In relation to scenario (i) it is important to recall that this debarment to contracting with the State can be extended to companies to which individuals are part to as (a) officers or directors, (b) legal representatives, (c) members of the board of directors and (d) controlling shareholder. Moreover, it Will be extended to its parent company, subordinates, branches of foreign companies and the corporate group, the latter as long as the conduct has been part of a group policy.
Consequently, a new legal provision that regulated the above was necessary to provide clarity in relation to the materialization and publicity of the debarment, specially in those cases in which it was extended from individuals to legal entities. These new measures seek that during public procurement procedures no existing debarment is overlooked due to absence of information, something that may occur specially in relation to sanctions for corruption issued abroad or by sentences issued in first instance by lower Colombian criminal courts.
Thus, by means of Decree 1358 the following measures were adopted:
(i) Procedure and publicity of decisions that contain criminal or administrative sanctions issued by foreign authorities
When the National Agency for the Legal Defence of the State (“ANDJE”) notices a possible debarment of a bidder for contracting with the State in the terms of the abovementioned provision, this entity must formally request the Ministry of Foreign Affairs (“MFA”) to demand, through the adequate diplomatic channel, the criminal or administrative decisions issued by a foreign authority that declared the responsibility of said bidders that presumedly fit within the factual situation of the conducts included in the provision. Once the decision is obtained, MFA must immediately forward it to ANDJE.
When it is about individuals: ANDJE will request the Chamber of Commerce to provide information of the companies and/or branches of foreign companies in which this convicted individual has been or currently holds the position of controlling shareholder, officer or director. Subsequently, the Chamber of Commerce will register in the related legal entities’ RUP (as well as in its parent company’s and subordinated companies) an annotation of the debarment which will initiate on the date the decision against the individual was issued.
(ii) When it is about legal entities (companies): The ANDJE will request the Chamber of Commerce to register the debarment in the RUP of the company that has been declared administratively responsible, as well as its parent and subordinated companies.
(ii) Procedure and publicity of the decisions issued by Colombian criminal judges
The ANDJE will adopt the necessary measures to guarantee the integration of decisions issued in first instance by Colombian Criminal Judges against individuals convicted for the commission of crimes against public administrayion and those provided in Law 1474 of 2011, to the System of Management and Information of the Litigious Activity of the State. Once the decision is obtained, ANDJE will follow the same protocol established in Section (i)
In relation to Sections (i) and (ii) above, it is important to mention that, if the judicial or administrative decision is of first instance and is not yet final, this situation will be indicated in the RUP. Thus, if the decision is revoked, the ANDJE will request the elimination of the annotation of the debarment in the aforementioned registry following the procedure already detailed.
(iii) Term of the debarment of the companies condemned by the Superintendence of Companies for transnational bribery
The last provision of this Decree mentions that the term of the debarment of the legal entity in this case will be the one imposed by the aforementioned entity. Thus, it is clear that this debarment does nor arise immediately, but it has to be expressly imposed by the Superintendence of Companies as part of the sanction.
2. Modifications to the criteria established to determine which companies must implement corporate compliance programmes
The Superintendence of Companies issued Resolution 100-006261 of October 2, 2020 by which it modifies the criteria to determine which companies have the obligation to implement a Corporate Compliance Programme.
The Resolution will only enter into force as of January 1st, 2021 and repeals Resolutions 100-002657 of 2016 and 200-000558 of 2018.
Then, as of January 2021, the companies that fulfill all of the following requirements shall adopt a Corporate Compliance Programme: