Amendments to the Government Contracts Law and its implementing regulations entered into force on January 30
Now that the amendments to the implementing regulations for the Peruvian Government Contracts Law have been published, the countdown starts for the entry into force of the law’s new provisions.
El Decreto Legislativo Nº 1444 dispuso varias modificaciones a la Ley de Contrataciones del Estado, lo que debía traer consigo la adecuación de su Reglamento. Así, el pasado 31 de diciembre de 2018, se publicó el Decreto Supremo Nº 344-2018-EF que aprobó un nuevo Reglamento de la Ley de Contrataciones del Estado.
Legislative Decree 1444 laid out several changes to the Peruvian Government Contracts Law, which required the pertinent adaptation of the related implementing regulations. Accordingly, on December 31, 2018, the government published Supreme Decree 344-2018-EF approving new implementing regulations for the Government Contracts Law.
In line with the amendments to the Government Contracts Law, the regulations establish provisions for the tender type known as “concurso oferta”, a type of construction contract process in which bidders both prepare technical specifications and execute works. Under the current regulations, this tender type exists only for execution of building works with a reference value in excess of S/. 10 million. Under the amended regulations, the concurso oferta can also be used for any works whose estimated or reference value relates to a public tender (i.e., S/. 1,800,000.00, as per the 2019 Public Sector Budget Law) and that is tendered as a lump-sum contract. Among other features, these contracts allow for the possibility of approving a higher budget than that initially bid by the contractor.
Although there are no provisions governing a pre-qualification stage in works contracting selection procedures, bidders’ economic solvency can now be taken into account as a qualification requirement in cases of public tenders for works execution contracts.
Entities may entrust their selection procedures to foreign agencies, provided the subject-matter of the contract meets certain requirements. For example, assets involved in the contract must be of the latest-generation technology or related to innovation or scientific use.
With respect to accreditation of the bidder’s experience, legal entities created in corporate restructurings (such as mergers or spin-offs) cannot claim the experience of any absorbed parties that had been sanctioned.
The mandatory contract completion terms were modified, as were the terms for signing the contract once the winning bidder fulfills its obligations to submit all pertinent documentation and for remedying any observations made with respect to these documents.
A procedure was added to replace the guarantee for full compliance given to secure execution of works. This replacement may be requested as from the date on which the onsite project manager records the culmination of the work, provided certain conditions are met, such as the presentation of another guarantee for 5% of the amount of the contract in force.
The new regulations also establish the conditions and procedure for creating the trust to manage advance funds received by the contractor, so as to ensure that such funds are applied exclusively to performance of the contract. These trusts may be created for execution works budgeted at or above S/. 5 million.
With respect to direct contracting to respond to supply shortages due to expiry of a public-private partnership agreement or a project to build assets, the regulations specify that such contracts shall cover the time needed to conclude the corresponding investment process, even when a mechanism has been activated to resolve disputes between the contracting parties.
In line with advances made in e-contracts, the regulations allow for digital contracting procedures and construction logbooks, which will be gradually developed by the Peruvian government contracts supervisor (OSCE).