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Peru: The regulation of the state procurement law is amended

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In brief

Supreme Decree 162-2021-EF was published in the official journal “El Peruano” on 26 June, 2021, modifying the Regulations of the State Procurement Law1, which will apply to selection procedures that are convened from 12 July 2021 and to the contracts that derive from such procedures.

1. National Supplier Registry

  • For the updating of legal information in the National Supplier Registry (“RNP” in Spanish), the condition of Registered/Active in SUNAT must be reported (Art.11). Currently, the RNP’s Single Provider Form already automatically collects this data from SUNAT, so it is not unreasonable to require the provider to carry out a procedure to declare this information, which is already accessible and known to the RNP.
  • The exception of registration in the RNP is extended for contracts of goods and services, guarantee fund, investment funds and any other autonomous assets created by law, and not only to conjugal societies and undivided estates (Art.10.b).
  • It is expressly stated that the information of the RNP is publicly accessible to any interested party, except for confidential information of a tax, banking or commercial nature of the registered natural or legal persons (Art.8.3).

2. Selection procedure

  • Selection procedure documents must not include certifications that constitute barriers to access to contract with the state (Art. 47.3). This amendment encourages greater turnout and competition in selection procedures and prevents the use of these certifications to direct procurement to certain suppliers.
  • The requirement of qualifications and experience of key personnel, such as qualification requirements of technical and professional capacity, is mandatory in selection procedures for general consulting and work consulting (Art. 49.2.b). This measure is important to meet the specialty of the object of recruitment and ensures quality in the fulfillment of services.
  • Legal persons resulting from a corporate reorganization process cannot accredit in the selection procedures that experience that was transmitted to them by legal persons sanctioned with a current or definitive disqualification (Art. 49.4). It correctly reflects a criterion that had already been developed by OSCE in Opinion 204-2019/DTN, issued after consultation with Estudio Echecopar, where we requested to specify that this provision, in the case of temporary disqualification sanction, is only applicable for the time that the sanction remains in force. However, it is excessive to establish a perennial impossibility of using experience in case of permanent disqualification, since it determines the effective death of the company in the public procurement market, not being attractive to be absorbed by third parties, while its experience can never be used again.
  • In Simplified Adjudications, for suppliers that prove the status of micro and small enterprises, or the consortia formed entirely by these, the following benefits are expected:
    • The requirement of experience of the bidder in the specialty may not exceed 25% of the estimated value (Art. 49.6).
    • They will be assigned a bonus equivalent to 5 % of the total score obtained (Art. 50.1.g). This benefit extends to the items of a Public Tender, the amount of which corresponds to a Simplified Adjudication.
  • In the case of general or work consulting, in addition to the price, the bases must include the evaluation factors of the experience by the bidder in the specialty and the proposed methodology. Evaluation factors related to environmental and social sustainability, or other factors that could establish the standard basis, will be optional (Art. 51.4 and 51.5).
  • It was deleted from subparagraph b) of Art. 52 of the Regulation that the affidavit must have updated the information registered in the RNP. This change is important because it has been generating disqualification of offers, nullities of selection procedures, and administrative sanctioning procedures for inaccurate information. However, as a consequence, the temporary withdrawal of the RNP in case of failure to update the information is maintained.
  • For direct contracting by Emergency Situation, the period for the Entity to regularize preparatory actions, reports, resolution or approval agreement, and contract, as well as registration and publication in the SEACE, is extended from 10 to 20 working days (Art. 100.b).
  • In the case of works, the Entity considers the four bidders who meet the qualification requirements, following the order of priority, to present the documents and perfect the contract (Art. 141.2).

