Law No. 32069, published on June 24, 2024, approved the General Law on Public Contracting (Ley General de Contrataciones Públicas, LEY), which will become effective ninety (90) calendar days after the day following the publication of its Regulations, which for such purposes will be approved within one hundred eighty (180) calendar days as of the day following the publication of the LEY through a Supreme Decree countersigned by the Ministry of Economy and Finance.
However, exceptionally, it is established that, among others, the Sixteenth and Nineteenth Final Complementary Provisions shall become effective as of the day following the publication of the LAW, that is to say, as of June 25, 2024.
Thus, the Sixteenth Final Complementary Provision regulates the judicial competence for proceedings initiated by the bodies of the Specialized Agency for Efficient Public Contracting – OECE (Formerly, Supervisory Agency for State Contracting – OSCE), according to the following:
Contentious-administrative action: in the first instance, the Specialized Chamber for Contentious-Administrative Matters of the respective Superior Court, corresponding to the judicial district where the OECE is domiciled, will be competent. In this case, the Civil Chamber of the Supreme Court decides on appeal and the Constitutional and Social Law Chamber of the Supreme Court, on cassation.
Request for precautionary measure: the Specialized Chamber for Contentious Administrative Matters of the Superior Court will be competent and, on appeal, the Civil Chamber of the Supreme Court, corresponding to the judicial district where the OECE is domiciled.
Constitutional injunction proceedings for alleged violation of constitutional rights related to OECE’s actions: the Superior Chamber Specialized in Constitutional Matters of the respective Superior Court of Justice shall have jurisdiction in the first instance and, on appeal, by the Constitutional and Social Chamber of the Supreme Court of Justice. The request for precautionary measures will be heard by the Civil Chamber of the Superior Court of Justice and, on appeal, by the Constitutional and Social Chamber of the Supreme Court of Justice.
Finally, it specifies that all precautionary measures and other resolutions issued by judges in contravention of the provisions of this Final Complementary Provision shall be known by the presidency of the Superior Court of Justice of the corresponding judicial district, as well as by the respective Office of Control of the Judiciary, so that, ex officio, disciplinary proceedings may be initiated, as appropriate.
In turn, the Nineteenth Final Complementary Provision establishes the following provisions that regulate the special contracting procedures with the National Infrastructure Authority (ANIN) for the contracting of specialized technical assistance in project management and for the application of engineering contractual models of international standard use, pursuant to the provisions of numeral 11.4 of Article 11 of Law 31841 Law that creates the ANIN:
Disputes related to the execution, interpretation, termination, non-existence, ineffectiveness or invalidity of the contract shall be resolved, in addition to direct treatment and Dispute Boards, through arbitration, according to the agreement of the parties and pursuant to the expiration terms established by the LAW.
The impediments set forth in the LAW shall be applicable to Special Procurement Procedures with ANIN.
Discrepancies between the parties regarding the invitation to bid stage and the evaluation stage are resolved through an appeal filed before the Public Procurement Tribunal, after the award of the contract, under the following grounds: a) the evaluation was performed without taking into account the documents submitted by the appellant in the required time and format; and b) the evaluation was performed with an arithmetic error in the calculation and weighting of the scores, when such error has prejudiced the appellant in the award of the contract.
In all other aspects, the administrative procedure that resolves the appeal will be governed by the provisions of the LAW referring to the resolution of disputes prior to the execution of the contract (Title V, Chapter I) and by the Regulations that will be approved in due course.
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).
