Justification - J4A Mod-5.PDF

TO: R. Clark Pearson, Supervisory Contracting Officer, USAID/Ukraine

CC: Deborah Broderick, Agency Competition Advocate

FROM: Ann Hopper, A/COR, Office of Democracy and Governance, USAID/Ukraine

DATE: August 23, 2024

RE: Modification to Contract No. 72012121C00002, USAID Justice for All Activity

SUBJECT: Justification for Other than Full and Open Competition under the Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova

1. This document sets forth the facts and rationale justifying the use of other than full and open competition.

Approval is requested for the use of other than full and open competition, pursuant to the authorities under the Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova, approved on December 4, 2023 (the initial EPP was approved by the Administrator on March 6, 2022). Your approval of this Justification and Approval (J&A) constitutes the justification for other than full and open competition as required by Tab 1 (Determination and Findings (D&F):

Authorization for Use of Other than Full and Open Competition in the Award or Modification of Contracts) of the EPP.

RECOMMENDATION

It is recommended that you approve this justification for use of other than full and open competition pursuant to the Action Memorandum, subject EPP for Ukraine, Belarus, and Moldova, approved on December 4, 2023. Your approval of this J&A constitutes the justification for other than full and open competition as required by Tab 1.

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

This is a request to approve a contract modification to increase the Total Estimated Cost (TEC) and expand the scope of Contract No. 72012121C00002, USAID Justice for All activity (J4A). The proposed modification will increase the TEC by $14,000,000, from $48,000,000 to $62,000,000.

The current contract period of performance is through September 30, 2026 and would remain unchanged.

The original purpose of J4A is to advance justice for all by strengthening justice systems, services, and societal engagement to deliver responsive solutions to Ukrainians’ legal problems and justice needs. Activity Objectives: 1) Strengthen the independence, accountability, and effectiveness of justice systems and institutions; 2) Enhance the accessibility and quality of wachakzai Highlight wachakzai Highlight wachakzai Highlight

J&A USAID/Ukraine Justice for All Activity people-centered justice services and multiple pathways to justice; and 3) Equip and empower civil society and active citizens to hold the justice system and justice services accountable and drive demand for meaningful judicial reform. In July 2023, USAID/Ukraine modified the J4A contract to increase the award ceiling by $24,000,041 to $48,000,000, to enable Chemonics to address additional war-related justice need, in particular to implement three new expected results within the original objectives set regarding court restoration, domestic adjudication of war crimes, and legal aid services for war victims.

No scope or objective change is envisioned in the current contract modification. This additional modification is necessary to advance critical justice reforms such as establishing a High Anti-Corruption Courtin line with IMF structural benchmarks and other macro-financial assistance conditions that were not envisioned at the time of activity design or the subsequent modification, and which J4A has a distinct comparative advantage to implement.

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

A $14,000,000 TEC increase would allow USAID to quickly and effectively respond to emerging judicial reform priorities and play a leading role in implementing structural reforms to the court system. J4A has the capacity and proven experience to undertake this work, given its extensive efforts to reboot multiple judicial selection and disciplinary bodies since 2021, as well as its work establishing the High-Anti-Corruption Court (HACC) beginning in 2018. Growing international partner consensus around the importance of anti-corruption and judicial reforms have budget support conditionalities in these areas, substantially incentivizing Ukrainian partners to complete and implement reforms. Additionally, the ongoing war and associated pressures on the state budget have significantly reduced the funding available for judicial sector counterparts to finance the equipment and technical assistance necessary to implement key anti-corruption and transparency reforms. Additional funding under this modification will enable J4A to:

● Support the selection of the High Administrative Court judges by providing expert, logistical, and administrative support, including remuneration for two international members of the Public Council of International Experts (PCIE).

● Purchase equipment for the High Administrative Court to ensure proper operations and onboarding of the judges and court staff.

● Support the competition to a vacant High Qualifications Commission of Judges (HQCJ) member position by providing expert, logistical, and administrative support, including remuneration for two international members of the Selection Commission.

● Support orientation program for newly appointed judges of the Constitutional Court of Ukraine to build their capacity to effectively consider cases.

● Purchase audio-visual equipment for the Constitutional Court of Ukraine to promote transparency and support online broadcasting of CCU sessions.

● Update HQCJ automated system to allow for online testing of judicial candidates.

● Upgrade HQCJ e-dossier system for judges and judicial candidates.

● Modify software to conduct general legal knowledge tests for candidates to fill vacancies on the courts of appeal and HACC.

● Support the design and implementation of an orientation program for newly-appointed judges of the High Administrative Court.

