Colombia

October 2018

1. Where can one find public procurement notifications for Colombia?

  • All public procurement procedure information – including prior information notices, contract notices that call for competition and tender documents – are accessible online through SECOP I and SECOP II, the public procurement platforms.
  • In addition, each contracting authority also publishes notices about public procurement opportunities on their own website.

2. What are the relevant thresholds for the applicability of the Colombian Public Procurement Law (mainly Law 80 of 1993, 1150 of 2007, 1474 of 2011 and Decree 1082 of 2016 – hereinafter, the “PPL”)?

  • The applicability of PPL is not defined by value thresholds since all public procurement procedures are subject to public procurement laws and regulations. Nevertheless, according to the PPL, the following entities are not subject to the applicability of the PPL: (i) public entities that compete on equal terms with private entities in the procurement and provision of industrial and commercial services and goods, (ii) mixed capital entities in which the state’s participation is less than fifty per cent (50%) in its shareholding structure, (iii) public utilities companies, (iii) public education institutions and healthcare providers, and (iv) state-owned financial entities. These entities’ procurement procedures are governed by civil and commercial laws.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?

  • Open procedure: The Colombian PPL stipulates that all public procurement procedures must follow open tender procedures in procuring works, services, and goods. The contracting authorities may only apply restricted, negotiated, or competitive tender procedures for the reasons and circumstances expressly set-forth in the PPL.
  • Restricted procedures: This kind of procedure in which the contracting authority is entitled to preselect bidders is only available for (i) selection based on qualification/merit which is applicable to consultancy contracts and contracts for work that is mostly intellectual and (ii) public-private partnerships.
  • Negotiated procedure: Although it is not expressly set out in the PPL, parties to private initiative PPP contracts usually negotiate the terms and conditions to be included in the minutes of the PPP projects to be awarded.
  • Competitive dialogue: Not available.

4. Which decisions of a contracting authority can be appealed?

  • The PPL does not provide any appeal procedures against the contracting authority. The only remedies available for a party with a legal interest in a tender procedure (i.e. an unsuccessful bidder) are judicial actions against a decision adopted by the contracting authority within the procurement process. Judicial actions can be filed before the Colombian administrative courts in the following situations:
    • In the precontractual stage of the procurement process, the interested party may (A) request the annulment (acción de nulidad) of the contract notices that call for competition or (B) request the annulment and the reinstatement of the interested party’s rights (acción de nulidad y restablecimiento del derecho) regarding (i) the award decision or (ii) the decision that disqualifies a bidder from the process or (iii) the decision to not award the contract at all, even if bids have been submitted (also known as declaratoria de desierto);
    • After the procurement procedure has been finalized and the contract executed, the interested party may request the annulment (acción de nulidad) of the contract.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?

  • An appeal requesting the annulment or the annulment and reinstatement of rights during the precontractual stage must be filed within four (4) months of the day after the decision to be challenged is duly notified by the contracting authority. Should the party fail to file its appeal within that term, any right to appeal is precluded.
  • An appeal requesting the annulment of the contract resulting from the conclusion of the procurement procedure must be filed within two (2) years of the day after the contract comes into force; in any case, it is possible to file the appeal as long as the contract is in force.

6. How long is the standstill period?

  • Filing an appeal does not suspend the procurement procedure, unless the plaintiff requests interim measures to this end.

7. Which review bodies exist?

  • First phase: Before and during the procurement procedure, the contracting authority will determine the opportunities for interested parties/bidders to submit comments or requests for amendments of the process’ draft or final bidding documents.
  • Final phase: Any contracting authority decision, as described in Section 4 above, will also be subject to review by the Colombian administrative courts, who will issue a final decision.

8. Are there any filing fees for an appeal?

  • Under the PPL there are no applicable fees for filing an appeal.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

  • The filing of the appeal does not suspend the procurement process, unless the plaintiff requests precautionary measures to this end.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

  • Colombia is not a member state of the European Union. Therefore, Directive 66/2007/EC regarding possible ineffectiveness of the awarded contract is not applicable. Regardless, administrative courts may declare the ineffectiveness of awarded contracts under the judicial actions described in Section 4 above and, whenever the plaintiff requests the reinstatement of its rights, order the contracting authority to pay the proven damages caused to the plaintiff.

11. Can procurement contracts be amended after signing?

  • Yes, it is possible to amend the value of the contract (up to 50% of its initial value) and extend the contract term to fulfill the object of the contract. Although the object of the contract cannot be amended, it can be supplemented with necessary activities to fulfill the initial object.

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

  • E-signatures are not required.

Authors

Daniel Rodríguez
Daniel Rodríguez, LL.M.
María Lucía Amador
María Lucía Amador, LL.M.