Draft SOL-383-11-000001 042811 pk.pdf

OF PAGESSOLICITATION OFFER AND AWARD 11. THIS CONTRACT IS A RATED ORDER ~ IRATING IPAGE

, UNDER DPAS (15 CFR 7900) N/A 1

2. CONTRACT NUMBER 3. SOLICITATION NUMBER

SOL -383-11-000001

4. TYPE OF SOLICITATION

SEALED BID (IFB)

~ NEGOTIATED (RFP)

5. DATE ISSUED

(tbd)

6. REQUISITION/PURCHASE NUMBER

7. ISSUED BY CODEI 18. ADDRESS OFFER TO (If other than item 7)

USAIDlindia (See Section L) Regional Office of Acquisition and Assistance

NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder".

SOLICITATION

9. Sealed offers in original and copies for furnishings the supplies or services in the Schedule will be received at the place specified in item 8, or if hand carried, in the depository located in Office of USAID/Sri Lanka until 3:00 pm local time (See Section L) (Hour) (Date)

CAUTION Submissions, Modifications, and Withdrawals: See Section L, Provision No. 52.214-7 or 52.215-1. All offers are subject to all terms and conditions contained in this solicitalion.

10. FOR A. NAME B. TELEPHONE (NO COLLECT CALLS) C. E-MAIL ADDRESS

(See Section L)

INFORMATION

CALL: ~ Patrick Keirnan

AREA CODE I~UMBER IEXT.

9411 2498030

11 TABLE OF CONTENTS

(X) SEC. DESCRIPTION PAGE(S) (X) SEC. DESCRIPTION

PART I - THE SCHEDULE PART II CONTRACT CLAUSES

X A SOLICITATION/CONTRACT FORM A1 X I CONTRACT CLAUSES

X B SUPPLIES OR SERVICES AND PRICES/COSTS B1 PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.

X C DESCRIPTION/SPECS.IWORK STATEMENT C1 X J LIST OF ATTACHMENTS

X D PACKAGING AND MARKING D1 PART IV REPRESENTATIONS AND INSTRUCTIONS

X E INSPECTION AND ACCEPTANCE E1

K

REPRESENTATIONS, CERTIFICATIONS AND OTHER

X F1

X STATEMENTS OF OFFERORS F DELIVERIES OR PERFORMANCE

X G CONTRACT ADMINISTRATION DATA G1 X L INSTRS., CONDS., AND NOTICES TO OFFERORS

X H SPECIAL CONTRACT REQUIREMENTS H1 X M EVALUATION FACTORS FOR AWARD

PAGE(S)

1J1

K1

L1 M1

OFFER (Must be fully completed by offeror)

NOTE: Item 12 does not apply if the solicilalion includes the provisions al52.214-16, Minimum Bid Acceptance Period.

12. In compliance with the above, the undersigned agrees, if this offer is accepted within 120 days calendar days (60 calendar days unless a different period is inserlad by the offeror) from the dale for receipt of offers specified above, to furnish any or all ilems upon which prices are offered al the set opposite each ilem, delivered allhe designaled point(s), wilhin Ihe lime specified in Ihe schedule.

13. DISCOUNT FOR PROMPT PAYMENT ~ 10 CALENDAR DAYS (%)120 CALENDAR DAYS (%) 30 CALENDAR DAYS (%) I CALENDAR DAYS(%)

(See Section I, Clause No. 52.232-8)

14. ACKNOWLEDGMENT OF AMENDMENTS AMENDMENT NO. DATE AMENDMENT NO. DATE

(The offeror acknowledges receipt of amendments to the SOL/CITA TlON for offerors and related documents numbered and dated):

CODE I / FACILITY I 16. NAME AND THE TITLE OF PERSON AUTHORIZED TO SIGN OFFER

15A. NAME AND (Type or print)

ADDRESS

OF OFFER

OR

15B. TELEPHONE NUMBER 15C. CHECK IF REMITTANCE ADDRESS IS

17. SIGNATURE 18. OFFER DATE

AREA CODE INUMBER IEXT. DIFFERENT FROM ABOVE - ENTER SUCH

ADDRESS IN SCHEDULE.

AWARD (To be completed by Government)

19. ACCEPTED AS TO ITEMS 120. AMOUNT 21. ACCOUNTING AND APPROPRIATION

22. AUTHORITY FOR USING OTHER THAN FULL OPEN COMPETITION: 23. SUBMIT INVOICES TO ADDRESS SHOWN IN ~ liTEMo 10 U.S.C. 2304 (c) 0 41 U.S.C. 253 (e) (4 copies unless otherwise specified)

24. ADMINISTERED BY (If other than Item 7) 25. PAYMENT WILL BE MADE BY CODE I L______

USAID/Sri Lanka 44, Galle Road Colombo 3, Sri Lanka

26. NAME OF CONTRACTING OFFICER (Type orprint) 27. UNITED STATES OF AMERICA 28. AWARD DATE

William Reynolds, (A) Regional Contracting Officer, USAID/lndia (Signature of Contracting Officer)

IMPORTANT - Award will be made on thiS Form, or on Slandard Form 26, or by olher authorized official wnUen notice.

