Various measures adopted by the MEF, the OSCE and PERÚ PURCHASES 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 Directorial Resolution No. 001-2020-EF-54.01, in the Official Gazette El Peruano, which provided for the suspension of deadlines for selection procedures and other supply arrangements, 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:
(i) The selection procedures, under any procurement regime, convened prior to March 16, 2020, with the exception of those relating to the obligation to guarantee the provisions of Supreme Decree No. 044-2020-PCM, for the prevention of coronavirus spread (COVID-19);
(ii) The improvement of the public contracts to be concluded, reiterating the exception indicated in paragraph (i); and,
(iii) The handling of administrative sanctioning procedures by the OSCE State Procurement Tribunal.
From March 31, 2020, the calculation of the terms for the suspended action will 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 (5) days maximum period available to the Selection Committee for such purposes, once the calculation of terms is resumed, said document shall be issued within two days of the completion of the maximum period. This suspension operates by regulatory mandate apart from the records that the Entities have carried out between March 16 and 17, 2020 in the Electronic System of the Government Procurement – SEACE, once the declaration of emergency is known. On the other hand, in terms of penalties, said suspension will have a significant impact on the calculation of the limitation periods of the punitive power of the State Procurement Tribunal. As it is known, as a general rule, the statute of limitations is verified after three (3) years of the alleged commission of the imputed infringement, except where the infringement consists of having presented false documents, in which case it is seven (7) years. In another order of considerations, even though the standard 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:
(i) 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 the obligations under their responsibility within the established deadlines, being subject to the application of penalties and other legal actions by the contracting entities.
(ii) 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 established in article 158 of the Regulations of the State Procurement Act.
Finally, in addition to the above, on March 16, 2020, the Supervising Agency of the Government Procurement (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 public attendance in its administrative offices.
2. Establishment of remote working roles in order to ensure 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 administered 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 Public Procurement – PERÚ COMPRAS 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 of the administrative proceedings that are in progress, in accordance with the provisions of Emergency Decree No. 026-2020.
3. Electronic Catalog Platform of the Framework Agreement will remain in operation.
4. Regarding the fulfillment of obligations generated through the orders issued in the Electronic Catalogs, each Entity must adopt the corresponding measures in accordance with the regulations in force.
If you have any questions on this matter, our attorneys of our Administrative Office are available to assist you. Please, feel free to contact Carlos Carpio (ccarpio@estudiorodrigo.com); Hugo Silva (hsilva@estudiorodrigo.com); and/or, Augusto Effio (aeffio@estudiorodrigo.com).
