ROL 72038321R00001.pdf

Request for Proposal (RFP) Number 72038321R00001

Project Title Efficient and Effective Justice Activity Issuance Date January 13, 2021 Question Submission Deadline January 27, 2021. 0900am Sri Lanka time

Closing Date for Submission of Proposals* March 31, 2021. 0900am Sri Lanka time *Late submissions will not be accepted.

Subject: Request for Proposal (RFP) No. 72038321R00001 Efficient and Effective Justice Activity

To All Prospective Offerors, The United Sates Government (USG), represented by the United States Agency for International Development (USAID) Mission to Sri Lanka and Maldives in Colombo (USAID/Sri Lanka), is soliciting proposals from qualified organizations interested in providing the services described in the attached solicitation. The principal geographic code for this contract is 937 and the North American Industry Classification System (NAICS) code is 541990.

USAID/Sri Lanka anticipates one (1) Cost Plus Fixed Fee completion-type contract, covering a performance period of five (5) years from the date of award. The procurement will be conducted through full and open competition procedures, pursuant to Part 15 of the Federal Acquisition Regulation (FAR) (48 CRF Chapter 1).

Any type of organizations (large or small commercial [for profit] firms and nonprofit organizations) are eligible to compete.

The overall estimated cost of this procurement is approximately $16 million dollars, subject to the availability of funds. The government is in no way obligated to make any award within the maximum estimated cost identified. Offerors should not strive to meet the maximum amount; rather, Offerors should propose costs that are appropriate, realistic, and reasonable, and in accordance with the proposal approach for achieving results.

Technical proposals together with cost proposals will be evaluated as part of a best value determination.

Please refer to Section L of the RFP for information regarding proposal requirements. Offerors should take into account the expected delivery time required by the proposal transmission, and they are responsible for ensuring proposals are received at USAID by the due date and time stipulated above. Failure to comply with the submission date will deem any submission unacceptable and it will not be reviewed or evaluated. Faxed proposals are not acceptable, nor will they be reviewed or evaluated.

Section L sets forth all instructions for the preparation and submission of required proposal contents. Offerors will develop a proposal in response to the RFP requirements, and propose targets to be achieved. Section M states the technical evaluation criteria by which proposals will be evaluated.

This solicitation in no way obligates USAID to award a contract nor does it commit USAID to pay any cost incurred in the preparation and submission of a proposal. USAID reserves the right to award the contract subject to availability of funds.

This RFP can be viewed and downloaded from https://beta.sam.gov. USAID bears no responsibility for data errors resulting from transmission or conversion processes. Further, please be aware that amendments to solicitations are occasionally issued and will be posted on the same website from which you downloaded the https://beta.sam.gov/ https://beta.sam.gov/ solicitation. USAID advises to regularly check the above website for amendments.

Offerors are encouraged to read the entire solicitation, which includes all pertinent technical sections and the terms, conditions and instructions required for submitting a proposal. Questions or communications regarding this RFP should be directed by e-mail to Marcus A. Johnson, Jr., Contracting Officer, at marcusjohnson@usaid.gov and with a copy to Mr. Harsha Kaluarachchi, Acquisition and Assistance Specialist at srilankaprocurement@usaid.gov as specified on the top of this cover letter. The subject line for all communications should read “Efficient and Effective Justice Activity.”

Sincerely, Marcus A. Johnson, Jr.

Contracting Officer USAID/Sri Lanka and Maldives

RFP No: 72038321R00001 Efficient and Effective Justice Activity

TABLE OF CONTENTS PAGE

PART I - THE SCHEDULE

SECTION B – SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE

B.2 TASK ORDER TYPE

B.3 OBLIGATED AMOUNT

B.4 BUDGET SCHEDULE

B.5 INDIRECT COSTS

B.6 ADVANCE UNDERSTANDING ON CEILING INDIRECT COST RATES AND FINAL

REIMBURSEMENT FOR INDIRECT COSTS

B.7 COSTS REIMBURSABLE

B.8 PAYMENT OF FIXED FEE

B.9 CANCELLATION CEILINGS

SECTION C – STATEMENT OF WORK

C.1 BACKGROUND

C.2 PROBLEM STATEMENT

C.3 OPPORTUNITIES

C.4 LINKS TO MISSION AND USG STRATEGIES

C.5 TECHNICAL APPROACH

C.6 LINKS TO OTHER JUSTICE SECTOR PROGRAMS

SECTION D – BRANDING AND MARKING

D.1 USAID BRANDING POLICY

D.2 AIDAR 752.7009 MARKING (JAN 1993)

D.3 BRANDING STRATEGY

SECTION E – INSPECTION AND ACCEPTANCE

E.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

E.2 INSPECTION AND ACCEPTANCE

SECTION F – DELIVERIES OR PERFORMANCE

F.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

F.2 PERIOD OF PERFORMANCE

F.3 PLACE OF PERFORMANCE

F.4 PLPERFORMANCE STANDARDS

F.5 AUTHORIZED WORK WEEK

F.6 REPORTS AND DELIVERABLES

F.7 KEY PERSONNEL

SECTION G – TASK ORDER ADMINISTRATION DATA

G.1 CONTRACTING OFFICER’S AUTHORITY

G.2 AIDAR 752.7003 DOCUMENTATION FOR PAYMENT (NOV 1998)

G.3 CONTRACTING OFFICER’S REPRESENTATIVE (COR)

G.4 TECHNICAL DIRECTIONS/RELATIONSHIP WITH USAID

G.5 ACCOUNTING AND APPROPRIATION DATA

G.6 INVOICES

SECTION H – SPECIAL CONTRACT REQUIREMENTS

H.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

H.2 AUTHORIZED GEOGRAPHIC CODE

H.3 GOVERNMENT FURNISHED FACILITIES

H.4 ENVIRONMENTAL COMPLIANCE

H.5 AIDAR 752.7005 SUBMISSION REQUIREMENTS FOR DEVELOPMENT EXPERIENCE

DOCUMENTS (SEPTEMBER 2013)