AUTHORIZED FOR LOCAL REPRODUCTION STANDARD FORM 33 (REV,. 9-97)

Previous edition is unusable Prescribed by GSA- Far (48 CFR) 53.214 (c)

Draft Sri Lanka Justice Sector RFP Page 2 of 109

TABLE OF CONTENTS

Page

PART I - THE SCHEDULE

SECTION B - SUPPLIES OR SERVICES AND PRICE/COSTS

B.1 PURPOSE

B.2 CONTRACT TYPE AND CONRACT SERVICES

B.3 ESTIMATED COST, FIXED FEE, AND OBLIGATED AMOUNT

B.4 CONTRACT LINE ITEM NUMBERS AND CEILINGS

B.5 INDIRECT COSTS

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

INDIRECT COSTS

B.7 REIMBURSABLE COSTS

B.8 FEE PAYMENT PLAN…………………………………………………………………………………………………………………………………..…7

SECTION C – DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK

C.1 INTRODUCTION

C.2 BACKGROUND

C.3 DONOR ASSISTANCE PROGRAMS IN THE JUSTICE SECTOR

C.4 PROGRAM OBJECTIVES

C.5 PROGRAM PRINCIPLES AND TECHNICAL GUIDANCE

C.6 STAFFING AND PROGRAM MANAGEMENT

C.7 PROGRAM COMPONENTS

C.8 PERFORMANCE MANAGEMENT AND EXPECTED OUTCOMES

SECTION D - PACKAGING AND MARKING

D.1 AIDAR 752.7009 MARKING (JAN 1993)

D.2 BRANDING POLICY AND 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 START UP DELIVERY SCHEDULE

F.5 KEY PERSONNEL

F.6 PERFORMANCE STANDARDS

F.7 REPORTS AND OUTPUTS

F. 8 REPORTING FORMAT

F.9 LANGUAGE OF REPORTS AND OTHER OUTPUTS

F.10 PROJECT EVALUATION

F.11 AIDAR 752.7005 SUBMISSION OF DEVELOPMENT EXPERIENCE DOCUMENTATION TO PPC/CDIE/DI

(JAN 2004)

SECTION G - CONTRACT ADMINISTRATION DATA

G.1 ADMINISTRATIVE CONTRACTING OFFICE

G.2 CONTRACTING OFFICER’S TECHNICAL REPRESENTATIVE (COTR)

G.3 TECHNICAL DIRECTIONS/RELATIONSHIP WITH USAID

Draft Sri Lanka Justice Sector RFP Page 3 of 109

G.4 AIDAR 752.7003 DOCUMENTATION FOR PAYMENT (NOV 1998)

G.5 PAYING OFFICE

G.6 ACCOUNTING AND APPROPRIATION DATA

SECTION H - SPECIAL CONTRACT REQUIREMENTS

H.1 NOTICE LISTING CONTRACT CLAUSE INCORPORATED BY REFERENCE

H.2 AUTHORIZED GEOGRAPHIC CODE

H.3 LOCAL PROCUREMENT

H.4 LOGISTIC SUPPORT

H.5 LANGUAGE REQUIREMENTS AIDAR 752.7007 PERSONNEL COMPENSATION (JULY 2007)

H.6 AIDAR 752.7007 PERSONNEL COMPENSATION (JULY 2007)

H.7 EMPLOYMENT OF THIRD COUNTRY NATIONALS AND COOPERATING COUNTRY NATIONALS(CCNS)

H.8 INSURANCE AND SERVICES

H.9 AIDAR 752.7004 EMERGENCY LOCATOR INFORMATION (JUL 1997)

H.10 GOVERNMENT FURNISHED FACILITIES OR PROPERTY

H.11 MANDATORY CONTRACT REQUIREMENTS

H.12 SUBCONTRACT CONSENT

H.13 GRANTS UNDER CONTRACT (GUC)

H.14 CONFLICTS OF INTEREST

H.15 DISCLOSURE OF INFORMATION

H.16 SUBCONTRACTING PLAN AND THE SF 294 – SUBCONTRACTING REPORT FOR INDIVIDUAL CONTRACTS

AND SF 295 – SUMMARY CONTRACTING REPORT

PART II - CONTRACT CLAUSES

SECTION I - CONTRACT CLAUSES

I.1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE

I.2 FAR 52.203-13 CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT (DEC 2008)

I.3 FAR 52.209-9 UPDATES OF PUBLICLY AVAILABLE INFORMATION REGARDING RESPONSIBILITY MATTERS

(JAN 2011)

I.4 FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (FEB 2009) ALT. I (AUG 2007)

I.5 FAR 52.227-23 RIGHTS TO PROPOSAL DATA (TECHNICAL) (JUN 1987)

I.6 AIDAR 752.209-71 ORGANIZATIONAL CONFLICTS OF INTEREST DISCOVERED AFTER AWARD

I.7 AIDAR 752.219-70 USAID MENTOR-PROTÉGÉ PROGRAM (JUL 2007)

I.8 AIDAR 752.219-71 MENTOR REQUIREMENTS AND EVALUATION AS PRESCRIBED IN AIDAR (JUL 2007)

SECTION J - LIST OF ATTACHMENTS

PART IV - REPRESENTATIONS AND INSTRUCTIONS

K.1 NOTICE LISTING SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

K.2 FAR 52.204-8 ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2011)

K.3 FAR 52.209-7 INFORMATION REGARDING RESPONSIBILITY MATTERS (JAN 2011)

K.4 FAR 52.230-1 COST ACCOUNTING STANDARDS NOTICES AND CERTIFICATION (OCT 2008)

K.5 AIDAR 752.226 01 DISADVANTAGED ENTERPRISE REPRESENTATION (APR 1991)

