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Public procurement emergency measures adopted by the Colombian National Government to address COVID-19

With the appearance of COVID-19 in Colombia, the National Government has declared the country in State of Social, Economic and Ecological Emergency (the "State of Emergency") by means of Decree 417 of 2020, enabling the President to issue Legislative Decrees which have the purpose of overcoming the emergency. Based on this, a series of public procurement measures have been adopted which may be of our Clients’ interests.

Decree 440 of 2020- Emergency measures

On 20 March, the President of the Republic issued Decree 440 of 2020, adopting the following measures to be adopted by public authorities in relation to public procurement to counteract the effects of the crisis.

  1. Continuity of public procurement procedures: Public hearings to be held within public procurement procedures shall be performed through electronic means of communications, ensuring access to proponents, control entities and any interested citizen, in order not to paralyze the execution of public expenditures and to continue the bidding processes;
  2. Administrative sanctions procedures: Hearings scheduled for the imposition of fines, penalties and declarations of contract default to be governed in accordance with the procedure set forth in article 86 of Law 1474 of 2011, may be conducted through electronic communication means, ensuring access to contractors and companies that have issued the performance guarantee. However, the entity’s authorizing officer (ordenador del gasto) or competent officer is entitled to decree the suspension of terms in these procedures;
  3. Suspension of contactor selection procedures: As a consequence of the State of Emergency, public authorities may suspend public procurement procedures in course. Moreover, in the event that other situations related to the State of Emergency require the adoption of priority actions, the entities may revoke contract notices (acto administrative de apertura), provided that the date for submission of tenders has not occurred. No appeals may be be lodged against these administrative acts;
  4. Use of Demand Aggregation Instruments: Territorial entities have priority to purchase goods and services that have uniform technical characteristics through the Virtual Store of the Colombian Public Procurement Agency (“Colombia Compra Eficiente”)
  5. Direct procurement for pandemic-related goods and services: Colombia Compra Eficiente will design and organize the procurement procedures for the Direct Purchase through Framework Agreements (Acuerdos Marco de Precios) to facilitate the supply of goods and services that are directly related to the pandemic;
  6. Acquisition in department stores: Public authorities may acquire goods that are needed to overcome the State of Emergency through the use of the department store (grandes superficies) aggregation instrument, without having the budgetary limit up to the minimum amount of the entity’s budget, but up to the maximum amount of the  smallest amount of each entity, to do so as expeditiously as possible;
  7. Urgencia manifiesta procurement: The urgencia manifiesta is understood to be fully proven in the time of the declaration of the State of Emergency. Thus, public authorities may declare urgencia manifiesta in order to make use of the direct contracting mechanism for the supply of goods, the provision of services and the execution of works that are necessary to directly mitigate the pandemic, without having to follow a bidding process;
  8. Addition and amendment of contracts: Contracts for the acquisition of goods and services directly related to the pandemic, may be added without limitation to value, provided that the procuring entity justifies the need and how such goods and services will mitigate the emergency situation. Once the State of Emergency ends, no further additions may be executed in relation to these contacts, except those which have not exceeded the 50% cap of the value of the contact, provided in the paragraph of article 40 of Law 80 of 1993;
  9. Contracts by the Ministry of Foreign Affair’s: Ministry of Foreign Affairs- Fondo Rotatorio is authorized to enter into internal inter-administrative agreements and to conclude contracts with foreign public entities, foreign private enterprises or other organizations for purchasing necessary goods to mitigate the pandemic without having to implement the procedures provided in Law 80 of 1993;
  10. Payments to contractors: During the State of Emergency, entities shall implement the reception, processing and payment of invoices and collection accounts of their contractors through electronic mechanisms, to avoid the paralysis of payments of 232.000 State Contractors

Resolution 471 of 2020 – Suspension of terms in the administrative and contractual proceedures of the Agencia Nacional de Infraestructura

Additionally, in accordance with the measures adopted by Decree 440, the President of the National Infrastructure Agency (“ANI”) issued Resolution 471 of 2020, through which suspends the terms of the administrative and contractual procedures to be carried out within the Entity and adopt additional administrative measures are implemented.  The Resolution establishes that the health emergency caused by the presence of COVID-19 in Colombia constitutes a case of a force majeure, and external, irresistible and unpredictable event. Thus, transitional measures must be taken to provide legal certainty to all those interested in ANI’s actions, specially those contractors that are performing infrastructure projects. 