3. Contract

  • Contracts may be refined through Purchase or Service Orders, in the case of Electronic Reverse Auctions and Simplified Adjudication for goods and services in general, with an estimated value of up to PEN 200,000 (previously the amount was only up to PEN 100,000) (Art. 137.1).
  • The replacement of the guarantee of faithful compliance in works consulting contracts is allowed, under the same terms provided for these cases (Art. 150.2).
  • In order to ensure the faithful fulfillment of ancillary benefits, micro- and small enterprises are allowed to opt for the withholding of 10% of the amount corresponding to such services (Art. 152.2).
  • Presentation of the guarantee of faithful performance is exempt of the contract and ancillary services of goods and services contracts whose amount is up to PEN 200,000 (previously the amount was only up to PEN 100,000) (Art. 152.a).
  • When the approval of additional monitoring derived from additional work or variations in its period or progress is applicable, the resolution of approval of the additional monitoring must be issued prior to the payment of such additional services (Art. 157.4).
  • The supervisor may terminate the work supervision contract when there are disputes arising from the liquidation of the work contract (Art. 164.3). This change is relevant in order not to force the supervisor to maintain the contractual relationship  ̶  and the guarantee of faithful performance  ̶  with the Entity for the duration of the arbitration with the executor of the work for such disputes, avoiding also disputes between the supervisor and the Entity for the costs that could be generated at this time.
  • It is specified that in order to terminate the contract for reasons not attributable to the parties, the deciding party must communicate it by notarized letter, justifying and proving the facts that it invokes (Art. 165.5).
  • Failure by the Entity to provide the receipt and conformity of goods and services within the stipulated deadlines cannot be imputed to the contractor to apply penalties (Art. 168.5) Although clearly the Entity should not seek to be compensated with penalties for its own non-compliance, with this normative incorporation the entities will not be able to act arbitrarily, although there is always the possibility of disputes as to whom the Entity’s failure to comply with these deadlines may be attributed.
  • During the suspension of the period of execution of the work, the parties may carry out procedures specific to the management of the contract (for example, approval of additional or other contractual modifications), insofar as it is possible and does not contravene other provisions of the Regulations (Art. 178.7).
  • There is no minimum amount of the reference value or budget for the application of trusts for the administration of advances in works contracts. The period of 30 business days to constitute the trust is calculated from the day following the signing of the contract (Art. 184.1 and 2).
  • The higher costs of inspection or supervision due to the delay of the executor in completing the work may be deducted from their valuations and not only from the liquidation (Art. 189).
    This provision is harmful to construction contractors, and we believe it will affect the dynamism of projects by limiting the resources that the contractor must have to execute its services, without taking into account that the responsibility for the delays attributed to the contractor may be discussed through dispute resolution mechanisms. In addition, this provision may create an unwelcome incentive for Supervisors to reject requests for extension of time submitted by the contractor, as they will be paid more directly and more quickly for the longer period they have to stay on the site than they would have to wait for the contracting Entity to proceed with such payment.
  • With respect to unit price contracts, it is established that valuations for larger estimates should not consider overheads, except those that give rise to term extensions, in which case higher variable overheads will be recognized according to Art. 199 (Art. 194.2).
    It is also anticipated that the limit on the amount of overhead to be recognized will be that indicated in the contractor’s bid. In the event that this amount is not completed through the valuations (for general expenses), the balance in favor of the contractor will be defined in the settlement (Art. 194.5).
  • It is specified that the contractor must submit to the Supervisor, and in copy to the Entity, the update of the current Execution Program. In the absence of a statement by the supervisor on the updating of the Work Execution Program and other schedules, the Entity has a maximum period of five days to issue compliance and observations. Only if the Entity does not manifest itself will the Updated Work Execution Program and the schedules proposed by the contractor be considered approved (Art. 202.3).
  • The maximum limit for the execution of larger unit prices is increased from 15% to 50% of the original contract, taking into account the accumulated amount of the larger unit prices and the additional work services, subtracting the deductive budgets (Art. 205.11).
  • It is established that the Entity has five days to designate the Committee of Work Reception (previously only two days).

4. Arbitration

  • Exceptionally, the automatic registration in the National Register of Arbitrators of OSCE (RNA-OSCE) of professionals who were registered in the Roster of Professionals Eligible for Residual Designation of OSCE at the entry into force of the RNA-OSCE is allowed. This registration will be valid until 30 June 2022, and is not applicable to professionals who already have a valid registration.
  • Only for the residual appointment of the chairman of the Arbitral Tribunal  ̶  no longer the sole arbitrator  ̶  in an institutional arbitration, the latter must be registered in the RNA-OSCE (Art. 232.2).
  • It is established that it is impossible to formulate new challenges, if the party accumulates three challenges that have been declared unfounded, in the same arbitration (Art. 234.4). This provision is a matter of concern since in the absence of a new challenge, there is a risk that the Award may be set aside.
  • The challenge procedure does not suspend the arbitration when it is a sole arbitrator, or two or three arbitrators have been challenged (Art. 234.3).
  • Even if the claim and answer, and where appropriate the counterclaim, have already been filed, the arbitrators must establish, if not done before, a schedule of arbitration proceedings and hearings, without prejudice to other measures to expedite the process (Art. 235.3).
  • It provides that an application for annulment of an Award is decided by declaring the invalidity or nullity of the Award, and that it is prohibited for the Judiciary to rule on the substance of the dispute, or on the content of the decision or to qualify the criteria, reasons or interpretations put forward by the Arbitrator or Arbitral Tribunal. Here there is concern about cases of apparent or false motivation (Art. 239.3).

We trust that this information will be useful to you and your company. If you need to delve into the subject, please contact us.

1 Approved by Supreme Decree 344-2018-EF and modified by Supreme Decrees 377-2019-EF and 168-20210-EF.

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Author

Juan Carlos Moron is a partner in Estudio Echecopar. He focuses on administrative law, administrative intervention on regulated markets and government contracts, including infrastructure concessions, public services and governmental control. Juan Carlos has supported the Project Transparency sponsored by USAID and OSCE and prepared the Manual for the Solution of Controversies during the process for contractual selection and execution and the Manual on Exemptions. He has also participated in several processes for private promotion in public services and infrastructure and advised agencies such as ProInversion, CEPRI LIMA, among others. Juan Carlos has been published in Latin Lawyer stating that he “is a respected name in the sphere of administrative law” and has been recognized in Chambers and Partners as “a public procurement specialist widely respected for his wealth of administrative law expertise and experience. He has great academic knowledge, enthuse sources, and know how to use it practically to tackle problems."

Author

Zita Aguilera advises private companies in their applications for public bids and selection boards, including concessions of infrastructure, public works, services and goods and investment projects. She also provides advice on risk analysis and execution of government contracts. Furthermore, she counsels public organizations and private companies in their dispute processes through arbitral and administrative measures.

Author

Yoshie Concha has more than 5 years of experience in government contracts, administrative law and public procurement arbitrations. Her practice includes advising private companies and public entities in their performance during the procurement process.

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