K.6 COMPLIANCE WITH VETERANS EMPLOYMENT REPORTING REQUIREMENTS

K.7 INSURANCE - IMMUNITY FROM TORT LIABILITY

K.8 TIN AND DUNS NUMBERS

K.9 AUTHORIZED NEGOTIATORS

K.10 AGREEMENT ON, OR EXCEPTIONS TO, TERMS AND CONDITIONS

K.11 SIGNATURE

Draft Sri Lanka Justice Sector RFP Page 4 of 109

SECTION L - INSTRUCTIONS, CONDITIONS, AND NOTICES TO OFFERORS

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

L.2 NOTICE LISTING SOLICITATION PROVISIONS INCORPORATED BY REFERENCE

L.3 FAR 52.215-1 INSTRUCTIONS TO OFFERORS - COMPETITIVE ACQUISITION (JAN 2004) ALT I (OCT 1997)...66

L.4 FAR 52.216-1 TYPE OF CONTRACT (APR 1984)

L.5 FAR 52.233-2 SERVICE OF PROTEST (SEP 2006)

L.6 QUESTIONS AND CLARIFICATIONS

L.7 INSTRUCTIONS TO OFFERORS

L.8 INSTRUCTIONS FOR THE PREPARATION OF THE TECHNICAL PROPOSAL

L.9 INSTRUCTIONS FOR THE PREPARATION OF THE COST PROPOSAL

L.10 BRANDING STRATEGY

SECTION M - EVALUATION FACTORS FOR AWARD

M.1 OVERVIEW

M.2 CONTRACT AWARD – BEST VALUE

M.3 TECHNICAL EVALUATION CRITERIA

M.4 COST EVALUATION CRITERIA

M.5 CONTRACTING WITH SMALL BUSINESS CONCERNS

M.6 CONTRACTING WITH U.S SMALL BUSINESS CONCERNS IN THE MENTOR-PROTÉGÉ PROGRAM

M.7 DETERMINATION OF THE COMPETITIVE RANGE AND CONTRACT AWARD

Draft Sri Lanka Justice Sector RFP Page 5 of 109

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 services as described in detail in

Section C, Statement of Work for the implementation of USAID/Sri Lanka‘s Increased Accountability in the Legal System (IALS) program.

B.2 CONTRACT TYPE AND CONRACT SERVICES

This is a cost-plus-fixed-fee (CPFF) completion-type contract. For the consideration set forth below, the

Contractor shall achieve the performance objectives and deliverables or outputs described in Section C and the additional requirements of Section F and H, in accordance with the performance standards specified herein.

B.3 ESTIMATED COST, FIXED FEE, AND OBLIGATED AMOUNT

a) The estimated cost for the performance of the work required hereunder, exclusive of fixed fee, if any, is $ ___________. The fixed fee, if any, is $ __________. The total estimated cost plus fixed fee, if any, is $ ____________.

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 $__________. The Contractor shall not exceed the aforesaid obligated amount unless authorized by the Contracting Officer pursuant to the clause of this contract entitled ―Limitation of Funds‖ (FAR 52.232-22). See Section I of this contract.

c) Funds obligated hereunder are anticipated to be sufficient through (TBD).

B.4 CONTRACT LINE ITEM NUMBERS AND CEILINGS

a) The contract line item numbers (CLINs) below are based on the Contractor‘s original proposal and/or final proposal revision dated (insert date), which was accepted by USAID through award of this contract, and which is incorporated herein by reference and made a part of this contract.

b) Without the prior written approval of the Contracting Office, the Contractor may not exceed the total estimated cost set forth in the budget hereunder or the obligated amount, whichever is less.

c) Contract Budget

CLIN Description Year 1 Year 2 Year 3 Total

Component 1:

Improve the capacity of the legal system to deliver more transparent and higher quality justice

Fixed Fee (if any)

Draft Sri Lanka Justice Sector RFP Page 6 of 109

Component 2:

Strengthen the technical knowledge of judges, and non-judicial officers

Component 3:

Key stakeholders develop a strategic plan to modernize the process of case management in the

Sri Lanka legal system

Component 4:

Improve access to justice for marginalized communities in conflict affected areas

Total Estimated Cost

Plus Fixed Fee (if any)

Note: The Contractor is not allowed to exceed each CLIN line item nor is authorized to shift funding between CLINs without prior written approval of the Contracting Officer.

B.5 INDIRECT COSTS

The contract clause entitled ―Allowable Cost and Payment (MAR 2000)‖, FAR 52.216-7, specifies that the indirect cost rates shall be established for each of the Contractor‘s accounting periods that apply to this contract. Pending establishment of revised provisional or final indirect cost rates, allowable indirect costs shall be reimbursed on the basis of the following negotiated provisional or predetermined rates applied to the bases which are set forth below:

Description Rate Base Type Period

1/ 1/ 1/

(To be determined at time of award)

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

REIMBURSEMENT FOR INDIRECT COSTS

a) Reimbursement for indirect costs shall be at final negotiated rates, but not in excess of the following ceiling rates:

Description Rate Base Type Period

1/ 1/ 1/

Draft Sri Lanka Justice Sector RFP Page 7 of 109

(To be determined at time of award)

(Note: To be determined at time of award - or, if such rates are not proposed and accepted, then the following subsection a) shall apply:)

a) Reimbursement for allowable indirect costs shall be at the lower rate of the final negotiated (or predetermined) rates, or the following ceiling rates:

The prime contractor shall not receive indirect costs that exceed rates two percentage points or

10% of the individual indirect cost rates above, whichever is lower. The prime contractor shall also negotiate ceiling indirect costs rates that do not exceed two percentage points or 10% of the individual indirect costs rates in NICRA at time of award.

(b) 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. Final indirect costs exceeding the rate(s) applied to the base(s) shown above shall be absorbed by the Contractor.

