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On June 26, 2021, the Ministry of Economy and Finance – MEF published in the Official Gazette “El Peruano” the Supreme Decree Nº 162-2021-EF (hereinafter, the “Supreme Decree”), whereby it amends the rules contained in the Regulations of the State Procurement Law, adopted by Supreme Decree Nº 344-2018-EF (hereinafter, the “Regulations”).
The Supreme Decree states that the amendments are intended to introduce improvements to the general state procurement regime which: (i) simplify the decision making of the operators of such matter, (ii) facilitate the management during the contractual execution stage, (iii) allow the dispute resolution mechanisms to be more efficient, and (iv) promote the dynamization and economic reactivation of the country, with the participation of micro and small companies in the sector.
However, we note that the amendment to Article 151 of the Regulations does not meet any of the above objectives and, on the contrary, distorts the purpose of the performance bond for ancillary services.
Indeed, the original version of the Regulation imposed the obligation to renew the performance bond for ancillary services, as appropriate, “until the total performance of the guaranteed obligations”.
The Supreme Decree amends this part of the regulation to require that such guarantee remain in force “until the guaranteed obligations are fulfilled”, that is, until a “document” is issued, the existence of which depends solely and exclusively on the unilateral will of the Contracting Entity: the conformity.
Thus, the State contractor is exposed to the economic damage of indefinitely renewing the guarantee in question -despite having complied with the guaranteed obligations- in case the Entity, due to negligence or fraud, decides not to issue a simple document (conformity), which is contrary to the elementary Principle of Equity recognized in the State Procurement Law itself, which requires ensuring that the benefits and rights of the parties must keep a reasonable relationship of equivalence and proportionality.
The main provisions of the aforementioned amending legislation are summarized below for information purposes only:
1. The National Register of Suppliers – RNP of the OSCE
(i) It is pointed out that the RNP is the only system that provides official information on the suppliers that participate in State procurement, and that such information is of public access for any interested party, except for confidential information of a tax, banking or commercial nature of the natural or legal persons registered (incorporation of paragraphs 8.2 and 8.3 to Article 8 of the Regulation).
(ii) The exception that allows not having registration to enter into contracts for goods and services, in general, is extended to all autonomous estates, such as: inherited estates, guarantee funds, investment funds, among others, in accordance with the law on the matter (amendment of paragraph b) of Article 10 of the Regulations).
2. Selection procedure documents
(i) The Affidavit to be submitted in a selection procedure no longer requires indicating that the bidder’s information registered in the RNP is up to date (amendment to Article 52 (b) of the Regulations).
(ii) It is provided that the documents of the selection procedure must not include certifications that constitute barriers to access to contracting with the State (incorporation of the last paragraph of paragraph 47.3 of Article 47 of the Regulations).
(iii) It is specified that, in cases of corporate reorganization, the resulting legal entities may not accredit the experience that may have been transferred to them as part of such reorganization, the legal entities sanctioned with current or definitive disqualification (amendment of numeral 49.4 of Article 49 of the Regulations).
(iv) For selection procedures or respective items that, due to their amount, correspond to a Simplified Award, the experience required from bidders that accredit their status as micro and small enterprises, or consortiums formed entirely by them, may not exceed 25% of the estimated value (amendment of numeral 49.6 of Article 49 of the Regulations).
(v) The five percent (5%) bonus on the total score obtained by a bidder, having accredited its status as a micro or small company (including consortiums formed entirely by such companies), is also extended to the items of public bids or public tenders, the amount of which corresponds to a Simplified Award (amendment of paragraph g) of section 50.1 of Article 50 of the Regulations).
(vi) For the contracting of general consulting or work consulting services, in addition to price, the following evaluation factors must be applied: (a) the bidder’s experience in the specialty and (b) the proposed methodology (amendment of numeral 51.4 of Article 51 of the Regulations).
In turn, for the same case, the Standard Bidding Terms and Conditions approved by the OSCE may establish other evaluation factors such as those related to environmental and social sustainability (amendment of paragraph 51.5 of Article 51 of the Regulations)
3. Regularization of direct contracting due to “emergency situation”.
(i) The term is extended from ten (10) working days to twenty (20) working days to regularize the documentation related to the preparatory actions, the report or reports containing the technical-legal support of the direct contracting summoned under the cause of “emergency situation”, the resolution or agreement adopting it, as well as the contract and its requirements.
This term shall be computed from the day following: the delivery of the goods, or the first delivery in the case of supplies, or from its installation and start-up in the case of goods under the turnkey modality, or from the beginning of the provision of the service, or from the beginning of the execution of the work (amendment of paragraph b) of Article 100 of the Regulations).
4. The contract perfection stage
(i) The estimated value threshold is increased from one hundred thousand soles (S/ 100,000.00 and 00/100) to two hundred thousand soles (S/ 200,000.00 and 00/100), so that the perfection of contracts resulting from Electronic Reverse Auction and Simplified Awarding procedures for goods and services in general, is formalized with the receipt of the purchase order or service order (amendment to paragraph 137.1 of Article 137 of the Regulations).
(ii) It is provided that when the subject matter of the procedure is the execution of works, the Entity shall consider the four (4) bidders that meet the qualification requirements in accordance with the provisions of Section 75.3 of Article 75 of the Regulations, following the order of priority, in order to require the submission of the documents and the completion of the contract with the qualified bidder, within the term set forth in paragraph a) of Section 141.1 of the Regulations (incorporation of Section 141.2 of Article 141 of the Regulations).
