly approved Justification?

We have provided an explanation, per your comment above, in the document. It now reads:

“The proposed TEC increase of $178,900.45 is the second TEC modification of the contract. The one year extension proposed is the first time extension performed. The first TEC increase was executed through modification 09 to the Task Order that was signed on September 6, 2018 and it increased the TEC by $504,000, from $21,534,654 to $22,038,654.This was done after USAID won a competitive grant from the State Department to fund the International Association of Women Judges to provide training related to F/GBV.

4) Is the Feb 2019 modification (Mod 10?) one of them? What did it change and why? When you say “Based on guidance from USAID…” be more specific about what the guidance was and from whom (Washington or which Bureaus in Washington?). Did the mod delete the original 2 RPs and replaced them with the 4 RAs or just added the 4 RAs?

On May 2, 2018, an external whole of project mid-term evaluation was performed for this Task Order. The evaluation recommended that USAID revise the focus of several of the ongoing activities, within the same Scope Of Work, to focus the activities on areas where the current Government of the Dominican Republic (GODR) evinced political will to support USAID’s work, and to narrow the geographical focus of ongoing activities to better align with the GODR’s support. Specifically, the evaluation recommended that the strategy to target several large legal jurisdictions be revised to the legal jurisdiction where USAID could more clearly gain traction with GODR partners to ensure best and cost-efficient results. Subsequently, Modification 10, dated February 19, 2020called for the activity to focus more intensively on the GBV work originally defined in the contract; and to focus on two specific municipalities which handle a high-volume of GBV cases and where other USAID/DR interventions could complement efforts and increase the achievement of cost-effective results to the USG.

5) Information should be presented in a manner that clearly explains the events leading to the point of this extension request and why it is necessary.

We have added information on the most important modifications to the contract, namely Modifications 2 and 10 and the justification and history of how they came about, as per the questions above.

6) Perhaps it would make sense to fit in any additional information necessary in Sect. 1 to more clearly explain the events with a clear historical perspective since this Section already contains some of the information, (specifically in the second last para that reads “The objective of CJSSP is to strengthen ….. and 4) improved justice practitioner transparency, accountability, and integrity.”)

We have added information to section 1 to explain the events more clearly and with a historical perspective of the contract as per your request.

7)After that, you can then also edit the statement “For the extension period, from June 8, 2020 to June 7, 2021, USAID/DR proposes to overlay these four RAs with the two original results packages.” to more clearly explain what the proposed modification will do and why it is necessary.

We have edited this statement, as indicated in our answer to question No. 2.