(c) This understanding shall 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 REIMBURSABLE COSTS

The U.S. dollar costs determined to be allowable for reimbursement under this contract shall be limited to reasonable, allocable and necessary costs in accordance with FAR Part 31 - Contract Cost Principles and their relevant application (i.e., FAR 31.2 and AIDAR 731.2 for commercial (for profit) organizations or

FAR 31.3 and AIDAR 731.3 for educational institutions, or FAR 31.7 and AIDAR 731.7 for other not-for-profit organizations and the applicable OMB Circulars, FAR 52.2167 - Allowable Cost and Payment, FAR 52.216-8 - Fixed Fee (if applicable), and AIDAR 752.7003 - Documentation for Payment.

B.8 FEE PAYMENT PLAN

Subject to the withholding provision of the contract clause entitled ―Fixed Fee‖ (FAR 52.216-8), the fee amounts specified in Section B.4, if any, indicated for each program component shall be paid in installments at the time of each payment on account of allowable costs incurred; the amount of each such installment being determined by applying to the amount payable as allowable cost a percentage reflecting the ratio of the total component fixed fee to the total contract estimated costs for that component, provided the contractor demonstrates adequate progress towards completion of targeted results per component. In accordance with this completion-type contract modality, payment of total component fee amounts will depend on the Contractor‘s demonstrated performance, i.e., in substantially meeting or exceeding the established component target(s). The Contracting Officer shall determine the final component fee amount, up to the total fixed fee amount indicated, based on the Mission‘s quantitative and qualitative analysis of Contractor performance and completion of targeted results.

In the event of discontinuance of the work in accordance with the clause entitled ‗Termination‘ (FAR

52.249-6), the Contracting Officer shall readjust the fixed fee in accordance with the considerations contained in FAR 49.305-1.

[END OF SECTION B]

Draft Sri Lanka Justice Sector RFP Page 8 of 109

SECTION C – DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK

C.1 INTRODUCTION

The United States Agency for International Development‘s (USAID) Mission in Sri Lanka intends to support a justice sector program to: (a) assist the Government of Sri Lanka, the Judicial Services

Commission and the judiciary to improve the management and efficacy of the Sri Lanka legal system, and

(b) improve access to justice to conflict affected and marginalized communities. The program will support the institutional capacity development of the Ministry of Justice, the Judges Training Institute and the Legal Aid Commission to achieve the objectives described below. In the medium term, USAID will continue to support a broad set of objectives to promote stabilization in post-conflict Sri Lanka.

C.2 BACKGROUND

The main challenges facing the justice sector in Sri Lanka are well known to Sri Lankan legal experts and practitioners. Sri Lanka‘s rule of law development suffered from more than a quarter-century of internal civil war between the government and the separatist Liberation Tigers of Tamil Elam (LTTE), which only ended in May 2009. The government was victorious but large sections of the country —primarily in the north and east — remain devastated. During these two decades of strife, enactment of emergency legislation and application of the Prevention of Terrorism Act (PTA) meant that in much of the country there was only short-lived and intermittent experience with fully democratic governance.

What are often described as the rich sources of Sri Lankan law - the Roman-Dutch system of civil law initiated during 16 th century Dutch rule, almost two centuries of British common law, centuries-old legal traditions of both the Sinhalese and Tamil populations, Islamic law based on the Quran as followed by the

Muslim community, and the law of the Kandy kingdom that ruled much of Central Sri Lanka until 1815, has resulted in tension between these systems. A further barrier to access to justice is the issue of legitimacy caused by lack of openness to both the Sinhalese and Tamil languages throughout the country.

Questions about legitimacy are compounded by the low level of efficiency; prevalence of delays; and the public perception that the court system is a tool for the delay of justice.

Rather than the standard pride expressed by some in this complex legal structure, it might better be regarded as a source of some persisting legal confusion. Nevertheless, the multiple sources in the legal background clearly show that Sri Lanka definitely has a long tradition of law, and in the view of some, perhaps too much law that is in need of reform.

The courts are encumbered in delivering effective justice by long-term procedural complexities – the civil and criminal procedure codes in essence date to the 1880s and British rule - common to South Asia and resulting in extreme delays.

Court cases in Sri Lanka and other South Asian nations often take more than 10 and even 20 years to be completed. Police prosecutors in Magistrates‘ Courts lack the professional capability of state counsel from the Attorney General‘s Department (AGD) who prosecutes in High Court and the appellate courts.

Bail is permitted by statute but is often denied in practice; as a result, a large percentage of prisoners are being held awaiting trial on remand. Even though representation provided by the Legal Aid Commission

(LAC) has been expanded, many defendants still lack effective counsel. Lawyers appointed directly by judges often do not have the necessary experience to provide adequate representation.

The Government of Sri Lanka (GSL) has begun to invest significant resources in the justice sector, with the construction of courts in the north and the Judges Training Institute. What are lacking is access to modern systems of management and a formal curriculum for advanced judicial education both upon

Draft Sri Lanka Justice Sector RFP Page 9 of 109 appointment and on a continuing basis. It is difficult to obtain any statistics on caseloads or case activity in all levels of courts. The use of technology in courts and justice agencies is limited to an old computer system in the Court of Appeal and use of data processing system in Colombo District Court purely for docketing, excluding provision of management reports.

Despite the previous chronicling of deficiencies in the rule of law observed in Sri Lanka, there is a degree of agreement among the Ministry of Justice (MOJ), the AGD, leading members of the Bar and legal academe, and civil society organizations on needed reforms in the Sri Lankan justice system. This consensus may provide the political will necessary for efforts to improve the Sri Lankan justice sector to succeed.

The Legal Aid Law 1978 of Sri Lanka was enacted for the purpose of providing state-funded legal assistance to ―deserving persons‖.