5. Regarding guarantees during the contract perfection stage and during the execution of the contract
(i) It is provided that bidders and/or contractors may decide whether to present a letter of guarantee or a surety policy issued by entities under the supervision of the Superintendency of Banking, Insurance and AFP with a risk rating of B or higher. Thus, the type of guarantee to be submitted is no longer established by the Contracting Entity in the selection process documents (amendment to Article 148 of the Regulations).
(ii) The substitution of the performance bond is also extended to cases of work consultancies (incorporation of numeral 150.2 of Article 150 of the Regulations).
(iii) It is established that micro and small companies may request that the entity retain, as a performance bond for ancillary services, an amount equivalent to ten percent (10%) of the contract amount of the ancillary service, considering certain particularities in contracts for the execution of works (incorporation of paragraphs 151.2 and 151.3 of Article 151 of the Regulations).
(iv) The amount of the threshold is increased in contracts for goods and services other than consulting work, from one hundred thousand soles (S/ 100,000.00 and 00/100) to two hundred thousand soles (S/ 200,000.00 and 00/100), for which it shall not be necessary to provide a guarantee of faithful performance of the contract or a guarantee of faithful performance for ancillary services (amendment of paragraph a) of Article 152 of the Regulations).
6. Termination of the contract
(i) It is provided that in works supervision contracts, when it has been foreseen that the supervisor’s activities include the liquidation of the works contract, the supervisor may terminate the contract in the event of a dispute arising from the liquidation of the works contract (incorporation of paragraph 164.3 of Article 164 of the Regulations).
(ii) It is specified that, in order to invoke the termination of the contract due to unforeseeable circumstances, force majeure or an event supervening the execution of the contract that is not attributable to the parties and that makes the continuation of the execution of the contract definitively impossible, the terminating party must communicate its decision through a notarized letter justifying and proving the facts that support it (incorporation of number 165.5 of Article 165 of the Regulations).
7. Receipt and conformity of the provision
(i) A maximum period of seven (7) days is established, as a general rule, except in the case of tests or consultancies, in which case the period is fifteen (15) days, for the entity to issue a decision on the lifting of the observations made in the context of the acceptance and conformity of the contract performance (amendment of paragraph 168.3 of Article 168 of the Regulations).
(ii) If the entity exceeds the legal term foreseen for issuing the conformity or pronouncing on the lifting of the observations, the days of delay may not be imputed to the contractor for the application of penalties (incorporation of paragraph 168.5 and modification of paragraph 168.6 of Article 168 of the Regulations).
8. Provisions specific to work contracts
(i) It must be pointed out that the valuations for increased measurement in unit price contracts must not consider general expenses, unless the execution of increased measurement generates an extension of the term, in which case the increased variable expenses are paid in accordance with the provisions of Article 199 of the Regulations (amendment of paragraph 194.2 of Article 194 of the Regulations).
(ii) In unit price work contracts, the limit of the amount to be recognized for general expenses is the amount indicated in the contractor’s bid. In the event that this amount has not been reached through the appraisals, the balance in favor of the contractor is defined in the final settlement (incorporation of paragraph 194.5 of Article 194 of the Regulations).
(iii) The limit established for requests for the execution of greater measurement is increased from fifteen percent (15%) to fifty percent (50%) of the original contract amount (amendment of paragraph 205.11 of Article 205 of the Regulations).
(iv) The deadline for the entity to appoint the work reception committee is extended from two (2) working days to five (5) working days following the receipt of the technical compliance certificate (amendment to number 208.2 of Article 208 of the Regulations).
9. Dispute resolution mechanisms
(i) It is provided that, for the residual appointment of the chairman of the Arbitral Tribunal in an institutional arbitration, the arbitrator to be appointed must be registered in the RNA-OSCE (amendment of paragraph 232.2 of Article 232 of the Rules).
(ii) It is established that if one of the parties accumulates three (3) challenges that are declared unfounded in the same arbitration, whether continuous or not, it may no longer file a new challenge in such arbitration (incorporation of paragraph 234.4 of Article 234 of the Rules).
(iii) The Arbitral Tribunal or the Sole Arbitrator may, after the adoption of the schedule of arbitration proceedings and hearings, issue such measures as they deem appropriate to ensure the speed of the arbitration, in accordance with their powers (incorporation of section 235.3 of Article 235 of the Rules).
10. The Electronic Reverse Auction procedure
(i) It is specified that PERU COMPRAS manages the List of Common Goods and Services, issues the provisions and executes the necessary actions, in collaboration and coordination with the competent entities and institutions, for its support, as appropriate.
In addition, it establishes that PERU COMPRAS issues the provisions to which the processes to adopt the inclusion, amendment or exclusion of the Technical Form of the Electronic Reverse Auction from the List of Common Goods and Services must be subject to (incorporation of paragraphs 110.5 and 110.6 of Article 110 of the Regulations).
(ii) It is specified that the technical data sheets excluded from the List of Common Goods and Services are incorporated in the List of Excluded Technical Data Sheets prepared by PERU COMPRAS, so that the mentioned excluded technical data sheets are mandatory for the procurement of goods and services, unless otherwise provided by PERU COMPRAS (incorporation of number 111.2 of Article 111 of the Regulations).
(iii) The Supreme Decree shall become effective ten (10) working days after the day following its publication in the Official Gazette “El Peruano”, that is, on July 12, 2021.
To this end, the OSCE must adapt the Standard Bidding Terms and Conditions in accordance with the aforementioned amendments to the Regulations.
Any questions on this matter may be answered by the lawyers of our Administrative Office. Please contact Carlos Carpio ([email protected]); Hugo Silva ([email protected]); Augusto Effio ([email protected]); and/or Jorge Saldaña ([email protected]).
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