H.6 ADS 302.3.5.19 USAID-FINANCED THIRD PARTY WEB SITES (NOV 2017)

H.7 AIDAR 722.170 EMPLOYMENT OF THIRD COUNTRY NATIONALS (TCN’S) AND

COOPERATING COUNTRY NATIONALS (CCN’S)

H.8 EXCHANGE VISITORS AND TRAINING

H.9 COMPLIANCE WITH ANTI-COMPETITION RULES

H.10 PROHIBITION OF ASSISTANCE TO DRUG TRAFFICKERS

H.11 DATA COLLECTION

H.12 TITLE TO AND CARE OF PROPERTY (APR 1984)

H.13 USAID’s PERFORMANCE MANAGEMENT INFORMATION SYSTEM

H.14 CONFIDENTIALITY AND OWNERSHIP OF INTELLECTUAL PROPERTY

H.15 AIDAR 752.231-71 SALARY SUPPLEMENTS FOR HOST GOVERNMENT (HG) EMPLOYEES (MAR

2015) 42

H.16 CONSENT TO SUBCONTRACT

H.17 LIMITATION ON ACQUISITION OF INFORMATION TECHNOLOGY (DEVIATION NOs. M/OAA- DEV-FAR-18-2c and M/OAA-DEV-AIDAR-18-2c) (APRIL 2018)

H.18 DEFENSE BASE ACT (DBA) INSURANCE

H.19 AIDAR 752.225-70 SOURCE AND NATIONALITY REQUIREMENTS (FEB 2012)

H.20 ADS 302.3.5.21 SUBMISSION OF DATASETS TO THE DEVELOPMENT DATA LIBRARY (DDL)

(OCT 2014) 47

H.21 AIDAR 752.7004 EMERGENCY LOCATOR INFORMATION (JUL 1997)

H.22 AIDAR 752.7007 PERSONNEL COMPENSATION (JUL 2007)

H.23 ADDITIONAL REQUIREMENTS FOR PERSONNEL COMPENSATION

H.24 AIDAR 752.7031 LEAVE AND HOLIDAYS (OCT 1989)

H.25 AIDAR 752.228-70 MEDICAL EVACUATION (MEDEVAC) SERVICES (JUL 2007)

H.26 AIDAR 752.222-70 USAID DISABILITY POLICY (DEC 2004)

H.27 EXECUTIVE ORDERS ON TERRORISM FINANCING

H.28 FOREIGN GOVERNMENT DELEGATIONS TO INTERNATIONAL CONFERENCES

H.29 LANGUAGE REQUIREMENTS

H.30 AIDAR 752.7032 INTERNATIONAL TRAVEL APPROVAL AND NOTIFICATION REQUIREMENTS

(APR 2014) 52

H.31 SPECIAL REQUIREMENTS ADS 225

H.32 ELECTRONIC PAYMENT SYSTEM (AUG 2014)

H.33 RESTRICTIONS AGAINST DISCLOSURE (MAY 2016)

H.34 ELECTRONIC AND INFORMATION TECHNOLOGY ACCESSIBILITY (MAY 2016)

H.35 NONEXPENDABLE PROPERTY PURCHASES AND INFORMATION TECHNOLOGY RESOURCES

H.36 CONTRACTOR’S STAFF SUPPORT AND ADMINISTRATIVE AND LOGISTICAL

ARRANGEMENTS

H.37 SECTION 508 OF THE REHAB. ACT OF 1978 AND FAC 97-27 “ELECTRONIC IT

ACCOUNTABILITY”

PART II – CONTRACT CLAUSES

SECTION I – CONTRACT CLAUSES

I.1 FAR 52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

I.2 52.203-13 CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT (JUN 2020)

I.3 AIDAR 752.7013 CONTRACTOR-MISSION RELATIONSHIPS

I.4 52.243-7 NOTIFICATION OF CHANGES (APR 1984)

I.5 AIDAR 752.222-71 NONDISCRIMINATION (JUNE 2012)

I.6 AIDAR 752.229-71 REPORTING OF FOREIGN TAXES (July 2007)

I.7 FAR 52.204-1 APPROVAL OF CONTRACT (DEC 1989)

I.8 FAR 52.204-25 PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND

VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. (AUG 2020)

I.9 52.222-35 EQUAL OPPORTUNITY FOR VETERANS (JUN 2020)

I.10 EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES (JUN 2020)

I.11 FAR 52.229-8 TAXES – FOREIGN COST-REIMBURSEMENT CONTRACTS (MAR 1990)

I.12 AIDAR 752.209-71 ORGANIZATIONAL CONFLICTS OF INTEREST DISCOVERED AFTER

AWARD (JUN 1993)

I.13 AIDAR 752.242-70 PERIODIC PROGRESS REPORTS (OCT 2007)

I.14 AIDAR 752.245-70 GOVERNMENT PROPERTY - USAID REPORTING REQUIREMENTS. (OCT

2017) 72

I.15 AIDAR 752.7025 APPROVALS (APR 1984)

I.16 AIDAR 752.7101 VOLUNTARY POPULATION PLANNING ACTIVITIES (JUNE 2008)

I.17 AIDAR 752.231-72 CONFERENCE PLANNING AND REQUIRED APPROVALS (AUG 2013)

I.18 AIDAR 752.7036 USAID IMPLEMENTING PARTNER NOTICES (IPN) PORTAL FOR ACQUISITION

(JUL 2014) 75

I.19 AIDAR 752.7037 CHILD SAFEGUARDING STANDARDS (AUG 2016)