The Legal Aid Commission is an incorporated agency that comprises nine members, six of whom are nominated by the Bar Council of Sri Lanka for appointments of up to three years. The other three members are appointed by the Minister of Justice and are invariably retired judges or senior legal practitioners.

The commission operates from offices in 47 town centers across the country, relying on 72 full time salaried staff attorneys and a range of panel lawyers in private practice. It also operates a range of special desks that deal with such fields as human rights, anti-corruption, child rights, consumer rights, disabled person‘s rights, elder‘s rights, internally displaced persons, migrant workers‘ rights, a schools program, women‘s rights and newspaper publication of legal information articles.

In practice, at least until recent times, this provision has been interpreted by the Legal Aid Commission as requiring it to assist persons only in civil cases, rather than criminal. The commission has provided assistance in relation to bail applications, but otherwise appears to rely on the assigned counsel system as sufficient to cover criminal legal representation. In fact, the absence of criminal legal aid in magistrates‘ courts is viewed by some as a shortcoming in the commission‘s interpretation of its own statutory charter.

Until the government agrees to reform the assigned attorney system by funding reasonable levels of fees to be paid to assigned attorneys via the legal aid system, there can be little prospect of the quality of criminal defense improving. In the short term, the establishment of a donor supported legal defense fund may address the issue of legal assistance in cases that involve the criminal law and other actions in which the state is a party. Such a fund will help sustain the financial viability of the legal aid providers, something that may produce further benefits in terms of their work in pursuing public interest litigation and other litigation aimed at securing the rights and interests of all citizens.

C.3 DONOR ASSISTANCE PROGRAMS IN THE JUSTICE SECTOR

World Bank Project

Legal and Judicial Reform Program

The World Bank funded a substantial justice reform project in the three years up to 2007. Much of the project budget was committed to capital works improvements, including a number of new courthouse construction and refurbishment programs.

But it also included assistance in the form of procurement of office equipment, new technology and training programs. Numerous agencies of the judiciary benefited from the project, including the Judicial

Services Commission, the Sri Lanka Judges‘ Institute, the district courts in Colombo, and judicial officers

Draft Sri Lanka Justice Sector RFP Page 10 of 109 generally by means of the judicial training opportunities offered. The Ministry of Justice established an implementation unit to administer most aspects of the project.

Although there were high expectations that the World Bank‘s Legal and Judicial Reform Project would be succeeded by a second project of similar scale from 2008, this did not happen. The World Bank, while still open to the prospect of offering assistance to the justice sector in Sri Lanka, has no current plans to do so.

The United Nations Development Program (UNDP)

Equal Access to Justice Project (Phase II)

The UNDP has been active since 2004, chiefly via the Ministry of Official Languages and Social

Integration (formerly the Ministry of Constitutional Affairs and National Integration). The Access to

Justice (A2J) programs have focused on legal awareness building through support for legal aid programs and paralegals at the community level. They have supported state institutions such as the Prisons

Department and the Sri Lanka Bar Association. Their work includes both field interventions and support in policy development. UNDP activities under its justice programs have endeavored to promote alternative sentencing and they are working with Asian Development Bank and others in the north to support the re-establishment of courthouses in the province.

The current vehicle for the UNDP‘s work in the justice sector is the Equal Access to Justice Project –

Phase II, valued at over $7 million being implemented between 2009 and 2012 and it appears that approximately $1.5 - $2 million has been committed. The phase II project was, according to its project document, developed to deepen and orient the prior phase I activities (between 2004 and 2008) ―within a conflict prevention framework, while also continuing the shift of the primary focus to the east and north, as well as to the estate sector, and addressing trust/confidence-building, gender-equity, peaceful conflict resolution and mediation.‖

The phase II project outputs and activities are evidently intended to build trust and faith in the justice system and to support confidence building through the rule of law and access to justice. Project activities are oriented toward addressing the causes of injustice affecting certain groups in terms of the effects of poverty and the need for accountability and greater respect for minority rights.

The main beneficiaries of these activities are internally displaced people in the North and East, estate workers, women and other groups affected by conflict or marginalization. While this is a worthy point of emphasis in the circumstances, it is unlikely that UNDP activities are likely to impact directly on the mainstream policies and performance trends of the justice system overall.

UNDP funding has been used to facilitate development of national policy on legal aid and to equip the

Judges Training Institute in Colombo. However, beyond these efforts, there are no plans to address core aspects of judicial system performance.

Other donors appear to have opted to watch the progress of the UNDP project or otherwise hold off on making any definite commitments of funds for Rule of Law activities. An exception, however, is the

Netherlands, which has indicated a clear interest in supporting judicial education. This comes at a time when a new building for the JTI is nearing completion, and the MOJ is seeking donors for judicial education.

C.4 PROGRAM OBJECTIVES

Draft Sri Lanka Justice Sector RFP Page 11 of 109

This Statement of Work (SOW) is based on an expression of interest in USAID‘s investment in justice sector by the Government of Sri Lanka‘s MOJ. The MOJ has specified several areas in which it desires

USAID assistance, including case management, judicial training, professional prosecution, procedural reform, and sentencing policy. Therefore, as an overall guiding principle, the Contractor must design and implement a program in partnership with the MOJ.

The GSL‘s commitment to investing and improving the Sri Lanka justice system is the basis for USAID moving forward with the Increased Accountability in the Legal System (IALS) Program. USAID intends to support activities that assist the GSL to implement programs, and improve, or modernize the following elements of the justice sector:

Improve case management in the civil and criminal courts.

Implement civil and criminal procedural reform.

