LRP_JA for Other than Full and Open Competition_approved.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION (J&A)

TO:

FROM:

Jennifer Norling, Agency Competition Advocate (acting)

Faye Haselkorn, Democracy and Governance Office Director

SUBJECT: Justification and Approval for Other than Full and Open Competition (J&A) for USAID/Uzbekistan Legal Reform Program (AID-OAA-I-13- 00036/72011518F00005)

DATE: June 8, 2022

1. This document sets forth the facts and rationale justifying the use of other than full and open competition, in accordance with AIDAR 706.3:

This document was prepared by the USAID/Uzbekistan Democracy and Governance Office, regarding the USAID Legal Reform Program (LRP) implemented by ARD Inc. (doing business as Tetra Tech DPK).

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

This is a request to approve a contract modification to expand the scope of the USAID Legal Reform Program Task Order (IDIQ No. AID-OAA-I-13-00036 Rule of Law/Task Order No.

72011518F00005) with ARD Inc. (doing business as Tetra Tech DPK). The scope expansion will increase the Total Estimated Cost by approximately $3 million, raising the total estimated cost for the LRP award from $15.9 million to approximately $19 million, and extend the period of performance from August 31, 2023, to November 30, 2024. This modification will enable USAID to expand the number and reach of activities to further reform the legal and judicial system and aid in the growth and development of civil society in Uzbekistan, within the current program objectives.

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

USAID/Uzbekistan requires additional support to Uzbekistan’s non-governmental organizations (NGOs), law schools and Uzbek organizations/institutions in the areas of legal assistance and legal aid, psycho-social counseling and assistance, shelter and related services to vulnerable populations in Uzbekistan, including labor migrants returning from Russia due to the aggression in Ukraine and the debilitating social and economic effects of Russian sanctions; and to enhance the capacity of key justice sector actors (lawyers, judges, court personnel and related institutions) to effectively adjudicate administrative disputes, such as those involving families of migrants returning from Russia. The estimated cost of this proposed expansion is estimated at $3 million, raising the total estimated cost for LRP award from $15,9 million to approximately $19 million.

Faye Haselkorn Digitally signed by Faye Haselkorn Date: 2022.06.14 15:39:08 +05'00'

This expansion will allow LRP to continue to promote freedom of speech and media literacy so the populations reject the false Russian narratives being disseminated; strengthen civil-society actors to increase their advocacy for economic and political reforms; mitigate the social and economic impacts on, and protect the rights of, migrants and other vulnerable populations; and enable the justice sector to effectively adjudicate legal grievances of returnees. Illustrative activities required include the following: public education and awareness events and workshops to address potential threats to the independence of Uzbekistan and the operation of government institutions, civil society, academia and the private sector; radio broadcasts to address misinformation and to disseminate information on legal rights and available services;

development of the legal profession; provision of free legal aid, shelter and vocational services to migrants and vulnerable populations; provision of psycho-social and legal assistance to migrants impacted by domestic violence; and strengthened cybersecurity of judicial and other institutions supporting migrants.

The timing of this expansion coincides with increased USAID/Uzbekistan requirement, following both Russia’s aggression in Ukraine and USAID/Uzbekistan’s nascent status as a full-fledged Mission with a recently-approved USAID/Uzbekistan Strategic Framework.

In September 2020, the Agency elevated the status of USAID/Uzbekistan from a country office to a Mission as part of the U.S. Central Asia Strategy (CAS) adopted in 2020 and received approval of the Strategic Framework in April 2022. As Uzbekistan has risen in importance as a partner to the US in countering the malign influence of the Kremlin and the PRC, and in providing a stable base in the region, in this past year we have received multiple unexpected sources of funding to expand on USG priority needs that were previously unfunded.

As we begin implementing our new Strategic Framework and designing activities for increasing funding streams, we continue to rely on the achievements of LRP to meet USG needs while we design new activities. As we put in place complementary and follow-on activities, we need this activity to provide the bridge to achieving results under our new Strategic Framework.

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

Agency for International Development Acquisition Regulation (AIDAR) exception at AIDAR 706.302-70(b)(5).

AIDAR 706.302-70 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. The authority allows for other than full and open competition:

(5) 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 that requires use of the authority cited:

The provision of highly specialized services require a detailed understanding of Uzbek law as it relates to access to justice and the justice sector, identification of and services to TIP victims and legal registration (and operational ability) of implementing organizations. The current contractor is registered as a for-profit organization with the Ministry of Foreign Investment and Trade to legally operate in Uzbekistan and is recognized by the Ministry of Justice of Uzbekistan for their successful work on behalf of USAID in the area of legal reforms. As a registered organization in Uzbekistan, the contractor can carry out the full range of activities (sub grants to local organizations, meetings with the Government of Uzbekistan (GOU), public events, etc.)

envisioned for the Mission’s response. For example, Uzbekistan is already experiencing the impact of the Ukraine crisis with the return of migrants, declines in remittances, price escalations, among others, and response must be timely. In addition, this contractor has existing grant agreements with the only two independent Uzbek NGOs that operate shelters for victims of trafficking and domestic violence in Uzbekistan. These organizations are well placed to serve increasingly vulnerable Uzbek populations, some as a result of Russian sanctions. Moreover, this contractor is uniquely qualified to support the development of legislation and delivery of legal aid critical to the success of the program expansion, having successfully delivered legal advice to more than 120,000 Uzbek citizens and supported the development and eventual passage of Uzbekistan’s groundbreaking, first ever Gender Equality Law; incorporating international best practices into several legislative acts related to civil legislation, intellectual property, licensing and permits, international arbitration and establishment of an Ombudsman for Children. This contractor’s support for a Model Investment Agreement for the Ministry of Justice was used by the GOU to negotiate 22 investment agreements that leveraged approximately $2 billion in foreign investments.