I.20 FAR 52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)

PART III – LIST OF DOCUMENTS, EXHIBITS, AND OTHER ATTACHMENTS

SECTION J – LIST OF EXHIBITS, ATTACHMENTS AND LINKS

J.1 SECTION 889 RULE GUIDANCE

J.2 BIOGRAPHICAL DATA SHEETS

J.3 USEFUL LINKS:

PART IV – REPRESENTATIONS AND INSTRUCTIONS

SECTION K – REPRESENTATIONS, CERTIFICATIONS, AND OTHER STATEMENTS OF OFFERORS

K.1 NOTICE LISTING SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

K.2 FAR 52.204-8 ANNUAL REPRESENTATIONS AND CERTIFICATIONS (MAR 2020)

K.3 FAR 52.204-24 REPRESENTATION REGARDING CERTAIN TELECOMMUNICATIONS AND

VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (OCT 2020)

K.4 52.204-26 COVERED TELECOMMUNICATIONS EQUIPMENT OR SERVICES-REPRESENTATION

(OCT 2020) 84

K.5 52.209-7 CERTIFICATION REGARDING RESPONSIBILITY MATTERS (OCT 2018)

K.6 52.209-12 CERTIFICATION REGARDING TAX MATTERS (OCT 2020)

K.7 52.209-13 VIOLATION OF ARMS CONTROL TREATIES OR AGREEMENTS CERTIFICATION

(JUL 2020) 86

K.8 52.230-1 COST ACCOUNTING STANDARDS NOTICES AND CERTIFICATION (JUN 2020)

K.9 52.230-7 PROPOSAL DISCLOSURE--COST ACCOUNTING PRACTICE CHANGES (APR 2005)

K.10 FAR 52.209-11 REPRESENTATION BY CORPORATION REGARDING A DELINQUENT TAX

LIABILITY OR A FELONY CRIMINAL CONVICTION (FEB 2016)

K.11 FAR 52.209-13 VIOLATION OF ARMS CONTROL TREATIES OR AGREEMENTS-

CERTIFICATION (JUN 2018)

K.12 FAR 52.222-22 PREVIOUS CONTRACTS AND COMPLIANCE REPORTS (FEB 1999)

K.13 52.222-25 AFFIRMATIVE ACTION COMPLIANCE (APR 1984)

K.14 52.227-15 REPRESENTATION OF LIMITED RIGHTS DATA AND RESTRICTED COMPUTER

SOFTWARE (DEC 2007)

K.15 INSURANCE - IMMUNITY FROM TORT LIABILITY

K.16 AUTHORIZED NEGOTIATORS

K.17 KEY INDIVIDUAL CERTIFICATION NARCOTICS OFFENSES AND DRUG TRAFFICKING FORM

K.18 CERTIFICATION REGARDING LOBBYING

K.19 SIGNATURE

SECTION L – INSTRUCTIONS, CONDITIONS, AND NOTICES TO OFFERORS

L.1 FAR 52.252-1 SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (FEB 1998)

L.2 FAR 52.216-1 TYPE OF CONTRACT (APR 1984)

L.3 FAR 52.233-2 SERVICE OF PROTEST (SEP 2006)

L.4 752.252-1 AIDAR SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (MAR 2015) . 97

L.5 WAIVERS UNDER FAR PART 4.2101 PROHIBITION ON COVERED TELECOMMUNICATIONS

AND VIDEO SURVEILLANCE SERVICES AND EQUIPMENT

L.6 GENERAL INSTRUCTIONS TO OFFERORS

L.7 SUBMISSION INSTRUCTIONS

L.8 INSTRUCTIONS FOR PREPARATION OF THE TECHNICAL PROPOSAL

L.9 INSTRUCTIONS FOR PREPARATION OF THE COST PROPOSAL

L.10 REQUIRED BRANDING AND MARKING

SECTION M – EVALUATION FACTORS FOR AWARD

M.1 GENERAL EVALUATION INFORMATION

M.2 TECHNICAL EVALUATION CRITERIA FOR PROPOSALS

M.3 CONTRACTOR PERFORMANCE INFORMATION

M.4 COST PROPOSAL EVALUATION

M.5 SOURCE SELECTION

M.6 CONTRACTING WITH SMALL BUSINESS CONCERNS

PART I - THE SCHEDULE

SECTION B – SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE

The purpose of this contract is to provide technical assistance and other services as described in detail in Section C for the implementation of USAID/Sri Lanka and Maldives’ program with the working title “Efficient and Effective Justice Activity”.

B.2 TASK ORDER TYPE

This is a Cost-Plus-Fixed-Fee (CPFF) completion type cost reimbursement task order. For the consideration set forth below, the Contractor shall provide deliverables or outputs described in Section C and Section F and comply with all Task Order requirements.

B.3 OBLIGATED AMOUNT

USAID estimates the total cost-plus-fixed-fee of this task order not to exceed $16 million.

(a) The estimated cost for the performance of the work required hereunder, exclusive of fixed fee, if any, is

TBD. The fixed fee, if any, is TBD. The estimated cost-plus-fixed-fee, if any, is TBD. Cost must be limited to reasonable, allocable, and allowable costs determined in accordance with Federal Acquisition Regulation (FAR) 52.216-7.

(b) Within the estimated cost-plus-fixed-fee (if any) specified in paragraph (a) above, the amount currently obligated and available for reimbursement of allowable costs incurred by the contractor (and payment of fee, if any) for performance hereunder is TBD. The contractor shall not exceed the aforesaid obligated amount.

(c) Funds obligated hereunder are anticipated to be sufficient through TBD. Funding for this contract will be on an incremental basis, subject to the availability of funds.

