Resolution 4985 of 2020, ANI’s New Measures
By means of Resolution 4985 of 2020 issued on April 13th, ANI updated the measures that had originally been taken through Resolution 471 of 2020 to face the health emergency declared by the National Government amid COVID-19 pandemic.
Since the issuance of Resolution 471 of 2020, which regulated the suspension of certain administrative proceedings and contractual obligations, the National Government has issued new Decrees in the context of the state of emergency declared amid COVID-19 pandemic. Among the new measures, the following can be highlighted:
- Decree 482 of 2020 (which created the Logistics and Transport Center, established the possibility of unilaterally suspending infrastructure contracts and regulated the possibility of continuing the performance of certain works due to constructive and technical reasons).
- Decree 491 of 2020 (which established homework for public authorities and the possibility of suspending activities if that was not possible)
- Decree 531 of 2020 (which extended the mandatory preemptive isolation and set, as exceptions, the performance of infrastructure works and the intervention and construction of civil works that represent a technical stability threat).
- Joint Letter No. 03 of 2020 issued by the Ministry of Health and Social Protection, the Ministry of Labor and the Ministry of Transport (which established the protection measures for the personnel of transport infrastructure projects during the emergency);
- Decree 539 of 2020 (which established that the Ministry of Health and Social Protection will dictate the biosafety protocols for all permitted economic activity).
As a consequence of the abovementioned Decrees, ANI has modified Resolution 471 of 2020 and adopted other measures in the context of the health emergency.
Firstly, Concessionaires of all modes of transport as well as railway civil works contractors must submit before ANI and the Supervisor (Interventoría), within 3 days following the date in which Resolution 4985 of 2020 is binding, a Works Reactivation Plan in the context of the emergency. Said Works Reactivation Plan must contain:
- Identification of the activities and works that will be reactivated and performed during the mandatory
- preemptive isolation measure.
- Schedule and maximum terms of performance.
- Personnel associated with said activities.
- Protocol for the implementation of the measures contained in Joint Circular Letter No. 03 of 2020 issued by the Labor, Health and Transport Ministries.
The Supervisor (Interventoría) must submit to ANI it’s non objection to this Works Reactivation Plan within 2 days following the date in which such plan was filed by the respective concessionaire. Afterwards, ANI will attach such non objection to an official letter that will be submitted to the concessionaire, which will be a mandatory requirement for reactivating the works.
Additionally, the concessionaire’s obligation of guaranteeing the operation of the transport infrastructure, its essential maintenance and the attention of emergencies and road affectations was ratified. For said purpose, the concessionaires must comply with the Works Reactivation Plan and the rules set forth in Joint Circular Letter No. 03 of 2020.
ANI also decided to modify article 1 of Resolution 471 of 2020 and ordered the suspension of a group of administrative proceedings during the term that the mandatory preemptive isolation measure will last. The new list of suspended activities does not include, for example, contracts liquidation, reversion procedures, liability exclusion events procedures or functional units’ verification, as did the original Resolution 471 of 2020. Therefore, some of the administrative proceedings thar are still suspended are:
- Ongoing Cure Period procedures and new requests for Cure Periods referring to obligations whose performance is impossible in the context of the health emergency, according to the information provided by the Supervisor (Interventoría).
- Revision and evaluation of Private Initiative PPP projects (Law 1508 of 2012) in prefeasibility and feasibility stage, including the maximum term for delivering the project in feasibility stage.
- Procedures regarding port concession requests (Law 1 of 1991), wharfs requests and contractual modifications in port matters.
- Activities for studies and designs in PPP structuring.
- Issuance of administrative acts for judicial or administrative expropriation, among others.
- Prior consultations procedures.
- Compensations for contingency funds and other ANI accounts.
ANI’s employees will continue working from home; the requirements of authorities and control entities as well as petitions (derechos de petición) will continue to be responded according to Decree 491 of 2020 and; ANI may continue undertaking the suspended activities through virtual means to avoid third party rights violation.
Regarding the approval of insurance policies of the contracts under performance, said policies may be submitted to the entity’s email address to undertake the procedure, but the original copy of said policies must be physically presented within 15 business days following the termination of the mandatory preemptive isolation measure.
Furthermore, regarding the suspension of the contractual obligations of the concession contracts for all transport modes (and the railway civil work contracts) that was ordered through Resolution 471 of 2020, ANI decided to maintain the suspension of certain obligations, it has ended the suspension of others (such as Networks Relocation, Investment Plans for port concession contracts, Equity transfers and subaccount funding), and added other obligations that shall be suspended. Consequently, the following contractual obligations are suspended during the term that the mandatory preemptive isolation measure will last:
- Land Management
- Environmental Management, except from those identified in the Works Reactivation Plan.
- Social Management.
- Works Plan
- Operation and Maintenance indicator measurement.
Additionally, Resolution 4985 orders the suspension of all contractual sanctioning administrative proceedings that aims to pursue the compliance of suspended obligations according to this resolution, or obligations whose performance is impossible in the context of the mandatory preemptive isolation measure. Regarding non-suspended proceedings, the respective contractor or the corresponding guarantors can request the suspension of said proceedings if they consider that their due process rights are being affected.
Notwithstanding the above, ANI may continue through electronic means the sanctioning proceedings seeking to declare the early termination with debarment of a contract (the so-called “caducity declaration”), or the collection of the penalty clause or damages, provided that: (i) it is feasible to end such proceeding due to the evidenced compliance of the contract or due to any other legal or contractual ground and (ii) the proceeding is being undertaken owing to a breach of the obligations not suspended under this resolution and which are not impossible to complete due to the emergency.
Finally, contractors, supervisors and other interested parties in electronic procedures must submit their respective authorization to be electronically notified with indication of their email addresses.
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