Justification1_Redacted.pdf

EXPORT-IMPORT BANK OF THE US

Justification and Approval for Other Than Full and Open Competition

Commercial Services Acquisition under FAR 13.106-1(b) and FAR 13.501

1. Contracting Activity:

The requirement is being conducted by the Export Import Bank of the United States, Office of Contracting Services (OCS) at 811 Vermont Avenue, NW, Washington, D.C. 20571.

2. Nature and/or Description of the Action Being Processed:

The purpose of this Justification for other than Full and Open Competition is to award a new Firm Fixed Price (FFP) Purchase order to International Advisers to provide legal recovery services to assist EXIM in its efforts to collect outstanding amounts owed to EXIM by the obligor/buyer and all guarantors, if any. These efforts will include, asset searches, site visits, negotiations, litigation, documentation of agreements, embargoing assets and executing upon assets.

3. Description of Supplies/Services Required to Meet the Agency’s Needs:

The Contractor is required to provide all professional services, including all labor, materials, postage, tools, travel, supervision, and incur expenses necessary that entail the judicial process to undertake the asset recovery Scope of Work. The contractor shall perform non-personal services necessary to perform collection on EXIM Bank defaulted loan I200999, Hong Kong Jinye located in Hong Kong/China. The Contactor shall attempt recovery on behalf of EXIM Bank and, if provided EXIM Bank’s express instruction to do so, institute legal proceedings and/or provide credit restructuring services to EXIM Bank’s Recoveries Group, Asset Management Division (“AMD”) related to the referenced claims, involving the referenced debtor and guarantor(s), located in Hong Kong/China.

The estimated value for this contract is due diligence). The Period of Performance for this contract will be five (5) years.

4. Statutory Authority Permitting Other than Full and Open Competition:

41 USC §3304), as implemented by FAR 6.302. [check all that apply] [Note: FAR 13.106-1(b) permits the Contracting Officer to consider the types of factors listed under FAR Part 6.302 when making the determination to solicit only one source. FAR 13.106-1(b) does not require that the Contracting Officer select only one of the listed authorities, as is the case when the Competition in Contracting Act applies.] For actions exceeding the simplified acquisition threshold procedures in FAR subpart

13.5 were used in accordance with 41 U.S.C. 1901

(x) (1) Only One Responsible Source and No Other Supplies or Services Will Satisfy

Agency Requirements per FAR 6.302-1;

( ) (2) Unusual and Compelling Urgency per FAR 6.302-2;

( ) (3) Industrial Mobilization, Engineering, Developmental or Research Capability or Expert Services per FAR 6.302-3;

( ) (4) International Agreement per FAR 6.302-4 ( ) (5) Authorized or Required by Statute FAR 6.302-5;

( ) (6) National Security per FAR 6.302-6;

( ) (7) Public Interest per FAR 6.302-7;

5. Demonstration that the Contractor’s Unique Qualifications or Nature of the Acquisition Requires the Use of the Authority Cited Above (applicability of authority):

The contract action involves collecting on EXIM Bank’s claim in a foreign country. It is imperative to hire local counsel in Hong Kong/China where the claim is to be monitored/litigated with experience in: locating assets, especially potential hidden assets, and embargoing and executing upon such assets; drafting and negotiating restructuring agreements appropriate for debtors of the type in this matter; and litigating the collection matter in all levels of courts throughout the debtor’s country. It is also imperative that the local counsel have experience handling collection matters of this sort on behalf of foreign entities, and especially foreign government entities such as EXIM Bank, because such representation often raises issues and creates legal risks for the foreign government entity.

These risks include the risk of counter-suits, referrals for criminal prosecution, and withholding tax questions. Additionally, it is imperative to hire local counsel that is familiar with EXIM Bank’s policies and procedures so as to avoid problems with payment procedures, handling of funds, facilitation of payments, and fraud. The expiring PO was on an hourly basis, and a new request for a Firm price contract is being solicited.

The firm of International Advisers and its local office in Amsterdam is uniquely qualified to pursue this case in China/Hong Kong. The Contractor therefore has extensive experience in dealing with the complex U.S. Government administrative requirements. The contractor is certified to complete this type of work under Chinese law. International Advisers is registered in SAM. Finally, International Advisers has experience in recovery matters in Hong Kong/China. The contractor possesses a comprehensive understanding of work under this procurement. International Advisers will not require a familiarization period or training prior to immediately commencing performance of the Performance Work Statement. Accordingly, International Advisers is the only firm capable of providing the services described in Section 3 above without EXIM Bank experiencing duplication of cost for familiarization/training nor unacceptable delays in fulfilling its requirements.

6. Description of Efforts Made to ensure that offers are solicited from as many potential sources as deemed practicable:

In accordance with 41 U.S.C. 3304, the Bank has sought to identify as many potential sources as practicable under the circumstances. The specialized knowledge required to minimize the risks and maximize the chances of success in EXIM Bank’s executing its rights under the Finance Documents and the need for confidentiality, limits the likelihood of identifying multiple firms possessing the requisite skill set.

7. 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 cost to the Government for the supplies/services covered by the J&A will be fair and reasonable based upon prior experience with this contractor, comparison to rates and collection percentages assessed by similar firms in the same and similar jurisdictions, and by review of published rates publicly available.

8. Description of the Market Research Conducted and the Results, or a Statement of the Reasons

Market Research Was Not Conducted:

AMD confirmed that the types of services to be undertaken by the Contractor are commercial in nature. These services are provided to private and public sector entities without distinction. EXIM Bank has worked with International Advisers and demonstrated a high degree of competence in the advisory/documentary role. A review of legal support for EXIM indicated that International Advisers is uniquely positioned to provide the services required for this instance. No other firms were identified that possess similar knowledge of EXIM, its transactions and legal experience with project situated in China/Hong Kong.

9. Any Other Facts Supporting the Use of Other than Full and Open Competition:

International Advisers provides seasoned collection specialist(s) who have been involved both in the private and public sectors of China/Hong Kong. In addition, the firm is fully cognizant of the process of litigation within Chinese courts.

10. Listing of Sources that Expressed, in Writing, an Interest in the Acquisition: NA

11. A Statement of the Actions, if any, the Agency May Take to Remove or Overcome any Barriers to

Competition before Making subsequent acquisitions for the supplies or services required:

For the reasons set forth in Paragraph 5, EXIM Bank has no plan at this time to compete future contracts for the types of services covered by this document. If another potential source emerges, the Agency will assess whether competition exists.

12. Requirements Certification:

I certify that the requirement outlined in this justification is a Bona Fide Need of the Export-Import Bank of the US and that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Title: Senior Loan Recovery Officer Facility: Recoveries Group, Asset Management Division

13. Approvals in accordance with FAR 13.501

a. Contracting Officer's Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief.

R Contracting Officer