B.4 BUDGET SCHEDULE

The budget for this contract is as follows:

COST CATEGORY AMOUNT

Direct Cost TBD Indirect Cost TBD Total Estimated Cost TBD Fixed-Fee TBD Total Estimated Cost-Plus-Fixed-Fee TBD

The inclusion of any costs in the above budget does not obviate the requirement for prior approval by the contracting officer of cost items designated as requiring prior approval by any of the terms and conditions of this contract, including the applicable cost principles (see FAR § 52.216-07, “Allowable Cost and Payment”); nor does it constitute a determination of allowability by the contracting officer of any item of cost, unless specifically stated elsewhere in this contract. Also, these amounts may not be adjusted without a written modification signed by the contracting officer. The contractor will not bill any amounts against this contract in excess of the amounts specified for each line item.

The contractor agrees to furnish data that the contracting officer may request on costs expended or accrued under this contract in support of the budget information provided herein.

Payment of any award fee earned by the Contractor must not be subject to the withholding provisions of the clause of this contract entitled "Allowable Cost and Payment" (FAR 52.216-7).

B.5 INDIRECT COSTS

(a) For the Prime Contractor:

Pending establishment of revised provisional or final indirect cost rates, USAID will reimburse allowable indirect costs on the basis of the following negotiated provisional or predetermined rates and the appropriate bases pursuant to the contractor’s current executed Negotiated Indirect Cost Rate Agreement:

Description Rate Base Type Period

Fringe TBD% 1/ 1/ 1/ Overhead TBD% 2/ 2/ 2/

1/Base of Application:

Type of Rate:

Period:

2/Base of Application:

Period:

(b) For Major Subcontractor(s):

Pending establishment of revised provisional or final indirect cost rates, USAID will reimburse allowable indirect costs on the basis of the following negotiated provisional or predetermined rates and the appropriate bases pursuant to the contractor’s current executed Negotiated Indirect Cost Rate Agreement:

Period:

2/Base of Application:

B.6 ADVANCE UNDERSTANDING ON CEILING INDIRECT COST RATES AND FINAL

REIMBURSEMENT FOR INDIRECT COSTS

a) The Contractor must make no change in its established method of classifying or allocating indirect costs without the prior written approval of the Contracting Officer.

b) Reimbursement for indirect costs must be at the lower of the negotiated final (or predetermined) rates or the following ceiling rates:

2/Base of Application:

c) The Government will not be obligated to pay any additional amount should the final indirect cost rates exceed the negotiated ceiling rates. If the final indirect cost rates are less than the negotiated ceiling rates, the negotiated rates will be reduced to conform to the lower rates.

d) This advance understanding must not change any monetary ceiling, obligation, or specific cost allowance or disallowance. Any changes in classifying or allocating indirect costs require the prior written approval of the Contracting Officer.

B.7 COSTS REIMBURSABLE

The costs allowable shall be limited to reasonable, allocable, and allowable costs determined in accordance with FAR 52.216-7, Allowable Cost and Payment, FAR 52.216-8, Fixed Fee, if applicable, and AIDAR 752.7003, Documentation for Payment.

In addition, the requirements and conditions concerning estimated cost and funding apply as detailed in:

FAR § 52.232-20, “Limitation of Cost,” and FAR 52.232.22 Limitation of Funds (applies while the contract is funded in an amount less than the ceiling price).

B.8 PAYMENT OF FIXED FEE

Fixed Fee Payment: Payment of fixed fee will be made upon receipt of a proper invoice and shall directly correspond to the percentage of allowable costs being paid. Specifically, in accordance with FAR 52.216-8, Fixed Fee, the Contracting Officer (CO) will withhold 15% of the total fee or $100,000.00, whichever is less, until the required award conditions under the referenced clause have been met.

Two exceptions to paying fixed fee in this manner apply:

(1) If the Contracting Officer determines that this method results in paying a disproportionately higher ratio of fixed fee than the percentage of work the contractor has completed, then the Contracting Officer may suspend further payment of any fixed fee until the contractor has made sufficient progress to justify further payment, up to the agreed percentage.

(2) In accordance with clauses, entitled "Allowable Cost and Payment" (FAR 52.216-7) and "Fixed

Fee" (FAR 52.216-8), the terms and conditions of these clauses apply after total payments of fixed fee reach eighty five percent (85%) of the total fixed fee or $100,000, whichever is less until the required awards conditions under the reference clauses have been met.

B.9 CANCELLATION CEILINGS

This is a CPFF completion type contract where the contractor is authorized to be reimbursed for all costs which are allowable in accordance with FAR 52.216-7, “Allowable Costs and Payment.” The contractor will not incur any costs which would have been amortized over the life of the contract should the contract be cancelled in accordance with FAR 52.217-2. Therefore, the cancellation ceiling established pursuant to FAR 17.106-1(c)(1) for each program year is $0.00.

END OF SECTION B

SECTION C – STATEMENT OF WORK

C.1 BACKGROUND

The history of the judicial and legal systems of Sri Lanka dates to the periods of the country’s ancient kingdoms, prior to colonial rule over Sri Lanka. The current legal system is a mix of traditional personal laws, Roman Dutch law, English law, and the norms of international treaties that Sri Lanka has ratified and domestically applied. The structure of the judiciary is mandated by the Constitution of Sri Lanka.

According to Article 4(c) of the Constitution “the judicial power of the people shall be exercised by parliament through courts, tribunals and institutions created and established, or recognized, by the constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of parliament and of its members, wherein the judicial power of the people may be exercised directly by parliament according to law:”.1 Further, more details on the structure of courts and judicial appointments are provided in Chapter XV of the constitution.

The judiciary consists of a hierarchical court system. Accordingly, the Supreme Court is the highest court in the country established by the constitution. The Supreme Court has the final and conclusive civil and criminal appellate jurisdiction on appeals from the Court of Appeal or any court of first instance, constitutional jurisdiction, jurisdiction in protection of fundamental rights, and jurisdiction in respect to breaches of parliamentary privileges.

