On Saturday, December 21, 2024, Supreme Decree N° 277-2024-EF (“DS 277”) was published in the Official Gazette “El Peruano” approving amendments and incorporations to the Regulation, to bring it in line with the provisions introduced by Legislative Decree N° 1691.
The most relevant amendments are the following:
1. Strengthening of the functions of the General Directorate of Private Investment Promotion Policy (DGPPIP) of the Ministry of Economy and Finance
The DGPPIP will monitor all phases of the Public Private Partnerships and Active Projects. The public entities must submit the information in the terms, conditions and forms established by the DGPPIP by means of a directorial resolution. For projects that are part of the prioritized list of the Specialized Investment Monitoring Team, it is the responsibility of said area to submit the information as required.
2. Specialized Support
SD 277 modifies Article 11 of the Regulation and establishes that specialized support in highly complex aspects during the Contractual Execution phase will be provided in those projects in which the total cost exceeds 60,000 UIT (309,000,000,000 Soles in 2024 and 321,000,000,000 in 2025, considering the amount of the UIT) and also includes the possibility that such support be in matters of contractual modifications.
3. Strengthening of Proinversion’s functions
Proinversion’s functions have been strengthened by amending Article 23, which adds functions such as the identification of significant technical contingencies, the possibility of acting as Project Formulation Unit, the issuance of non-binding reports in projects where it acted as Private Investment Promotion Agency, at the request of the public entities that own the projects, the establishment of decentralized offices to promote and support the promotion of investment in the regions, the execution of the goal for the acquisition of land and release of interferences, among others assigned by express regulation.
4. Modification of Article 29 containing the definition of Public Private Partnerships
The DS 277 establishes that the remuneration to investors for the financed investments must be linked to the fulfillment of Service Levels or the availability of the infrastructure. Exceptionally, in a partial and justified manner, the public entity may make direct or deferred contributions with public resources for investments in the pre-operational stage. In addition, it is expressly established that for the beginning of the execution of the investments the investor must prove sufficient resources. The amendment to Article 29 does not apply to projects that at the date of entry into force of the DS 277 are in the Transaction phase and have started the opinion stage of the public entities.
5. Contractual modifications
The amendment has specified that for the assignment of engineering studies to the investor or any modification thereof, it is not required to follow the contractual modification procedure, but only the execution of an act or legal instrument in which the assignment is materialized, charged to the institutional budget of the public entity and without requiring additional resources to the Public Treasury.
In addition, special rules are introduced for contractual modifications. In the case of modifications for additional investments that do not exceed, cumulatively, in a period of five years (computed as of the entry into force of DS 277), an additional amount greater than 80,000 UIT (412,000,000,000 soles in 2024 and 428,000,000,000 in 2025, depending on the amount of the UIT) the opinion of the Ministry of Economy and Finance is limited to the evaluation of the budgetary capacity of the public entity that owns the project, the financial and non-financial guarantees, and the explicit firm and contingent commitments, except for modifications aimed at extending or renewing the term of the contract.
Likewise, a regime is introduced for addenda for current or potential emergencies, declared and supported by the highest authority responsible for the public entity, with more expeditious terms and special rules to facilitate their execution.
6. Joint evaluation
The Supreme Decree 277 modified Article 136 of the Regulations, adding as a requirement for the joint evaluation the presentation of a schedule by the public entity. This schedule will also define the date of completion of the joint evaluation, which may be extended. In such cases, the schedule must be updated. In addition, the deadlines for the evaluation and support of the contractual modifications once the joint evaluation has been completed are regulated.
In addition, Decree 277 repeals Articles 41 and 47 of the Regulations. The DS 277 became effective on December 22, 2024.
Para mayor información, por favor, contactar a Veronica Sattler (vsattler@estudiorodrigo.com), Diana Briones Morey (dbriones@estudiorodrigo.com) y/o Arianna Robello (arobello@estudiorodrigo.com).