Unregistered organizations are more limited in what they can do, particularly if they work on politically sensitive issues, such as the impact of the Ukraine war and sanctions. Other USAID/Uzbekistan partners have waited more than three years without receiving GOU registration and a similar delay would seriously impair USAID’s ability to respond to this urgent Foreign Assistance imperative.

A direct award to local contractors was not considered because local organizations do not yet have sufficient experience, expertise or systems to accountably implement such large donor funded activities. The current contractor, which has been operating successfully in Uzbekistan since late 2018, has earned a status of a trustworthy partner by the host government, which is a very important achievement bearing in mind the country’s difficult operating environment and lingering distrust of international development projects. Most importantly, our current partner has the ability to respond quickly and adjust to USG policy priorities as an experienced contractor with an established strong team of U.S. and Uzbek national experts in the field of legal reform.

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].

Potential sources were notified as required by FAR 5.2 via our Notice of Proposed Action posted on www.sam.gov on 4/22/2022. A copy of the Notice is attached. No potential sources responded, and no objections or comments received.

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

With LRP being directed to do “more of the same,” the costs related to the additional effort will be factored into the work plan, be approved by the COR acknowledging that costs are aligned with the additional anticipated results, with assurances from OAA that the estimated costs are in line with current award costs. The CO determines that the contract pricing is still within current market rates (based on competition, competition of more recent awards, and our regular observation of the market), and thus the Contracting Officer determines that the anticipated cost to the Government will be fair and reasonable.

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

Market research was conducted prior to the award of the current LRP contract, and more recent market research confirms that the proposed modification is the most suitable approach to acquiring, distributing, and supporting the additional requirement. More recent market research included efforts to meet similar requirements (e.g., recent Mission awards), and contact with knowledgeable individuals in industry to confirm reasonableness of specific costs (e.g., researching rental prices and local salaries).

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

Tetra Tech DPK’s performance under this task order has been at an acceptable level for the past two years.

Uzbekistan is already experiencing the impact of crises with the return of migrants, declines in remittances, and price escalations, among others. It is imperative that USAID respond immediately -- in many cases requiring us to achieve results within 30 days of obligating additional funds. It would be impossible for any other source to deliver on urgent demands in the timeframe required. Moreover, if USAID is unable to provide this support, there is a high risk that Uzbekistan’s economic, social and democratic reforms will be derailed and backsliding would occur. If that happens, the US Government would not be able to achieve its foreign policy objective for Uzbekistan. Moreover, millions of Uzbeks will needlessly suffer from loss of income and inability to afford basic necessities such as food and shelter, further sliding into poverty.

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

No sources expressed interest or comments in response to the Mission's Notice posted on 4/22/2022, as discussed in section 6.

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:

USAID intends to compete for future complementary programs through full and open competition, with subcontracting requirements for Small Business and local entities. For instance, the Mission is designing a new contract to support decentralization and local government capacity in Uzbekistan, potentially using a fully competed IDIQ. If all design approvals are provided as anticipated, that award is expected to be executed in FY23.

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.

Faye Haselkorn, 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.

Dana Rose, Contracting Officer Date

14. Approved:

Jennifer Norling, Agency Competition Advocate (Acting)

Faye Haselkorn

Digitally signed by Faye Haselkorn Date: 2022.06.14 15:41:02 +05'00'

Dana Rose Digitally signed by Dana Rose Date: 2022.06.21 10:08:53 +05'00'

Jennifer L Norling (affiliate)

Digitally signed by Jennifer L Norling (affiliate) Date: 2022.06.21 17:02:17 -04'00'

[STAND ALONE PAGE]

Internal Agency Clearances:

1. Clearance:

Clear w/edits/comments 6JUN22 Mark Kerr, Resident Legal Officer Date

6/14/22, 10:25 AM USAID Mail - J&A for USAID/Uzbekistan Legal Reform Program Task Order https://mail.google.com/mail/u/0/?ik=14d8b12c70&view=pt&search=all&permmsgid=msg-f%3A1734893141019920533&simpl=msg-f%3A1734893141… 1/1

Gulzhanat Rysdauletova <grysdauletova@usaid.gov>

J&A for USAID/Uzbekistan Legal Reform Program Task Order Mark Kerr <mkerr@usaid.gov> Mon, Jun 6, 2022 at 6:43 PM To: Gulzhanat Rysdauletova <grysdauletova@usaid.gov> Cc: Dana Rose <drose@usaid.gov>

Cleared.

Best, Mark [Quoted text hidden]

MARK KERR

Resident Legal Officer USAID/Central Asia Regional

U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT

41 Kazibek Bi Street, Almaty, Kazakhstan 050010 Phone: +7 (771)779 0933 Email: mkerr@usaid.gov

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