The Court of Appeal, which is the next highest court, is vested with appellate jurisdiction, jurisdiction for corrections, writ jurisdiction, and contempt of court.

The High Court of Sri Lanka exercises jurisdiction to hear, try, and determine all prosecutions on indictments. It has criminal and admiralty jurisdiction and jurisdiction in regard to offences committed by any person on board or in relation to any ship or any aircraft of whatever category registered in Sri Lanka.

Provincial High Courts, established under the 13th amendment to the constitution, have other jurisdictions, including writ jurisdiction.

The Commercial High Court, located in Colombo, has jurisdiction over commercial matters above a certain financial threshold and on intellectual property.

District Courts have original jurisdiction in all civil revenue, matrimonial, trust, insolvency, and testamentary matters within the district.

The Magistrate Court, which exercises jurisdiction over criminal cases filed under the Penal Code, is the lowest in the hierarchy. It has the authority to conduct post-mortem examinations, to issue warrants of judicial orders to arrest and produce suspected persons, to issue search warrants, and to conduct non-summary proceedings before indictment.

In addition to these, several other institutions and tribunals, such as the Labor Tribunals and Qazi Courts, have jurisdictions in specific areas.

The Judicial Services Commission (JSC) established by the constitution consists of the three senior-most judges in the Supreme Court and is presided over by the Chief Justice. The JSC is responsible for appointment, transfer, dismissal, and disciplinary control of judicial officers of the first instance courts (and transfers of judges in the High Courts) and scheduled public officers such as court registrars, among other tasks. The Ministry of Justice is responsible for some parts of the administration and maintenance of infrastructure of court houses.

1 Article 4 (c) The Constitution of Sri Lanka

The justice system in Sri Lanka enjoys well-qualified and expert professionals who serve as judges -particularly in superior courts - and counsels in both official and unofficial bars. Institutions such as the Attorney General’s Department, Legal Draftsman’s Department, Department of Government Analyst, Sri Lanka Police, and Department of Prisons are also integral parts of the justice system. Further, the Sri Lanka Judges Institute (SLJI) and the Non-Judicial Officers Training Institute (NJOTI) have been established to improve the capacities of judicial and non-judicial officers in the system.

C.2 PROBLEM STATEMENT

Despite the rich blend of legal and judicial traditions, highly educated and experienced professionals, and a good number of institutions that are responsible for different aspects of the justice system, administration of justice in Sri Lanka is challenged by several issues. The most significant issue that affects the development of the country, as well as the lives of the justice seekers, is excessive delay in the delivery of justice.

Adjudication processes of both civil and criminal cases are extremely slow, and the institutions responsible for different stages of administration of justice face a huge backlog. An analysis of 350 cases pending in 23 Sri Lankan courts found that cases averaged 23.13 postponements, while the average duration of each postponement was 83.85 days2.

This situation is reflected in Sri Lanka’s ranking in global assessments. In the World Rule of Law Index 2020, Sri Lanka, ranked 68/128, declining by 2 position from the previous year, and sub-factor 7.5 (No unreasonable delay in civil justice) scored as low as 0.283. Such delays not only affect public life, but also the economic development of the country. In the global Ease of Doing Business Index, Sri Lanka ranked 99/190 in 2020, and its Contract Enforcement ranking was the lowest (164/190) out of all the sub-factors.

Further, as per the regional ranking under this indicator, Sri Lanka is placed at six out of eight South Asian countries, just above Bangladesh and Afghanistan. Sri Lanka’s court system is estimated to take 1,318 days to enforce a contract4. The huge backlog in courts is both a cause and the result of such delays. According to the Ministry of Justice statistics, 775,620 cases were pending in courts by the end of 20185.

An inadequate number of judges is considered by many as one of the main causes of the delay in adjudication. However, it is not necessarily the number of judges, but how judges spend their time. The burden of administration of court offices placed on the shoulders of judges is often underestimated. In a system in which delegation and distribution of responsibilities are not practiced properly, judges spend a considerable amount of time on court administration, leaving them with limited time for specific tasks related to adjudication, such as judgement writing.

Poor case-flow management also contributes to delays in adjudication in Sri Lanka. The current, manual, case-processing system presents numerous issues, including safety and security of data and case files and corruption. However, lack of automation is not the only cause of the problem. Lack of time standards, frequent adjournments without a good cause, lack of regular reporting on the age and status of cases, and the misplacement of files and documents are some of the many shortcomings with the current system and practice.

While the Government of Sri Lanka’s expressed commitment to digitalize the system is a positive turn, the understanding of its functions and impact seems to be low. Apparently, digitalization is quickly and mistakenly embraced as the solution to all the problems related to delays. However, automation and the introduction of technology will only enhance efficiency and productivity if it is accompanied by improved policies and regulations such as time standards, early and continuous court control of case progress, and

2 Millennium DPI Partners, Assessment of Case Flow Management and Court Administration in Sri Lanka: Analysis and Recommendations To Reduce Court Delay - October 2016 3 https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020 - accessed 11.29.2020 4 https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf accessed on 11.28.2020 5 https://www.moj.gov.lk/web/images/pdf/other/Stat-2018-MOJ.pdf accessed on 11.20.2020 https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020 https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf https://www.moj.gov.lk/web/images/pdf/other/Stat-2018-MOJ.pdf realistic calendar settings.

Commitment of the judiciary and collaboration of the lawyers and other judicial personnel are also essential pieces of an effective case management system. As highlighted in USAID’s ‘Practical Guidance for DRG Officers on Designing and Implementing Court Automation Projects’, “The Golden Rule is that it is not technology that drives change, it is change that drives technology. Building a project scope with this in mind, instead of from a perspective of simply delivering technology is the first step in success.”6

Comparative international practice includes a variety of successes using traditional methods, as opposed to simply introducing new technologies, to improve case-flow management and reduce case delays.

