Public Law Alert – March 2020

MEF, OSCE and PERÚ COMPRAS adopted various measures within the framework of the declaration of the State of Emergency established by Supreme Decree No. 044-2020-PCM

On March 17, 2020, the General Supply Directorate of the Ministry of Economy and Finance published in the Official Gazette El Peruano, Board Resolution No. 001-2020-EF-54.01, which provides for the suspension of deadlines for selection procedures and other provisions regarding supply, in connection with the issuance of Emergency Decree No. 026-2020 and Supreme Decree No. 044-2020-PCM.

Said rule suspends, from March 16, 2020 and for fifteen (15) calendar days, that is, until March 30, 2020, the calculation of the terms related to:

• Selection procedures, under any contracting regime, convened prior to March 16, 2020, with the exception of those that are related to the obligation to guarantee the provisions of Supreme Decree No. 044-2020-PCM, for the prevention of coronavirus spread (COVID-19);
• The improvement of public contracts that must be concluded, reiterating the exception indicated in paragraph (i); and,
• The handling of sanctioning administrative procedures by the Government Procurement Supervising Agency – OSCE.

From March 31, 2020, the calculation of the terms of the suspended action must be resumed. Thus, for example, in the framework of a Public Tender, if the issuance of the Statement of Acquittal of Queries and Observations was suspended on the third day of the maximum period of five (5) days that the Selection Committee has for such purposes, once the calculation of terms is resumed, said document must be issued within two days of the completion of the maximum period.

Said suspension operates by regulatory mandate apart from the records that convening Entities have carried out between March 16 and 17, 2020 in the Electronic System of State Procurement – SEACE, once the declaration of emergency is known.

On the other hand, in sanctioning matters, said suspension will have a significant impact on the calculation of the statute of limitations of the punitive power of the Government Procurement Supervising Agency. As it is known, as a general rule, the statue of limitations is verified three (3) years after the alleged commission of the imputed infringement was committed, except when the infringement consists of having presented false documents, in which case it is seven (7) years.

In another order of considerations, although the regulation issued by the MEF does not address this matter, we recommend taking into account the following with regard to the execution of contracts signed before March 16, 2020:

• The execution of contracts relating to access to public services and essential goods and services is not suspended or deferred, in accordance with the scope defined in articles 2 and 4 of Supreme Decree No. 044-2020-PCM. In this case, the contractors must execute their obligations within the prescribed deadlines, being subject to the application of penalties and other legal actions by the Contracting Entities.
• In the case of contracts that are not related to access to public services and essential goods and services, the configuration of a force majeure event may be invoked as a reason for extending the term, resulting from compulsory social isolation (quarantine), in accordance with the procedure laid down in article 158 of the Regulations of the State Procurement Act.

Finally, in addition to the above, on March 16, 2020, the Government Procurement Supervising Agency – OSCE issued Communiqué No. 003-2020, in order to inform the servers, users, entities, suppliers and the public in general, among others, the following measures:

1. Suspension of care and attendance of the public in its administrative offices.
2. Establishment of remote working roles in order to guarantee the continuity of essential operations, as established by Emergency Decree No. 026-2020, which establishes various exceptional and temporary measures to prevent the spread of COVID-19.
3. Suspension of the period of arbitrations organized under the provisions of the National Arbitration System and Ad Hoc arbitrations managed by the OSCE.
4. Suspension of the calculation of the term of administrative procedures subject to positive and negative silence, managed before the National Registry of Suppliers – RNP.

Similarly, on March 16, 2020, the Central Purchasing Body Perú Compras (PC) issued Communiqué No. 033-2020, in which it stated the actions that said entity would adopt in the current context, such as:

1. Suspension of face-to-face and telephone attention to the services provided by PERÚ COMPRAS.
2. Suspension of the calculation of the term for administrative proceedings that are in progress, in accordance with provisions of the Emergency Decree No. 026-2020.
3. Electronic Catalog Platform of the Framework Agreement will remain in operation.
4. Regarding the fulfillment of the obligations generated through the orders issued in the Electronic Catalogs, each Entity must adopt the corresponding measures in accordance with the regulations in force.

Any query on the matter may be acquitted by the lawyers of our Administrative Office. Contact doctors Carlos Carpio (ccarpio@estudiorodrigo.com); Hugo Silva (hsilva@estudiorodrigo.com); and/or, Augusto Effio (aeffio@estudiorodrigo.com).