● Design and implement a judicial leadership program for young judges to build a network of reform-minded judges who can promote change from within the judiciary.

● Design and implement a "Rule of Law for Development Certificate Program" aimed at enhancing project management skills of legal professionals.

● Support the HQCJ and NSJ in building the capacity to develop, maintain, and administ a bank of test items for judicial selection and qualification evaluation processes.

● Support the HCJ Service of Disciplinary Inspectors in building capacity through organizing a series of training programs and providing workspaces and equipment.

● Support introduction of the jury trials into the criminal justice system, including a national public awareness campaign and IT-solution for courts in managing jurors.

● Purchase CheckPoint firewall appliances along with the necessary licenses to strengthen cybersecurity at the HQCJ.

● Purchase of equipment for HACC to support the onboarding of 25 newly appointed judges and additional court staff.

● Support the design and implementation of the orientation program for the newly-appointed HACC judges.

● Support development of additional automated court Case Management System (CMS) functionality as part of the new system.

● Support five regional offices of the Coordination Center for Legal Aid Provision (CCLAP) with additional hardware, software and office equipment to increase GOU legal aid efficiency, effectiveness, capacity to collect and process evidence and user data.

● Support courts with procurement of power generators and other equipment to ensure the continuity of court operations.

● Support establishment of IT project office at SJA to improve IT planning capacity of the judiciary and supervision of software development.

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

AIDAR 706.302-70(b)(3) and 40 U.S.C. § 113; see Action Memorandum entitled “Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova” approved on December 4, 2023.

The Determination and Findings (D&F): Authorization for Use of Other than Full and Open Competition in the Award or Modification of Contracts is included as Tab 1 to this document.

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

Chemonics began implementing J4A in late 2021. Following Russia’s full-scale invasion in February 2022, Chemonics was able to rapidly pivot, providing emergency assistance to judicial sector partners and addressing new needs such as accountability for Russia’s war crimes.

Concurrently, Chemonics also played an essential role in implementing foundational judicial sector reforms, such as establishing the Ethics Council that vetted sitting and new members of the High Council of Justice, and reestablishing the High Qualifications of Judges also with vetted, professional leadership. Civil society attests that these institutions are the strongest they have been in Ukraine’s history.

Chemonics has consistently proven its capability to establish effective partnerships and reach high performance results, while being responsive to GOU, justice sector, and USAID/Ukraine priorities. In line with USAID/Ukraine priorities, J4A advanced accountability for damage caused by the war by supporting Ministry of Justice MOJ in drafting and promoting adoption of the UN Resolution on Furtherance of Remedy and Reparation for Aggression against Ukraine emphasizing a people-centered approach to compensation. J4A also supported the successful launch of the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine, which has already received 3,000 claims in its first months of operations and represents the first steps in establishing a claims commission and compensation fund to promote greater accountability. J4A further supported the High Anti-Corruption Court (HACC) by conducting a demand-driven training program for HACC judges on applying the new Law on Sanctions covering issues related to asset seizure and civil confiscation to fund reconstruction.

In promoting the fair and impartial domestic adjudication of war crimes cases, J4A completed progress reports on efforts to strengthen the legal framework, improve judicial education, and reinforce judicial administration of war crimes cases with recommendations for continued improvements. This included supporting the Verkhovna Rada (Parliament) in promoting amending the legal framework in line with international standards, which resulted in the preparation of a comprehensive draft law on war crimes. In promoting key judicial reforms, J4A supported the first ever competitive and merit-based selection of CCU judges together with other international partners in line with EU recommendations advancing Ukraine’s candidate status. J4A has unique experience in navigating the donor, civil society, and GOU coordination necessary to advance sensitive, high-priority reforms with direct impact on Ukraine’s macrofinancial conditions.

These results are based on the critical capabilities exhibited by Chemonics under J4A, and the ongoing urgency of Ukraine’s reforms:

Urgency and Continuity in the Current Context: The fiscal pressures on Ukraine’s economy and upcoming EU accession negotiations have heightened the need for complex, systemic judicial reforms. Reforming the court system, particularly establishing higher-level specialized courts like the High Administrative Court of Ukraine (HACU), is essential to bringing new investment to Ukraine. Despite high levels of political will for EU integration, the country also does not have the budget resources to conduct the analysis and legal changes necessary for the complex process of EU accession. Addressing these US foreign policy interests requires new funding to scale successful initiatives rapidly and introduce new measures without the delays associated with onboarding a new contractor.