Sri Lankan courts remain distant from the concepts of open and user-friendly system, due to poor infrastructure and lack of service orientation. The default mode of the justice system is to remain closed and distant from the public. This is often justified as a means of maintaining ‘judicial independence,’ but it comes at the expense of public trust, confidence, and accessibility. Finding the right balance between judicial independence and transparency and accountability has become more difficult, due to conservative attitudes of the actors in the system. While the courts are physically open, quite often, even litigants find it difficult to understand the status of their cases. Poor communication and information sharing, combined with the lack of feedback mechanisms, affect transparency and accountability, which are salient features of a well-functioning justice system. This state of affairs ultimately leads to a decline of public confidence in the judiciary.

The justice system in Sri Lanka is challenged by many other issues as well. Legal education is the key to produce knowledgeable and skilled professionals. Enrolment in legal degree programs in state universities, as well as in Sri Lanka Law College is quite competitive. The limited intake for the law faculties is justified by the need for intensive teaching and learning among other reasons. However, the quality of legal education in law schools is often criticized due to outdated curricula and a lack of focus on skills development and professional standards.

In addition, continuing legal education is neither mandatory, nor standardized. While the Bar Association of Sri Lanka (BASL) and other lawyers’ associations organize seminars, conferences, and ad hoc training programs, they do not follow standardized curricula or accepted training methodologies, resulting in the quality of offerings being largely dependent upon the abilities of the trainer. Further, professional development and training are almost exclusively focused on transferring knowledge of different subject areas, instead developing skills needed by lawyers. Lack of opportunities for exposure and acquiring new knowledge and skills limits the development of legal professionals, who require ongoing opportunities to upgrade their expertise and skills necessary to function effectively in the fast-changing socio-economic environment in the country.

Notwithstanding the availability of experts in the system, shortcomings in human resources, in terms of both adequacy and technical capacity, affects the desired performance of all justice institutions, including the judiciary. Though there are institutions focused on improving knowledge and professional capacities of judicial and non-judicial officers, their performance is limited to conducting ad hoc trainings. The present induction training for newly recruited judges and the intermittent, in-service training for judges by the Sri Lanka Judges Institute (SLJI) do not adequately focus on improving needed skills and values. Moreover, the SLJI’s training courses are limited to judges of the first instance courts. However, the judicial cadre of the superior courts consist of judges who are directly appointed from the official and unofficial bars, as well as the judges promoted from the lower courts. The first two categories have expertise in the law but lack experience as judges. Hence, their judicial conduct and the quality of their decisions depend exclusively upon their personal capacities. In the absence of a formal continuing judicial education program or any other mechanism of learning, the nuances of the role and related responsibilities-particularly in a world that does

6 https://www.usaid.gov/sites/default/files/documents/1866/USAID-CAP-Guide-FINAL.pdf accessed on 12.08.2020 https://www.usaid.gov/sites/default/files/documents/1866/USAID-CAP-Guide-FINAL.pdf not expect ‘mistakes’ from a senior judge- is a huge, often unrecognized, challenge.

Human Resource management in the justice system also is problematic. Professional qualifications and capacities of non-judicial personnel are notably weak. Some categories of non-judicial personnel receive hardly any training or professional development opportunities during their entire career. This negatively affects competencies, motivation, commitment and ethical standards of personnel that, in turn, can have a deleterious effect on judicial independence, efficiency, and the public confidence in the judiciary.

Gender equality and equity in the justice system is a significant issue, though it is not much recognized in public. While a significant majority of law students are female, the number of women who enter into active practice upon graduation is considerably low. Gender-based discrimination and harassment of different scales is evident across the system. However, due to fear of stigma and secondary victimization, many victims of such discrimination suffer silently. As this issue is often overlooked in fora that discuss the problems in the justice system, no serious, practical remedies are considered by any professional body or authority.

Use of modern technology is also extremely rare. Almost every aspect of judicial processes is paper-based and manually handled. While the government is keen to automate, the knowledge of its application and the understanding of the exact benefits of automation are not common, even in the highest circles of decision-making. It is important to lay the groundwork for digitalization first, by introducing policies and correcting flaws of the manual system.

According to the 20th amendment to the Constitution of Sri Lanka, passed in October 2020, “The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and the Court of Appeal shall be appointed by the President.”7 Both local and international actors, including professional associations, have expressed serious concerns about the impact of this provision on the independence and impartiality of the judiciary.8 Reform of the judicial selection and appointment processes, including objective standards for eligibility in addition to performance, is warranted, as part of a comprehensive approach to justice system strengthening.

C.3 OPPORTUNITIES

Despite concerns about potential political interventions in the judiciary, the current administration has identified the need to improve the justice system and undertaken preliminary initiatives. The President’s 2019 manifesto included a chapter on ‘A righteous, disciplined and a law-abiding society.’ This chapter highlights the need to amend obsolete legal procedures, laws, and legal reforms to ensure that the Sri Lanka’s legal system matches well with international laws. The Chapter also included the improvement of the justice sector’s infrastructure as well as digitalization, among other measures.