  1. Suspension of terms: Suspension of terms is instructed from March 24 of 2020 at 23:59 to April 13 of 2020 at 00:00 of the following proceedings:
  • Administrative sanctions procedures;
  • Ongoing remedy periods and formalities relating to new applications;
  • Remedial Plans;
  • Coercive collection processes;
  • Contract wind-up;  
  • Review and evaluation of private initiative public-private partnership projects at the stage of prefeasibility and feasibility, including the maximum time limit for delivery of the project at the feasibility stage;
  • Procedures regarding applications for port concessions, dock concessions and contractual amendments in port matters, including, among others, subpoenas to public hearings, issuance of decision fixing conditions and granting of concessions;
  • Requests for amendment of contracts of any transportation mode, rail works contracts and auditor contracts, except in those cases which are exceptionally recommended by ANI’s Contracting Committee, upon request and justification of the authorizing officer;
  • Transfer (reversión) processes;
  • Requests for certification of contracts;
  • Procedures to recognize environmental and land related eventos eximentes de responsabilidad and force majeure;
  • Permit procedures for the use, occupation and intervention of the concessional and rail road infrastructure that is in charge of the public entity, except in relation to the steps to be taken in an emergency in accordance with the provisions of paragraph 3 of article 5 of Resolution No. 716 of 2015;
  • Procedures for the issuance of concepts for the location of service stations;
  • Lifting and/or extra sized lifting permit procedures;
  • Procedures for the closure of roads for works or for sports and/or cultural events;
  • Verification of functional units for approval of partial and termination minutes, and verification of tranche or milestone completion for approval of termination minutes;
  • Procedures for applications for the award of baldíos or ejidos:
  • Procedures for requests from committees for prior land approval;
  • Procedures related to compensation with contingency funds and other ANI accounts;
  • Procedures related to the issuance of administrative acts ordering the initiation or judicial and administrative expropriation procedures, imposition of easements, and declaration of public utility, which includes the resolution of appeals brought in the context of these proceedings;
  • Pre-consultation of communities procedures at all stages in accordance with the Ministry of Internal Affairs.

Notwithstanding the foregoing, ANI may exceptionally continue with those procedures and actions that may be carried out by electronic communications means in relation to its administrative and contractual proceedings.

It is important to emphasize that the Entity will continue to attend requests, consultations, requests of authorities, formalities involving the guarantee of fundamental rights and requests that are filed in exercise of the right of petition.

2. Suspension of contractual obligations: During the same term, the following contractual obligations were instructed to be suspended from concession contracts for road, port, rail and airport services, public works contracts for railways and auditor contracts:

  • Obligations related to land acquisition;
  • Environmental obligations;
  • Social obligations;
  • Network transfer obligations;
  • Works Plan
  • Investment plan in port concessions;
  • Equity disbursements;
  • Funding of the project’s trust sub-accounts, unless they are necessary to guarantee the necessary resources for the payment of the auditor and supervisor, and for the attention of any other non-suspended obligations.

The obligations to operate roads, ports, airports and the rail network, maintenance obligations essential to the provision of the transport service, or the attendance of unstable sites shall not be suspended.  In these cases, the Concessionaire is obligated to establish a working protocol under safe conditions, in accordance with the parameters established by the National Government.

However, the Resolution empowers the parties to each concession, auditor or public work contract to carry out all those procedures and actions that can be carried out through electronic communications means, and to agree on the reactivation of some procedures or the suspension of aspects not stated in the Resolution, at the request of any of them.

3. Rules for public procurement procedures: In this regard, the following measures were issued:

  • Public hearings: Public hearings scheduled within the duration of the period for containment and mitigation of the emergency shall be rescheduled or suspended;
  • Evaluation of Proposals: The evaluation of proposals within public procurement procedures will be carried out electronically through SECOP II in accordance with the instructions issued with the ANI’s Grupo Interno de Contratación;
  • Contract Requests: The authorizing officer shall only authorize the execution of contracts which are strictly required to perform its duties. The alternative means for this procedure should be evaluated in coordination with the ANI’s Vicepresidencia Legal, making use of technological tools and ensuring legal and contractual certainty;
  • Payment procedures for invoices and collection accounts: The Administrative and Financial Vice-Presidency of the ANI, in conjunction with authorizing officers will seek alternative means to process collection and payment accounts to contractors. In addition, efforts will be made with the Trust companies to process invoices, collection and payment accounts to contractors and auditors whose fees are supported by the resources available in the project’s trust;
  • Quality management procedures: Procedures involving the presence of officials or individuals shall be managed virtually.

We hope you find this information helpful. If you require advice or more information in this regard, do not hesitate to contact us. If new measures are issued in this regard, we will be sending the corresponding updates.

Authors

Daniel Rodríguez
Daniel Rodríguez, LL.M.
Partner
Bogotá
María Lucía Amador
María Lucía Amador, LL.M.
Senior Associate
Bogotá
Juanita Aguirre
Associate
Bogotá