With the purpose of improving the management of public procurement processes, on January 24, 2023, the General Direction of Public Procurement (Dirección General de Contrataciones Públicas in Spanish or DGCP) issued Resolution no. PNP-02-2023 that approves the General Manuals for ordinary selection procedures and public procurement exceptions, the standard specifications for competitive selection exception procedures and the proposal request form for exception procedures through direct contracting, which establish the general guidelines for its execution based on the provisions of Law no. 340-06, its modifications and its implementing Regulations approved by Decree no. 543-12.
The objective of these manuals is to bring together the relevant aspects of public procurement that serve as a guide for the contracting institutions in carrying out contracting procedures from its beginning to its end, in such a way that every one of the stages are completed correctly, efficiently and in accordance with current provisions.
Both manuals contain in detail the procedures that must be carried out for each type of public contracting to be carried out by the contracting institutions, whether in ordinary or exceptional processes, also mentioning exclusion processes. Ordinary and open processes are those selected according to the thresholds established by law and published annually by the DGCP. Exception processes are those in which the contracting modality is extraordinary and/or special through a singular procedure not conditioned to a threshold considered through an annual budget. These first two modalities must comply with the principle of transparency and their actions must be published through the Electronic System for Public Procurement - Transactional Portal (Sistema Electrónico de Contrataciones Públicas – Portal Transaccional or SEPC-Transactional Portal).
As for the exclusion processes, these are linked to businesses and legal relationships that are not regulated by Law no. 340-06 and its Regulations and, therefore, when executed, they do not need to comply with the different contracting modalities nor do they need to be managed through the SEPC- Transactional Portal, since they are governed by their own rules.
The manual of ordinary public procurement procedures includes updates, unifies, and standardizes the procedures, guides, and guidelines for national and international public bidding, restricted bidding, lottery for works, price comparison, reverse auction, and retail purchase.
The management of an ordinary process includes different stages, which are developed as follows:
1. Planning: where the Annual Procurement and Contracting Plan (Plan Annual de Compras y Contrataciones or PACC) forsees those purchases that are certain to be necessary in the calendar year, contributes to the financial planning of the contracting institution and avoids splitting the contracting processes.
2. Preparation of the contracting includes all the activities prior to the call for an ordinary process, such as carrying out preliminary studies, the design of the contracting procedure and its execution plan, as well as the preparation of the specific and their corresponding annexes that include the technical specifications, the terms of reference, the budget appropriation.
3. Calls: Calls are made by publicizing the contracting process and sending invitations by email, letters or others, it must include in full, simultaneously and immediately all the administrative documents of the process. The deadlines, forms and requirements for the call vary by contracting process as established in the regulations for the application of Law no. 340-06.
4. Instructions to bidders, this stage gives rise to the clarifications that must be made to the specifications, their amendments, if applicable, aimed at understanding the bases of the contracting process.
5. Presentation and opening of offers, the reception of offers can be physically presented from the day of the call until the day and time set as the deadline for the presentation of offers, by means of two (2) sealed envelopes corresponding to the technical offer, “Envelope A”, and the economic offer, “Envelope B”; or preferably through the SECP-Transactional Portal, documents that will be kept closed and/or encrypted until the time of their opening as provided in the schedule of activities of the process. Then the technical evaluation of the credentials of the bidders will take place, which results in the issuance of a preliminary report focused on compliance with the requirements of the specifications, and if applicable, the corresponding correction is requested. Once the correction term has expired, a final report is issued.
The contracting institution will only proceed with the opening of the economic offers of the authorized suppliers during the technical evaluation, the result of which gives rise to the issuance of a motivated award recommendation report.
6. Award: is the document through which the contracting institution selects the most favorable and convenient offer based on the parameters established for public contracting.
7. Elaboration of the contract or purchase order, consists of the document that allows the administration of the rights and obligations between the parties, includes several procedures such as the issuance by the contracting institution of the quota issuance certificate to commit; the management of the guarantee of faithful performance of the contract; the delivery plan; the conditions or clauses of the contract; the issuance of the purchase or service order; the signing of the contract; and, finally, the approval and registration of the contract before the Office of Controller General of the Republic. In the case of minor purchases or purchases below the threshold, these are formalized by issuing the purchase or service order.
8. Reception and management, the purpose of which is to guarantee the proper functioning of the contract through control of receptions, billing, addendums and evaluations.
9. Payments, the contracting institution must guarantee the timely payment of the goods, services or works.
The public procurement exception procedures manual includes, updates, unifies, and standardizes the procedures, guidelines, and orientations for the types of processes detailed below: national security; national emergency; urgency; exclusiveness; sole provider; purchases and contracts aimed at promoting the development of micro, small and medium-sized enterprises (MSMEs); scientific, technical, artistic and restoration works of historical monuments; construction, installation or acquisition of offices for the foreign service; rescission of contracts whose termination does not exceed 40% of the total amount of the project, work or service; and contracting of advertising through social media.
Exception procedures can be executed through two modalities, classified according to the type of selection that will be carried out:
Competitive selection modality (public and open), in which the contracting institutions convene through a public or open call to those interested in submitting offers for the good, service or work. This modality includes the following processes: national security; national emergency; urgency; exclusiveness; and procedures aimed at MSMEs.
The modality of direct selection (selective) depends on the nature of the good, service or work, whose selection must be objective and justified based on the exclusively technical evaluation of the offer. This modality includes the following processes: sole provider; scientific, technical, artistic and restoration works of historical monuments; works contracts for foreign service offices; works and services from terminated contracts that remain ≤40% of the contracted amount; and direct advertising contracts with social media.
Exception processes include different common stages such as planning and preparation, as well as specific stages for competitive or direct selection exception processes.
Planning, where the PACC is provided for the contracts that the contracting institution is certain will be necessary in the calendar year.
Preparation of the contract, where the studies will be carried out and the documents will be issued that allow the specific determination of the need and how it can be satisfied, these documents are: the purchase and contracting requirement, the previous studies, the expert report, the budget appropriation, and the resolution that approves and authorizes the use of the exception.
The procedure for the processes of exception for competitive selection continues with the following stages:
Draft, review and approval of the specifications, technical sheets and terms of reference for the competitive modality.
Publicity and call are done by publicizing the contracting process and sending invitations that must include the specifications or document that has instructions to potential bidders or suppliers. The regulations do not indicate the minimum or mandatory deadlines for exception procedures.
Regarding the execution of the selection procedure, which includes the reception, evaluation of offers and adjudication, these are carried out in the same way as the ordinary public contracting procedures.
The procedure for direct selection exception processes continues with the following stages:
Proposal request, which is done through an invitation to the supplier to present his proposal, which must indicate in detail the good, service or work to be carried out, the technical specifications, terms of reference, execution time, required guarantees, method of payment, type of contract, etc. The proposal in some cases may be the acceptance of the conditions and a quote with the cost of what is required, in other cases it must include the description and conditions of the good, work or service.
Analysis of the proposal and requested quote, for which a report of the results must be issued indicating whether the proposal is reasonable and in accordance with the interests of the institution.
Preparation of the administrative act that justifies direct contracting or adjudication, is the document through which the contracting institution selects the offer based on the parameters established for public contracting.
Publicity of the file: must be carried out through the Transactional Portal in compliance with the principle of transparency and publicity regardless of whether the process has been carried out physically.
Both the competitive selection modality and the direct selection modality culminate with the signing of the contract, its management, payment and liquidation of the public contracting.
*This summary contains only general information on the topics covered, so this document does not constitute a legal opinion. Ulises Cabrera recommends seeking specific legal advice for each case.