In August 2020, an eminent legal professional was appointed as the Minister of Justice. He consequently obtained cabinet approval to establish a project office within the Ministry of Justice to work on justice system reforms. This project office consists of five committees to address infrastructure development, digitalization, criminal law reforms, civil law reforms and commercial law reforms. The 20th amendment included a constitutional provision to increase the number of judges in the Supreme Court and the Court of Appeal. More importantly, the national budget for 2021 allocated RS. 20 billion for judicial and legal

7 20th Amendment to the Constitution of Sri Lanka 8 Sri Lanka: newly adopted 20th Amendment to the Constitution is blow to the rule of law - https://www.icj.org/sri-lanka-newly-adopted-20th-amendment-to-the-constitution-is-blow-to-the-rule-of-law/ accessed 11.23.2020

Statement on The 20th Amendment to the Constitution of Sri Lanka https://www.commonwealthlawyers.com/statement/statement-on-the-20th-amendment-to-the-constitution-of-sri-lanka/ accessed on 11.23.2020 https://www.icj.org/sri-lanka-newly-adopted-20th-amendment-to-the-constitution-is-blow-to-the-rule-of-law/ https://www.icj.org/sri-lanka-newly-adopted-20th-amendment-to-the-constitution-is-blow-to-the-rule-of-law/ https://www.commonwealthlawyers.com/statement/statement-on-the-20th-amendment-to-the-constitution-of-sri-lanka/ reforms,9 which is the largest allocation for the justice system in history of Sri Lanka. This allocation is to fund a three-year, intensive program of reforms covering the entire system.

The importance and efficacy of using modern technology in the justice system was highlighted by the COVID-19 pandemic. Some courts took specific, small steps to use technologies such as video conferencing for hearing cases without bringing parties to the court houses. Though this remains at the very early stages of use, the benefits of remote, digital hearings pushed the system towards a potential paradigm shift towards greater application of technologies in the justice system.

C.4 LINKS TO MISSION AND USG STRATEGIES

The Effective and Efficient Justice activity is aligned with the current Country Development Cooperative Strategy (CDCS) of USAID Sri Lanka. Accordingly, it falls within the area of DO 1: ‘strengthened democratic governance and social cohesion’, more specifically within the IR 1.2: ‘Strengthened key democratic government institutions.’

C.5 TECHNICAL APPROACH

Goal: Improved justice system that meets the needs of society and upholds the rule of law

A well-functioning justice system is the key to protecting individual rights and ensuring peace in society. It is vital for upholding universal principles and practices of rule of law. Further, an effective justice system is a precondition to improve livelihoods and economic growth, along with other aspects of development. An effective justice system enables a robust business environment by guaranteeing property rights, enforcing contracts and more quickly resolving disputes, among other assurances. Comprehensive and updated legal frameworks, independent institutions that interpret and apply the law fairly and efficiently, and impartial and competent professionals that operate the system and deliver services are essential features of a well-functioning and effective justice system. In the current era of digitalization, a reform-minded justice system will explore maximum use of technology in all appropriate means, not only to improve the efficiency of regular functions and processes, but also to deal with unforeseen challenges, like the current COVID 19 pandemic, to ensure continuity of operations.

The Efficient and Effective Justice (EEJ) activity will support improvements to the justice system in Sri Lanka by introducing and strengthening the features of well-functioning and modern justice systems while strengthening the relevant institutions and actors to meet international standards for the rule of law and justice.

The activity will realize this goal through the achievement of two objectives and seven sub-objectives, as elaborated below. Each of the objectives and sub-objectives are interrelated and require cross cutting interventions. For instance, interventions that support the adoption of modern technology, that advance law reforms, and that strengthen training and capacity building may be included under each sub-objective.

Equally, advancing gender and social inclusion will be integrated in every component of the activity.

This will go beyond implementing specific, isolated interventions such as seminars on gender sensitivity or interventions targeted at women’s empowerment. Every problem, approach, and intervention will be analyzed through a gender lens and appropriate action will be taken to integrate gender. For example, every CLE/CJE program will dedicate adequate time to discuss gender issues and considerations. Similarly, other important issues, such as sensitivity of the needs of differently abled persons, will be integrated in every component as appropriate.

9 Rs. 20 b for justice and legal reforms http://www.ft.lk/front-page/Rs-20-b-for-justice-and-legal-reforms/44-709069 -accessed 11.23.2020 http://www.ft.lk/front-page/Rs-20-b-for-justice-and-legal-reforms/44-709069

Objective 1: Administration of Justice Strengthened

Strengthening the administration of justice in Sri Lanka is a priority to advance the rule of law, protect individual rights, improve economic development, and sustain peace in the country. This activity will support the Government of Sri Lanka’s work to advance judicial reforms by increasing judicial efficiency, the quality of services, and transparency and accountability in the administration of justice. The activity will assist the improvement judicial administration policies and standard operating procedures, introduce and promote international best practices and tools to improve case and court management, as appropriate under each sub objective.

Sub Objective 1.1: Case management practices improved.

As described above, the absence of a standardized case management system is a significant cause of case delays and backlog. Building on USAID’s current support to introduce case management systems in courts (model courts) identified by the Judicial Services Commission, the activity will introduce international best practices in case management practices and support the courts and other institutions and actors in their implementation. The activity will support the government, as well as the judiciary in their efforts to increase digitalization and automation, as necessary and appropriate.

Expected results:

- Improved case management systems and related automation and digital tools for the administration of justice introduced;

- Judges and court staff utilize new case management systems and other tools for the administration of justice; and

- Courts hear and conclude cases without undue delay.

Illustrative activities:

- Developing case flow management rules and procedures with the judiciary;

- Supporting backlog reduction and case clearance policies and practices;

- Supporting adoption and use of internationally accepted case management systems and tracking tools; and

- Training judges and court staff in advanced case management processes and tools.

Sub Objective 1.2: Court management systems and tools improved.

The term court management covers a vast area, including but not limited to the leadership of court and management, court resources (human, financial, material), court services, communications, and client satisfaction. Court management may be defined as ‘administration inside the court and outside the case.’ It directly affects the efficiency of adjudication, and the Sri Lankan justice system is a good example for how poor court management impacts adjudication and public trust in the system.