Improve the quality of judicial training.

Support language and management training for non-judicial court officials.

Support targeted institutions to improve access to justice for marginalized communities in conflict affected areas.

USAID supports each of the objectives discussed above because individually, each appears clearly likely to build public confidence in the justice system and improve the administration of justice in Sri Lanka.

Activities should be developed in well-designed phases, so progress can be gauged in relation to the commitment of the government to strengthen the rule of law. Moreover, the IALS is a discrete set of efforts rather than a comprehensive, all-inclusive rule of law or overall justice system improvement project. The basis for future USG support in this sector will be based on clear evidence of support for improved rule of law by the Government of Sri Lanka.

C.5 PROGRAM PRINCIPLES AND TECHNICAL GUIDANCE

Past donor supported improvement efforts in the justice sector have foundered on the apparent inability of institutions to assume the financial burdens involved and to deploy adequately trained personnel. Throughout the life of the IALS program, USAID and the contractor will engage in extensive consultations with the MOJ, the JSC, the High Court Judges Association (HCJA), the

Judicial Services Association (JSA), the Legal Aid Commission (LAC), and the JTI. This consultative process is especially important, and the relationships developed will enable USAID Sri Lanka and the contractor to contribute effectively to strengthening the justice sector in Sri Lanka.

Use innovative learning techniques to broaden the experience of participants in training programs to include skills in communication, teamwork, and management.

Involve all stakeholders as early as possible in the implementation process.

Design curricula and teaching materials that address gender and reconciliation issues to encourage the development of a justice sector and judiciary that is sensitized to the needs of women and conflict affected communities in Sri Lanka.

Where possible, the Contractor shall propose activities that support the Legal Aid Commission and other service providers to implement the Government of Sri Lanka and UNDP‘s national policy on legal aid.

Draft Sri Lanka Justice Sector RFP Page 12 of 109

Leverage competencies and resources from both within the region (South and South East Asia) and

Sri Lanka.

Take full advantage of IT applications, regional training facilities, including distance learning programs for the judiciary and court administrators.

Leverage the impact of other USG and USAID funded activities, including the Supporting Regional

Governance (SuRG) Program, the Land Administration and Protection of Property (LAPP) Program, the Connecting Regional Economies (CORE) Program and the Reintegration and Stabilization in the

East and North (RISEN) program.

The Government of Sri Lanka and USAID will establish an advisory committee to provide broad policy direction and guidance for this program. USAID anticipates that a senior member of the judiciary may Chair the committee, or the committee will be Co-chaired by the Mission Director, USAID / Sri Lanka or his nominee and the Secretary, MOJ or his nominee. This committee‘s functions will not include providing specific direction to, or substantial involvement with, the contractor which would be reserved to the USAID ROAA and ROAA representative. The contractor‘s staff will serve as an informal secretariat for the advisory committee by arranging meetings, preparing the addenda and circulating the minutes. The minutes and decisions of the advisory committee will be shared with GSL and USG counterparts, including staff from the United

States Embassy in Sri Lanka.

The contractor will be expected to report to the advisory committee on a quarterly basis.

C.6 STAFFING AND PROGRAM MANAGEMENT

USAID/Sri Lanka anticipates a US Citizen or Third Country National (TCN) Chief of Party (COP) to manage successful implementation of approved justice sector activities. Based on a verbal commitment made by the Secretary, MOJ, the USAID Sri Lanka Mission will negotiate a memorandum of understanding with the MOJ to confirm their commitment to provide office space for the IALS Contractor in the MOJ. Upon award, the Contractor will negotiate with the MOJ the specific details of the office space and utilities that will be provided by the MOJ.

The Chief of Party and his/her staff are expected to serve as advisors for their Sri Lankan and U.S.

government counterparts; network with representatives from the Sri Lanka Bar Association, the judicial associations, civil society, academia and other stakeholders to ensure buy-in and sustainability of the program; and facilitate the day-to-day programmatic, administrative, and/or financial activities of the

IALS program.

C.7 PROGRAM COMPONENTS

Component 1: Improve the capacity of the legal system to deliver more transparent and higher quality justice

A fundamental barrier to the design of appropriate donor-sponsored interventions is the lack of essential information about the resources committed to the justice system and the actual performance standards of that system.

The lack of access to essential data that tracks the operational aspects of the Sri Lanka legal system is direct evidence of the inability of justice sector agencies to accept the value of collecting and using performance data. Even if such data are actually collected and compiled by the courts and other agencies, Draft Sri Lanka Justice Sector RFP Page 13 of 109 it seems likely that these data are not used to inform decision making concerning the management of the justice system.

The development of active systems of monitoring justice system performance is an important goal of this program and is a condition precedent to possible long term USG support in this sector.

It appears that this problem has been avoided as a direct issue by other donors to date because most other donor interventions have been in areas that are not necessarily dependent on access to general statistics about prosecutorial and civil litigation activities. Examples include programs focused on the northern and the eastern areas of Sri Lanka where the programmatic focus by most donors has been on access to justice, rather than the general state of justice services across all communities.

Thus, USAID will support improved management and transparency in the justice sector by funding the development of a system to monitor and evaluate performance.

USAID will pursue this objective through the development and publication by the MOJ and Judicial

Services Commission (JSC) of an annual report that catalogues and publicizes comprehensive measures of caseloads and the financial and physical resources within the legal system.

This program will require the reinforcement of the existing management capacity of both institutions to collect, compile, validate, and publish judicial and prosecutorial performance information; and then to publish it via a publically accessible website and an annual printed report.

