Administrative Alert – July 2023

With the creation of the National Infrastructure Authority (ANIN), the State deviates, once again, from the general public procurement regime (Law Nº 30225)

Law Nº 31841, published on July 21, 2023, provides for the creation of the National Infrastructure Authority (ANIN), a public executing agency attached to the Presidency of the Council of Ministers (PCM) that will be responsible for the formulation, execution and maintenance of infrastructure investment projects or programs at the national level, of the three levels of government, assigned or delegated pursuant to said Law.

Thus, pursuant to Articles 6 and 7 of the Law in question, the ANIN will be in charge of the following portfolio of infrastructure investment projects or programs (hereinafter, the “Projects”):

• Projects with investment amounts equal to or greater than two hundred million soles, which are in the multiannual investment programming in force and which have no physical execution.
• Projects to be established and updated by Supreme Decree with the approving vote of the Council of Ministers, at the proposal of the Presidency of the Council of Ministers.

In the case of Projects in charge of regional governments or local governments, their incorporation into the ANIN portfolio requires, in addition to the corresponding Supreme Decree approved with the favorable vote of the Council of Ministers, the respective delegation agreement.

• The possibility of including in the portfolio under the responsibility of the ANIN, the Projects, without physical execution, whose investment amounts are between forty and two hundred million soles, is recognized only in the case of joint multisectoral interventions with a focus on territorial development and high economic or social impact within a certain geographic area, or joint multisectoral interventions that are framed in emergency situations due to natural disasters, declared by the competent authority.

As can be seen, the purpose of the Law is for the State to have a highly specialized technical agency to take on, in a centralized manner, the execution of large infrastructure projects of the three levels of government.

However, by regulating the contracting procedures to which ANIN will be subject to execute such projects, it is implicitly acknowledged that the State itself has little or no confidence in the effectiveness and efficiency of Law No. 30225, State Contracting Law.

Indeed, Article 11 of the aforementioned Law empowers the ANIN to resort to up to four (4) cases of non-application of Law No. 30225, namely:

1. The application of engineering contractual models of international standard use. Strangely, only the models referring to the design (engineering) of the projects are mentioned, but not the international contractual models concerning their execution (construction or construction administration).
2. The subscription of resource management agreements and, when appropriate, their respective addenda with international organizations, under the provisions of Law 30356 and its regulations.
3. The contracting under the State to State agreement or contract modality, in accordance with the regulations in force.
4. As if the above were not enough, it is provided that, by means of a supreme decree countersigned by the Minister of Economy and Finance, the provisions that regulate the special contracting procedures with ANIN for the contracting of specialized technical assistance in project management and for the application of international standard engineering contractual models will be approved.

We are witnessing, then, a new episode in which the State itself departs from the general (supposedly unitary) regime of public contracting that it has had the opportunity to improve or correct on several occasions -being that, to date, even a new project of the Executive Power to replace Law No. 30225 is in process- preferring the easiness of not applying it, without considering the serious consequences of this decision, among others, those referred to the “effective” control of such contracting by the Supervisory Agency of Public Contracting, without considering the serious consequences of this decision. 30225- preferring the easiness of ordering its non-application, without considering the serious consequences of this decision, among others, those referred to the “effective” control of such contracting by the Supervisory Body of State Contracting – OSCE and the Comptroller General of the Republic.

 For further information, please contact Carlos Carpio (ccarpio@estudiorodrigo.com); Hugo Silva (hsilva@estudiorodrigo.com); Augusto Effio (aeffio@estudiorodrigo.com); and/or, Sandra Ubillas (subillas@estudiorodrigo.com).