Varella Canguru POST_for Other than Full and Open Competition Notice 972021 (002) (002).pdf

(AUTHORITY: 41.U.S.C. 1901, as implemented by 13.501 and 6.302)

1. Identification of the agency and contracting activity.

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

2. Nature and/or description of the action being approved.

Acquisition purpose and objectives. The purpose of this Justification is to award a follow-on Firm Fixed Price (FFP) Purchase order to Varella & Advogados Associados to collect from Canguru Industria e Comercio de Produtos Plasticos S.A. (Brazil) and provide legal recovery services to assist EXIM in its efforts to collect outstanding amounts owed to EXIM by the obligor/buyer and all guarantors, if any. These efforts will include, asset searches, site visits, negotiations, litigation, documentation of agreements, embargoing assets and executing upon assets.

The period of performance for this contract will be five (5) years.

Project background. The Contractor is required to provide all professional services, including all labor, materials, postage, tools, travel, supervision, and incur expenses necessary that entail the judicial process to undertake the asset recovery Scope of Work.

The contractor shall perform non-personal services necessary to perform collection on EXIM Bank’s defaulted loan of Canguru Industria e Comercio de Produtos Plasticos S.A.

EXIM Bank Claim No. G508083. The Contactor shall attempt recovery on behalf of EXIM Bank and, if provided EXIM Bank’s express instruction to do so, institute legal proceedings and/or provide credit restructuring services to EXIM Bank’s Recoveries Group, Asset Management Division (“AMD”) related to the referenced claim, involving the referenced debtor and guarantor(s), located in Brazil. The Period of Performance for this contract of five (5) years.

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

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

Justification for Other than Full and Open Competition questions. Additionally, it is imperative to hire local counsel that is familiar with EXIM Bank’s policies and procedures to avoid problems with payment procedures, handling of funds, facilitation of payments, and fraud.

The firm Varella & Advogados Associados of and its local office in Brazil is uniquely qualified to pursue this case in Brazil due to the seasoned recovery expertise, accompanied by commercial legal know-how, blended with a full understanding of EXIM Bank’s activities, collection processes and rules and regulations that comply with the U.S. government guidelines. Prior to immediately commencing performance of the Statement of Work, Varella & Advogados Associados Law Firm will not require a familiarization period or training. Accordingly, Varella & Advogados Associados Law Firm is the only firm capable of providing the services without EXIM Bank experiencing duplication of cost for familiarization/training nor unacceptable delays in fulfilling its requirements.

The Varella & Advogados Associados Law Firm is the local counsel that has handled the claim for EXIM Bank since its inception and the firm is fully familiar with the case. The introduction of another party would require EXIM Bank to take risks of poor or inadequate execution that would be presented by an unfamiliar party, regardless of qualifications. The litigation is fully in process and Varella & Advogados Associados was previously empowered under former purchase to undertake such legal action. Any changes in counsel at this juncture could completely disrupt a delicate case that is now entering into its sixth year. Varella & Advogados Associados has been involved in litigations of this nature for several decades and is a fully registered as practicing attorney duly recognized and registered in the Brazil judicial system.

Additionally, it is vital and imperative that EXIM continue to utilize these skilled subject matter experts/legal counsels that are fluent in their native language making this requirement a bilingual expert. This sole source decision is vital to the success of this requirement due to this firm’s familiarity with EXIM Bank’s Ongoing Asset Protection and Recovery Actions, ongoing knowledge of the local laws, policies, and proficient local native language (bilingual communications).

This intended Sole Source Basis award is granted to Varillas, Varella & Advogados Associados, Rua Pacheco Leao No. 862, 22460-030 Rio De Janeiro- RJ Brazil, Attn: Mr. Alexandre Eppinhaus.

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

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

5. Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable:

The Contracting Officer has determined that the anticipated cost to the Government for the supplies/services covered by the Justification will be fair and reasonable based upon prior experience with this contractor, comparison to rates and collection percentages assessed by similar firms in the same and similar jurisdictions, and by review of published rates publicly available.

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

Reasons Market Research Was Not Conducted:

AMD confirmed that the types of services to be undertaken by the Contractor are commercial in nature. These services are provided to private and public sector entities without distinction. EXIM Bank has worked with Varella & Advogados Associados Law Firm on several heavily structured EXIM Bank transactions and demonstrated a high degree of competence in the advisory/documentary role. A review of legal support for EXIM indicated that Varella & Advogados Associados Law Firm is uniquely positioned to provide the services required for this instance. No other firms were identified that possess similar knowledge of EXIM, its transactions and legal experience with project situated in Brazil. EXIM Bank has been utilizing Varella & Advogados Associados Law Firm since 2015 on this particular project and is satisfied with the services being provided.

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

Varella & Advogados Associados provides seasoned collection specialist(s) who have been involved both in the private and public sectors of Varella & Advogados Associados.

In addition, the firm is fully cognizant of the process of litigation within Brazilian courts.

8. Total estimated dollar value and performance/delivery period:

The Period of Performance for this contract of five (5) years.

Requirement type.

Research & development (R&D) R & D support services

X Support services (non-R&D) Supplies/equipment Construction Architect-engineer (A & E) services Design-build Other (specify): ____________________

Type of action.

New requirement XFollow-on

Other (specify): ______________________

Proposed contract/order type.

x Firm-fixed-price

Cost-plus-fixed-fee Other cost reimbursement (specify, e.g., cost-plus-award-fee, cost-plus-incentive-fee): ___________

Time and materials Indefinite delivery (specify whether indefinite quantity, definite quantity, or requirements): ___________ Other (specify): ___________ Completion Form Term form

Acquisition identification number. N/A

9. Statutory Authority:

In accordance with Federal Acquisition Regulation (FAR) Part 13: Simplified Acquisition Procedures (SAP), the Export Import Bank of the United States (EXIM), intends to conduct a sole source/limited source procurement for commercial services of outside (private sector) legal counsel.

( x) (1) Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements per FAR 6.302-1;

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

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

( ) (4) International Agreement per FAR 6.302-4;

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

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

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

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

11. Requirements Certification:

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

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

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

13. I certify that the justification for the proposed acquisition has been reviewed and that to the best of my knowledge and belief the information and/or data provided to support the rationale and recommendation for approval is accurate and complete.

Enrique Satelo, Project Manager/Contracting Officer Representative (COR) Infrastructure Engineering Unit, Office of Information Management & Technology

Thu Vo Date Contracting Officer, Office of Acquisition Services

CONCUR:

Based upon the facts of the intended procurement, I have determined that the need for Dell is reasonably firm and continuing and satisfies the criteria for use of multi-year hardware maintenance and support contracting authority per FAR 17.105-1(a).

MARIA FLEETWOOD Date Head of the Contracting Activity, and Director, Office of Acquisition Services

MARIA

FLEETWOOD

Digitally signed by MARIA

FLEETWOOD

Date: 2021.09.13 12:35:31 -04'00'

09/13/2021