A key impediment to improved transparency of justice system performance is the cost of publishing information. The Lawnet system operated for some years to enable the MOJ to publish information on behalf of a range of justice sector institutions.

The Lawnet service has been criticized as erratic with the website remaining active but carrying material that had not been updated. While some judicial users appeared to find the existing system useful, the

MOJ‘s website discloses limited current material. Improvement of the existing system aimed at giving justice sector agencies incentive to publish information promptly about their operational performance via web pages would benefit users and encourage other potential users to use this important potential resource.

This kind of commitment will entail underwriting the development of skills within each partner institution for the production of original information about agency performance that may be incorporated into a website, along with support to the print production of a selection of publications, such as annual reports.

Deliverable Number 1.1 - Improved case management and administrative processes within the Sri

Lankan legal system, with emphasis on case delay reduction, and efficacious case management.

Sub- deliverable 1.1 (a): Gather caseload and other justice sector data to plan improvements:

(i) Based on data that may be provided by the JSC and the MOJ, the Contractor will prepare a statistical picture of justice sector operations for use in all other activities. It appears that Sri

Lanka lags behind other South Asian states in the relevant data it collects and releases concerning justice sector operations.

(ii) This has been a vital first step toward improving the operations of the justice system worldwide.

Sub-deliverable 1.1 (b): Plan initial delay reduction effort in civil and criminal cases:

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(i) In partnership with the MOJ and JTI, develop a curriculum to train the judiciary and court administrators in the principles of case management; and

(ii) A training program in case flow management for 192 District Court Judges and Magistrates is completed.

Sub-deliverables 1.1 (c): Annual reports and case digests are produced.

(i) Transparency within the Sri Lankan legal system is promoted by partnering with the MOJ and the JSC to print annual reports with statistical data, analysis and explanatory narrative about the Sri Lanka legal system; and

(ii) A web based system to publicize these data and raise awareness of government and civil society stakeholders regarding the existing barriers to improve case management in the Sri

Lanka legal system is developed and operational.

Sub-deliverable 1.1(d): A plan for the automation of case management processes is developed.

(i) In partnership with the MOJ, JSC, the Judicial Services Association (JSA) and the High

Court Judges Association (HCJA), design an action plan to implement successful case management that utilizes manual and or electronic techniques to provide up-to-date information to judges, lawyers, and administrative staff. The plan will be informed by a national survey to assess public confidence in the legal system which is a deliverable under

Component 3 (below). The plan should include elements of legal and procedural reform;

management and administrative reform; financial resources required for implementation;

training programs required for implementation; and timeline for implementation.

(ii) The draft action plan will be peer reviewed by a team of eminent judges and court administrators from selected jurisdictions and their comments and suggestions shared with the institutions listed above and the program advisory board;

(iii) The draft action plan will be launched at a national conference and open for public review;

(iv) The Contractor will synthesize the comments and suggestions received from stakeholders and members of the public and present them to members of the ministry, associations and institutions listed above with a set of final edits and recommendations;

(v) The Contractor will assist these institutions to finalize the action plan and present to a broad range of stakeholders and complete the deliverables described in Component 3 below.

Component 2: Strengthen the technical knowledge of judges, and non-judicial officers.

The Sri Lanka Judges‘ Training Institute (JTI) conducts a series of training programs that offer an informal continuing education program for the judiciary of the subordinate courts and provide a set of training opportunities to the higher judiciary.

This may be the result of funding constraints and the lack of suitable trainers, rather than a limitation on the institute‗s charter, as its legislation permits it to provide continuing judicial training opportunities to all members of the judiciary.

The MOJ and members of the lower judiciary suggested that donors provide opportunities for members of the judiciary to pursue academic programs overseas and locally but donor support for general judicial education has been limited by strategies that focused on short term goals linked to Sri Lanka‘s 26 year-long conflict. With the exception of the World Bank‘s Judicial and Legal Reform Project that ended in

2007, donors have tended to avoid assisting the judiciary except in areas that related to their internal programmatic priorities.

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The World Bank project contributed to judicial education but further assistance must be provided in such a way that is as inclusive as possible. This may be achieved by offering programs that are of a sufficient scale as to benefit all 60 High Court judges and all 192 district judges and magistrates.

Activities under this component must assist Sri Lankan trainers and institutions to shift training methodologies from a lecture based to modern methodology in adult learning, making a distinction between imparting knowledge by lecturing and equipping judges with skills to improve job performance -achieved by training.

USAID assistance will prioritize developing the JTI‗s capacity through:

(a) The establishment of a sustainable partnership between a state judicial college / center in the

United States and the JTI;

(b) A specialized training program that features prominent jurists and academics from the United

States and other common-law jurisdictions.

The Contractor will utilize the resources of the University of Colombo, the Sri Lanka Law College and the Sri Lanka Institute for Development Administration to offer funded training opportunities to non-judicial officers that focus on strengthening their skills in management and administration, and the development of public policies on improved service provision in the legal system.

In that connection, training programs offered to government officers may be augmented by the simultaneous procurement of tools of trade in government, such as information technology equipment, printers, and access to the Internet.

The MOJ has identified the preparation of court transcripts as a weakness in prosecutorial and civil litigation. The Commercial High Court, three district courts in Colombo and the district courts in Kandy have an electronic system to record court proceedings but in all other courts, stenographers record proceedings manually. The JSC is responsible for the recruitment, training and assignments for the approximately 900 stenographers working in the Sri Lanka courts. All stenographers have to obtain a qualification in shorthand prior to recruitment into the civil service. In a limited number of courts, the stenographers type out the transcript of proceedings on computers but most stenographers only have access to manual typewriters.

