As from October 2016, a set of amendments to the framework governing Federal Government Procurement have entered into force.
On October 1, 2016, by means of Decree No. 1030 the Federal Executive Branch (the "PEN" after its Spanish acronym) introduced a set of amendments to the Federal Government's Procurement Regime.
The new regulation has been issued in a context of modernization and development of applied technologies to the public administration, to facilitate access to contractors' selection process.
We describe below the new framework and its main innovations.
1. New implementing regulations on Federal Public Administration's Procurement Regime
Decree No. 1030 approved the new implementing regulations of the Federal Procurement Regime provided by Decree No. 1023/2001. This new implementing regulation (the "Implementing Regulation") abrogates Decree No. 893/2012.
The Federal Contracting Office (the "FCO") is the agency which exercises oversight of the federal procurement system issued some complementary rules to the Implementing Regulation.
In this regard, the FCO approved:
- Process Guidelines for the Federal Procurement Regime (FCO's Disposition No. 62/2016);
- (ii) The General Terms and Conditions for Federal Public Biddings (FCO's Disposition No. 63/2016);
- Process Guidelines for data incorporation and updating of the Suppliers' Information System – SIPRO (after its Spanish acronym) – (FCO's Disposition No. 64/2016).
Furthermore, the OFC set up the Federal Government Electronic Procurement System called COMPR.AR (FCO's Disposition No. 65/2016).
Decree No. 1030/2016 and the aforementioned complementary rules (with the exception of setting up of COMR.AR) are already being applied to procurement processes which were authorized or launched as of October 1, 2016.
COMPR.AR's implementation will be made according to the schedule that the FCO will establish in a timely manner.
We include below the main novelties introduced by the Implementing Regulation and the complementary rules issued by the FCO:
2. Main amendments
Scope: The Implementing Regulation expressly excludes from its scope procurement processes carried out abroad by contracting operating units located outside Argentina.
Likewise, it excludes the decisions, deals and contracts on real estate performed by the Federal Government's Real Estate Administration Agency (AABE, after its Spanish acronym), which is ruled in the Regulation for the Management of the Government's Real Estate.
New hierarchy of regulations: The Process Guidelines for the Federal Government's Procurement Regime and the regulations that the FCO must enact in relation to the aforementioned Guidelines are introduced in the order of regulation's prevalence, right after Decree N° 1,023/01, Decree N° 1,030/2016 and the specific regulations that must be enacted regarding said Decree.
Access to procurement processes: The possibility of accessing the processes is broadened, since the requirement of attesting a specific interest is eliminated.
Notifications: Fax is no longer a valid notification method, and notification by posting on the FCO's and COMPR.AR websites is provided for.
As a prior condition to using this means of notification, it must be provided in the relevant Specific Terms and Conditions. In all of these cases, any information to be published on any of the aforementioned websites will be considered notified on the following day of its publishing.
Remediable causes for dismissal of bids: The term that the public authority must grant to offerors to complete any omissions is reduced to 3 days.
Disqualifying circumstances: Offers submitted by the spouse or first-degree relative of individuals disqualified to enter into agreements with the Federal Government must no longer be automatically dismissed and new grounds for disqualification of offers are provided in the following cases: (i) offers submitted by those convicted abroad by a final judgment for bribery or transnational bribery crimes; (ii) offers submitted by those included in the World Bank/ Inter-American Development Bank list of disqualified offerors due to corrupt practices or behaviors; and (iii) if there is evidence to presume that there is competition or concurrence simulation.
Guaranties: The term that the offeror has in order to withdraw any posted guaranties is reduced to 60 days since the offeror was duly notified to proceed to withdrawal. Furthermore, a guaranty must be posted for the submission of any challenge.
Agreements' termination: The option of terminating an agreement by mutual consent without triggering the right to compensation is introduced.
Statute of limitation for penalties: A 2-year statute of limitation since the relevant breach has occurred is provided for the application of penalties.
Inter administrative procurements: The subcontracting of any of the obligations undertaken by the parties is forbidden.
Registration with the SIPRO: Registration with the SIPRO will not have an expiration term but the enrolled subjects must keep the information submitted updated.
COMPR.AR System: An application for the management through the Internet of the Federal Government's procurement processes is created.
Virtual processing of administrative proceedings: As a general principle, any disposition related to factual or on-site acts that could have been done by virtual means through the website www.comprar.gob.ar is deemed not to have been written.
Protection of the information supplied by offerors: Any information supplied by offerors through COMPR.AR is protected as intellectual property; therefore, it is expressly prohibited to modify, copy, transmit, sell, distribute, exhibit, publish, license, create derivate works, or use, in general, the content available upon COMPR.AR for any purpose other than the one held by the offeror who supplied such information.
The enactment of the Implementing Regulation by the PEN and the complementary rules issued by the FCO make a valuable contribution in public procurement matters. Many of the amendments introduced to the Federal Government's Procurement Regime are aimed at expediting and making contractors' selection processes easier, tending towards a greater level of participation and transparency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.