Established Relationships and Trust: Throughout J4A, Chemonics has nurtured strong, trust-based relationships with Ukrainian judicial sector partners, including the HCJ, HACC, HQCJ, civil society, Office of the President, Ministry of Justice, State Judicial Administration, and others. These relationships are invaluable for ensuring efficient communication and coordination, which are essential for the rapid and effective implementation of complex judicial reforms. Disrupting these established processes by introducing a new contractor at this stage would significantly hinder the project’s progress, particularly under the expanded scope and extended timeline.

Resource Mobilization and Efficiency: Chemonics has consistently demonstrated its capacity to mobilize and manage resources effectively, even under scenarios involving increased funding and scope expansion. Their ability to adapt to new judicial reforms needs and emergency equipment procurements ensures that the additional $14 million will be utilized optimally, delivering impactful results in both the short and long term. Chemonics’ proven track record in managing similar increases in funding gives USAID confidence that this expanded funding will be utilized with high standards of efficiency and effectiveness.

6. A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable.

Publication of a notice is not required per the determination at AIDAR 705.202(b)(1). No efforts have been made to ensure that offers were solicited from as many potential sources as practicable because USAID determined that the rapidly fluctuating environment, the protracted nature of the war, and urgent needs requires an expedited award process, as per the EPP authorities. Further, the requirement to meet the GOU’s urgent needs means that Chemonics’ unique position and proven work under the current contract will enable rapid, responsive support to deliver results on judicial reforms during wartime.

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

The Office of Democracy and Governance prepared an IGCE for the J4A TEC increase and scope expansion, which serves as the original basis for budget approval. The estimated budget is based on historical costs for similar services. Upon approval of this justification, the Contracting Officer will request a proposal from the contractor 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 competitive procurement, to ensure that the actual cost to the U.S.

Government is appropriate, fair, and reasonable.

8. A description of the market research conducted (see FAR Part 10) and the results or a statement of the reason(s) market research was not conducted.

No new market research was conducted. Chemonics was selected as the J4A contractor through the full and open competitive procurement in 2021. Since the purpose of the proposed TEC increase is to respond to complex judicial reform priorities, it is not feasible to select another contractor that would be able to undertake these activities given Chemonics’ ongoing operations in Ukraine, familiarity with the country context, and its established relationship with key stakeholders. Market research was conducted at the pre-solicitation stage for the J4A contract and included in the Acquisition Plan for the procurement.

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

USAID/Ukraine has determined that due to the urgency of responding to the current situation in Ukraine, resulting from the Russian invasion, other than full and open competition utilizing the authorities provided in the EPP is the most effective method for quickly and effectively implementing the additional activities under J4A and representing the priorities of the Agency and the U.S. Government.

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

The Mission determined to expand the existing J4A contract to address the additional requirements, so publication of a notice is not required per the determination at AIDAR §705.202(b), and no sources submitted a written expression of interest in this acquisition.

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 proposed modification is a specific case based on the urgent need to help Ukraine implement reforms related to IMF/WB structural benchmarks and manage EU accession negotiations. The Agency intends that any subsequent or future support will be procured through full and open competition, including potential set-asides for small businesses.

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 in accordance with the EPP entitled Expedited Procedures Package (EPP) for Ukraine, Belarus, and Moldova, approved on December 4, 2023 (attached).

Ann Hopper, A/COR Date

ANN DAVID

HOPPER (affiliate)

Digitally signed by ANN DAVID HOPPER (affiliate) Date: 2024.08.27 22:31:22 +03'00'

13. RLO Clearance:

__/s/ Meghan Iorianni [CLEAR]________________ _8/26/2024______________ Meghan Iorianni, Acting Resident Legal Officer Date

14. Contracting Officer Approval:

R. Clark Pearson, Supervisory Contracting Officer Date

Attachments:

Tab 1- EPP for Ukraine, Belarus,and Moldova - Determination and Findings (D&F): Authorization for Use of Other than Full and Open Competition in the Award or Modification of Contracts

CLEARANCE of Justification and Approval (J&A) for Other than Full and Open Competition for Contract No. 72012121C00002, USAID Justice for All Activity (J4A)

Drafted: Ann Hopper, J4A A/COR

CLEARANCES:

INFO: DMD/MD

MEGHAN

ELIZABETH

IORIANNI

Digitally signed by

MEGHAN ELIZABETH

IORIANNI

Date: 2024.08.27 15:25:18 -04'00'

RONALD CLARK

PEARSON

(affiliate)

Digitally signed by RONALD CLARK PEARSON (affiliate) Date: 2024.08.28 12:53:16 +03'00' wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight wachakzai Highlight