Besides the process of preparing court transcripts, the judiciary and legal profession highlight the lack of bi-lingual Court Stenographers, especially with knowledge of Sinhala or Tamil and English. The GSL is re-establishing the court system in the North and there will be a critical need for bi-lingual Court

Stenographers with Tamil-English and Tamil-Sinhala skills.

Deliverable Number 2.1 - Judicial exchange and study tour programs are implemented.

It is important to initiate judicial training programs that include a series of well-planned judicial exchanges and study tours to appropriate court locations in the United States.

The United Kingdom may also an appropriate destination. Sri Lankan jurists and officials will benefit from seeing how much legal as well as judicial administrative reform have occurred at the source of much of the current Sri Lankan system.

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Recently, GSL officials and members of the judiciary visited Singapore to study the case management systems operating in the country. In the past, similar exchange programs and study tours have visited

India and Malaysia.

Both legal procedure and court administration has been thoroughly reformed in the United Kingdom in the past three decades; in Sri Lanka, in contrast, civil and criminal procedure codes there remained virtually unchanged for more than a century.

The aim of the exchanges (such as the well-known Russian-United States Judges program) is to increase the awareness of Sri Lankan judges at all levels of the kind of judicial independence with accountability that characterizes United States federal and state judicial systems.

Some features of American court systems that should be emphasized are the ―good behavior‖ life terms of federal and some state judges, the role of Supreme Courts and judicial councils in administering court systems, the role of professional court administrators at the federal, state, and municipal levels, the increasingly common practice in US trial courts of scheduling the events in a case at an early date, and the willingness of US judges to take control of the case calendars from lawyers (in civil cases) and prosecutors (in criminal cases).

Many US courts can also serve to demonstrate how the courts themselves become capable of performing advanced budget, personnel, and statistics functions. How automated information systems can assist courts in managing caseloads will also be gained during these study tours and exchanges.

Deliverable Number 2.2 - A technical cooperation partnership between the Judges Training Institute and a state judicial college or center in the United States is established.

The successful achievement of the following sub-deliverables will require the strategic and complementary use of resources allocated for Component 2, Deliverable Number 2.1.

Sub-deliverable 2.2 (a): Identify a state judicial center or judicial college in the United States and facilitate the signing of a Memorandum of Understanding (MOU) between the judicial center and the

Judges Training Institute (JTI).

Sub-deliverable 2.2 (b): The state judicial center or college in partnership with the JTI develops a sustainable partnership to strengthen the institutional capacity of the JTI.

Sub-deliverable 2.2 (c): In partnership with a state judicial center or college, the Contractor will design a judicial education program that will be implemented by the JTI, including:

(i) Curricula for an introductory and a continuing judicial education program are designed;

(ii) An assessment to identify Sri Lankan trainers and their skills gaps for the introductory and continuing judicial education program is completed;

(iii) A training of trainers program for the introductory and continuing judicial education program is completed;

(iv) All new appointments to the judiciary follow the introductory training program for judges;

(v) 192 District Judges and Magistrates follow the continuing legal education program;

(vi) A specialized training program for judges in legal English is designed and implemented; and,

(vii) Eminent jurists from common law jurisdictions in the region are identified to conduct specialized training programs for the senior judiciary.

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Sub-deliverable 2.2(d): The Contractor will provide ten (10) scholarships per year for High Court, District Judges or Magistrates to attend the University of Colombo‘s Master of Laws program. The candidates will be selected in consultation with the Judicial Services Commission.

Sub-deliverable 2.2(e): The Contractor will develop a strategic plan for the JTI that identifies capacity needs and resource requests and shared with stakeholders including the judiciary, government officials, academics, the legal profession and the donor community.

Deliverable Number 2.3 - The technical capacity of non-judicial officers is enhanced.

The objective for this deliverable will be achieved after the judges, the JSC, and the MOJ have defined the full scope of managerial responsibilities for non-judicial officers.

Court administrator training should be designed following the judicial study tours. An impact indicator for the study tours should include some demonstration of acceptance of the need for reform and identification of a clear way forward to achieve improvements. The objective being that judges who now control all operations in Sri Lankan courts become aware of the need for professionalization of court administration as has occurred throughout the world. France, for example, operates a special training academy for court clerks and administrators.

Appropriate training institutions may include: the Sri Lanka Law College, the University of Colombo, the

Post-Graduate Institute of Management at the University of Sri Jayewardenepura, the Sri Lanka Institute for Development Administration and the Official Languages Department.

Sub-deliverable 2.3(a): Once judicial acceptance is secured, training of court administrators expanded by:

(i) A modernized training curriculum for court administrators is developed and shared with stakeholders including the judiciary, government officials, academics, the legal profession and the donor community;

(ii) A training institution is identified and a resource plan is developed in partnership with the

MOJ and the JSC to implement the training program;

(iii) A training of trainers program for the new curriculum is completed; and

(iv) 75 Court administrators complete the new training program.

Sub-deliverable 2.3(b): Training for Court Stenographers:

(i) 50 Court Stenographers assigned to the Supreme Court, the Court of Appeal and the

Commercial High Court complete an introductory training program in English conducted by a recognized institution;

(ii) 50 court stenographers complete an advanced program in written English that focuses on drafting court orders and preparing transcripts;

(iii) 50 court stenographers complete a computer and information technology training program;

(iv) 25 Court Stenographers assigned to courts in the Northern Province complete a recognized course in Sinhala or Tamil and English; and

(v) Court stenographers in the Supreme Court, Court of Appeal and the Commercial High Court use desktop computers to produce court orders and transcripts of proceedings.

The language training program will include a specialized vocabulary…