Judges in Sri Lanka are burdened with administrative tasks that can be delegated to other non-judicial officers in courts. This consumes a considerable amount of their time that can be used to fulfil their judicial responsibilities such as judgment writing. Sri Lankan court offices often suffer from the unavailability of low-cost, but essential equipment to expedite their functions. There is no accepted mechanism or a standardized, uniform practice for identifying such needs and lobbying for provisions. Employing non-judicial professionals with management skills and delegating managerial responsibilities is essential in court management. Assigning non-judicial staff for maintaining facilities for court users, motivating them and positive supervision for ensuring efficiency are important.

Working closely with the Ministry of Justice and Judicial Services Commission, the activity will support development of standardized court management procedures and introduce internationally accepted tools for assessing progress. The activity will also assist with minor infrastructure development, as necessary and appropriate.

Expected Results:

- Court management committees are upgraded, trained, and exercise responsibilities to improve and assess court performance;

- Division of labor and responsibilities of non-judicial personnel practiced and measured appropriately; and

- Strategies, policies, and procedures for managing court operations and providing quality services to the public developed and adopted.

Illustrative activities:

- Supporting the MOJ in appointing ‘Court Managers’ and improving their capacity;

- Introducing the International Framework for Court Excellence and supporting its adoption; and

- Training court managers and court management committees.

Sub Objective 1.3: Alternative Dispute Resolution promoted

Use of Alternative Dispute Resolution (ADR) mechanisms is an effective way to reduce excessive caseloads that cause delay of adjudication and backlog. Sri Lanka has defined legal provisions for community mediation. However, this is minimum use of the concept of ADR. Though the Arbitration Act (No. 1, 1995) sets ground for arbitration, for multiple reasons, it is not popular. For instance, many arbitrators approach their work as if they were judges, arbitrators have little control over arbitration processes, there are often delays enforcing arbitration awards, there is a lack of arbitration facilities, and there is a shortage of arbitrators with specialized knowledge (eg: engineering, architecture)

The activity will advocate and support for increased use and effectiveness of arbitration and civil and commercial mediation (beyond community mediation). The activity intends to support both government-and private-sector-led initiatives and work closely with the judiciary to support court annexed mediation programs.

Expected Results:

- Laws and policies to facilitate use of ADR strengthened;

- ADR processes integrated into the legal culture and courts;

- ADR included in law school curricular and continuing legal/judicial education’

- Competencies of ADR practitioners improved;

- Supporting necessary improvement of legal framework for arbitration and civil and commercial mediation;

- Training and certifying mediators/arbitrators;

- Raising awareness of commercial mediation;

- Initiating a court-annexed mediation program, in collaboration with the judiciary;

- Engaging private sector actors and institution to promote ADR practices;

Sub Objective 1.4: Public information and community engagement improved.

This sub objective will cover a wide spectrum of issues within the judiciary and other justice system institutions, ranging from basic information sharing in courthouses to engaging in broader public communication and outreach, and implementing user feedback mechanisms to improve institutional performance and user-friendly services. Better information sharing will increase transparency, which is an essential aspect of well-functioning justice systems and critical to heighten public confidence in the judiciary.

Court users and justice seekers will benefit from basic signage, leaflets, and information kiosks, websites, and mobile messaging systems that provide court and case-related information (eg: date, court room), case listings, and related news. Introducing regular reporting of statistics, judgements, circulars, legislation, periodical progress reports, and other public information also helps improve transparency and, in turn, mitigates negative perceptions. Periodic user satisfaction surveys and electronic mechanisms that measure satisfaction can produce valuable data, as well. These data can be cross-referenced with self-assessment results to measure performance. Such exercises can be used to take timely decisions and measures to improve individual and institutional performance as and when necessary.

Expected Results:

- Litigants have easy and direct access to case related information.

- Courts use modern technology and other user-friendly tools to share information and provide services.

- Justice institutions use modern platforms and improve coordination and communication practices;

- User feedback mechanisms are in place and used for performance assessments.

- Supporting the development of tailor-made communication strategies;

- Developing user feedback mechanisms, including but not limited to software;

- Training information officers.

Objective 2: Qualifications and professionalism of justice sector actors strengthened.

High-performing professionals with specialized knowledge skills and positive attitudes are critical for any sector to function effectively and deliver public services. In the case of the justice system, this includes ensuring a diverse cadres of professionals, ranging from judges, registrars, lawyers, and administrators, to office assistants and clerical staff. High levels of professionalism and performance of each of these groups is vital for the efficiency and effectiveness of the system. Sri Lanka has room to improve its human resources in every justice institution and boost the professionalism of all individuals working in the sector.

Their preparation, practice, and professional development should include measures that instill values and strengthen the sense of integrity, responsibility, and accountability. Similarly, sensitivity to gender and other differences should be integrated in all professional and educational programs.

Sub Objective 2.1: Quality of legal education curricula, instruction, and learning improved.

High quality legal education is fundamental for a well-functioning justice system. However, concern exists that legal education in Sri Lanka does not produce graduates with knowledge and skills required to fulfil the responsibilities of modern legal and judicial positions. This activity will support reform of the legal education system and prepare law school graduates to enter into the legal profession, empowering them with appropriate knowledge and skills, values, and a strong sense of ethics and professional responsibility.

This will require reforming law school curricula to include subjects demanded by the rapidly changing social and economic environment of Sri Lanka and the world and modules to improve skills to deal with professional challenges and instill values and ethics. It is the conduct of professionals that creates an enabling and equitable environment for individuals of different gender identities and social backgrounds. As explained above, such an equitable environment does not prevail in the justice system in Sri Lanka.

Therefore, legal education should integrate activities that provide practical instruction and experiences to increase sensitivity to gender and social inclusion in graduates. The activity will work with the Council of Legal Education and law faculties of the state universities under this component.

Expected results:

- Law…